LF v R

Ellis (1994) 1 NZCrimC 592; (1994) 12 CRNZ 172 The Queen v GW (2016) 258 CLR 108; [2016] HCA 6 Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56 Wade v R [2006] NSWCCA 295; (2006) 164 A Crim R 583 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 25 November 1997 Category: Principal judgment Parties: LF (Applicant) Rex (Respondent) Representation: Counsel: M Johnston SC and PA Jones (Applicant) D Scully (Respondent)

Solicitors: Braye Cragg Solicitors (Applicant) Office of the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2019/356030 Publication restriction: Pursuant to Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1), the publication of any matter which identifies or is likely to identify the complainants or any child witness in connection with this proceeding is prohibited. Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: N/A Date of Decision: 6 April 2022 Before: Bennett SC DCJ File Number(s): 2019/356030

JUDGMENT

1. MEAGHER JA: The applicant, LF, seeks leave to appeal against his conviction on 6 April 2022 of three offences following a jury trial in the District Court at Newcastle. He was charged with five sexual offences involving two female child complainants.
2. The charged offences were that: (1) between 1 January 2017 and 31 January 2019, at Valentine in the State of New South Wales, he did intentionally sexually touch AH1, a child under the age of 16 years (Crimes Act 1900 (NSW), s 66DB(a)) (count 1); (2) between 1 January 2017 and 31 January 2019, at Valentine in the State of New South Wales, he did have sexual intercourse with AH1, a child under the age of 14 years, in circumstances of aggravation, namely, that she was under his authority (Crimes Act, s 66C(2)) (count 2); (3) in the alternative to count 2, between 1 January 2017 and 31 January 2019, at Valentine in the State of New South Wales, he did intentionally sexually touch AH1, a child under the age of 16 years (Crimes Act, s 66DB(a)) (count 3); (4) between 1 September 2019 and 11 November 2019, at Valentine in the State of New South Wales, he did intentionally sexually touch AH1, a child of or above the age of 10 years and under the age of 16 years (Crimes Act, s 66DB(a)) (count 4); (5) on 10 November 2019, in Belmont in the State of New South Wales, he did incite AH2 to commit a sexual offence, namely, to enter into an arrangement with him to produce child abuse material, by promising to give her a mobile phone if she would allow him to take photographs of her naked, when she was 13 years old (Crimes Act, ss 91A(2) and 80G) (count 5).
3. LF pleaded not guilty to each count. He was found guilty of counts 1, 2 and 5 and not guilty of count 4. Given the verdict on count 2, the jury was not required to enter a verdict on the alternative charge in count 3.
4. The complainants were cousins and the applicant's step-granddaughters. AH1 was born in January 2008 and AH2 in September 2006.
5. Pre-recorded evidence hearings (Criminal Procedure Act 1986 (NSW), Sch 2, cll 82, 84, 85) were conducted before Traill DCJ on 20 November 2020 in respect of AH2, then 14 years of age, and on 18 December 2020 in respect of AH1, then 12 years of age.
6. Before the pre-recorded evidence hearing in respect of AH1 there was an objection to her giving part of her evidence in chief by the tender of an audio-visual recording of a JIRT interview conducted on 11 November 2019 (Criminal Procedure Act, Ch 6, Pt 6, Div 3). That objection, made by an application for an order under s 306Y (set out at [36] below), was rejected by Traill DCJ. With minor exceptions the recording was ruled to be admissible (R v LF (District Court (NSW), Traill DCJ, 17 December 2020, unrep) at [94]). AH2 had participated in a much shorter recorded interview earlier on 11 November 2019. There was no objection to her evidence in chief being given by means of that recording.
7. On 15 July 2022, the trial judge (Bennett SC DCJ) sentenced LF to an aggregate term of 5 years and 6 months with a non-parole period of 3 years commencing on 16 January 2022 (R v LF (No 2) [2022] NSWDC 465). The applicant is eligible for parole on 15 January 2025 and has not appealed against that sentence.

Grounds of appeal

1. LF seeks leave to appeal against his convictions on the following grounds: Ground 1: Traill DCJ erred by failing to exclude the record of interview of AH1 of 11 November 2019. Ground 2: The trial miscarried because the trial judge, Bennett SC DCJ, failed to give a warning, or inform the jury of the need for caution, as required by ss 165(2) and 165A(2) of the Evidence Act 1995 (NSW). Ground 3: The verdicts were unreasonable or not supported by the evidence.

