LS v R - [2024] NSWCCA 110 - NSWCCA 2024 case summary — Zoe

NSWNSWCCA

LS v R

[2024] NSWCCA 110

Court of Criminal Appeal (NSW)|2024-04-29|Before: Ward P, Hamill J, Dhanji J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2024-04-29

Before

Ward P, Hamill J, Dhanji J

Catchwords

[1997] HCA 56 Lang v The Queen [2023] HCA 29 Lee v R [2023] NSWCCA 203 Liberato v The Queen (1985) 159 CLR 507
[1985] HCA 66 M v The Queen (1994) 181 CLR 487
[1994] HCA 63 Marco v R [2023] NSWCCA 307 MFA v The Queen (2002) 213 CLR 606
[2002] HCA 53 Morris v The Queen (1987) 163 CLR 454

Source

Original judgment source is linked above.

Catchwords

[1997] HCA 56 Lang v The Queen [2023] HCA 29 Lee v R [2023] NSWCCA 203 Liberato v The Queen (1985) 159 CLR 507[1985] HCA 66 M v The Queen (1994) 181 CLR 487[1994] HCA 63 Marco v R [2023] NSWCCA 307 MFA v The Queen (2002) 213 CLR 606[2002] HCA 53 Morris v The Queen (1987) 163 CLR 454[1987] HCA 50 Pell v The Queen (2020) 268 CLR 123[2020] HCA 12 R v Markuleski (2001) 52 NSWLR 290[2011] HCA 13 Stevenson v R [2022] NSWCCA 133 The Queen v Baden-Clay (2016) 258 CLR 308

Judgment (27 paragraphs)

[1]

Background

AD was born in September 2012 (27/02/2023; T 140.14-15) to E (her mother) and L (her father). When she was young, AD was diagnosed with autism and ADHD (T 140.41-46). The applicant is AD's maternal grandfather. The applicant was referred to by AD as "Pop" (T 140.48-49).
The sexual assaults were alleged to have occurred at three locations: North Rothbury (formerly the applicant's home, which was purchased by AD's parents (E and L) in 2014 (T 142.9-12)) on various occasions; East Seaham (a rural property owned by the applicant's sister (J) and her husband (R) in November 2017); and Dunbogan (where the applicant then lived in a caravan park) around Christmas 2018.

[2]

First disclosure of inappropriate conduct (not charged)

E gave evidence that, some time after AD started pre-school in February 2016, but before AD's brother was born (in late March 2016), when AD was about four years old, AD told her that "Pop tickled her privates", and AD demonstrated this by moving her fingers near her vagina area and also on a doll (T 146.26, T 147.46-148.15). E's evidence was that she was completely shocked, terrified and upset (T 148.39). E tried to ring her husband, L, but he was on shift work that weekend (T 148.43-44). So E called her mother (K) (T 148.43). E later told L of the disclosure (T 149.26-30). L corroborated E's evidence as to that call, albeit himself remembering that the call occurred sometime between June and October 2017 ("June, July or October, around there") (1/03/2023; T 304.35 - 305.3).
E's evidence was that she and L had taught AD at an early age, when she was in day care, the word "privates" to refer to her vagina (27/02/2023; T 149.36-150.5).
E's evidence was that, when AD was in pre-school, E noticed redness in AD's genital area and applied cream (27/02/2023; T 172.22-36). L's evidence was that, soon after moving into the North Rothbury house, AD mentioned to him on a couple of occasions that her "privates were sore", and that he also noticed redness in her genital area (1/03/2023; T 304.15-19).
The applicant's former wife (K) gave evidence that, when AD was around three years, AD told her that the applicant had touched her on the buttocks and stomach (1/03/2023; T 370.8-34). (Later, in 2021, AD told K that the applicant had "touched her privates" and "got her to touch his" (T 372.26-28)).
Pausing here, I note that the layout of the North Rothbury house (relevant to the consideration of the allegations the subject of counts 3, 4, 5 and 9) was that the main bedroom was at one end and there were three other bedrooms along a hallway at the other end (Ex F, L1/L2, M). A bathroom and a separate toilet were across the hall from the bedrooms. Initially, AD had occupied the middle bedroom and the applicant had the room at the furthest end. After the disclosure by AD that the applicant had "tickled her privates", E moved AD to the bedroom at the furthest end of the North Rothbury house (the applicant's room) and AD's brother to where AD had been; and the applicant slept in the room closest to the centre of the house (27/02/2023; T 146.23-46). L gave evidence that a house rule was introduced (after the disclosure by AD that the applicant had been touching her privates) that AD was not permitted to sleep in the applicant's bed anymore (1/03/2023; T 305.31-32). This is consistent with E's evidence (at 27/02/2023; T 163.50-164.2) and with AD's evidence as to her mother saying that there was no more sleeping in "Pop's" bed (JIRT Q/A 323; 349 (MFI 3; 33, 36)).

[3]

Subsequent disclosures

On 25 July 2021, AD made disclosures to her mother (E) that led to E speaking to AD's psychologist and then on 28 July 2021 to the police (27/02/2023; T 165.28-168.50). It appears that this may have been not long after AD had attended a child protection class (see T 171.36-59). E said that AD told her that the applicant had showed her a video of people doing things on an app called "Doodleplum" (see T 165.45-48; 166.42-43). (Although E first said that AD had said that the applicant showed her a video of people "doing things that were inappropriate" on the Doodleplum app, E clarified later that AD may not have said "inappropriate".) The applicant, in his ERISP, used the word "inappropriate" in relation to the children watching pornographic videos (ERISP Q 1158 (MFI 16; 113)) but this was in the context of his account that he had discovered the children watching a video that AD's brother had accidentally accessed via an iPad on which AD and her brother were playing games (ERISP Q 1108-1164 (MFI 16; 105-113)).
E said that AD then told her that they (i.e., she and the applicant) would sometimes lay on top of each other, sometimes, with her pants on, sometimes with their pants off; and that AD then showed her what she meant by sitting on top of E (27/02/2023; T 165.47-49). E said that AD then told her that the applicant sucked her privates and made her suck his and showed her how he held her head (T 165.50-166.2). E said that when AD was laying on her (to show her what the applicant did) AD moved herself up and down and demonstrated how AD held her head (T 166.1-2).
E said that she called her mother (K) and K came to the house; and then after K left, during the night AD woke her up and told her that when E was getting her cousin M ready for the wedding the applicant had taken AD to the cabin and put his fingers inside of her (T 168.15-22).
Some time after that disclosure, AD, using her "LOL dolls", demonstrated to E what she and the applicant had done, using sexual positions of a male and female described as "69" (T 174.35-175.28). E said that AD also told her of an incident the applicant made her take off all her clothes and get down and suck his penis (T 175.10-12).
AD was interviewed by police on 28 July 2021 (JIRT interview) (MFI 3). At the time, she was eight years old. On 21 September 2022 (when she was 10), AD gave recorded evidence and was cross-examined (MFI 6). Those records were played at trial as her evidence.
A pretext phone call was made on 3 August 2021 (and recorded by police) between the applicant and E (MFI 8). It is accepted that there was nothing in this call that was incriminatory. E told the applicant that disclosures had been made after AD had attended a child protection class.
The applicant, as was his right, did not give evidence at the trial but tendered in evidence was an electronically recorded interview (ERISP) (MFI 16) in which he had voluntarily participated on 3 August 2021.
A number of family members were called in the Crown and defence cases, respectively, and there was medical and expert evidence from various doctors (Dr Ronda Ticehurst, as to her physical examination of AD in 2021; Dr Gias Ahmed, a specialist urologist who had treated the applicant for his prostate condition and who explained the meaning of erectile disfunction and its association with prostate symptoms of the kind from which the applicant suffered (see 3/03/2023; T 483.42 ff) to the jury; and Dr Dianna Kenny and Dr Peter Ashkar, forensic psychologists, as to the capacity of a young child to lay down memory). There was a statement of agreed facts dated 6 March 2023 (Ex Q) and various exhibits tendered in the respective cases.
As to the expert opinions of Dr Kenny and Dr Ashkar, relevant to the question whether a child of two or three years of age had capacity to lay down a memory and then recall it years later, the applicant says that this evidence went to the issue of the reliability of AD's allegations of sexual assault in East Seaham (AT 31-32). The applicant emphasises that neither of those experts examined AD.

