LH v R

The applicant's evidence at trial

1. The Crown case closed on the fifth day of the trial, 29 May 2023. The same day, the applicant gave evidence. He was briefly examined in chief before being cross-examined. The applicant's written submissions extracted significant portions of his cross-examination where the Crown put certain portions of his ERISP to him. In particular, complaint is made about the following passages.

Denying the allegation by reference to his wife rather than his mother-in-law

1. The complainant gave evidence that the sexual assaults occurred on nights when her grandmother was not there, and the applicant was sleeping in her room. In that context, the following questions were put to the applicant in cross-examination: "Q. Well, when you hear the precise allegations spelt out to you for the first time, you didn't respond by saying something to the effect of, 'That's impossible. My mother-in-law would've noticed', do you? A. WITNESS: Yeah - I didn't - I did not mention her. Yes. Q. Now, your response was that - essentially, 'That's impossible because my wife would have noticed', in a nutshell? A. WITNESS: Yes. Q. So you somehow knew that the allegation was that the offending occurred when your mother-in-law was absent? A. WITNESS: I didn't know that. Q. Then why didn't you, at this point, say something to the effect of, 'That's impossible. My mother-in-law sleeps in the same room as my daughter. If any of this had happened, she'd have noticed'? A. WITNESS: I just didn't mention her. That's all. Q. You didn't mention her because you know that the offending occurred when your m other-in-law was absent? A. WITNESS: Of course not. Q. You know the offending occurred when your mother-in-law was absent because you daughter's allegations are true? A. WITNESS: I disagree."

Applicant's response to allegations when first put

1. The applicant was cross-examined about the answers in his ERISP when it was first put to him that he had touched his daughter's breast (see above at [53]) as follows: "Q. I'll ask that again. Hearing that your daughter has accused you of touching her breasts would have been shocking for you at the time? A. WITNESS: Yes. Q. And when you heard it for the first time, as I've just read out, you understood that that's a really serious allegation to be made against you? A. WITNESS: Yes. Q. When the police officer spelt out the allegation and said, 'Can you tell me anything about that?', you responded with, 'There's nothing I can tell. Seriously'. Correct? A. WITNESS: That's right. Q. Why didn't you respond with, 'That never happened'? A. WITNESS: It's my English ability. Q. Was it your English ability or was it your inability to bring yourself to deny the allegation because you knew it was true? A. WITNESS: I - sorry. A. INTERPRETER: 'Seriously', means shocking, so what I mean is that all these things never happened, so I have nothing to say. I couldn't tell anything because they never happened. Q. I'm suggesting that you knew, within yourself, that that allegation was true, and so you were finding it really difficult to respond to it by saying, 'No, that never happened'; do you agree? A. WITNESS: I disagree."

Applicant's demeanour in the ERISP

1. The applicant was cross-examined about his demeanour and his first responses to the allegations as follows: "Q. At the end of that answer, you said, "If my daughter says I did it, there's nothing I can explain to you guys now"; do you see that? A. WITNESS: Yes. Q. Isn't that another example of you being unable to bring yourself to deny the allegation because you knew, and you know within yourself, that it's true? A. WITNESS: As a father, I was really sad and upset. I am sad and upset right now. As a father, my heart was broken. If my daughter has accused me of this crime, I couldn't explain myself. Q. Are you saying that during the interview, you were feeling really sad and upset? A. WITNESS: Yeah, after I - after I heard alleged accusation. Q. Can I suggest that throughout the interview, you seem completely unsurprised and unphased upon hearing the allegations; do you agree? A. WITNESS: Of course not. Q. The reason you appear totally unphased and unsurprised each time you heard the allegations is because they weren't surprising to you at all, were they? A. WITNESS: The video presented by the police have been cut. The parts that I was excited was not in the video. Q. So we have seen footage of allegations being put to you by the police, haven't we? A. WITNESS: Yes. Q. When they're made to you, you're totally unphased, aren't you? A. INTERPRETER: I am shocked, but I can't do anything. Q. You're totally unsurprised when you hear the allegations, aren't you? A. INTERPRETER: Of course, I am shocked." (Emphasis added.)

Failure to deny the touching of breast allegations put by police

1. The applicant was cross-examined about his failure to deny the allegations of touching the complainant's breasts as follows: "Q. You would - going to go about this a different way. On this page you're hearing about the allegation that you touched your daughter's breasts for the first time. Correct? A. WITNESS: Yeah. That's correct. Q. And you're first response - your immediate response is to say, three times, 'There's nothing I can tell seriously.' Secondly, 'If my daughter says I did it, there's nothing I can explain to you guys now'. And thirdly, 'So if she says all, this all, there's really not much I can explain now'? A. INTERPRETER: Question 176? - Yeah. A. WITNESS: Yeah. Q. Your immediate reaction isn't to say, 'No. I didn't do that. That never happened'. It's just to say, 'There's nothing I can explain to you guys now'? A. WITNESS: Yeah. Q. So your immediate response was not to deny the offending. Correct? A. WITNESS: Of course not. Q. Because you did it? A. WITNESS: I didn't do it. Q. That's why your immediate response wasn't to deny it. Because you did it. That's what I'm suggesting -- A. INTERPRETER: I couldn't deny it because when the alleged crime was spelt out to me, I couldn't explain it." (Emphasis added.)

Failure to deny licking of vagina allegation put by police, looking "unphased"

1. The applicant was cross-examined about his failure to deny the allegations of licking the complainant's vagina and looking "unphased" as follows: "Q. I'll come at it from a different angle. Do you see your answer or your response to hearing about the allegation of licking your daughter's vagina is, 'Jesus, what...uh, there's nothing I can tell you for this one either. I'm sorry about that'. You see that? A. WITNESS: Yes. Q. My suggestion is that as during Senior Constable Penman's description of the allegation, as the words, 'You have licked her vagina', fell from Senior Constable Penman's mouth, you were totally expressionless and unphased. A. WITNESS: I'm shocked. Q. You weren't shocked. A. WITNESS: I disagree. Q. You were unsurprised at hearing the allegation that you had licked your daughter's vagina. A. WITNESS: I disagree. Q. This moment in the interview is the first time you've heard about this particular allegation, isn't it? A. WITNESS: I can't remember. Yes, maybe. Q. You don't react to that allegation until Senior Constable Penman says, 'Can you tell me anything about that?' A. WITNESS: I disagree with that. Q. Up until Senior Constable Penman saying, 'Can you tell me anything about that', I suggest you were expressionless, and you appeared totally unphased upon hearing this p articular allegation. A. WITNESS: I disagree with that." (Emphasis added.)

Failure to immediately deny allegation of licking complainant's vagina

1. The applicant was cross-examined about his failure to immediately deny the allegations of licking the complainant's vagina as follows: "Q. And again, hearing the allegation that you licked your daughter's vagina, you didn't say, 'That never happened', that wasn't your first response, was it? A. WITNESS: It didn't happen, that's why I said nothing to tell. Q. It was only afterwards when the police officer said, 'Can you recall a time when something like that may have happened'?, that you replied, 'Never has'? A. WITNESS: Yes. Q. But saying, 'This never happened', wasn't your first response upon hearing the allegation, was it? A. INTERPRETER: My mind wasn't very clear. A. WITNESS: I was stunned by that time. Q. Can I suggest that, during that interview, you look anything but stunned. You look calm and unphased. A. WITNESS: I disagree with that. … Q. I'm suggesting this is another example of your inability to bring yourself to actively deny the allegation because you know, within yourself, that it's true. A. WITNESS: I disagree. I just answered the question."
2. The applicant was also cross-examined about the innocent explanation he provided to police. It was suggested to him that he volunteered a story about accidentally touching the complainant on the vagina because he knew that was what the allegation would be.
3. Consistent with the Crown opening, it was put to the applicant that he had the two tendencies relied upon by the Crown. The applicant denied that he was sexually attracted to his daughter and/or had acted on that.