Leave to appeal

1. As each of these grounds involves a question of fact or a question of mixed law and fact, leave to appeal is required (Criminal Appeal Act 1912 (NSW), s 5(1)(b)). Grounds 1 and 2 relate to LF's convictions on counts 1 and 2, and ground 3 challenges his conviction on counts 1, 2 and 5. Having regard to the manner in which AH1's electronically recorded interview of 11 November 2019 was undertaken, and the questions to which that gives rise concerning the reliability of her evidence, leave to appeal should be granted on each of the three somewhat related grounds.

Use of pseudonyms and publication restrictions

1. Pseudonyms are used in relation to the appellant, LF, each of the complainants and some witnesses because there are statutory prohibitions on the publication of the names of each complainant in connection with the proceeding (Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1)), as well as on the publication of information likely to lead to their identification (Crimes Act 1900 (NSW), s 578A(2)).

Factual background

1. It is convenient at this point to summarise the relevant factual background and the Crown and defence cases in relation to the complaints made by AH1 and AH2.
2. LF is the non-biological step-grandfather of AH1 and AH2, who are cousins. At the time of the trial, he had been married to his second wife, the complainants' grandmother, for about 25 years.

Crown case: counts 1 to 4 (AH1)

1. Counts 1 to 4 arose from two separate incidents said to have occurred when AH1 was visiting the appellant and her grandmother at their home near Newcastle. AH1 was between 8 and 11 years of age during the period in which counts 1 to 3 were charged as having occurred. When she was interviewed in November 2019, AH1 was nearly 11 years old. The incident involving count 4 was alleged to have occurred after 1 September 2019 and before that interview.
2. Notwithstanding that the incident relating to AH2 was the last of the charged incidents to occur (on 10 November 2019), it was following that alleged incident and AH2's JIRT interview that AH1 was interviewed and disclosed for the first time the conduct which became the subject of counts 1 to 4.
3. Counts 1 and 2 as charged occurred on a lounge in the sitting room of the grandparents' home whilst AH1 was watching a movie on the television. Her evidence was that she was wearing shorts and a shirt; that whilst she was sitting on the lounge LF came and sat beside her; and that he put his hand underneath her shirt and touched her breast (count 1). According to her evidence he then put his hand under her shorts and clothing and touched her vagina. AH1 said she could feel his hands and fingers moving a little bit. She said she "felt uncomfortable" and that it "just didn't feel right" (count 2).
4. Count 4, of which the appellant was acquitted, concerned a separate incident which allegedly occurred on the bed in the spare room of the grandparents' house when the appellant put his arm around AH1 and touched her left breast on the outside of her clothing.

Crown case: count 5 (AH2)

1. The following summary is taken principally from AH2's JIRT interview.
2. In November 2019, AH2's mother and stepfather were away on business for a week. Prior to their going, her mother had taken her mobile phone from her so that she could not use it. On Saturday 10 November 2019 at about 11am, AH2 was in the appellant's car at a local car wash. Whilst they were waiting in the queue, the appellant asked AH2 why she did not have a phone. AH2 explained that her mother had confiscated it. LF said that he could "change that" but that she would need to do for him what AH1 had done for him. He then said that he had rewarded AH1 for allowing him to take nude photographs of her and to massage her after his wife had gone to sleep. He told AH2 that no one else knew about their arrangement and that she was not to tell anyone else. This conversation formed the basis for count 5. Later that day, whilst using LF's phone at his home, AH2 saw a photograph of AH1 holding an iPhone 8.

Events leading to JIRT interviews of AH2 and AH1

1. LF drove AH2 home in the early evening of 10 November and gave her an iPhone belonging to his wife to use overnight. Once at her home, AH2 said she used that phone to communicate with a male friend, RL, by text messages and phone conversation. During the first phone conversation, she told him that her grandfather was being "inappropriate" towards her. By this time her parents were also at home. Her mother overheard her talking in her bedroom and discovered she was on the phone. When questioned as to how she had obtained that phone, AH2 said she had got it from a friend, "Charlie". Her mother did not believe her. AH2 then became very agitated and emotional and, when questioned further by her mother, eventually disclosed what the appellant had said about AH1 allowing him to take nude photographs of her and to give her massages.
2. After 8pm on 10 November 2019, AH2's mother contacted the police and made a report of what AH2 had said. At about 1pm on 11 November 2019, AH2 participated in a recorded interview at the Merewether Police Station conducted by Senior Constable Roseby in the presence of a witness intermediary. AH2 told the police that LF had said to her that, in order for him to reward her with a phone, she would have to allow him to take photographs of her naked and participate in massages, as her younger cousin had done.
3. Following this interview, Senior Constable Roseby conducted an interview of AH1 which commenced at 4:05pm. During the whole of the period of questioning, AH1's mother was present at the police station in a waiting room, having accompanied her daughter to the interview. That interview included six breaks and continued until 6:49pm. In the fourth break, which lasted only 3 minutes, AH1 did not leave the interview room and started to become visibly upset. During the following period of questioning (Q&A 202-241) AH1 was visibly upset and crying and said three times that she wanted to see her mum. The fifth break lasted 25 minutes, during which AH1 spent time with her mother. It was in the course of the sixth phase of questioning (Q&A 245-375) that AH1 disclosed for the first time the incidents which became the subject of counts 1 to 4.
4. The admission as evidence of the audio-visual recording of Q&A 275-420 from this interview is the subject of ground 1 of appeal, and the adequacy or otherwise of the trial judge's directions to the jury concerning the unreliability of that recorded evidence of AH1 is the subject of ground 2.