[5]

Count 1: grooming (North Rothbury)

The incident the subject of count 1 (grooming) was alleged to have occurred at the North Rothbury house. (See the JIRT interview; Q/A 58-60, 80-106, 479-516 and the pre-recorded evidence of AD on 21 September 2022; T 48-51; as well as the applicant's ERISP dated 3 August 2021.)
In the JIRT interview, when AD was asked what she had come to talk about that day, AD said that "So, my pop, he has shown me, um, a few videos of this inappropriate, um, things" (JIRT Q/A 58), saying that "And, um, it kind of taught me and I shouldn't have been taught" and "And, um what he did is not right" (JIRT Q/A 60-61).
Pausing here, the description of the videos as being of "inappropriate things" does not seem to me the language of an ordinary eight year old but would be consistent with an adult description of what was said to have occurred as being "inappropriate" (as also is the description of genitalia as "private parts"). The Crown seemed to accept that it might be inferred that use of the word "inappropriate" was something AD had been told (see AT 44.35-36).
When asked if she could tell the interviewer more about that (JIRT Q/A 73/74), AD said "Um, so I think it might, um, I know what the apps called" and that "It's called, um, doodle plum, um, and, um, he's been typing it up on Google and then deleted, and then deleted it". Later in the JIRT interview, AD used the word "doodle" as a word for the part of the applicant's anatomy that she sucked (i.e., his penis) (see JIRT Q/A 354). The applicant in his ERISP denied that he used the word "doodle" for penis (see ERISP Q 1197). The applicant said (ERISP Q 1006) that we call them "privates".
AD said that the applicant showed her the inappropriate videos on "his iPod" (by which it seems likely she meant an iPad, given her description of the device and her reference at that stage to an iPad; and her comparison of the applicant's device to an iPad she had with her at the JIRT interview) (JIRT Q/A 81-89). AD said that the first time this occurred was at her house, sitting on the couch, when her mother and father were out; and the applicant was looking after "us" (JIRT Q/A 92-97; 491). AD said she was probably three or four years old at the time (JIRT Q/A 106, 501-502).
AD said that the applicant had his own house at the time (JIRT Q/A 503-508); and that the applicant was taking care of her and her brother, and was sleeping over (JIRT Q/A 509-514). AD gave a description of telling her brother to look after her "fake toy", while she was watching it (JIRT Q/A 101). Given the age difference between the two siblings (about three years and six months), if AD was only three at the time she must have been approaching her fourth birthday for her brother to have been old enough to be sitting and watching a video at the time. If she was four, then her brother would have been correspondingly older, which would make the wish to distract him from watching pornographic videos more explicable. The applicant's account in his ERISP of an occasion when he discovered AD and her brother watching inappropriate videos placed AD as being older at the time - the applicant said this was going back two or three years ago; i.e., in 2019 or 2018 at which time AD would have been about seven or six (and her brother about four or three) (ERISP Q 1127-1128).
AD said "For some reason I ju, I shouldn't have been watching it" [sic] (JIRT Q/A 102). From later answers it seems that "for some reason" was an expression of AD not understanding why or how something was done.
Later in the JIRT interview, after AD had spoken about what seems to have been the Christmas 2018 incident (see below) and had been asked about the sucking of the applicant's and her private parts (and after AD had said she wanted a break, and "maybe a bit of a long one" (JIRT Q/A 476-477), but before a break was taken) AD was asked about the "doodle plum app" and she said that there were "all these … videos" of people naked (shirt off, pants off and undies) and that they were "private part to private part", and that "And there was even this one, a lady and a male private part to private part and also kissing" (JIRT Q/A 480-484). AD said that when watching the videos the applicant said "[s]sshhh, don't tell anybody" and "this is our secret" (JIRT Q/A 498-499, 23/02/2023; T 96.28-29).
In what appears to have been AD misunderstanding a question asked of her as to whether when this happened she was going to school (presumably intended to try and establish the time frame of this incident by reference to other events), AD said that the applicant showed her the videos "just kind of near the night-time" and said that "my pop was taking care of us while he was having a sleep-over" and her parents were out (JIRT Q/A 509-511).
Asked about the size of the device, AD said "About that big" (gesturing as to its size); and asked whether it was like the one she had earlier during the JIRT interview AD said "No. It doesn't have that much colour. It only has that and the rest of it's just black" (JIRT Q/A 525-526).
Questioned about whether the applicant had another house that he lived in as well at the time he first showed her the videos, AD's answers (to the effect that it was the house he already had which her mother bought before AD was born) indicated that AD was referring to an incident at the North Rothbury house (JIRT Q/A 503-508).
The allegations concerning the pornography episode were put to the applicant in the ERISP and the applicant denied them (ERISP Q/A 1167-1175). As adverted to above, the applicant recounted an occasion when AD and her brother had been using E's old iPad and had accessed a pornographic site using a voice activated word association type of program which he said by-passed the parental lock; it was "nearly full-on porn" (ERISP Q 1108 - Q 1126).
AD was cross-examined in her pre-recorded evidence about these allegations. AD agreed that she had her own iPad and as did her brother and she and her brother would go into the applicant's room in the morning and sit on his bed (21/09/2022; T 41.12-35, 48.19-42). AD disagreed that on one occasion when she and her brother were sitting next to the applicant on the lounge, she and her brother were looking at "naked grown-ups" and the applicant told her she should not be watching that stuff (T 50.13-51.34). AD said she knew what was meant by "voice command", talking to Siri, but that her brother did not accidentally get into a site that was not appropriate for children (T 50.39-51.4). AD denied that she had learnt how to find naked people on the iPad and continued doing that (T 51.15-34).
The applicant emphasises that a search of his mobile phone and iPad (seized on the date of his arrest) did not reveal any pornographic material; nor did a laptop seized the following day from his Dunbogan residence (see 28/02/2023; T 275.15-276.47). An iPad mini was also discovered which appeared not to have been used for some time.
Detective Lawson, the informant on the indictment, gave evidence that she did not access AD's iPad at the time because E told her that there were parental and internet restrictions on her iPad (see T 282.12-37). The applicant complains that police did not confiscate the iPads of AD, her brother, and her parents for examination, and did not ask AD where she had obtained her iPad (AT 13.1-11). (In her pre-recorded evidence, AD said she did not know where the iPad had come from originally (21/09/2022; T 41.29-32)). Detective Lawson confirmed that "Doodleplum" was not a specific pornographic site (28/02/2023; T 286.12-13).
R's evidence was that the issue of AD accessing pornographic material on her iPad was discussed between the applicant and him on an occasion when he and his wife, J, (but no one else) were on the front verandah of the East Seaham property (6/03/2023; T 559.38-561.2) and that the applicant described to him a "one-off" event that AD was accessing pornography via a Siri voice command (T 571.20-21). R said that he "drilled" the applicant about how and why this had happened, and the applicant told him that E knew (T 560.29-35). R said that a week or two later when E visited, he asked her how it had happened but she did not answer (T 561.6-9). R thought she knew what he was talking about but did not appear to be concerned (T 561.11-45).
J's evidence was that the topic of AD accessing pornography was raised between the applicant and her in June 2017 (6/03/2024; T 582.26-47) but her account was that present also on that occasion was M (but not E). J said that the topic came up again about a month later when the applicant and R, M, L and E were present (T 582.50-583.19). J said that she said to E that on that occasion that she hoped that E had put parental locks on (the iPad) "and made sure that that couldn't happen again because it's not right" (T 583.30-32). J recalled the word "Siri" being used in both of the conversations (T 583.49-584.3). E told her she had done that and was limiting the children's time on the iPads and watching what they were doing (T 582.35-36). J said E told her that the applicant had told her, E, when it happened (T 584.20-22).
M gave evidence of the conversation when E was present, and said the applicant explained what had happened on the lounge (6/03/2024; T 538.25-539.2). M said that E told her the applicant had told her about it, and she had started to limit screen time and change passwords (T 539.5-6).
E denied in cross-examination that she remembered a conversation at the East Seaham house, when R and J were present, and the applicant told her the children were sitting on the lounge and he heard "something not quite right" come from the iPad (28/02/2023; T 214.30-35). Indeed, E denied any conversation discussing AD accessing porn and also denied that the applicant had ever told her he caught AD and her brother looking at pornography (T 216.18-21, 34-36).
E recalled a conversation, at a time when she went to R and J's place, and the applicant and M were there, about "oldies" not really knowing much about technology and that children are quick to pick up technology (T 215.21-25). E denied that R asked her what she and L were doing to stop the children accessing porn (T 215.27-29). E said that she probably said to R that she was limiting how much time both children had on the iPad, as in their screentime, but did not know how it actually came up (T 216.11-25). It is noted that E and L had visited R and J many times and there had been many conversations over the years (T 213.14-16).
In evidence in chief, L was asked whether he was aware whether AD had ever accessed pornography on her iPad, and said he had only been told "a little bit that she'd seen a little bit of pornographic [sic] on [the applicant's] iPad" (1/03/2023; T 311.30-33). L said that he had never been told about AD accessing pornography on her own iPad, and was not aware of this topic having been discussed between E, R and J, or with M (see T 311.45-312.).

[6]

Count 2: sexual intercourse (digital penetration)