Re-examination

1. The applicant was re-examined. He explained that the reason he slept in the second bedroom was because his wife had "very bad depression" and insomnia and playing video games helped her and that he would sleep in the other room to "give her a bit of quiet space" and look after the children. He agreed that in his culture it was normal for a parent to sleep with a five-year old child.
2. The applicant agreed that he arrived at Strawberry Hills Police Station at 6.30pm. The complainant was interviewed until after 8.00pm. His interview started at 9.55pm and finished after 11.00pm. It was his first time being arrested. He felt "exhausted". He was asked why he agreed to be interviewed without a lawyer or an interpreter and he replied: "A. Actually, I was exhausted, I was stumped, and my mind was all crumbling, so didn't even hear clearly what they talking about, so I just tell whatever is. Q. Were you trying to lie to them at all in the interview? A. No. I just tried to explain."
3. He was asked about the answers he gave such as "there's nothing I can tell you". He explained that he was just trying to answer the questions. He explained that his first language is Mandarin and that in order to answer in English he needs a "translator to my language in my head, then try to speak back in English".

Discussion about legal directions before closing addresses

1. The defence case closed the following day, on 31 May 2023. Prior to the commencement of closing addresses, the trial judge raised some proposed directions with the parties including the tendency direction: "HER HONOUR: Now, can I come back to the two areas of perhaps more delicacy. And that is firstly, concerning the Crown's position as regards tendency in our consideration of Rassi. [2] What do you say? I don't think there's any controversy concerning the admissibility of the counts vis-a-vis each other as tendency evidence. Can I turn now to the evidence of [the complainant], to the effect that this had occurred on other unparticularised occasions? What's the Crown's approach to that evidence? SOLICITOR ADVOCATE: After some significant consideration, your Honour, I'm fairly confident I won't be invoking tendency reasoning in my closing address. HER HONOUR: So more a context position? SOLICITOR ADVOCATE: More context-- HER HONOUR: I'm comfortable with directing on that basis. Do you want me then to hold off to hear how you posit that to the jury, and then we can all return to that point, to finalise that direction? SOLICITOR ADVOCATE: Yes, your Honour. I'm fairly confident I won't be making a tendency submission to the jury. HER HONOUR: All right. Do you agree, Ms Goodwin, that given that's the Crown's current position that we hold off just to hear the way in which it's put to the jury. GOODWIN: Yes, your Honour."
2. The trial Judge then raised the issue of lies or conduct going to consciousness of guilt. The Crown indicated that he would particularise those in his closing address. The trial Judge asked him to particularise them before his address to avoid "some issue arising after the closing address" and indicated that she needed defence counsel to be on notice about this so there was no surprise. The proposed direction was discussed including by reference to the decision in R v Baden Clay. [3] Defence counsel requested a number of further directions on matters such as the applicant not needing to establish a motive to lie and delay. Her Honour deferred her decision on some of these directions until she had heard the closing addresses.
3. There was also a discussion between her Honour and counsel about directions in respect of demeanour. Her Honour proposed a direction about the dangers in attempting to assess the truthfulness of a witness by reference to their body language or demeanour where different cultural backgrounds are involved given that the Crown cross-examined extensively on that. In response, defence counsel requested a specific direction in relation to cultural differences in responding to police questioning.

The Crown closing address

1. The Crown closing address began in the morning of 31 May 2023 and finished in the morning of 1 June 2023. I have extracted the portions which are the subject of complaint under Ground 1.

Complainant's credit

1. The Crown submitted that the jury would find the complainant to be a truthful witness. In doing so, he invited them to consider the manner in which the complainant gave her evidence, both in her interviews and her evidence. Part of the address about which complaint is now made was in these terms: "I'd like you to consider Miss Southall's description of [the complainant]'s demeanour when she disclosed the allegations. Miss Southall said [the complainant] appeared quite calm and factual. She was clear and direct. Now that's quite similar to what Miss Tuazon said when describing [the complainant's] demeanour when [the complainant] initially disclosed the offending to Miss Tuazon. Miss Tuazon said that [the complainant] was 'quite matter of fact about it, she wasn't overly emotional. She was sort of stating a fact and continued talked but she was talking quite fast when she was saying everything as well.' It's a matter for you. Demeanour isn't everything but you might think it's important because some people might struggle to control their demeanour. You might think children, in particular, might struggle to control or confect their demeanour. You might have thought that [the complainant], as I said earlier, is quite unfiltered. Another way of describing it is unvarnished and you might think that those descriptions of her demeanour when disclosing the offending describing disclosing it in a sort of matter of fact way, calm and factual, clear and direct, matter of fact about it, may think that that is consistent with the complainant telling the truth when she made those initial disclosures." (Emphasis added.)
2. The Crown also addressed the jury on the complainant's evidence in the JIRT interview and pre-recorded evidence: "… consider the way [the complainant] delivered her evidence, the way she appeared, her demeanour, when being interview by the police, and when she was giving evidence. When she was being asked questions by the prosecutor who asked her questions when she was giving evidence and when she was being cross-examined. Consider how she presented as a witness, and that might be something you've already individually or collectively formed a view about."
3. The Crown submitted that the complainant's written record of the account was also relevant to the jury's assessment of her credibility. The Crown told the jury that the complainant's written account, created during the police interview, took "a considerable amount of bravery and resolve…to actually commit these things to paper in the way she did". The written record included some drawings created by the complainant, in relation to which the Crown told the jury: "it would be really difficult for [the complainant] to do this unless it really happened to her". The Crown submitted: "You might think it's one thing for [the complainant] to say to her teacher that her dad sexually assaults her, you might think that that's an allegation which is fairly simple and straightforward, and easy to say. You might think that it's a different proposition entirely to actually write down on a piece of paper in the way that [the complainant] did step-by-step what her dad did to her. You might think that it takes a considerable degree of bravery and resolve for [the complainant] to actually commit these things to paper in the way she did with the red note. You might think that [the complainant]'s preparedness to write this down on paper speaks to her credibility, it speaks to her truthfulness, it speaks to the truthfulness of the things she wrote on the paper. So her willingness to write this down on paper with her willingness to write down what her dad did to her on the red Post-it note is consistent with an honest account, you might think. Ultimately, the submission is that it's easier to say something than it is to write it down and commit it to paper." (Emphasis added.)

Consciousness of guilt

1. The Crown suggested that the applicant's denials were not "worthy of [your] acceptance" and that: "… there are aspects of the things he said during his interview with police which might have left you with the impression that he is guilty of these offences." (Emphasis added.)
2. The Crown said this about the story the applicant gave of touching the complainant as she was falling off the bed: "He told this account to the police in order to provide an innocent explanation for the allegations he anticipated his daughter had made. How was he able to anticipate that the allegations would involve his hand touching his daughter's vagina?"
3. The Crown also submitted: "… the accused's response, upon hearing of the specific allegations for the first time, revealed in his response, he revealed that he had knowledge about the complainant's allegations that the police had not conveyed to him yet. He somehow already knew that the offences occurred on a week night. He somehow already knew that the offending occurred on a week night and he somehow already knew that the offending occurred when the grandmother was away."
4. The Crown also addressed the jury about the applicant's failure to tell police that the offending would have been impossible because of the presence of his mother-in-law: "He also places a significant amount of emphasis on the fact that this could not have happened 'because my wife would have noticed'. We know that the arrangement at the time was that the grandmother would spend several nights a week sleeping at the apartment, sleeping in the bedroom with the children. When that would happen, the accused would sleep in the bedroom with his wife. If the accused is going out of his way to emphasise how impossible the allegation is because his wife would have noticed, you might think he would also say this is impossible because the grandmother would have noticed because she sleeps in the same room as them but he doesn't mention her at all. He doesn't say that. He doesn't say this is impossible. The grandmother would have noticed and why because he knows that these offences were committed when the grandmother was absent. [sic] This is quite an important answer because it reveals the knowledge that the accused brought into the interview. This is information that the police had not already conveyed to him. He somehow knows it already. His answer reveals that he possesses information about the allegation that he could only have if he committed the offences. It's a matter for you but you might think that particular answer, the way he responded to it, revealed a lot." (Emphasis added.)