Defence case

1. The case for LF was that he was a person of good character and that he did not have any sexual contact with AH1 or incite AH2 to allow him to take nude photographs of her.
2. LF participated in an electronically recorded interview with Senior Constable Roseby on 12 November 2019 (which became Ex J in the trial). In that interview he denied having a conversation with AH2 about providing a phone to her. His case was that her mother had banned AH2 from using a mobile phone; and that she had wanted another phone and had convinced him to let her borrow one. When she was later caught by her mother using that mobile phone, she lied about what LF had said to her. There had been no conversation with AH2 about AH1 allowing him to take nude photographs of her and to massage her. Nor was the underlying allegation that he had done so true. Each had been made up by AH2.
3. As to the reliability of AH1's recorded interview, the defence case was as follows.
4. AH1 had initially denied allegations of any impropriety including the assertions that LF had taken naked photographs of her and inappropriately massaged her (Q&A 247-251). She had also given negative answers to more general questions suggesting wrongful conduct by LF (Q&A 130, 158, 246, 306). The disclosures subsequently made by AH1 and relied on by the police were the product of a sustained and inappropriate interview process (especially Q&A 201-241). The interview was conducted on the unstated premise that she had been sexually assaulted and over time created an environment in which AH1 thought she could not leave until she had made some form of allegation against her step-grandfather (Q&A 203, 247-249). She had become upset during the course of the interview and the police interviewer used her requests to see her mother as an opportunity to pressure her to implicate the accused before that could occur (Q&A 209-216, 237-239). Her evidence implicating him was ultimately unreliable and the jury could not be satisfied beyond reasonable doubt that the relevant charges were made out.

Ground of appeal 1 (error in failing to exclude part of AH1's recorded interview of 11 November 2019)

Criminal Appeal Act, s 6(1)

1. The grounds on which an appeal against conviction might be upheld under s 6(1) include that "the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law" or that "on any other ground whatsoever there was a miscarriage of justice". These grounds in this common form criminal appeal provision are referred to as the second and third limbs of s 6(1).
2. In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [9] and [13], the plurality (French CJ, Bell, Keane and Nettle JJ) described the question arising under the second limb as being "whether the judge has erred in law in the sense of a departure from trial according to law", citing Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [18] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ). In Filippou at [84], Gageler J added that to engage the second limb in a judge-alone trial any such error of law must be material to the ultimate finding of guilt.
3. The passage in Weiss at [18] includes that "a 'miscarriage of justice', under the old Exchequer rule, was any departure from trial according to law, regardless of the nature or importance of that departure". Neither that statement nor the statement in Filippou at [9] is to be understood as saying that any departure from a rule or principle of law bearing on the conduct of a trial, whether involving a legal error or some other form of irregularity and irrespective of whether it could have affected the outcome of the trial, will amount to a wrong decision of a question of law that engages the second limb or to a "miscarriage of justice" within the third limb of s 6(1).
4. In each case the error or irregularity must be of such a nature and degree that it could realistically have affected the guilty verdict (per Gageler J in Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 at [123]) or resulted in or constituted a sufficient prejudice to the accused that a "real chance" of a different outcome was lost (per Kiefel CJ, Keane and Gleeson JJ in Hofer at [41], [47]). In Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28 at [74], Edelman and Steward JJ described the requisite error or irregularity as one which had "the capacity for practical injustice", or one which was "capable of affecting the result of the trial". See also AK v R [2022] NSWCCA 175 at [5]; and Su v R [2023] NSWCCA 21 at [35]-[39].