The incident the subject of count 2 was alleged to have occurred at East Seaham (a 160 acre property owned by the applicant's sister (J) and her husband (R)) at around the time of the wedding of the applicant's niece (M) on 4 November 2017 to her husband (EP). The wedding was in Raymond Terrace (commencing at 3pm that day) but preparations for the wedding and the reception were held at the East Seaham property. AD had turned five years of age in September 2017 and her brother was about 18 months old (23/02/2023; T 96.31-40). AD and her family attended the property as wedding guests, although AD did not attend the actual wedding ceremony at Raymond Terrace (see JIRT Q/A 104-183; AD's pre-recorded evidence at T 2-4, T 6-29 and the applicant's ERISP).
It was not in dispute that on the East Seaham property there was a main house, including a granny flat separate from the house; as well as a cabin on a small hill (or hillock) some distance from the main house (around 800m) which was accessible by car on a track road.
AD disclosed the conduct in count 2 in her JIRT interview in response to a question "can you tell me everything that happened from the time that Pop started showing you these videos [i.e., count 1]. The first time". AD answered "[b]efore… Before when it was my aunty's birth, I mean, wedding, he took me up into this cabin before my brother was born and, um, he started to play with my private part" (JIRT Q/A 104-105). When asked if she could remember the first thing that "poppy" ever did that, AD said it was "when I told you about the wedding" (JIRT Q/A 108/109).
The applicant refers to this passage as meaning that AD placed the very first alleged sexual assault as occurring at the East Seaham property wedding (before her brother was born and before the pornographic video incident when she was about three years of age) (JIRT Q/A 105-110) (see [30] of the applicant's written submissions dated 12 December 2023). That timing of events must be incorrect and seems not to be a proper reading of AD's evidence. The muddling of "birth" and "wedding" in the first of those answers seems likely to be simple confusion of the concepts. Certainly any suggestion that M's wedding was before AD's sibling was born is incorrect. What I understand by this answer is that, asked to say everything that had happened since the applicant started showing the videos and asked to identify the first time (that something had happened), what AD was referring to was an incident before her aunt M's wedding. That is consistent with an incident happening on the wedding day itself but before the actual wedding. The recollection that this was before her brother was born must be incorrect.
In the JIRT interview, AD was asked "[s]o, the first time you remember your pop ever doing something and you said, inappropriate, was that at the cabin you're talking about when your aunty's wedding?" (JIRT Q/A 110) and AD said "[y]eah… it was up in the hill… at my, um, uncle [R]'s" (JIRT Q/A 110-114). AD identified that this was not R's house, it was "just his, like, other place" (JIRT Q/A 115-116).
In response to being asked to explain everything when the applicant took her to the cabin, AD said "he drove up there and then I was just laying, um, I just laid on the bed and that's when he did it" (JIRT Q/A 117). AD said they drove from "near it", and that her mother had said that they could not be in the wedding so the applicant looked after her (JIRT Q/A 118-119). AD said "[s]o, he drove up the hill… where, um, we probably had to go… before we went down to the cavara, caravan… And that's when it happened" (JIRT Q/A 120/123). The description of driving up the hill to the cabin is consistent with the topography of the property.
Asked who else was in the car, AD said "I think aunty [M] but she was having a shower and getting ready … She didn't, she didn't know … after, um, she went inside of the, um, in a different room and got her makeup on and all her stuff and had a shower" (JIRT Q/A 126, 129-131; 21/09/2022; T 10.47-50). AD said that that was when "that" happened (JIRTT Q/A 132). AD said the bed was "just like, kind of, like, there but bigger [gesturing in the interview as to the size] … It's in the cabin and it's about two, um, two times the size and the roof is bigger" (JIRT Q/A 135).
AD was then shown a photo of a cabin (Envelope 3 and marked Ex PR1). AD said "It is a small cabin but not the cabin that me and pop or Aunty [M] were in" (21/09/2022; T 3.35). Asked if she had been to that cabin before, AD said she did not know (T 3.50-4.1).
AD said that the roof doesn't have a tilt on it. "It only has a point and it's um there and it can cover the two rooms". There was the following exchange (T 4.9-15): Q. So you've just mentioned two rooms? A. I think, I do not know. Q. The cabin that you were in with pop when he put his finger in your private, okay that's the cabin I'm talking to you about now, had you been to that cabin before the day that pop put his finger in your private? A. No. Cause I was so young.
AD said that she was lying on the bed, and the applicant came over and "told me to pull my pants down. I can't remember that much". AD said, when asked to say what she could remember, "Um and then, um I did. I was only young then." and that "And then he did that" (JIRT Q/A 138-140). By "that", AD explained that the applicant "put his finger in my private part and then shake his finger for some reason… Yeah. Inside of it… I don't know how he does that" (JIRT Q/A 142-145). Asked whether there was another name for "private part", AD said that she did not know and that that was what they called it in the family (JIRT Q/A 146-147). When there was a reference to her going to school now (again, presumably to provide a time frame for the incident) AD aid "No. I'm not going to school after" and that "Because, um, sometimes I just get like, I sometimes might get an, anxiety and I don't want to bring that to school" and that "I get a bit, too much pressure on me" (JIRT Q/A 148-150). From this, it appears that AD may have thought she was being told she was going to school after the interview.
Asked to name the body part, AD said "A Venus of something… that's all I can probably remember"; and when she was asked if she could circle where the private part is on a picture of a little girl, AD did not want to do so "'Cause I don't like seeing that" (JIRT Q/A 151-158). Shown a cartoon diagram, AD marked where the private part was on the drawing and agreed that that was where Poppy put his finger in her private part (JIRT Q/A 159-161).
When asked about what the applicant's body was doing when he shook his finger inside he private part, AD said "[h]is body was just shaking while he was doing that", and that he was standing up (JIRT Q/A 168). AD said that the applicant asked "Did that feel good", and she thought she said "[y]eah", and said that "I shouldn't have" (JIRT Q/A 169-171). AD said that she thought that was all she could remember and then said that "before aunty [M] hopped out of the shower he said Don't tell anybody. … And that it was our secret and, um, it's not meant to be a secret" (JIRT Q/A 170-175) (see also T 61-183, T 96-97). AD said it felt like the applicant was "actually teaching her" because he was "actually just doing it and then it kind of looked like he was showing me"; and that "that shouldn't be good" (JIRT Q/A 176-180).
Pausing here, the comments "it's not meant to be a secret" and "that shouldn't be good" are some of a number of comments by AD in the JIRT interview that indicate an awareness or concern on AD's part that what occurred was not right.
AD said that the applicant had his clothes on (JIRT Q/A 182). Then, when asked about the next time he did something AD referred to when she went into his bed and he told her to take her pants or her onesies off, and it was sometimes hard; and also her underwear (JIRT Q/A 185-188). And then his pants were off and then "we did private part to private part" at which stage AD said that she was actually starting to get a bit stressed and she wanted to take a break (JIRT Q/A 189-195).
In her pre-recorded evidence in chief, AD was reminded of her statement in the JIRT interview about M's wedding day and she said M was having a shower and getting ready; and AD was asked where M was when she was having a shower and getting ready. AD said M was "in the other room that was not in the room where me and pop were" (21/09/2-22; T 2.45-46). AD said that that other room was in the cabin as well (T 2.50). AD was confused when asked whether the cabin she was in when the applicant put his finger in her privates and shook it had a shower; and said that she did not know when asked whether M was having a shower at the time that "Pop" was putting his finger in her private; and that "It's been a long time" (T 3.2-11).
AD said that when the applicant was putting his finger in her private, in the cabin, she could hear the shower (T 3.13-19). Asked about her statement in the JIRT interview that the roof was bigger, AD said that it "wasn't as big as the picture that you showed me before" (T 3.26).
AD was cross-examined about the East Seaham episode in her pre-recorded evidence.
In cross-examination, AD confirmed that M was in the front seat of the car when the applicant drove her to the cabin and that her brother had at that time not been born (21/09/2022; T 10.28-11.18).
AD was asked if she got to the property the day before the wedding, and she said yes, saying that her parents took her there and she thought her little brother was not born at the time (T 11.10-22). But she then corrected this in subsequent answers saying that they got there on the day of the wedding and stayed after (T 11.20-31). AD did not remember details of who was there on the day of the wedding, saying that "[a]ll I remember is what pop did to me, did on the day" (T 13.3-4). AD agreed the applicant took her away from where everybody was getting ready, to another place, where he put his fingers in her "private part" (T 13.6-12).
AD was shown a series of photographs of the East Seahaven property and cabin (T 6ff). AD expressed some uncertainty as to which was the main house. AD was then shown photographs from "envelope B"; first photographs 3 and 4 of a building that she agreed appeared to be on a hill and then photograph 5 which was said to be the inside of that building. AD said that "this is where it happened"; where "what pop did to me" occurred "what he did on the day of the wedding" (T 16.39-44).
Taken through the internal photographs, AD then volunteered that "Well maybe Aunty [M] wasn't up there cause I don't see any shower in this one. Maybe it was just me and pop up there" (T 17.45-18.40).