The defence closing address

1. The defence closing address commenced in the morning of 1 June 2023 immediately after the Crown closing address and finished that day. Defence counsel responded to matters raised in the Crown closing as to the applicant's ERISP and the demeanour of both the complainant and the applicant. As for the applicant's initial answers to police, she suggested: "You also, if you so choose to have reference to it though, can consider the accused's evidence and what he told the police. Of course you can consider that. It's a matter for you. Because he waived his right to silence. He even waived his right to an interpreter at the police station. He went to the police, he answered their questions. He jumped in the box, he answered my questions, he answered the Crown's questions. And can I suggest that a fair understanding of his evidence is that it's- he's saying 'I didn't do it, I'm not guilty'. Can I suggest that a fair understanding of his evidence in the situation he was in at the time, having been working throughout the day and then waiting for [the complainant] to give her interview and being arrested, thrown in the- put in the police truck and taken to the other station and sitting around for a couple of hours and then starting the interview at 10pm, can I suggest that a fair understanding of that is that he was saying, 'I didn't do it. I'm not guilty'. And he appeared to be honest when you take those things into account, can I suggest? Can I particularly ask you to remember that during that police interview, he's giving his answers in English. English isn't his first language. And can I suggest there are times in that interview that there's clearly some sort of language barrier affecting his understanding of what he's doing? He can get by, he understands English pretty well, absolutely. But there's language or cultural barriers at play, can I suggest? You can't judge him the same way that you might answer the questions in an interview. But again, can I ask you to put yourself in his shoes when you assess that interview?" (Emphasis added.)
2. Defence counsel then said this about the applicant's account of accidentally touching the complainant: "Yeah, I mean, if you'd had this situation and, you know, in the prior year or whatever where [the complainant] said that you touched her private parts and you knew about that and you knew that that was false or that it had been an accident, I mean, not that it was false but that it had been an accident at the time and she was saying in a way that made it sound deliberate, of course that's the first thing that's going to come to your mind. Oh, I've been charged about sexually touching and sexually assaulting [the complainant]. She spent an hour talking to the police. 'I'm going to offer this, I'm going to tell them this because this happened,' and again, it's not in dispute that this happened. Of course, of course, he's offering it to the police as an innocent explanation as to why she could be making allegations. Is it particularly surprising? And as for this suggestion that he only offered it because he must have known that what she would be alleging would include a hand on the vagina or touching her vagina, no, no. You've been told a number of times, twice before you get into the interview room and three times also during the interview, that you're being charged for sexual assault and sexual touch. I mean, what do you think it's going to involve? Wouldn't your first thought go, 'Oh, well, touch, what did I use to touch from my hand? They're alleging I've touched her, are they alleging down there?' Bearing in mind again, this is actual real thing that happened. It does provide an innocent explanation, doesn't it? I mean, of course, that's what he's going to raise."

Further discussions about directions before summing-up

1. The addresses finished on the afternoon of Thursday 1 June 2023. Her Honour noted that both addresses had been so thorough that she had a lot to sum up on. She then went through the proposed directions again. She indicated that she hoped to commence her summing up that day. After confirming some of the directions, the trial Judge enquired whether she could bring the jury in and start her summing up noting that she would not get far that day. The following exchange then occurred: "SOLICITOR ADVOCATE: To make it clear, I obviously did not incorporate any tendency reasoning into my closing address deliberately, which should obviate the need for your Honour to-- GOODWIN: Anti-tendency. SOLICITOR ADVOCATE: -say the word, 'tendency', at all in your Honour's summing-up, because I didn't invoke tendency reasoning in my closing address. HER HONOUR: You're not going to tendency of the counts vis-à-vis the counts. SOLICITOR ADVOCATE: I didn't make any submissions to that effect, your Honour. HER HONOUR: I think you did in your opening, though, didn't you? SOLICITOR ADVOCATE: I did in my opening. Yes. HER HONOUR: Am I asked to turn to it or not? SOLICITOR ADVOCATE: In circumstances where the Crown hasn't actually invoked tendency reasoning-- HER HONOUR: Am I asked to give an anti-tendency direction? GOODWIN: Not from me, although I assume your Honour is giving a, 'You have to consider each count separately,' direction. HER HONOUR: Yes, but it's my view I have to go one way or the other here. The jury heard it in the opening so I have to tell them whether tendency is available or not, and if it is available, I have to give them the precise structure in which they have to analyse tendency. I won't get up to tendency. GOODWIN: Can I just raise this, your Honour, having just heard what your Honour said, if your Honour is going to mention it at all because of the way the Crown opened up, I would then ask for an anti-tendency type direction if the word is going to be said anyway. Best o-- HER HONOUR: I have to give them anti-tendency on the context material. The other thing is, were there lies going just to credibility? Really, it was all consciousness of guilt. SOLICITOR ADVOCATE: Yes. HER HONOUR: Let's get a start. There's not much left in that day." (Emphasis added.)
2. Her Honour then commenced her summing up at 3.34pm that day and sent the jury home at 4pm. Before adjourning for the day, her Honour confirmed that the only direction that they had not "bedded down" was the tendency direction. She expressed concern that the jury had "heard the concept at the beginning of the trial" and that even if they had not, when there are multiple counts a trial Judge should direct "either way". Her Honour went on to state: "Either it is available for tendency reasoning or it's not and if it's not there must be an anti-tendency direction. I don't think I can sit silently on the issue. Do you want to have a thought overnight as to what you wish to I mean, if I do go with tendency I can say to the jury, 'You'll remember at the beginning of the trial Mr Crown indicated that the Crown relies on the counts on the indictment as being available for your consideration.' SOLICITOR ADVOCATE: I did put to the accused that he had a sexual attraction to his daughter. HER HONOUR: Yes. I don't think there's any issue of unfairness arising. GOODWIN: No. No. And in fact, considering it further, particularly given that there's also the uncharged acts, it's my I'm going to ask [sic] HER HONOUR: They're going as context as far as I understand. SOLICITOR ADVOCATE: Yes. GOODWIN: Yes. HER HONOUR: And I'm giving an anti-tendency on that. GOODWIN: Yes, and it's agreed from my behalf. From our behalf. HER HONOUR: So I can't sit silently, I believe, on the counts vis-à-vis other counts. Do you want to reflect overnight and come back to me at 9.30? I don't think it will take us long. We all know what the issues are. SOLICITOR ADVOCATE: Yes. I'll have a chat with my friend as well so we're hopefully agreed up." (Emphasis added.)

GROUNDS OF APPEAL

1. The grounds of appeal fall into three broad areas. Ground 1 contends that the trial miscarried as a result of the conduct of the Crown. Ground 2 contends that the trial miscarried as a result of the trial Judge's directions on consciousness of guilt and the right to silence. Ground 3 contends that the trial miscarried because the applicant was denied procedural fairness in relation to the tendency direction.
2. Before turning to consider the respective submissions, it is helpful to first briefly set out the relevant principles applicable to the consideration of the applicant's arguments.

Consciousness of guilt

1. There are two ways in which the Crown may seek to rely upon post-offence conduct of an accused person in support of the Crown case. That conduct might be in the form of words, most commonly but not limited to lies, or in the form of conduct, most commonly but not limited to flight. If the conduct relates to a material issue in the trial, the Crown may rely upon the conduct as exhibiting consciousness of guilt of the charged offence or offences. In such circumstances, the Crown suggests to the jury that an accused person said or did something (or failed to do something) because they appreciated that they were guilty of the offence charged and wished to keep that guilt hidden.
2. The second way in which the Crown may rely upon the accused person's post-offence conduct is as being relevant to credibility.
3. As Adamson JA (with whom Price and Davies JJ agreed) recently observed in MM v R [2023] NSWCCA 236 at [18], there is an important distinction between the two ways that post offence conduct can be relied upon. If the words and/or conduct of an accused are relied upon as evidence of a "consciousness of guilt", they are relied upon as an implied admission. As such, the evidence forms part of the evidence against the accused in the Crown case. But if the words and/or conduct of an accused are only relied upon as being capable of affecting the jury's assessment of the accused's credibility then they do not add to the evidence in support of the Crown case.
4. If the Crown relies upon any of the accused's post offence conduct as consciousness of guilt, then the trial Judge must give a direction in accordance with Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 ("Edwards"). Although that case related to lies, the principles are applicable to any post -offence conduct relied upon by the Crown as consciousness of guilt. What has become known as an Edwards direction is derived from what is set out at 210-211 of that decision (Deane, Dawson and Gaudron JJ) as follows: (footnote omitted) "A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg v Lucas (Ruth), because of 'a realisation of guilt and a fear of the truth'. Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect."