The statutory scheme

1. Before turning to the disposition of this first ground it is necessary to provide an understanding of the statutory scheme in which the challenged decision was made.
2. Part 29 of Schedule 2 of the Criminal Procedure Act, which commenced on 31 March 2015 and extended to 30 June 2022, legislated what was called the Child Sexual Offence Evidence Pilot Scheme. By cl 84(1) that scheme provided that "[s]ubject to any contrary order of the Court, evidence of a witness in proceedings to which this Part applies who is less than 16 years of age when the accused person was committed for trial … must be given at a hearing under clause 85 (a pre-recorded evidence hearing) in accordance with that clause". That hearing in relation to AH1 was scheduled for 18 December 2020.
3. The Criminal Procedure Amendment (Vulnerable Persons) Act 2007 (NSW) had earlier inserted Part 6 ('Giving of evidence by vulnerable persons') in the Criminal Procedure Act. Those provisions replaced the Evidence (Children) Act 1997 (NSW) and extended their application in the Criminal Procedure Act to intellectually impaired persons. Section 306Y replaced s 15 of the Evidence (Children) Act.
4. Section 306Y provides: 306Y Evidence not to be given in form of recording if contrary to interests of justice (1) A vulnerable person must not give evidence by means of a recording made by an investigating official in accordance with this Division if the court orders that such means not be used. (2) The court may only make such an order if it is satisfied that it is not in the interests of justice for the vulnerable person's evidence to be given by a recording.
5. In the second reading speech for the Evidence (Children) Bill, Minister Langton, speaking on behalf of Minister Whelan, said, referring to the benefits of recorded investigatory interviews, as identified by the taskforce which developed the reform (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 25 November 1997 at 2450-2453): These benefits include: greater accuracy in the recording of children's evidence; a reduction in the number of interviews for child witnesses; reduced trauma for children giving evidence; assistance to children in refreshing their memory prior to giving evidence; reduced opportunity for the child's evidence to be contaminated by the involvement of others; and a possible increase in the rate of pleas by persons accused of offences against children. … To summarise, the Evidence (Children) Bill provides a comprehensive regime for children giving evidence in criminal proceedings. A child called to give evidence in these proceedings may now rely upon an electronic record of an earlier interview to form part or all of his or her evidence in chief, and in personal assault matters a child who decides to give evidence orally may rely upon closed-circuit television or other alternative means for giving evidence.

The argument before Traill DCJ

1. The appellant sought to exclude Q&A 275-420 of the interview from AH1's evidence in chief on the basis that it was "not in the interests of justice" for AH1 to give evidence in that form, so as to justify an order under s 306Y.
2. To be weighed in the balance were the benefits associated with the use of the recording, including the desirability of not occasioning further trauma to the child complainant, and the risk that the use of the recording would cause undue or unfair prejudice to the accused. However, the structure of s 306Y makes clear that what is involved is not a simple balancing of those competing interests. Unless the court makes a finding that it is not in the interests of justice for the evidence to be given by a recording, the entitlement conferred by s 306U is to prevail. See, to a similar effect, Basten AJA's consideration of the application of Sch 2, cl 87 of the Criminal Procedure Act in PJ v R [2023] NSWCCA 105 at [44]-[47].
3. The appellant submitted that the way in which the interview was conducted was likely to produce unreliable answers. The questions were leading, misleading and in some cases "improper". The effect of these factors was that the witness was placed under pressure to implicate the appellant: J[19]-[20], [25]-[28].
4. The appellant separately relied on ss 37, 135, 137 and 138 of the Evidence Act as justifying the exclusion of Q&A 275-420 either wholly or in part. The operation of those provisions was preserved by Criminal Procedure Act, ss 306O and 306V(4). Specifically, the appellant submitted that Q&A 287-290, 317 and 335-339 were leading and improper questions engaging the prohibition in s 37(1) and the discretion conferred by s 135 or mandatory power conferred by s 137. It was also submitted that Q&A 275, 278 and 297 (in part) were misleading, potentially confusing and liable to be excluded by ss 135 or 137. Finally, it was contended that the police interviewer made a "deliberate" decision to ask leading and misleading questions which constituted "impropriety" warranting the exclusion of Q&A 275-420 under s 138.
5. In response, the Crown contended that the appellant had not established that it was "not in the interests of justice" for Q&A 275-420 to be admitted in evidence. The Crown accepted that aspects of the questioning of AH1 were "concerning" (J[42]) but said such concerns were allayed by AH1's demonstrated capacity to disagree with the various propositions put to her (J[38]) and the fact that the JIRT interview was recorded, giving the jury an opportunity to see and hear the questioning and form a view as to the reliability of AH1's evidence (J[39]).