AD, reminded of questions the cross-examiner had asked about M being in the car, then said (T 18.15-40): Q. Before you had the break, I asked you questions about [M] being in the car? A. I think um I forgot that Aunty [M] might not have been in there, because sometimes I might my, sometimes I might think someone else was in there but they actually not, there's actually nobody in there. Q. So when you told Kate, the police officer, that [M] was in the car, were you just guessing? A. I, sometimes I might forget about it that people might not be in there because I thought that because, cause I'm like, cause I heard a noise from like another side cause I thought somebody else was in there but probably nobody else was in there except for me and pop. Q. Well do you remember Kylie asking you about the shower running when pop had his fingers in your private area? A. Yes. Q. Do you remember your answer that the shower was running? A. Yes but it probably was like something else, because sometimes I might hear a noise and I, my, it seems something, it's something else. Q. Was it raining at the time that pop put his fingers - A. No. Q. --in you? A. No.
AD was adamant that the applicant had driven her up the hill and had touched her private part the day of the wedding (T 18.42-49). AD said that the applicant was looking after her in the afternoon when "the lady was doing it" and was not part of the wedding because he was taking care of her (T 19.3-7). AD confirmed that she did not attend the actual wedding ceremony (T 19.19-21). AD did not know whether her other aunt [KD] was present on the day of the wedding (T 27.36-37).
AD then seems to have become confused, answering "I don't know" - before a question was asked (T 19.10).
When it was put to her that "pop" went to the wedding ceremony or did she not know, AD said "I don't know because the, we went up to the cabin and then we went down to the my caravan where me and mum and my dad sleep" (T 19.13-14).
AD thought that the applicant looked after her when the ceremony was on "because all I remember is what he, he putting his finger in my private part in the cabin" (T 19.21-22). Asked if the applicant was looking after her while the wedding was on when he put his fingers in her private part, AD said "Yes. But I don't remember the rest like if he brought me down to the cabin" (T 19.25-26). AD did not remember going into the granny flat near the main house on the wedding day (T 21.38).
AD said the only places she had been on the day of the wedding were "the little place where pop took me… and he was taking care of me, and I - and to the caravan where me and my dad and my mum - me and my dad and my mum sleep" (T 22.17-21). AD said that she and her family slept in the caravan (T 22.25). AD disagreed when it was put to her that there was no hill to drive up to the cabin (see T 22.38). After a few more questions about the hill, the judge hearing the evidence suggested that AD might need a break (T 23.11-12). AD disagreed that she went home that evening, remembering staying because they took their caravan there (T 28.40-29.1).
M was called in the defence case. M confirmed various matters that were not controversial: that her wedding day was 4 November 2017; that wedding preparations were made at the East Seaham property; and that E was the wedding hairdresser. M's evidence was that she had slept the night before in the granny flat adjacent to the main house and that she showered in the granny flat at 8.30am on the morning of her wedding. The bridal party's hair and make up was done in the main house by E and KD. M said that AD was not present in the granny flat and no children were allowed in the granny flat because the bridal dress was there (6/03/2024; T 532.10-13). E's sister-in-law (KD), was also present (T 530.32-36). M remembers seeing both AD and her brother before heading off to the church. She saw them in the dinging/lounge room (T 531.44-50). M said she had never been in a car with AD and gone up to the cabin on the property (which she referred to as the hut on the hill) (T 534.16-17).
M said that the applicant was assigned the role of delivering flowers to the male guests (T 534.20-24). M said that the period between 7.30am and 3pm was a busy time arranging the wedding; that she saw the applicant and AD playing with the dogs on the property; and that the children were also supervised by M's father (T 534.39-42). M said that the flowers arrived at about 1.30pm and the applicant left instantly with the flowers for the groomsmen because they were running late (T 534.26-31).
M left at about 3pm for the wedding (6/03/2023; T 534.48-535.2). M agreed that she could not say she knew where AD was at every point between 7am and 3pm (T 542.26-30).
R was also called in the defence case. R saw the applicant arrive at the property at about 9am (6/03/2023; T 549.44-45). R said the applicant was assigned various duties to assist the running of the wedding (T 550.6-13). A marquee was set up in one of the paddocks (another paddock, the "camping paddock" was about 500-600 metres from the main house) (T 550.31-37). R saw AD's father (L) arrive with AD and her brother at around 11.30 -12 pm (T550.19-26). R said that the applicant left AD and her brother in his care while the applicant went to the cabin and changed (T 552.24-30).
The Crown says that it appears that R accompanied him in a separate vehicle to the "camping paddock" about 500m-600m from the main house, where the marquee for the reception was located, and where those who were camping could leave their caravans. At that time, the applicant, LP and EP were at the marquee. LP and EP were decorating. R said the applicant returned to the main house about 15-20 minutes later in his own car with AD and her brother and drove from the marquee to the house (that is, that the applicant did not divert to the cabin) (T 551.20-552.16). At the house, R told the applicant it was time for him to go and get ready for the wedding (T 552.26-27). The applicant was staying in the cabin, and his clothes were there. The applicant went to get ready, and R looked after the children. Subsequently, R said he saw the applicant return, having changed for the wedding, and go into the house to see J. R said that the applicant left about 20 minutes to half an hour after he went inside (T 553.24-45).
R did not see the applicant take AD to the cabin. R said that during this time he was playing with AD and the dog (T 553.3-5). R was confident that he knew the applicant's movements "99%" of the time he was on the property (T 567.40-43). R said he saw AD leave with KD at about 2pm (T 573.33-37).
Because there were two dams very close to the East Seaham house; R said had his eye on the kids around the dams (T 553.18-22).
J was also called by the defence. J said that E was the wedding hairdresser and KD was responsible for makeup; and that preparations concerning the bride and bridesmaids occurred in the main house (6/03/2023; T 575.5-28). J saw the applicant arrive around 9.30am (T 576.13-17). J also saw AD and her brother who had arrived around midday (T 586.19-21). J confirmed that the applicant was responsible for delivering the lapel flowers to the groomsmen, and that she had asked him to take the flowers around 2pm (T 576.40-50). J said the applicant had left the property before KD took AD and her brother home (T 577.35-43). J next saw the applicant at the church (T 577.45-49). J could not account for where the applicant was the entire time he was on the East Seaham property (T 588.50-589.3).
The defence also called LP (M's brother) whose evidence was that he was involved in decorating the marquee in the paddock (6/03/2023; T 598.17-22). LP got to the paddock around 9am with EP (T 597.38). He went back home about 10.30am with EP; then he returned to the paddock about 12pm with EP (T 598.12). LP was only at the paddock for 15 minutes (T 598.31). LP saw the applicant at the marquee at about 12pm (T 598.21-25). LP said he returned home, which was adjacent to the East Seaham property, to get ready and the applicant arrived there at some stage with the lapels and the applicant was dressed for the wedding ceremony (T 598.48-599.31). LP did not see AD at all that day (T 598.36-37).
Finally, the defence called EP (M's husband). EP said he arrived at the paddock with the marquee at around 9.30am with LP, left at around 10.30am, and returned around midday (7/03/2023; T 618.1-25). EP said he had to give instructions to the applicant and R about the caterers and do other things (T 618.27-30). EP thought they were there for almost half an hour (T 618.35-36). EP confirmed that the applicant attended LP's place about 1pm (T 619.15-17). L arrived before him (T 619.25-27). EP did not see AD and her brother (T 620.9-10).
EP said that the applicant left around 2pm and he was going directly to the church from LP's place (T 619.46-50).
In his ERISP, the applicant was asked (ERISP Q/A 704-828 & 1250-1267) about the wedding at East Seaham, his visit to the cabin on the property, and the allegation of sexual assault that was alleged to have taken place there. In his ERISP, the applicant said he went in his own car, and L came later with the children and the camper trailer; that he got ready, that he "showered and everything down the bottom… in the house", because there was no shower "up the top" (in the cabin); and that his clothes were "laid out at the top" (in the cabin) and he "just got changed and came back down" (ERISP Q/A 723-730).
The applicant was unsure whether he took AD to the cabin but surmised that he did and said he probably did (ERISP Q/A 755-759; 784).
The applicant said, in answer to a question as to who he went up to the cabin with (ERISP Q/A 739): I'm not sure, eh, if anybody came at all. As, I looked after [AD's brother] and … [AD] for a while. But I dropped them, left them at the house at one stage. They were at the hou, on and off at the house, and we were just coming and going all the time. I'm not sure whether anybody came out there with me or not. They may have. This is too long ago. Later, at Q/A 745-752: I may have had the kids with me because [L] was getting… he was sitting in the car. What was he doing? Eh, he was setting the caravan up, I think… Out in the paddock. There's a paddock down near where the wedding was…. [pausing here, the wedding was not in the paddock; the reception was] … I took them [the children, AD and her brother] over to the house once and then came back and it started to rain. And we went back to the house…
Asked where he had taken AD (i.e., where they "came back" to), the applicant said "Ah, look, she may have come to the cabin with him, I'm not sure" and then "if she was playing up or, ah, or messing around the house, she would've come with me" and that her brother probably stayed with his mother, in the house while "the girls" were getting changed or getting ready (ERISP Q/A 755, 759, 761). The applicant said no one else got ready in the cabin that day; the "boys" all got ready at LP's place, down the road (ERISP Q/A 799).
The applicant said that he did not remember if L took AD's brother to LP's place, "[b]ecause we were all over the place… I ended up sit, se, spe, spending, ah, hours, a couple of hours sitting on the veranda, ah, while the girls were getting ready… Looking after the three kids" (AD, her brother and a cousin) (ERISP Q/A 829-831).
The applicant denied that any sexual assault occurred (ERISP Q/A 1250-1261).