The right to silence

1. Section 89 of the Evidence Act 1995 (NSW) is applicable when an accused person either fails or refuses to answer one or more questions. It is in these terms: (1) Subject to section 89A, in a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused - (a) to answer one or more questions, or (b) to respond to a representation, put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence. (2) Evidence of that kind is not admissible if it can only be used to draw such an inference. (3) Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding. (4) In this section - Inference includes - (a) an inference of consciousness of guilt, or (b) an inference relevant to a party's credibility.
2. To some extent, this provision reflects the common law principle in Petty v The Queen; Maiden v The Queen (1991) 173 CLR 95; [1991] HCA 34 where Mason CJ, Deane, Toohey and McHugh JJ observed the following at [3]: "… in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable."
3. Nor can adverse inferences be drawn from a suspect or an accused exercising his right to silence in the courtroom: s 20 of the Evidence Act; RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3; Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25.
4. Prior to the enactment of the Evidence Act, the High Court held in Woon v The Queen (1964) 109 CLR 529; [1964] HCA 23 ("Woon") that selective answering of police questions in a recorded interview could amount to evidence of a consciousness of guilt. Section 89 now prohibits adverse inferences being drawn from the accused refusing to answer "one or more questions". Despite this, the Crown submitted that the principle derived from Woon is still applicable. In support of that submission, reliance was placed on the decision in MM v R, referred to above, where Adamson AJ observed the following at [20]: "The range of situations in which a consciousness of guilt has been accepted to have been evinced is wide. For example, in Woon v The Queen (1964) 109 CLR 529; [1964] HCA 23, it was held that selective answering of police questions in a recorded interview could amount to evidence of a consciousness of guilt."

"Demeanour" as consciousness of guilt

1. The reaction of an accused person to being confronted with an allegation is capable of being relied upon as consciousness of guilt but caution is required. In The Queen v Favata [2006] VSCA 44 ("Favata") the Victorian Court of Appeal considered a ground of appeal which concerned the Crown's reliance upon the accused person becoming extremely agitated and beginning to sweat profusely during his recorded interview with police. The Crown relied upon the evidence as consciousness of guilt and a "conventional" direction was given (at [144]). In dismissing that ground of appeal, Vincent JA (with whom Callaway and Buchanan JJA agreed) said this at [145]: "Although I can see no basis in principle for excluding the reaction or demeanour of a person, in an appropriate context, from the kinds of behaviour that are capable of constituting implied admissions of guilt, as a practical proposition I consider that it would be rare indeed when a judge would be entitled to leave evidence of demeanour or reaction to events or disclosures before the jury on this basis. Among the reasons for concern would be the potential imprecision and unreliability of the observations. Frequently, but not here because the interview was recorded on video-tape, it would be very difficult for the jury, and indeed the judge for that matter, to be confident that they actually knew how the person did react. In any event, at most what could be observed would be the external manifestations of internal responses. The dangers of misinterpretation which, to some extent at least, may be influenced by the subjective views and attitudes of the observer are, I would suggest, apparent." (Emphasis added.)
2. A person's reaction to a proposition being put to him or her differs in some respects to the concept of using demeanour to ascertain whether a witness is telling the truth. Judicial doubt has been cast on the ability of a fact-finder to determine whether someone is telling the truth from the manner in which they responded to questions. In Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31], Gleeson CJ, Gummow and Kirby JJ observed the following in this regard (footnotes omitted): "… in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical."

Crown conduct

1. That a trial can miscarry due to the conduct of a Crown prosecutor is well established. The principles are summarised in Glenn (a pseudonym) v The Queen [2020] NSWCCA 308 ("Glenn") at [189]-[219] and in Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330 ("Hughes") at [265]-[275]. In Hughes, the Court (Beazley P, Schmidt and Button JJ) observed at [275] that the determination of a ground relating to Crown conduct required the Court to analyse exactly what was said or done and consider it in the context of the entirety of the trial, including remedial steps (if any) taken by the presiding judge. The relevant principles have also recently been considered in Zurshig v R [2021] NSWCCA 309, Crockford v R [2022] NSWCCA 115 and Day v R (No 2) [2023] NSWCCA 312 ("Day (No 2)").
2. As this Court observed in Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334, at [31], features of a Crown address that have, alone or in combination, been held to justify the censure of the court include: a submission to the jury based upon material which is not in evidence; intemperate or inflammatory comments, tending to arouse prejudice or emotion in the jury; comments which belittle or ridicule any part of an accused's case; impugning the credit of a Crown witness, where the witness was not afforded the opportunity of responding to an attack upon credit; and conveying to the jury the Crown prosecutor's personal opinions.
3. It is with these principles in mind that I turn to consider the submissions.

Ground 1: The conduct of the Crown prosecutor's cross-examination and closing address occasioned a miscarriage of justice

1. Three sub-grounds were relied upon under this ground. I shall deal with the first two of them together. They rely on the following two aspects of the Crown closing: 1. Commenting on the applicant's failure to deny allegations; 2. Unfairly urging upon the jury to engage in consciousness of guilt reasoning.

Grounds 1(i) and (ii)

1. Central to these two sub-grounds was the contention that the Crown unfairly cross-examined the applicant and then repeated the unfairness by relying on those portions of the cross-examination in his closing address.
2. It was submitted that the Crown's cross-examination of the applicant and his closing address occasioned "such prejudice and unfairness to [the applicant] that despite any directions later made by the trial judge, his trial substantially miscarried". It was accepted that the applicant's trial counsel only objected to one of the matters now complained of and on a different basis to the complaint on appeal.
3. A large number of discrete submissions were made under these sub-grounds and there was significant overlap between the arguments under these grounds and those under Ground 2. I shall endeavour to encapsulate them as follows.

Commenting on the applicant's failure to deny allegations.

1. The applicant contended that his right to silence was undermined both in cross-examination and the Crown closing address.
2. It was submitted that the Crown's suggestion to the applicant in cross-examination (and to the jury in the Crown closing address) that he had failed to deny the allegations to police in his ERISP because he knew he was guilty could not be cured by direction and that the trial had irremediably miscarried by the end of the Crown closing address.
3. It was further submitted that s 89 of the Evidence Act was breached by permitting the Crown to rely on the applicant's demeanour throughout his ERISP, in particular in not looking surprised by the allegations, as consciousness of guilt. This was because the jury was invited to draw inferences unfavourable to the applicant's credibility from his silence. This was not cured by the trial Judge's later directions focusing on consciousness of guilt (rather than credibility).
4. At the hearing of the appeal, it was accepted that the Crown relied on the demeanour in the ERISP overall as consciousness of guilt, not just specific answers but the complaint remained that the trial Judge should have directed the jury that they could not use demeanour at all, including for credibility. It was conceded that this was a "very narrow complaint". [5]
5. It was submitted that although the trial Judge was alive to the clear breach of the "right to silence" in the Crown's attempt to rely upon purported failures by the applicant to immediately deny allegations as a consciousness of guilt, neither the trial Judge nor the parties expressly considered the application of s 89 to other aspects such as the answer in which the applicant failed to refer to the grandmother. It was submitted that on every occasion where the Crown queried with the applicant in cross-examination why he had not provided a different answer, his right to silence was undermined.
6. Given all the relevant circumstances, including the timing of the ERISP, cultural and language factors, and the undue weight which the jury might give it, it was submitted that it was not appropriate in this case to direct the jury that they could derive any consciousness of guilt from the applicant's apparent demeanour in response to the allegations during the ERISP.