Traill DCJ's reasons

1. Her Honour's reasons for judgment were not available to the parties when the trial commenced before Bennett SC DCJ on 28 March 2022. The material before this Court does not establish exactly when those reasons were provided electronically to the parties, although they must have been made available at some point prior to the appellant's filing of submissions in December 2022.
2. With respect to the making of an order under s 306Y(1), her Honour was not satisfied that it was "not in the interests of justice" for AH1's evidence in chief to be given by the tender of Q&A 275-420, as well as Q&A 1-274 to which no objection was made. Her Honour's conclusion is stated at J[78]: I have taken into account all the submissions on behalf of the accused and the intent of the legislation, which is to minimise the trauma of children giving evidence. The matters submitted on behalf of the accused are largely matters that arise regardless of the manner in which evidence is given and they do not mandate a finding that it is not in the interests of justice.
3. The "matters submitted on behalf of the accused" are summarised at J[19]-[29]. The primary judge noted that, in response to those matters, the Crown had conceded that there were aspects of the interview which were "concerning" and that the interviewing techniques adopted were "sub-optimal". The Crown did not seek to defend those techniques. Its response was that the jury would be well-equipped to consider and make a sound assessment as to the reliability of the evidence, having also had the benefit of observing the video recording of AH1's JIRT interview (J[39], [49]-[50]).
4. Traill DCJ's reasons for the above determination included: (1) that her Honour had viewed the interview and what was apparent was that at times when the transcript records "no audible reply", the complainant had "either nodded, shrugged or shook her head but still communicated on the recorded video". Thus the relevant evidence included the video of the JIRT interview, not just the transcript of what was said, and this had to be taken into account in assessing the extent to which there were leading questions (J[64], [65], [68]); (2) that, while there were a number of leading questions, AH1 demonstrated that she was not influenced by the form of the questioning and that she was capable of rejecting a proposition with which she did not agree (J[58]); (3) that it was "commonplace" in child sexual assault matters for a complainant to deny that the accused had done anything wrong and in a subsequent interview to make a disclosure as to what the accused had done (J[59]). This observation is directed to the suggested significance of AH1's not having referred to the alleged wrongdoing in her earlier answers to differently focused questions, whilst later having done so, albeit after showing some distress; (4) that in any case the answers which led to the disclosure of the conduct charged as counts 1 and 2 were predominately the result of non-leading questions (J[66]-[69]); (5) that the probative value of Q&A 275-420 was high because at the time of the proposed pre-recorded evidence hearing that was the only direct evidence of the conduct charged by counts 1 and 2. Her Honour considered the video recording of that part of the interview to be cogent evidence because the jury collectively could observe the responses of the complainant to the questioning and give her responses what weight they "think it deserves" (J[82], [87]); and (6) that AH1 could view her evidence in chief before being cross-examined in the pre-recorded evidence hearing, which would then no doubt focus on her memory of what had occurred (J[79]).

Disposition of ground 1

1. The appellant's written and oral submissions on appeal focused on J[78], and in particular on her Honour's statement that the "matters submitted on behalf of the accused are largely matters that arise regardless of the manner in which evidence is given", and on her conclusion that as such they could not support a finding that it was not in the interests of justice that AH1's evidence in chief be given by the tender of the whole of her JIRT interview.
2. That analysis was said to involve error because, if AH1's evidence had been given orally, defence counsel would have been entitled to object to any leading questions and the questioning would not have proceeded as it did over a period of nearly three hours. Rather, AH1's welfare as a witness would have been paramount and she would not have been subjected to any perceived pressure or questioning whilst she was visibly upset. That would have minimised the risk of questioning or other conduct that might have shaped or influenced the direction of her evidence in chief.
3. It was also submitted that her Honour did not consider all of the matters that made it likely that AH1's evidence was unreliable and gave rise to the risk of undue prejudice. The matters said not to have been considered included: that questions were asked on the unstated premise that the appellant had done something wrong; that the nature of questioning put AH1 under pressure to make such an allegation; that the questioning had continued even though AH1 was visibly upset and said she wanted to see her mother; and that the interviewer continued to ask questions notwithstanding that AH1 had already denied the occurrence of the conduct to which the questions were directed and in doing so refused to accept AH1's earlier denials. That manner of questioning was said to have put pressure on AH1 to implicate the appellant, thereby raising questions as to the accuracy and reliability of her evidence which could not be satisfactorily recognised and dealt with by a lay jury.
4. The submission in support of this last proposition was that a "jury does not have the experience to adequately appreciate the impact of such factors on a vulnerable witness". Making that proposition good is critical to the appellant's argument on this ground, for, as was noted in the second reading speech (at 2452) with respect to the application of s 306Y, it could only be "not in the interests of justice" for a child's evidence to be given by a recording if that "means of giving evidence would cause undue prejudice to the accused that could not be adequately addressed by warnings to the jury".