[7]

Counts 3, 4 and 5: sexual intercourse (penile penetration and fellatio) (North Rothbury)

Counts 3, 4 and 5 relate to events occurring between 15 September 2015 (AD's third birthday) and 14 September 2019 (the day before AD turned seven). The offences took place at night, in the bedroom in which the applicant slept when he was at the North Rothbury house (JIRT Q/A 212, 320) (see JIRT Q/A 185-308, Q/A 294-391, Q/A 382-467, Q/A 536-619; pre-recorded evidence T 29-37, T 38-42, T 51-52; and applicant's ERISP).
Early in the JIRT interview, when asked about the applicant showing her videos of inappropriate things, AD gave some rather disjointed evidence that "all the time when at night, um, go up when I hear the toilet flush and then it's just Pop, he just goes back to bed. And then I , um, all of the time I just go back, I go to the toilet. Then he, and when I'm done … he says, Come on, and I just follow him … I shouldn't" (JIRT Q/A 75-78) (see also JIRT 220-222, 230-234). AD said that was probably when she was three or four "and probably when I'm five and six. Um, I just sleep in mostly all the, all the night" (JIRT Q/A 78). AD said that the applicant said "[h]op in" to his bed (JIRT Q/A 235-236); and she said that was when "it happened", and "[i]t only probably happened like, for 2 minutes and then I'd hop out" (JIRT Q/A 219, 227-228, 237).
AD said that "it" was "private part to private part" (count 3) (JIRT Q/A 239); and that she lay on top (JIRT Q/A 241). AD said that the applicant told her "Take your, um, clo, pants, put your pants down", which she did (JIRT Q/A 253). AD said that when she got in the bed she had a shirt on, or sometimes she had a "onesie" on (which was a different time); and said that "sometimes its shirt, um, my, mostly sometimes I might have a onesie" (JIRT Q/A 256-259)(see also the statements in the JIRT interview referred to above (JIRT Q/A 185ff) before AD indicated that she was getting a bit stressed and wanted a break).
AD said that on the occasion when she took her pants down, and still had a shirt on (rather than a onesie), she was inside the bed when she took her pants off (JIRT Q/A 261); that the applicant said "Lay on me", so she did, and that was when "private part to private part" happened (count 3) (JIRT Q/A 261-266). AD said that sometimes she did not want to say that (private part to private part) (JIRT Q/A 267). Asked what the applicant's private part was called, AD said "Um, a boy's type" (JIRT Q/A 269).
AD said that when she was laying on top of him and she had private part to private part, the applicant had a shirt on, and just his pants were down; that he mostly sleeps with his undies on, mostly every night; and that when it was private part to private part his underpants were down because he "mostly sleeps with his undies on" (JIRT Q/A 271-276). Asked what she could feel, AD said that his private part was inside of hers "somehow" (JIRT Q/A 281, 285). At this point in the interview, AD indicated that she was becoming stressed, with her heart "beating fast" (JIRT Q/A 283). AD confirmed that his private part was inside of hers.
AD said that "he started to move his body for some reason … I think, um, he started to move his body… And then, um, he, uh, so it kind of, um, when I was laying on it, it kind of felt like he was, he wa, um, you know how sometimes those chairs and they're just like, like that… help you feel be, relaxed, he kind of felt like that" (JIRT Q/A 287-290). Pausing here, the description of starting to move his body and it feeling like a vibrating chair has the ring of truth about it.
AD said that it (the sexual activity) stopped when she had enough; she "hopped out" and said "[n]ight Pop", and he said "[d]on't tell anyone" (JIRT Q/A 291-292).
When AD was asked if the applicant used his "boy's type" for anything else (Q/A 294), AD said "sometimes when I just lay with him um, in the bed … like just on the side, um, he just moves my head closer near his private part… and, um, he tells me to suck it" (JIRT Q/A 294-296, 314-318). "It" was "[h]is private part" (count 5) (JIRT Q/A 333). AD said that she did not like it (JIRT Q/A 297) "so that's when I hopped out" (JIRT Q/A 299). AD went on to say that "and then, a different time, um, he, um he sucked my private part… for some reason" (JIRT Q/A 299-300). Again at this point AD indicated some stress saying that "my heart's, I'm actually starting to get a bit sore" (JIRT Q/A 301).
Pausing again here, at various points in the JIRT interview AD says "for some reason" or "somehow" or "I don't know how he does it". This is all consistent with a young child not knowing precisely how or why certain things were happening (or, as the applicant puts it, the "bio-mechanical sexual activity") but expressing her recollection of what had happened physically to her.
After some further questions about why the applicant was at her house the first time that she did private part to private part with him (when AD said that he had a sleepover sometimes), AD was asked about the first time the applicant had told her to suck "it" (his penis) (JIRT Q/A 312-313). AD said it was in his bed (the spare bed) at North Rothbury, at night time while everyone else was sleeping (JIRT Q/A 319-329).
AD corrected the interviewer when the interviewer said that "So the first time that Poppy did this and told you … to suck it", saying that that (the fellatio) was after and said "um, that, was only in the bed" (JIRT Q/A 318). In other words, AD was correcting the interviewer on the basis that the fellatio was not the first time they did private part to private part (consistent with her earlier account of events).
AD described the bedroom arrangements and said that she went into his bed following the applicant because "he did this, come on, like that so I followed him" (JIRT Q/A 319-329); that he was just standing near the hall and she was just on her way about to go to her bedroom and he said "come on", "hey come on" and "then I was just wondering so I followed him" and then "I got into the habit and I started to like it so I followed him all the time" (JIRT Q/A 327-330); that she should not have got into the habit and that "it's not good for kids to learn that" (JIRT Q/A 331-332).
I interpose to note that the statement by AD that she "got into the habit" and started to like it" is in my opinion telling. Not only does it explain that there was no resistance, it is also a remarkably frank concession by a child who by the time of the JIRT interview was clearly aware that this conduct should not have happened (and who seems to have had some guilt or shame about it given the number of times that she says words to the effect that it was not right or not a good idea or that the applicant should not have done it) and it belies the proposition that this was a fabricated account based on what AD had seen in pornographic videos (since that would tell her nothing about what the activity in question would feel like).
Asked about the time when the applicant told her to "suck it" and they were in the spare bed (JIRT Q/A 333), AD clarified that the question related to his "private part" and then she gave an account of a number of different times on which things occurred in the bedroom. First, AD said that in the bedroom, she "hopped into the bed. and then we did private part to private part" (JIRT Q/A 334-335) (count 4). AD added "then, um, the next time [interposing here, this seems to indicate in context another occasion of "private part to private part" activity] and after the, that next time … um, the third time that's when he told me to". In other words, AD is clearly recounting three separate occasions and is adamant that it was the third time that the applicant told her to suck his penis (see JIRT Q/A 335-336).
After talking about the "third time", AD said that once it happened "at his house too" (which must be a reference to where the applicant lived at Dunbogan). AD said that, when her brother was napping, her mother was going to the shops and her father was not there (and must have been "on night shift or something"), the applicant said "[c]ome on", that she followed him into his bedroom and he "sucked my private part" (JIRT Q/A 335-337). The Crown says that this is a reference to the Dunbogan Christmas 2018, the incident the subject of count 6, although that is not clear - since AD suggested her father might have been on night shift at the time.
AD was asked about what happened (at North Rothbury) when she got into the applicant's bed (JIRT Q/A 339-343). AD said the blankets were on both of them, and that this was the first time he told her to suck his "private part" (JIRT Q/A 339-343); that AD was "just pushing my head near it" (in context this clearly being a reference to the applicant's penis) "and he said, um, he just, I mean, uh, so after my head's just close near it he says, Suck it… and then, um, I did it and I don't think that was good… it was a good idea" (JIRT Q/A 344-354; 376-377) (count 5). Asked what it was that she had to suck, AD pointed to a diagram of a boy's body, and when asked if she had a word for that she said "um, doodle, um, or something, um" (JIRT Q/A 354).
From my review of the transcript of the JIRT interview, this seems to be the first time that AD referred to a "doodle". It may shed light on her reference to the pornographic videos as being on a site she thought was called "doodle plum". If that was a word that was used in the context of the applicant's genitals or penis, it is not implausible that AD would associate "doodle" with a website on which she had seen pornographic material; and it is not implausible that this was not a specific reference to a website name as such. A further plausible explanation is that it was the name by which the applicant referred to it, rather than an actual website name AD herself ascertained (though the applicant denied in his ERISP that he ever called it a "doodle", adding that AD did - see Q1200).
AD's account as to when the fellatio ceased was simply that "I stopped doing it and then, so I hopped out of the bed. I said, "Bye Pop, uh … after I pu, pulled my pants up and then I ran away"(JIRT Q/A 358-367).
Questioned further about the first time when she sucked the applicant's penis, AD clarified more than once that the applicant did not push her head down hard (saying "Not hard", "Not, like, hard , like , just movin' down to it" and gesturing to indicate how her head had been pushed down) (JIRT Q/A 373; 350). AD said that this happened at a time when the applicant would come for a sleepover (JIRT Q/A 369-370, 381). AD said the applicant pushed her head to "suck his doodle" a few times, in the spare bed (JIRT Q/A 375-377).
AD said that the sucking of the applicant's penis only happened "like, sometimes", or a "few times". AD said that "And then when Mum said, No more, and I was "probably five or six, I, um, Pop didn't come around that much. And before Pop came my mum said , No more going in Pop's bed" (JIRT Q/A 348-349; 376-377) (see also Q/A 323 - "my mum said that, No more sleeping in the pop, laying in or sleeping in Pop's bed").
AD was careful to make clear in her pre-recorded evidence that the applicant did not come into her room at North Rothbury and ask her to touch his private parts, nor did anything happen in her room involving his or her private parts; that was "only in the spare bedroom" where the applicant slept (T 41.38 - 50) and she was adamant that playing the iPad or touching his nose was not the only thing that happened there (T 42.2-22).
From a timing perspective, on E's account the time at which there was a rule that AD not sleep in the applicant's bed was after the disclosure as to the applicant touching AD's privates, which puts this house rule earlier than when AD was 5 or 6.
During the times the applicant visited North Rothbury, E recalls seeing AD in the room being used by the applicant. At times they were watching their iPads. On one occasion E recalls not being able to locate AD at night. E says that she called her and that E came out of the applicant's room looking worried and shaky (27/02/2024; T 163.5-164.35).