Consciousness of guilt

1. Appeal counsel accepted that once post-offence words or conduct are capable of being relied upon as consciousness of guilt an Edwards direction must be given. The complaint upon this sub-ground is that two of the aspects relied upon were not capable of that inference being drawn, namely, the failure to deny the allegation by reference to the grandmother and the applicant's demeanour in the ERISP.
2. In relation to the failure to refer to the grandmother, it was submitted that it was not logically or rationally open to draw a consciousness of guilt inference in relation to the answer where the applicant failed to mention the potential presence of the grandmother. This was said to be because it was so obvious that the offending could not have allegedly occurred when the grandmother was sleeping in the big bedroom that if the applicant had said that she would have seen it, his answer would have been treated as self-evident or self-serving. Further, the applicant did explain in the next answer (in response to a direct question from police) that he only slept in the big room when his mother-in-law was absent. Finally, the applicant submitted that reliance on this aspect breached s 89 of the Evidence Act.
3. Further, it was submitted that this line of questioning (about failing to mention the grandmother) suggested that there was an onus on the applicant to explain every reason why he might not be guilty, reversing the onus of proof.
4. As for the applicant's demeanour being left to the jury as a consciousness of guilt, the same arguments were put as under Ground 1(i). It was submitted that the jury should have been directed that any answers that they were told could not be used as consciousness of guilt (because of the right to silence) could also not be relied upon as credibility.
5. Reliance was placed on the fact that, like in Mark McKey v Regina [2012] NSWCCA, this was a "word on word" case where the jury would have been casting around for evidence to support the complainant's evidence. In that context, the fact that the jury was invited to use their assessment of the applicant's demeanour to undermine his credibility (and to demonstrate a consciousness of his guilt) was unfair.
6. In addition to these specific complaints, it was submitted that the cross-examination and Crown closing address were otherwise "unfairly prejudicial" in many other respects because they relied on numerous 'strands' of consciousness of guilt beyond the four areas identified and addressed upon by the trial Judge. In this way, it was said that the cross-examination and closing address created an "irremediable prejudice to the applicant's right to a fair trial according to law". Although the Crown identified six possible areas capable of consciousness of guilt reasoning (in MFI 17), the applicant in written submissions identified nine separate "strands" of the closing address, which were collectively said to unfairly raise consciousness of guilt reasoning, as follows: 1. The innocent explanation offered by the applicant to police; 2. The applicant's knowledge that the alleged offences occurred on a weeknight before the allegations were put to him in detail; 3. The applicant's knowledge that the alleged offences occurred when the grandmother was not present; 4. The applicant's failure to tell Police that the offending would have been impossible because the grandmother would have seen it, and a failure to mention the grandmother at all; 5. The applicant's lying to and misleading police about the sleeping arrangements; 6. That police had to extract from the applicant that he slept in the second bedroom when his mother-in-law was at work; 7. The applicant's demeanour from the ERISP when allegations were put to him including that he did not look shocked; 8. The applicant's frequent failure to "actually actively deny the allegations when they're levelled"; and 9. The applicant's explanation in court for the way he reacted to questioning being because he was exhausted rather than saying he was "bewildered, confused, panicked, upset or shocked".

Crown submissions: Grounds 1(i) and (ii)

1. In response to the submissions suggesting that s 89 of the Evidence Act had been breached, the Crown submitted that the applicant was not in fact invoking his right to silence when he told police that there was "nothing [he] could tell seriously". He explained in cross-examination that this answer was intended to convey that "these things never happened, so I have nothing to say". When asked why he didn't say the words "that never happened" the applicant attributed this failure to his English ability. He gave a similar answer in response to the allegation that he licked the complainant's vagina. He explained that he was "stunned by that time."
2. The Crown relied on the fact that not only was there no objection to the cross-examination based on impugning the applicant's right to silence, but defence counsel herself submitted to the jury that the applicant had waived his right to silence in both instances and was attempting to deny the offences.
3. As for the questions about the complainant's grandmother, it was submitted that the combined effect of the applicant's answers to police in the interview, and the cross-examination, was that the applicant had told police that he could not have touched his daughter on the vagina because he slept with his wife and his "wife would know straight away" if he got up and went into the complainant's room. The applicant's response, when combined with his answer in cross-examination, was capable of demonstrating that the applicant knew he had committed the offences when the grandmother was not present (as alleged by the complainant) and accordingly did not mention the grandmother when explaining why it was impossible for him to have committed the offences.
4. While it is acknowledged that the applicant told police a few answers later that he did occasionally sleep in the complainant's bedroom, it was submitted that this did not diminish the capacity of his initial explanation to demonstrate that he knew the offences had been committed when the grandmother was absent.
5. Further, in her closing address, defence counsel explicitly responded to the submission that the applicant did not mention the grandmother because he knew she was absent when the offences were committed. It could not be said that defence counsel failed to understand the way in which the Crown relied upon the evidence and, in the atmosphere of the trial, saw no prejudice or injustice in meeting the submission. It was submitted that the Crown closing has to be considered in the context of the robust submissions made by trial counsel for the applicant on the issue. The applicant's response to the use sought to be made of the evidence by the Crown was clearly articulated in the direction that was given. Further, the trial Judge cautioned the jury that they should be "extremely careful" about drawing inferences.

Consideration: Grounds 1(i) and (ii)

1. Although a number of discrete complaints were made under these sub-grounds, the underlying focus was an allegation that the applicant's right to silence had been undermined.
2. Section 89 of the Evidence Act is concerned with preventing any adverse inferences to be drawn from the failure of an accused person to answer one or more questions by an investigating official. Had the applicant refused to answer one or more questions or declined to be interviewed at all then the trial Judge would have directed the jury that they could not use that refusal against the applicant in any way. That was not this case.
3. The applicant was cautioned by police at the commencement of his ERISP and again thereafter. Despite this, he answered all of the questions put to him. As his defence counsel emphasised to the jury, the applicant waived his right to silence, answered every question put to him by investigating police and then entered the witness box at trial and subjected himself to cross-examination.
4. In this context, it is unsurprising that s 89 of the Evidence Act was not raised by defence counsel at the trial.
5. Despite the fact that the applicant at no time exercised his right to silence, it is contended that the Crown undermined the applicant's right to silence in three ways. I am not satisfied that any of these complaints are established.
6. The first complaint is that the Crown should have been prevented from cross-examining the applicant and addressing the jury to the effect that the applicant failed to deny the offences when they were first put to him in his ERISP.
7. I have carefully considered the applicant's answers in his ERISP and his cross-examination about them which underpin the complaints under this ground. There was nothing unfair about the cross-examination itself, the question is how it could be used by the jury.
8. I have extracted the answers above at [51]-[60]. It is to be accepted that in part of his answers the applicant responded by answering, "there's nothing I can tell seriously", "there's nothing I can tell", or "Jesus. What … ah there's nothing I can tell you for this one either. I'm sorry about that". But some of the answers he gave included denials and in his re-examination at trial he explained his initial answers to police as meaning "these things never happened, so I have nothing to say". His account was to the effect that he was trying to deny the allegations. When asked in cross-examination why he had not said the words, "that never happened", he explained that this was due to his "English ability", that his "mind wasn't very clear" and he was "stunned by that time".

Consciousness of guilt?