Ground of appeal 2 (trial miscarried because failure to give warning or inform jury of need for caution as required by Evidence Act, ss 165(2) and 165A(2))

1. Ground 2 is directed to the third limb of Criminal Appeal Act, s 6(1), namely, that "on any other ground whatsoever there was a miscarriage of justice".
2. In Hofer at [47], Kiefel CJ, Keane and Gleeson JJ identified as constituting a sufficient prejudice to the accused that there had been a failure to give a direction and warning to the jury in circumstances where there was a "real chance" that with the benefit of that direction and warning the jury might have reached a different conclusion: see also Gageler J at [123].
3. The appellant submits that there was a miscarriage of justice because the trial judge failed to warn the jury that AH1's evidence might be unreliable "as required" by Evidence Act, ss 165(2) and 165A(2). The sense in which his Honour's directions are said to have fallen short is that they did not properly address the reasons why that evidence might be unreliable and the need for caution in determining whether to accept that evidence.
4. Prior to the commencement of the trial judge's summing up, defence counsel had made a written application for a warning to be given under ss 165(2) and 165A(2) that AH1's evidence may be unreliable due to the manner in which she was questioned in the 11 November 2019 JIRT interview.
5. Section 165 relevantly provides: 165 Unreliable evidence (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence - … (2) If there is a jury and a party so requests, the judge is to - (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury. (6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child's evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165A (2) and (3).

The trial judge's directions

1. In the course of summing up, the trial judge addressed AH1's JIRT interview on two occasions. On the first, recorded across slightly less than four pages of transcript, his Honour reminded the jury of defence counsel's central submission - that there was a reasonable possibility that AH1's answers in her interview were unreliable because of the manner in which the interview was conducted - and noted that the appropriate finding on this issue was entirely a matter for the jury. The second occasion involved an additional direction given to the jury near the end of the summing up and after short submissions by defence counsel pressing the trial judge to use the words "that the evidence may be unreliable".
2. That additional direction included the following passage, directed to AH1's evidence given by way of the JIRT interview: … the evidence might be unreliable for the reasons that have been explained to you and that you should use appropriate caution in determining whether to accept the evidence that was given by [AH1] throughout the process and the weight that you attribute to it
3. The reasons why it was said that evidence might be unreliable were the subject of defence counsel's final address which took the jury through AH1's JIRT interview in great detail, emphasising that it proceeded over a period of just under three hours, that it included six breaks and that on two occasions it was said that the interview was concluded, only for it then to continue. This, it was suggested, might have created an impression that the interview was not going to end until AH1 provided police with "the information that they wanted", the unstated assumption being that AH1 had something to tell them about her grandfather. Accounting for the six breaks, the interview had seven phases. In the second phase of questioning AH1 gave answers to general questions which were not consistent with anything having occurred with the appellant. During the third phase, the questioning focused on the appellant and the massages. AH1's answers consistently were that nothing had happened. At the end of that phase (Q&A 161), the investigating officer announced, "we're done".
4. Shortly afterwards, phase four of the questioning commenced (Q&A 164), again focusing on massages with the appellant. The continuation of the questioning on that subject was said to indicate that the police did not accept AH1's denials and that there was something else they wanted her to say about the appellant. The questioning continued until Q&A 201, at which point AH1 started to cry and was clearly upset. Nevertheless the questioning continued until Q&A 241. Q&A 216, which was prefaced by the words "[b]efore you go out, and I'll just take you out in a minute", again focused on the massages with the appellant. After Q&A 241, there was then a break of 25 minutes; following which (at Q&A 262) AH1 gave an answer which led to the answers describing the conduct charged by counts 1, 2 and 4. Moving forward, after AH1 had given evidence of the incident charged as counts 1 and 2 (Q&A 375), the officer announced that he was going to "conclude the interview now". A short time later the interview continued and the subsequent questioning was directed to whether any digital penetration had occurred. At Q&A 391, AH1 was asked whether it felt "like his fingers were inside or outside", to which she responded, "a bit of both".