[8]

Counts 6, 7 and 8: sexual intercourse (counts 6 and 8), sexual touching (count 7) (Dunbogan, Christmas 2018)

Between 23 and 30 December 2018, AD's family stayed at the Dunbogan caravan park where the applicant resided. They were joined by J and R, LP and his wife and their two children (27/02/2023; T 155.8-30, 6/03/2023; T 556.16-21).
During the stay at the caravan park between 26 and 28 December 2018, at some point AD's parents went shopping at K-mart in Port Macquarie leaving AD and her brother in the care of the applicant. There was some inconsistency in the evidence as to when this was and whether E went shopping alone or with L. The shopping expedition was to purchase a LOL toy surprise box for AD (using Christmas money). AD's parents (assuming both went) were absent for about two and half hours. E recalls seeing AD in the applicant's cabin (27/02/2023; T 158-162). According to the evidence of R a blow-up swimming pool was set up for AD and her brother (6/03/2023; T 557.37-38) during the day.
When the JIRT interviewer asked AD about the applicant having sleepovers, AD said "[b]ut I had a sleepover at his house… when Mum was going out shopping for us" (JIRT Q/A 381-383, 423). AD said that it took an hour for her mother to come back, by when they had "already stopped" and watched TV (JIRT Q/A 387-388). AD confirmed this was where the applicant lived at the time of the interview (Dunbogan) (JIRT Q/A 424).
AD said her brother was having a nap in the cot (JIRT Q/A 392; 454-455); that she went into the applicant's bed after he said "come on" (JIRT Q/A 393-396); that she pulled her pants down and he "sucked my private part" (count 6) and after that "I sucked his private part" (JIRT Q/A 398-400, 449). AD said "he took a little long" and she did not know when he would end it, "then I had to do his one" (JIRT Q/A 401-403). AD said that "For some reason" his head was underneath her legs, which was how he "did it" (JIRT Q/A 404-405).
AD referred at this stage to a video the applicant had showed her, in which "their bodies were just, like, turned around. So a female is… just going down near, um, a, um, the boy's private part… Then the boy's pp, um, and then, and the boy is just lifting their legs up of, the females legs up and then sucking her private part" (JIRT Q/A 407-409). AD said when he did it to her, she was sitting, and that his head was "down there"; also, he "kind of sucked my boobs a bit… Like, my nipples… both of them" (JIRT Q/A 412; 415) (count 7). AD said that then the phone rang, which was her mother saying she was coming back soon, "so then we stopped" (JIRT Q/A 419-422).
AD said that, after the applicant sucked her private parts and she sucked his, "I was flipped around so while, then the second bit, um, I had to, like, go down near his private part and my private part was near his head. And then, um, that's when it happened… And then that, that was the second bit. So he was sucking mine and I was sucking his" (JIRT Q/A 428-429) (count 8). AD said that he was laying with his pants down and her body was facing downwards near his private part. AD said "I had to do his one, um, without the, without my one" (JIRT Q/A 438; 449); that this was when the phone rang, and they stopped and watched TV; and that "he said Don't tell anyone… like he mostly did" (JIRT Q/A 440-442; 451-453).
AD did not know what shop her mother went to, but said that she brought back to the house a giant "LOL box" and brought her brother a "little kid car… place", with a "ramp" and a "circle" (JIRT Q/A 459-467).
In cross-examination, AD remembered spending Christmas at the applicant's place at Dunbogan once, which was the time when she was left with the applicant and her brother alone in his house (21/09/2022; T 29.32-36). AD had been there a few times for sleepovers (T 34.20-21). AD disagreed that both her mother and father had gone shopping, although she did not know what her father was doing, later saying (which must be incorrect) her father was at work (T 37.12).
AD thought that the day when her mother went shopping and the applicant took care of her and her brother was a day or two before Christmas Day (T 30.34-36; T 37.1-5). Asked if her mother came back with a present, AD said "[s]ort of but she gave it to us because we were behaving for a - lots of days before we went to pop's" (T 30.43-44). AD said that the present was "a giant LOL Surprise", and that her mother gave her the LOL Surprise on the same day the applicant did the sexual things to her (T 30.47; T 31.23-25).
AD did not remember extended family members coming; she said photographs of them might have been on 26 December, although she had forgotten (T 35.6-7; T 36.47-48). AD said R and J were not present during the Christmas period at the applicant's residence (T 35-36).
E gave evidence that she and her family arrived at Dunbogan on 23 December 2018 and left on 30 December 2018 (27/02/2023; T 155.18-25). The Crown notes E's evidence that the extended family (R and J, LP and his wife, and M and her family) arrived in the afternoon of Christmas Day in 2018, were present at Diamond Waters (i.e., Dunbogan) on Boxing Day, but left some days before AD's family did (T 155.33-41).
E's evidence is that R and J were present; and that most socialising occurred in either the applicant's cabin or that of J and R (27/02/2023; T 158.33). E said that she and L went to Port Macquarie to purchase the LOL toy on either 26, 27 or 28 December. According to L, the drive to Port Macquarie from Dunbogan is about 40-45 minutes (1/03/2023; T 308.30-31). E was unsure whether it was Boxing Day when she went to Port Macquarie. E did not recall whether she stayed for lunch on Boxing Day. E confirmed the applicant had a television in his cabin (28/02/2023; T 234.34-36).
L confirmed he attended the Christmas gathering at Dunbogan (1/03/2023). L believed he attended Port Macquarie on Boxing Day and that the applicant looked after AD and her brother (T 308.12-41; T 309.9-10). L said that when he returned from Port Macquarie, AD was in the applicant's cabin (T 309.35-39). L was unsure whether the other guests were still at the caravan park when he went shopping (T 309.28-31). L said that at the Christmas gathering there were other children present (T 321.41-47). By reference to a photograph depicting a tattoo on his wife's leg, he said he was still at Dunbogan at 10.47am on Boxing Day (T 336.41-50). L said he did not have lunch at Dunbogan on Boxing Day (T 337.19-22). L did not see the other male guests watching cricket on Boxing Day because he had his own caravan (T 341.30-342.1). Another photograph taken at 1.50pm that day showed family members (but not E or L) sitting down at the campsite (T 337.24-26).
L was shown a series of photographs (Ex 6) that suggested he and other guests were still present at Dunbogan at 3.54pm on the Boxing Day afternoon, from which he assumed that he did not go to Port Macquarie that day (T 361.14-16).
The applicant in his ERISP identified numerous people that attended at Dunbogan during the Christmas gathering (R and J and his family, EP and E, AD and her brother as well as two others) (ERISP Q/A832-915). The applicant denied any sexual assault took place at Dunbogan (ERISP Q/A 1212-1223). In his ERISP, the applicant did not remember a time around Christmas when E and L went shopping to buy toys and returned with a LOL box and car track, but said it was normal for E and L to leave the children with him while they went shopping and did not dispute that E may have left the children with him and come back with toys (ERISP Q/A 1222-1223).
M gave evidence that she and her husband and baby attended the Dunbogan 2018 Christmas gathering; that Boxing Day lunch was spent at the applicant's cabin in the caravan park complex and that there were numerous adults and children present (6/03/2023; T 535.7-537.45). M said that after lunch, people went to the campsites and "hung out together" (T 537.33-37).
R gave evidence that he arrived with his wife (J) at Dunbogan on Christmas Day 2018 and left on 27 December. R said AD and her family were present when he arrived. R said the applicant transported R's mother-in law to Dunbogan (6/03/2023; T 556.16-557.11). The Boxing Day lunch was held in the applicant's cabin. R gave evidence that the "girls" prepared lunch at the campground, and the "boys" watched the Boxing Day test match (T 557.45-558.2). R said AD's parents went to Port Macquarie to shop and were not at the lunch. R said that an inflatable pool was set up for the children (T 557-558, 569-570).
J confirmed she and her husband attended Dunbogan on the afternoon of 25 December and left on 27 December; that E and L were not present at the Boxing Day lunch having gone to Port Macquarie to shop (6/03/2023; T 578.4-579.27). E said that the applicant and others were watching the cricket while lunch was being prepared (T 579.32-50); that the applicant cared for AD and her brother while E and L were at Port Macquarie and that this supervision by the applicant was in the applicant's cabin/villa where people were "in and out the whole day" (T 581.3-7). J gave evidence that after lunch, the women tidied up and the men watched a bit more cricket, then went fishing (the applicant did not go) (T 580.2-9). J said she had a cup of coffee and a drink on the applicant's verandah, but accepted that she might have gone back to the campsite as well (T 580.13-16).
LP (M's brother) confirmed that he attended the 2018 Christmas gathering and the Boxing Day lunch and that E and L did not attend the lunch. LP said that the lunch was prepared in the applicant's kitchen (cf R's evidence). LP said that he and the applicant watched some cricket. LP gave evidence that he and R went fishing at about 1pm (R said it was about 1.30pm or 2pm). LP says that L was "cranky", and the applicant would not take AD and her brother out in a boat (6/03/2022; T 599.36-602.11, 603.42-604.48).
EP (M's husband) gave evidence that he, together with his wife and baby, attended Dunbogan on Boxing Day morning. EP said he was a cricket afficionado and that he watched the cricket in the applicant's cabin from 10.30am when coverage started (the first ball was bowled at 11am), and after lunch he continued watching it until 3pm (the afternoon tea break). EP said the applicant watched it with him, "nearly the whole lot up until the lunch break and then he watched the majority of the tea break, up until the tea break as well". EP said that E and L were not present at the Boxing Day lunch and that he remembered when they returned to the caravan complex (7/02/2023; T 620.19-623.41). EP said that numerous guests at the Christmas function looked after AD and her brother (7/02/2023; T 627.31-34). EP denied giving evidence to assist the applicant (T 627.26-27, 43-44; T 628.32-35; T 630.17-19).