1. The applicant contends that two aspects of the applicant's ERISP were not capable of demonstrating a consciousness of guilt: the failure to mention that the grandmother would have seen him and demeanour. No complaint is made about consciousness of guilt reasoning having been left to the jury in respect of the story about accidental touching and the lie told by the applicant regarding his sleeping arrangements.
2. Although defence counsel at trial objected to the failure to mention the grandmother going to the jury as consciousness of guilt, it was accepted that a different argument is now put on appeal. At trial, defence counsel submitted that there was insufficient evidence that the offences only occurred when the grandmother was absent. The trial Judge was satisfied there was. In this Court the complaint was framed differently: it was contended that failing to mention the grandmother has no "logical connection" with guilt. [7] It was conceded during the hearing of this appeal this was not the "strongest ground". [8]
3. The applicant has failed to establish that the applicant's denial of the offences by reference to his wife having seen him rather than the (more obvious) example that the grandmother would have seen them was incapable of suggesting that the applicant knew the offences were committed when the grandmother was not there. It was open to infer this especially when these answers are considered in the context of his initial misrepresentation of the sleeping arrangements in the flat. The Crown in these passages was inviting the jury to consider the applicant's inconsistent and evolving account as to the sleeping arrangements in the family home. Nor am I satisfied that this line of questioning suggested that there was an onus on the applicant to explain every reason why he might not be guilty, thereby reversing the onus of proof.
4. As for the applicant's purported lack of surprise when confronted with the allegations being left as consciousness of guilt, I make the same findings as I did under Ground 1(i). There is no authority for the proposition that the reaction by a suspect during questioning cannot be relied upon as consciousness of guilt, although clearly the jury must be given clear directions about the steps they must go through before they could do so. The applicant gave evidence explaining his demeanour and defence counsel addressed this in some detail in her closing address. Further, the trial Judge gave detailed directions about the caution to be exercised when considering demeanour.

Rule 4

1. Rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) is in these terms: No direction, omission to direct, or decision as to the admission or rejection of evidence, given by a trial judge may, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the appellant or applicant for leave.
2. The applicant accepted that only one matter now complained of under these two sub-grounds was raised before the trial Judge and that r 4.15 applied (concerning the failure to refer to the grandmother). It was also accepted that no complaint was made about Ground 1(iii), Grounds 2(i)(a), 2(ii) and Ground 3. Although the applicant's counsel proceeded on the basis that r 4.15 applied to those aspects of Ground 1 on which no complaint was made, the Crown properly acknowledged that there is some doubt as to whether r 4.15 applies to Ground 1 at all.
3. In Glenn, I observed at [226] that complaints about the cross-examination of an accused or a Crown closing address are not about a "direction, omission to direct, or decision as to the admission or rejection of evidence" and thus r 4.15 is not engaged. Despite this, I went on to observe that even when r 4.15 is not engaged, many of the principles derived from the decisions concerning the engagement of the rule are applicable to the question of whether the trial miscarried as a result of the matters now complained of. As this Court (Giles JA, Hislop and Hulme JJ) observed in Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373 at [11]-[12]: "In R v Tripodina (1988) 35 A Crim R 183 at 191 this court held: '…it is the duty of counsel appearing at the trial to take objection to matters which, in their view, are irregular, or which might be unduly prejudicial to their client, and in particular to raise, in relation to the summing up, any matters which the trial judge may have overlooked or which, in their view, he has put erroneously.' A failure by counsel to perform this duty may be explicable because: (a) he overlooked the point or was unaware of the law on the subject; (b) he deliberately said nothing hoping to gain a tactical advantage at a later stage; or (c) he took no objection as, in the atmosphere of the trial, he saw no injustice or error in what was done - Tripodina (at 193 and 191)."

Ground 1(iii): Crown inviting inferences not based on evidence

Applicant's submissions

1. The applicant submitted that the Crown at trial made a number of submissions as to why the jury should accept the evidence of the complainant that were not based on the available evidence at trial.
2. It was submitted that these submissions compounded the unfairness that arose from the complaints made under Grounds 1(i) and (ii), particularly where the jury was invited to find support for the complainant's evidence from her demeanour and hand movements. It was submitted that these matters should not have been given the significant emphasis they were afforded, particularly given the recognised and inherent difficulties of drawing any inferences (let alone of guilt) solely from observing a person's demeanour.
3. One of the portions of the Crown address relied upon was suggesting that the complainant's physical gestures enhanced her credibility because it was as if she was reliving an authentic memory. It was submitted that this was objectionable because it was not based on expert evidence. The Crown had adduced evidence from Dr Pulman, and it was submitted that she should have been asked to comment about these aspects of the complainant's evidence.
4. A similar complaint was made that the Crown suggested to the jury that the complainant's writing or drawing in her interview with police enhanced her credibility and authenticity when there was no expert evidence about this. It was submitted that such behaviours may have no bearing on the credibility or authenticity of a child's account at all or may be consistent with a child's imaginary or falsely reconstructed account of events and that Dr Pulman should have been asked about these matters so that there was a proper evidentiary basis to put the submission. Further, if these matters had been put to Dr Pulman the applicant would have been on notice of it.
5. At the hearing of this appeal, it was conceded that counsel was unaware of any case in which an expert such as Dr Pulman has given evidence about a complainant's demeanour when making complaint or giving evidence or their believability generally. [10] It was also accepted that there is no general principle that a Crown cannot make submissions about the demeanour of a child complainant unless expert evidence has been given about children's demeanour more broadly. [11]

Crown submissions Ground 1(iii)

1. The Crown submitted that there was no unfairness in the Crown seeking to draw on the jury's common sense and life experience to find that the complainant was both credible and reliable. Most of the submissions to the jury were prefaced with the phrase, "you might think". It was submitted that such submissions do not need to be supplemented by expert evidence. Nor was there any requirement for the Crown to adduce expert evidence as to whether writing down allegations, drawing aspects of the allegations, gesticulating while outlining an allegation or giving a detailed account made the allegation more credible or reliable. None of these matters were properly a matter of expert evidence.
2. Finally, as with the other complaints now made, reliance was placed on the fact that defence counsel did not raise any of the issues raised under this sub-ground at the conclusion of the Crown's closing address. Instead, defence counsel chose to respond to these submissions in her closing address and submit, in effect, that none of the matters raised by the Crown indicated that the complainant was credible or reliable.

Consideration: Ground 1(iii)

1. It is unsurprising that the focus of the Crown closing address was on the evidence of the complainant given her significance in the Crown case. The jury was invited to find her to be both a reliable and credible witness. In that context, they were directed to the way in which she first disclosed the offending and the observations made by complaint witnesses of her. There is nothing unfair about doing so.
2. I have considered all of the portions of the Crown closing about which complaint is made for the first time in this Court. There was nothing unfair or inappropriate in the Crown invitation to the jury to assess the complainant's demeanour. The Crown invited the jury to use their common sense and life experience in their assessment of the complainant's evidence. This occurs in all trials when the Crown case rests significantly on evidence given by a central witness.
3. As for the suggestion that aspects of the Crown's submissions were not supported by evidence, it is difficult to identify what that evidence would have been. The evidence of Dr Pulman was narrowly confined and general. The jury was directed that it was not a comment upon the evidence of the complainant. It is difficult to see how Dr Pulman could have properly been asked to comment on aspects of the evidence of the complainant. Rather, her evidence was largely adduced to avoid the jury making false assumptions.
4. To the extent that the applicant suggests that the Crown impliedly invited the jury to reason that the complainant's "version must be more truthful than the [applicant's]", because the applicant did not write or draw any of his responses, I do not accept that that reflects the Crown closing address when considered overall.
5. I am not satisfied that an unfairness arose from the Crown closing address insofar as the jury was invited to accept the complainant's evidence.
6. I would grant leave to argue this sub-ground, but I would not uphold it.

Ground 2: Errors in summing up regarding consciousness of guilt

1. There were three separate sub-grounds under Ground 2: 1. The trial judge erred in directing the jury it could rely on consciousness of guilt reasoning arising from an assessment of the applicant's demeanour in his ERISP: Ground 2(i)(a); 2. The trial judge erred in directing the jury it could rely on consciousness of guilt reasoning arising from the applicant's failure to refer to the maternal grandmother in part of his response to police questioning: Ground 2(i)(b); 3. The trial judge erred in failing to direct the jury it must not draw any unfavourable inference (including as to credibility) from the applicant's asserted failure immediately to deny allegations put by Police: Ground 2(ii).
2. There is significant overlap between these sub-grounds and Ground 1. By necessity, I was required to consider the complaints made about the Crown conduct in the context of the ameliorating directions given by the trial Judge.