Disposition of ground 2

1. Reference has already been made to the position under the common law with respect to the circumstances in which a jury direction is required: see The Queen v GW. A warning is necessary to avoid a perceptible risk of a miscarriage of justice, which will arise when there is a feature of the evidence which may adversely affect its reliability and which may not be evident to a lay jury. Subject to the relevant statutory prohibitions (at [50]): … where there is a feature of that kind the fair trial of the accused requires the judge to draw it to the jury's attention, explain how it may affect the reliability of the evidence and warn the jury of the need for caution in deciding whether to accept it and the weight to be given to it. (Footnotes omitted.)
2. In the case of warnings given with respect to the evidence of a child complainant in a sexual assault case, the relevant statutory prohibitions include Criminal Procedure Act, s 294AA and Evidence Act, ss 165(6) and 165A.
3. In the course of discussions with counsel in the absence of the jury, the trial judge accepted that there was evidence given by AH1 which "may be unreliable" because of the manner in which it emerged in the course of the lengthy JIRT interview. In response to the Crown's urgings that no direction was necessary because no "particular feature" of AH1 justified such a direction, his Honour observed: The only thing is I think there's merit in the view that the interrogation of the child was persistent and in the face of multiple occasions when she wanted to go and speak with her mother and there were repeated representations to her about the fact that she was not in any trouble and that she could speak with the police officers, and she was distressed on a number of occasions, the argument is going to be that - and I anticipate that's what Mr Johnston is going to get to - because of the persistence and perhaps the zeal that was given by the police officer looking to get to what the child might have had to say, there was a measure of pressure that was applied to, at the end of the day, a little girl, and she did have the opportunity to speak to her mother along the way and then came back into the interview room, but then again was still apparently reticent to give prompt and ready responses to questions put to her.
4. That said, his Honour also noted that such a warning: … would have to be accompanied by a guidance to the jury in terms that they should look at the entirety of the responses, because what did come to me was that right at the end of her evidence she was firm in her assertions of what she said is what occurred.

Ground of appeal 3 (the verdicts were unreasonable or not supported by the evidence)

1. In determining an appeal on the unreasonable verdict ground, the function of this Court is to make an independent assessment of the sufficiency and quality of the whole of the evidence. The question is whether, notwithstanding that there is evidence upon which a jury might convict, nonetheless it would be dangerous in all of the circumstances to allow the guilty verdict to stand (M v The Queen (1994) 181 CLR 487 at 492-493; [1994] HCA 63). In each case the court "will conclude that it was not open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty if its own review of the evidence leads it to have a reasonable doubt that the accused was guilty, unless that tribunal's advantage in seeing and hearing the evidence is capable of resolving that doubt" (Filippou v The Queen at [82]; Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 at [15]).
2. The authoritative guidance to be gained from the joint judgment in M v The Queen has not diminished. As was emphasised (at 493), in answering the question posed above: … 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.)
3. It is necessary to consider the guilty verdicts on counts 1 and 2 separately from the verdict on count 5. In relation to each of those three verdicts, the Crown case depended upon the jury accepting beyond reasonable doubt that each relevant complainant's evidence was truthful and accurate.
4. I have considered the whole of the evidence in the trial. That evidence includes the audio-visual recording of AH1's November 2019 JIRT interview and her second JIRT interview, the transcripts of the JIRT interviews of AH2 and RL, the transcripts of the pre-trial evidence given by AH1, AH2 and RL as well as the trial transcripts of the oral evidence of AH1's mother, AH2's mother, AH2's step-father, the appellant's wife and Senior Constable Roseby.
5. It is convenient first to address the verdicts on counts 1 and 2.

Verdicts on counts 1 and 2

1. The only direct evidence as to the commission of these offences is that of AH1 given by her JIRT interview and orally in her pre-recorded evidence hearing. The latter included her cross-examination. In the trial her mother also gave evidence as to her observations of and conversations with AH1 during the fifth break in her interview (after Q&A 241).
2. The Crown case was and remains that AH1's evidence in relation to the three charged offences was credible and reliable. The defence case was and remains that the manner in which that interview was conducted was such that the nature and quality of AH1's evidence was not sufficient to eliminate a reasonable doubt as to LF's guilt on counts 1 and 2.
3. The appellant submits that in considering this ground the Court should view AH1's first JIRT interview, and that doing so should lead the Court to have a reasonable doubt as to his guilt on counts 1 and 2. It is also submitted that a jury acting rationally must have entertained that reasonable doubt. It might be observed that this submission is not wholly consistent with the appellant's argument made in support of ground 2 that this Court was "better placed than a jury to assess the complainant's evidence", which I have rejected for the reasons given above.
4. The Crown does not submit that this Court should not view the recording. Indeed it says there are good forensic reasons for the Court to do so. The video recording shows AH1's non-verbal responses, delays in responding and body language including fidgeting, as well as the periods in which she was visibly upset.
5. However, the Crown emphasises the continuing distinction between the role and advantages of the jury and the performance by a court of criminal appeal of its functions in making its independent assessment of the evidence, including by the viewing of an audio-visual recording of the witness' evidence.
6. That distinction was addressed by the High Court in Pell v The Queen: [37] Secondly, the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function. [38] It should be understood that when the joint reasons in M v The Queen spoke of the jury's "advantage in seeing and hearing the witnesses" as being "capable of resolving a doubt experienced by a court of criminal appeal" as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury's assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or "constitutional" demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible. (Footnotes omitted, emphasis added.)