[11]

Principles

The applicable legal principles on an unreasonable verdict ground of appeal were not in dispute and may be shortly summarised.
The relevant question, as articulated in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 (M), is whether, on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (see at 493 (Mason CJ, Deane, Dawson and Toohey JJ)) (see also Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell); Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 (Dansie); Lang v The Queen [2023] HCA 29). It is necessary for the appellate court to undertake its own independent assessment of the evidence, both as to its sufficiency and its quality (Morris v The Queen (1987) 163 CLR 454 at 473; [1987] HCA 50 (Deane, Toohey and Gaudron JJ)), to determine whether any reasonable doubt that the applicant is guilty of the offence for which he has been convicted has been eliminated (see also Dansie at [7]). The Court must consider any competing evidence to that presented by the prosecution and weigh the conflicting evidence (SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 (SKA) at [24] (French CJ, Gummow and Kiefel JJ)).
This Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt, or the consideration that the jury has had the benefit of having seen and heard the witnesses; rather, this Court must pay full regard to those considerations (M at 494-495); and see MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 (MFA) at [59] (per McHugh, Gummow and Kirby JJ), and, more recently AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136 (AJ) at [99]-[104] (Beech-Jones CJ at CL, as his Honour then was, with Harrison J, as his Honour then was, agreeing).
However, although account must be taken of the significance of the advantage enjoyed by the jury hearing and observing the witnesses, the High Court has said (see M at 494) that in most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced and it is only where a jury's advantage in seeing and hearing the evidence is capable of resolving such a doubt that the Court may conclude that no miscarriage of justice has occurred. Reference may also be made in this regard to MFA at [53]-[56]. That said, the applicant accepts that this Court must not substitute trial by an appeal court for trial by jury (see The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66]).
A complainant's evidence need not be corroborated before a jury may return a verdict of guilty upon it (Pell at [53]). As the Crown notes, in Pell, it was said that, at the core of the jury's function in deciding "contested factual questions" is the assessment of the credibility of a witness on the basis of what the jury has seen and heard in the context of the trial (Pell at [37]). In Pell it was said at [39] that: The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
In a case where the principal evidence against an accused person is given by a complainant (as was the case in AJ - see at [103]), the appellate Court proceeds on the basis that the jury found AD's evidence to be credible and reliable. The Crown here submits that the reference in Pell, at [39], to consideration of "inconsistencies, discrepancies, or other inadequacy; or in light of other evidence" must be read with the statement in M that those matters be "such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted". In AJ at [104] Beech-Jones CJ at CL explained this as being that an assessment that the "evidence lacks credibility for reasons which are not explained by the manner in which it was given" is necessarily witness and trial dependent.
The Crown submits that the extent to which this Court is entitled to disbelieve a witness whose evidence a jury must have accepted, at least insofar as it established the elements of the offences of which an accused person is convicted, is constrained because, in general, matters of credibility are for the jury. The Crown here notes Z (a pseudonym) v R [2022] NSWCCA 8 (Z v R) at [29] per Macfarlan JA, Brereton JA and Beech-Jones CJ at CL agreeing; and Rossi v R [2024] NSWCCA 17 at [13] where Mitchelmore JA referred to the pertinent observation by McCallum J (as her Honour then was) in Hawi v R [2014] NSWCCA 83 (Hawi) at [480] (in dissent) that the advantage enjoyed by the jury also derives from the diversity of 12 jurors as a tribunal of fact, and their opportunity to deliberate as a group in private throughout the trial, evaluating evidence as it is given, with all of its visual clues. Reference is also made in this context to Lee v R [2023] NSWCCA 203 (Lee) at [29] (Kirk JA, Button and Lonergan JJ agreeing).
Thus, the Crown emphasises that in Hawi it was said that "[t]he appearance on paper of weakness in the evidence does not of itself establish the unreasonable discharge of that function" (at [480]). It is noted that the jury's advantage in that respect can extend to an assessment of the plausibility of a witness' account in the context of considering how the witness presented (the Crown referring to Reyne (a pseudonym) v R [2022] NSWCCA 201 at [5] (Beech-Jones CJ at CL)); Marco v R [2023] NSWCCA 307 (Marco) at [113] (Ward P, Walton and Fagan JJ agreeing); JL v R [2023] NSWCCA 99 at [94]-[95] (Adamson JA, Ierace and Sweeney JJ agreeing); AS v R [2022] NSWCCA 291 (AS) at [107] (Adamson J, as her Honour then was); Bolton v R [2023] NSWCCA 211 (Bolton) at [26] (Harrison J, Wilson and N Adams JJ agreeing).

[12]

Credibility and reliability of AD

Insofar as the applicant's approach in the present case is directed to impugning AD's reliability and credibility, the Crown points to the following, which the Crown says provide a framework for analysis of AD's evidence.
First, that AD, if accepted (as the jury must have accepted), was a victim of serious sexual assaults. The Crown says that, particularly in assessing the evidence of such witnesses, for the purposes of determining an unreasonable verdict ground, the experience of courts can be taken into account, including that it is not uncommon for victims to remember specific details about the assaults but not tangential details (see AS at [108]; Reed v R [2006] NSWCCA 314 per Spigelman CJ said at [64] (McClellan CJ at CL and Sully J agreeing)). Reference is made in this context to recognition of this in assessing the evidence of sexual assault complainants in Marco at [102] (Ward P); Ho v R [2023] NSWCCA 245 at [110] (Wilson J, Beech-Jones CJ at CL and R A Hulme J agreeing); JC v R [2023] NSWCCA 231 at [118] (Adamson JA, Harrison and Chen JJ); Arizabaleta v R [2023] NSWCCA 217 at [22] (McNaughton J); Bolton at [49] (Harrison J).
Second, that AD was a very young child, between three and six years of age when the offending occurred; and was still a young child (eight years old), when she complained to her mother and was interviewed by police, and only 10 years old when she was cross-examined. The Crown notes that the experience of courts is that it is not uncommon for children to be imprecise about time (AS at [109], [124]); and that, apart from their immature minds, they often lack markers, such as diaries or dated written records to assemble a chronology in their minds as to events (AS at [109]).
The Crown notes that in BCM v The Queen [2013] HCA 48, the High Court rejected an argument that the complainant's failure to recall a particular detail and error about another detail resulted in an unreasonable verdict (see at [45]-[47]), the Court there stating that the inconsistencies in the accounts were to be considered in light of her age at the date of the offences, the interval between the offending and her first interview with police, and the further interval between the interview and her evidence (and contrasting this with her consistency as to the main aspects of the offending).
There are in my opinion a number of aspects of AD's evidence (in the JIRT interview and pre-recorded transcript) that lend it credibility. First, her explanation of events is incremental, not chronological, and overlapping, as one might expect from a young witness giving evidence of a series of incidents that happened when she was even younger; just as her disclosure to her mother (E) was piecemeal. Second, that AD was careful to correct the interviewer at times (as to which time it was that the fellatio occurred, for example) and to make clear aspects of her account (such as that she was not accusing the applicant of pushing her head down hard; that when they went back to watching TV after the incident in count 8 they "just" watched "shows", not anything inappropriate (JIRT Q/A 442-444)); and where she included who she had told about the events - referring to some of her family members as not knowing. Third, that AD was candid when she said that it had become a habit for her and she started to like it, an unnecessary comment and one that would not be expected if she had not experienced sexual activity of some kind. Fourth, that AD made clear on various occasions that the applicant's conduct was not right or not a good idea or that she should not have done things, which is consistent with AD feeling a sense of shame or guilt at what had occurred. Finally, that AD on occasions during the JIRT interview became stressed and wanted a break; and also in the pre-recorded evidence appeared (from the judge's perspective) to need a break.
Inconsistencies or mistaken recollections of the timeline or surrounding circumstances connected with the events the subject of the counts need to be considered with the above in mind.

[13]

Viewing of JIRT interview

I should also note that my view as to the unreasonable verdict grounds is based on my review of the transcript of evidence and the exhibits (including the transcript of the JIRT interview, pre-recorded transcript and transcript of the ERISP). As I noted at the hearing of the appeal, I did watch the video of the JIRT interview (and at that stage I had watched part but not all of the pre-recorded transcript and the applicant's ERISP). Neither party suggested that this was inappropriate. I did so in relation to the video recording of the JIRT interviews in order to understand the portions of transcript from which it appeared that AD had made gestures when answering questions or had expressed stress or a desire for a break (the former of which the Crown during the hearing of the appeal helpfully identified by timestamp during the course of submissions).
In Pell at [35]-[39], the High Court made clear that it is neither necessary nor forbidden for an appellate court to review a video recording of a JIRT interview; however, the recording should only be reviewed in a case "where there is something particular in the video-recording that is apt to affect an appellate court's assessment of the evidence, which can only be discerned visually or by sound" (see at [36]). One of the cases cited by the High Court in Pell was SKA v R [2009] NSWCCA 186, where Simpson J (McClellan CJ at CL and James J agreeing) at [108] expressed a reservation that caution should be exercised in viewing a recording of the complainant's evidence if to do so might create an imbalance, given that the Court would not be viewing the evidence of other witnesses. On appeal to the High Court (SKA) this passage was cited approvingly (French CJ, Gummow and Kiefel JJ at [29]), with an additional consideration noted (that the recording in that case was of only the complainant's evidence-in-chief and might not have been a fair representation of her evidence as a whole).
In other cases in this Court it has been emphasised that a "real forensic purpose" must be demonstrated for the Court to view such a recording (see Stevenson v R [2022] NSWCCA 133 per Johnson J at [44] (Davies and Bellew JJ agreeing), citing CLC v R [2015] NSWCCA 248 (CLC) at [74]-[77] and Scott v R [2020] NSWCCA 81 per Hamill J, Brereton JA and Fagan J agreeing at [50]-[54]).
In AZ v R [2018] NSWCCA 294, White JA considered (at [42]) that it was necessary to watch the complainant (given the pseudonym "Thomas")'s video recordings of interviews, as well as the video recordings of his evidence at trial. His Honour's reasons for so doing was that this was necessary in order to observe Thomas' non-verbal responses in the JIRT interviews; to observe his tiredness at the end of the first JIRT interview; and to assess whether his concessions in cross-examination might be due to tiredness or confusion or some other aspect of the cross-examination that might have produced concessions that did not truly represent his state of mind. His Honour noted that the video recording of Thomas' evidence at trial should also be watched to maintain balance and to assess the significance of concessions given in cross-examination.
Similarly, in CLC, Basten JA considered that it was necessary to view video recordings of evidence in circumstances where he was troubled by the possibility that the video recording of the complainant's first interview might cast it in a different light and concerned that the flow of answers and questions in some cases suggested that there were visual cues that were not recorded (see at [74]).
For similar reasons to those in the above cases, I considered, having read the transcript and submissions in advance of the hearing of the appeal, that I should view the video recording of the JIRT interview in order to make an assessment of the visual indications given during the interview and whether AD appeared confused or stressed during the interview. For balance I then reviewed part of the pre-recorded transcript (to the point at which the judge suggested a break) and of the ERISP (to put in context the submissions made by the applicant as to the volunteering of information and adamance of the denials). I have subsequently completed that review.
That said, I am acutely conscious that the jury must have found AD to be credible and reliable and that it is not my role to duplicate the function of the jury in its assessment of the credibility of the witnesses who gave evidence, including AD. On the documentary material alone (without such review) I am satisfied that the verdicts on the respective counts (other than count 2 - see below) are not unreasonable and that it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt. I set out below my analysis of the evidence on those counts having regard to the submissions made by both parties in that regard.