Applicant's submissions

1. It was submitted that it was not appropriate to direct the jury that they could derive any consciousness of guilt from the applicant's apparent demeanour during the ERISP for the reasons explained under Ground 1.
2. As for the second complaint, it was submitted that the trial Judge's decision to leave the absence of reference by the applicant to the grandmother to the jury as being available for consciousness of guilt reasoning was prejudicial to the applicant because it suggested that there was an onus on the applicant to explain every reason why he might not be guilty.
3. As for the third complaint, although it was accepted that the trial Judge directed the jury it could not use his purported failure to deny the allegations for a consciousness of guilt purpose, the applicant submitted that the trial Judge erred in failing to direct the jury that it could not use the applicant's purported failure to deny the allegations in any other way unfavourably to him.
4. It was submitted that although the trial judge expressly directed the jury that it could not use the applicant's failure to immediately verbally deny the allegations as consciousness of guilt, she directed the jury that they could rely on the applicant's demeanour during the ERISP as consciousness of guilt. This was unfair because the jury was directed that it could not rely upon the verbal part of the applicant's denial, but they could rely upon the non-verbal part of the same representation to infer a consciousness of guilt. It was submitted that it would have required the jury to engage in "mental gymnastics" in reviewing the footage of the ERISP, to see whether an adverse inference as to consciousness of guilt from the applicant's demeanour could be drawn by ignoring his words while simultaneously relying on both the applicant's demeanour and his words in assessing his credibility at the point when allegations were first put to him by police.
5. The applicant submitted that the trial Judge's direction in relation to consciousness of guilt left open to the jury that it could use the applicant's silence or failure to deny allegations as evidence for drawing other unfavourable inferences, including in respect of credibility. Otherwise, the applicant repeated his submissions made under Ground 1 in support of this ground.

Consideration: Ground 2

1. It follows from the findings I have made under Ground 1 that I would not uphold ground 2 either. I have already considered the protective nature of the Edwards direction, the trial Judge's directions as to the drawing of inferences and the trial Judge's direction as to the caution required before assessing demeanour under Ground 1.
2. As I observed under Ground 1, the suggestion that the jury should have been directed that that they could not draw any inferences from the applicant's responses, including as to his credibility, is flawed; the jury was entitled to assess the manner of the applicant's denials to the allegations when assessing the credibility of those denials and defence counsel relied on the same answers to boost his credibility.
3. Not only is the Edwards direction protective in nature, the trial Judge gave other directions on this issue including regarding inferences and the caution required before relying on demeanour.
4. Leave is required under r 4.15 to advance sub-ground 2(i)(a) and sub-ground 2(ii). Defence counsel agreed that it was appropriate to give the directions that are now the subject of complaint. Leave pursuant to r 4.15 is not required with respect to that sub-ground 2(i)(b).
5. The applicant relied on the manner in which this Court dealt with a failure to raise the issue before the trial judge in Rahman. In Rahman none of the matters complained of on appeal had been raised before the trial judge but the appeal was allowed. In relation to the purported failure to give an Edwards direction (Ground 1), leave to argue that ground was refused under r 4.15 on the basis that there was an obvious reason why no such direction was sought: it would have undermined the submission that no lie had been told. It was held that no miscarriage of justice was occasioned by the trial judge's failure to give an Edwards direction because lies amounting to consciousness of guilt did not arise at the trial.
6. Despite this, leave was granted to argue Ground 3 in Rahman. That ground was upheld, and the appeal allowed. Ground 3 concerned the right to silence. The applicant had abruptly discontinued an ERISP. No direction was given at the time that the ERISP was tendered about his right to silence. Nor at any other stage was the jury directed not to draw any negative inferences from the fact that he did so. Davies J (with whom Harrison J (as his Honour then was) and Wright J agreed) found (at [88]) that: "it is difficult to conceive of any forensic reason why that was not done. It must be assumed to be inadvertence on the part of counsel for the accused."

Applicant's submissions

1. The applicant submitted that the trial Judge's directions to the jury on tendency evidence occasioned a substantial miscarriage of justice because it arose in circumstances where the Crown had abandoned reliance upon tendency reasoning prior to its closing address. Accordingly, neither the Crown nor the applicant addressed the jury on tendency.
2. It was submitted that the applicant was denied procedural fairness. Further, complaint was made that it was the trial Judge who invited the Crown to reconsider his position after both parties had completed their closing addresses. It was submitted that the trial Judge should not have "stepped into the arena", given that it was an adversarial process in which the Crown had explicitly disavowed reliance on tendency reasoning.
3. Complaint was made that the trial Judge did not provide an anti-tendency direction as requested by defence counsel. It was submitted that the jury could have been told that although the Crown had opened with tendency and the applicant had been cross-examined on it, it was no longer relied upon by the Crown and was not therefore addressed by defence counsel in her closing address, such that they must not engage in any tendency reasoning.
4. The applicant submitted that there was no forensic advantage or reason for the applicant's counsel to acquiesce to the tendency direction and that the forensic decision by trial counsel to inform the judge that there was no unfairness should not bind the applicant on appeal.
5. It was submitted that it was unfair that the Crown had the forensic benefit of opening and cross-examining the applicant with respect to tendency. Then, after disavowing it and making no reference to it in his closing address, defence counsel was entitled to expect in the circumstances that tendency would no longer be relied upon and that the trial Judge would provide an anti-tendency direction. The result was that the applicant was denied the ability to argue in his closing address why tendency reasoning should not be engaged.
6. The applicant also submitted that he was denied the benefit of having his perspective reflected in her Honour's directions on tendency, which referred to what "the Crown says" and "the Crown alleges" etc. He was denied, by that process, a countervailing argument during the direction to the jury of what he through his counsel might have said about tendency not being established on the evidence. It was submitted "with respect" that this was incurably unfair and occasioned substantial prejudice to the applicant.

Crown submissions

1. The Crown relied on the way in which the issue evolved at trial and the fact that throughout the trial there were a number of discussions about the Crown's reliance on tendency reasoning. It was submitted that in that context the trial Judge's directions in relation to tendency did not amount to a denial of procedural fairness.

Consideration: Ground 3

1. There is no complaint under this ground about the terms of the tendency direction or the decision that the Crown be permitted to rely upon the counts on the indictment as tendency evidence. Rather, the sole complaint under this ground was of a denial of procedural fairness. Before turning to consider that claim, it is important to trace through the background as to how the tendency direction came to be given. I have extracted the relevant transcript above at [67], and [95-97]. It does not support the applicant's submission that the trial Judge "stepped into the arena". In summary, the issue emerged as follows.
2. There had been a pretrial ruling that the charges on the indictment could be relied upon as tendency evidence. The applicant agreed to be bound by the pre-trial rulings given this was a second trial. The Crown opened on tendency and cross-examined the applicant to suggest that he had a sexual attraction to his daughter and that he acted on it. The applicant denied this and denied all charges.
3. In discussions with the parties regarding the suitable directions for the jury, prior to the commencement of the closing addresses, the trial Judge noted the recent decision in Rassi v R. [13] In an exchange with counsel, the Crown told the court that he was "fairly confident" he would not be invoking tendency reasoning in his closing address.
4. After closing addresses, in which neither party referred to tendency reasoning, defence counsel sought an anti-tendency direction given that the Crown had disavowed tendency. The trial Judge reflected on the fact that the Crown had opened on tendency evidence and put the two tendencies to the applicant in cross-examination. In those circumstances, her Honour discussed with counsel how she could give an anti-tendency direction after the Crown had opened and cross-examined on tendency. Her Honour commenced her summing up before that issue had been resolved.
5. When the Crown subsequently indicated that, on reflection, he did seek a tendency direction, the trial Judge asked defence counsel whether there was any unfairness in that course to which she replied that there was not. No doubt that was because the defence case was one of outright denial of all the offences. In denying all offences, it necessarily followed that the applicant disputed that he had either of the tendencies alleged or that there was conduct from which those tendencies might be inferred.