Verdict on count 5

1. This offence as charged occurred whilst AH2 and the appellant were in his car at a car wash on Saturday 10 November 2019. The only direct evidence of the offence is that of AH2 given by her JIRT interview the following day (to which there was no objection) and her oral evidence given in her pre-recorded evidence hearing on 20 November 2020.
2. AH2 said in her JIRT interview that after she had returned home in the early evening of 10 November she messaged a male friend in Melbourne, RL, saying that her grandfather was being "inappropriate" towards her (Q&A 122-132). Later, after her mother had discovered her on the phone to RL, AH2 had "freaked out" because that was the appellant's phone. After she had calmed down, AH2 ended up "telling her [mother] everything" (Q&A 136-138). Both RL and AH2's mother gave evidence to similar effect. RL's evidence was given by a JIRT interview conducted on 10 December 2019 and his pre-recorded oral evidence was given on 20 November 2020. AH2's mother gave evidence during the trial on 4 April 2022.
3. The appellant submits that a jury acting reasonably would have had a reasonable doubt as to the reliability and truthfulness of AH2's evidence. When she was first caught using the mobile phone, she lied about what she was using the phone for and how she came to have it. It is said that the Crown case required that those lies be ignored. AH2's version of the conversation with the appellant is also described as implausible and internally inconsistent.
4. In her JIRT interview (at Q&A 67) AH2 described her conversation with the appellant: A. So he was saying if in order for like him buying a new phone um, he said that, he said that [AH1] does this so I would have to do the same thing um, as her by doing, he said he ah, takes nude photos of her and like massage, I can't talk, massages her after his wife goes to sleep.
5. AH2 described that conversation as having happened "both in the morning and the afternoon" of Saturday 10 November 2019 (Q&A 72).
6. AH2's attention was then directed to the "morning conversation" (Q&A 73) and, having been asked about the "rewards", she answered that the appellant had told her "he rewarded [AH1] with an iPhone 8" (Q&A 75). There was then a reference to a photo AH2 had seen "yesterday" (i.e., on 10 November) of AH1 holding an iPhone 8. AH2 later explained that she had seen this photo on the appellant's iPhone after she had arrived at his home at about noon on the Saturday and was using his phone to show her grandmother a "pair of shoes" (Q&A 154-161). Her evidence otherwise continued to be that the appellant had said he would buy her a new phone in return for the photos and massages, without any reference to his having given any phone to AH1 (Q&A 87, 93, 94, 104, 105). Contrary to the appellant's submission, it was not a "particular feature of [her] allegation" that the appellant would reward AH2 with an iPhone "like he had given" AH1.

Conclusion

1. The following orders should be made: 1. Grant leave to the applicant, LF, to appeal against his convictions on grounds 1, 2 and 3. 2. Dismiss his appeal against conviction on each of grounds 1, 2 and 3.
2. WILSON J: I have had the advantage of reading in draft the judgment of Meagher JA, with which I agree. I wish to make a short additional comment only with respect to ground 2.
3. During a trial judge's summing up to a jury its members are always instructed to bring to bear in their deliberations the individual life experience, understanding of people and human affairs, and common sense, that each has. The combined wisdom of twelve members of the community and the breadth of experience of a cross-section of the community in judging the issues to be resolved in the trial, has been and is a highly esteemed part of our system of criminal justice. The value of the experience of twelve members of the community in the just determination of criminal charges should not be underestimated or diminished. In the applicant's trial there was no question for resolution that was beyond the capacity of a jury to determine properly and fairly. Assessing the reliability of the evidence given by AH1 was a function of the jury, and one which did not require guidance through extensive directions given by the trial judge. There was no good reason to conclude that the court was better placed than was the jury to understand the dynamics of the interview by police of AH1, and any possible impact the manner of her questioning may have had on the complainant's veracity or accuracy, such as to necessitate a warning to be given to the jury pursuant to s 165(2) and s 165A(2) of the Evidence Act 1995 (NSW). The directions given by the trial judge were more than adequate in that regard. No miscarriage occurred.
4. I agree with the orders Meagher JA has proposed, for the reasons so comprehensively given by his Honour.
5. SWEENEY J: I have had the advantage of reading in draft the judgment of Meagher JA. I gratefully adopt his Honour's thorough analysis of the evidence in the trial, the issues in the appeal and the applicable legal principles.
6. Meagher JA has described the circumstances in which AH1 was interviewed and her allegations obtained. I have concluded that the reliability of her evidence was significantly adversely affected by the circumstances in which it was obtained, given her age, the duration of the interview, the persistent questioning in the face of her repeated denials, and the lack of any prior complaint by her to any family member.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 September 2023