Leave to appeal against sentence

1. The applicant also seeks leave to appeal against his sentence on the following ground: Ground 4: Her Honour erred by taking into account matters of aggravation which would have attracted the more serious charge of persistent sexual abuse pursuant to s 66EA of the Crimes Act, contrary to the "De Simoni principle".
2. Before turning to consider the applicant's submissions it should be acknowledged that the applicant stood to be sentenced for two offences contrary to s 66B(a) of the Crimes Act (sexual touching of a child between 10 and 16 years of age) and one offence contrary to s 66C(2) Crimes Act (aggravated sexual intercourse with a child between 10 and 16 years of age). He was not sentenced in relation to an offence contrary to s 66EA Crimes Act.
3. The offence under s 66EA of the Crimes Act carries a maximum penalty of life imprisonment. Such an offence occurs when an adult maintains an "unlawful sexual relationship" with a child. An "unlawful sexual relationship" is defined by s 66EA(2) as being a relationship in which an adult "engages in 2 or more unlawful sexual acts with or towards a child". Before considering the applicant's complaints under this ground, I will first extract the impugned passages of the remarks on sentence. Given the narrow scope of the one ground of appeal, it is not necessary to summarise the remarks on sentence in any detail.

Remarks on sentence

1. Relevant to the assessment of the objective seriousness of the offending, the applicant relied on the fact that there was no grooming, coercion or threats of violence. In response, the Crown submitted that the absence of these factors was not particularly mitigating on the facts of this case given the relationship of trust between the applicant and the complainant.
2. Her Honour accepted the Crown submission as follows: "I am persuaded by the Crown's submission. I am not saying that, had there been evidence of coercion and grooming, it would have exposed the offender to a potentially higher offence in breach of the Di Simoni [sic] principle, and that is not submitted by the Crown. I am persuaded that this is a matter where the proper lens by which to understand the case is the gravity of the relationship between the father offender and the victim child in circumstances where, so grave was the breach of trust, that it is unsurprising that there was no evidence of grooming or coercion." (Emphasis added.)
3. Her Honour went on to note a number of other matters relevant to the objective seriousness before noting the following: "The Court is also asked by the Crown to decline to mitigate the offending on the basis of it being spontaneous. The Crown submits the spontaneity must be seen as informed by the way in which the offender exploited the opportunities that arose in a circumstance where the offender would have known about the arrangements for the children to sleep in the bedroom when the grandmother was not there, together with the offender. In other words, the Crown does not rely on establishing an aggravating feature beyond reasonable doubt of premeditation, but the Crown submits that to the extent that there was spontaneous offending, it nonetheless was in the context of the offender exploiting the opportunities. I accept the Crown's submission in that regard." (Emphasis added.)
4. Later, when considering Count 3, her Honour observed the following: "Again, another difference compared with counts 1 and 2 is that the element of the offender breaching his authority in committing this offence is an inherent element of the offence, unlike for counts 1 and 2. The Court is careful not to aggravate an offence by an inherent element. Nonetheless there is the additional feature of a breach of trust, but as I have said in the circumstances of this case, there is considerable overlap and the salient feature is the overarching relevance of the fact that the offender is the biological father of the victim and lived in the same household and committed these offences in her bedroom in circumstances where both the victim and the mother placed their trust into the offender." (Emphasis added.)

Applicant's submissions

1. It was submitted that the italicised portions of the Remarks on Sentence extracted above establish that the sentencing Judge elevated the offences for which the applicant was being sentenced to an offence under s 66EA. In doing so, it was contended her Honour breached the principle in R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 ("De Simoni"). The applicant relied on the decision of Gould v R; R v Gould [2021] NSWCCA 92 for the recent re-statement of that principle.
2. Reliance was placed on the fact that at the commencement of the trial her Honour observed the following. "HER HONOUR: I'm going to ask a question that's in the ignorance of what has transpired previously. I've just come out of a trial proceeding concerning a charge under s 66E(A). These offences themselves sometimes touch on that offence provision. Can I just understand if this results in - I don't know what the verdict will be - guilty verdicts, there will not be any DeSimone(?) issue suggesting some ongoing sexual relationship? WALDMANN: Though potentially - HER HONOUR: And it's not to question the charging discretion of the prosecution. Not at all. I'm just thinking ahead because my mindset has just come from a trial of that nature."
3. The applicant relied on this passage to suggest that by the time her Honour came to sentence the appellant, she did what she stated she would not do. It was submitted that her Honour treated the existence and nature of the relationship between the offender and the complainant as relevant to the determination of the objective seriousness of the offending and that her Honour erred in doing so.
4. It was submitted that when her Honour noted that the lens by which to consider the question of grooming was the "gravity of the relationship between the father offender and the victim child in circumstances where, so grave was the breach of trust", this was in fact a finding about the nature of the existence of an "unlawful sexual relationship" between the appellant and the complainant which is an element of an offence under s 66EA.
5. It was further submitted that her Honour erred in considering the factors of breach of trust and breach of authority because they were features which arose from the existence of the (unlawful sexual) relationship between the appellant as father and the complainant as daughter, which is an element of s 66EA.

Consideration

1. The "De Simoni principle" is a well established principle of sentencing derived from the decision of the High Court in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31. It simply states that an offender is only to be punished for the offence of which he or she has been convicted and not for other acts which are not the subject of the verdict which could have constituted a more serious offence: at 389 and 392. As Gibbs CJ (with whom Mason and Murphy JJ agreed) observed at 389: "… the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted."
2. I do not accept that the De Simoni principle was breached by the sentencing judge in this matter.
3. It is to be accepted that only a month before the applicant was sentenced, a five judge bench of this Court delivered its decision in MK v R; RB v R (2023) NSWLR 96; [2023] NSWCCA 180 which considered the meaning of "unlawful sexual relationship" in s 66EA (2) of the Crimes Act. Beech-Jones CJ at CL (with whom the other four judges agreed) observed at [95] that what converts a "relationship" (such as parent and child) into an "unlawful sexual relationship" is the commission of two or more unlawful sexual acts in the course of that relationship or a relationship that arises from the commission of the unlawful sexual acts themselves.
4. The fact that an "unlawful relationship" for the purposes of s 66EA can exist when there is a relationship (such as that between the applicant and the victim in the present matter) in which two or more unlawful sexual acts occur does not mean that a sentencing judge who is sentencing for individual child sexual assault offences, as in the present case, must ignore a feature such as the father/daughter relationship when assessing the objective seriousness of the offending.
5. The applicant stood to be sentenced on three separate counts. As for Count 3, although the complainant had given evidence at trial of other uncharged acts occurring between December 2019 and July 2020, her Honour did not rely on those acts as an aggravating feature; rather, she held that this denied the applicant any mitigation that might have flowed had there been an isolated act.

Orders

1. Accordingly, I would propose the following orders: 1. Leave to appeal against conviction is granted. 2. The appeal against conviction is dismissed. 3. Leave to appeal against sentence is granted. 4. The appeal against sentence is dismissed.
2. SWEENEY J: I agree with the orders proposed by N Adams J, and with her Honour's reasons for those orders.
3. R A HULME AJ: I agree with N Adams J.

Endnotes

1. s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).
2. Rassi v R [2023] NSWCA 119.
3. (2016) 258 CLR 308; [2016] HCA 35.
4. Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63.
5. Tcpt 27 May 2024, pp 13-14.
6. Ibid, p8.
7. Ibid, p10.
8. Ibid, p11.
9. Ibid, p6.
10. Ibid, p15.
11. Ibid, p16.
12. Ibid, p18.
13. Ibid.

Amendments 09 September 2024 - coversheet correction 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: 09 September 2024