[15]

Submissions

As to Count 1, the applicant raises the following matters in support of his contention that it was not open to the jury to find him guilty of Count 1.
First, the applicant emphasises that AD had described the pornographic videos that she said she was shown by him as being on a "Doodleplum" website but that investigating police did not discover any such site, nor any access by the applicant to such a named site on any electronic device in his possession.
The Crown's response to this is to point to the uncertainty expressed by AD in the JIRT interview. AD as to the name of the platform ("I think it might, um, I know what the apps called… It's called, um, doodle plum, um, and, um…".).
The Crown points to the time between the conduct the subject of count 1 (as early as 15 September 2015) and AD's JIRT interview (on 28 July 2021) and says that AD may or may not have correctly remembered the name of a pornographic website; and that whether she did was not a central issue to the allegations and was not something to be expected would necessarily be remembered by a child as young as three years old. In any event, the Crown says that evidence that the police could not find a site called "Doodleplum" on a Google search, around six years later, is not of significant weight.
As to the fact that the devices found in the applicant's possession did not reveal anything of relevance, the Crown notes that an iPad mini located at the applicant's home could not be accessed (it may here also be noted that the evidence the applicant gave in his ERISP was that he had accessed pornography on an old computer that was "long gone" (see ERISP Q/A 639-640) which suggests there may have been other devices (though an old computer is not what AD described)).
The Crown says that the Crown case acknowledged that the reality was that, whatever the applicant accessed, it probably was not called "Doodleplum"; and that it may well have been a site that sounded similar. It is submitted that, overall, it was well open to the jury to consider that the evidence that a pornographic site, specifically called "Doodleplum", was not found by notice warranted negligible weight.
Second, the applicant relies on the confirmation by J and R of his account (in his ERISP) of discussions with them concerning AD having accessed pornographic material on her private iPad as supporting the reliability of his account that he had raised his concerns about AD accessing pornography.
As to the evidence on the issue of discussions about AD accessing porn, the Crown points out that the applicant was the only person ever said to have seen AD and her brother accessing pornography; and that it may be expected that if the applicant had told E that the children had accessed pornography, she would remember it. The Crown says that it is not clear what E might be thought to have gained from denying the conversations occurred at all.
As to the evaluation of inconsistency between evidence given by the witnesses as to those discussions (calling for assessments by the jury of credibility and reliability), the Crown says that there were sound reasons for the jury to reject R's evidence in particular as generally lacking credibility and having been fashioned to assist the applicant. The Crown also points to the reference by the Crown prosecutor in addressing the jury as to L having reacted with surprise when he was asked in evidence whether he had ever been told about AD accessing pornography. The Crown notes that the jury was well placed to consider the genuineness of this reaction. The Crown further says that it might be expected that if E had been told the children were accessing pornography, she would have told L (noting that E's evidence was that she had informed L when AD disclosed that the applicant had been touching her "private parts").
The Crown says that even if it was accepted, that the applicant told R and J that AD had accessed pornography, that evidence is not necessarily exculpatory. The Crown says that one reason the applicant may have said things of this nature was to pre-empt any possibility of AD reporting that he had been showing her pornography.
Finally, the Crown says that the issue of whether or not these conversations actually took place was tangential, i.e., not central, to the question whether it was established beyond reasonable doubt that the applicant showed AD pornography. In that regard, I note that the applicant says that the issue of AD's association with pornography was relevant to explain how AD was able to give sexualised descriptions of events between her and the applicant (AT 30.42-45).
Third, the applicant further says that he freely admitted in his ERISP that some years ago he randomly accessed porn sites (ERISP Q/A 639-653); and he attaches weight to this admission being before any allegation by police that he had exposed AD to pornography (though I note that this answer directly responded to a question he was asked (ERISP Q/A 639)). I also note that the applicant appeared to distance himself from the issue of pornography by reference to his lack of libido after his heart attack, though later accepting that he had watched pornography after that "just to see if anything had changed" (ERISP Q/A 1300) and said "well, it might just, ah, may, maybe to see if it works. I don't know" (ERISP Q/A 1315).
The applicant similarly points to his statement in the ERISP that he was suffering from erectile dysfunction following his heart attack consistent with lack of interest in sexual stimulation (though the medical evidence distinguished an inability to ejaculate with erectile disfunction).
In response, the Crown argues that it was well open to consider that the applicant's admission in the interview to having accessed porn sites "some years ago" was neither "free", nor unguarded, noting that the applicant had been asked, earlier in the ERISP, whether AD ever played any of his electronics, which he had denied.
As to the applicant's erectile dysfunction, the Crown says that the medical evidence called by the defence did not support the assertion the applicant made in his ERISP interview that he had no function at all. It is noted that Dr Ahmed gave evidence that it may be possible for a person with erectile dysfunction to have difficulty obtaining an erection on some occasions and not others, and confirmed that erectile dysfunction is separate from libido (see 3/03/2023; T 485.42-44; Ex R). Dr Ahmed's report indicated that libido was not expected to be affected by the procedure that the applicant underwent. The Crown says that clearly the jury, as it was entitled to do, rejected the applicant's claim that treatment following his 2015 heart attack rendered him completely neutral to sexual activity such that he could not have committed the offences.
Fourth, complaint is made by the applicant as to the failure by investigating police forensically to interrogate AD's iPad. The applicant says that the police accepted, without more, the explanation by AD's mother that AD's iPad had a lock on it.
In response to this, the Crown says that the police could not examine one iPad in the applicant's possession but says that no inference should be drawn from the fact that it was not examined (and that it was believed not to be owned by the applicant but to have come from E's family - see 28/02/2023; T 277.7-11). Further, the Crown points out that AD said that the applicant had been "typing it [doodle plum], he typed it up on Google and then deleted, and then deleted it". It is noted that the officer in charge gave evidence that deleted material cannot always be retrieved. The Crown says the fact that there was no forensic evidence of the applicant having accessed a relevant site on his devices was of little moment.
The Crown also notes that E gave evidence in re-examination that from the day that AD got her iPad there were security settings, she did not have Google, and Siri was not activated; and that no application was made for further cross-examination of E on this issue.
The Crown also points out that the applicant specified in his ERISP it was AD's brother who accessed pornography (albeit his account was that AD and her brother were using the iPad together - see ERISP Q/A 1109, 1123, 1158). The Crown notes that the proposition that her younger brother, born in March 2016, had accessed an inappropriate site was put to AD in cross-examination, and she denied it (21/09/2022; T 50.42-51.4). The Crown says that it is unsurprising that this line of cross-examination did not prompt police to interrogate AD's iPad for possible access to pornography years earlier.
The applicant submits that, on the evidence, it was open to the jury to accept as a reasonable possibility that AD had historically accessed pornography (rather than the applicant having gratuitously exposed her to pornography) and it was not open to the jury to find him guilty beyond reasonable doubt of count 1 on the indictment.
The Crown submits that none of the matters relied upon by the applicant in his submissions as to Count 1, whether considered individually or in combination, leads to the conclusion for what he contends.
The Crown says that the question under the first limb of s 6(1) is not whether it was open to the jury to accept an exculpatory explanation of AD having accessed pornography as a reasonable possibility; rather, the question is whether, on an independent assessment of the whole of the evidence, the Court is satisfied that it was open to the jury to convict the applicant of Count 1.

[16]

Determination

Count 1 raises the stark conflict between AD's account of being shown pornographic videos by the applicant and the applicant's account (in his ERISP) which his brother and sister-in-law indirectly support (by reference to their evidence of conversations in which the applicant raised this with them) that he had discovered AD and her brother watching pornographic material on an iPad.
I am satisfied that it was open to the jury to convict the applicant of Count 1. The fact that no "Doodleplum" pornographic site was able to be located does not raise a reasonable doubt in circumstances where AD herself expressed uncertainty as to what the site was called; and if her version of events was accepted the site was accessed by the applicant typing something into the laptop and then deleting it.
The applicant's account in his ERISP (that AD's brother, who could only have been six to 12 months old at the time of the incident accidentally activated a pornographic site using a Siri voice command) is implausible in the extreme. As to the conflicting versions of what was discussed between the adults as to access by the children to inappropriate websites on their laptops (particularly given the generality of a discussion as to the wisdom of parental locks or internet restrictions as recalled by J and M) essentially this was a matter for the jury to raise the credibility and reliability of the respective witnesses. There seems little doubt that R was a partial witness (see his evidence, albeit on an unrelated issue, that he was aware 99% of the time at the wedding where the applicant was - relevant to count 2). In any event the jury was better able to form an assessment of the surprise said to have been exhibited by L when the topic as to access to pornography was raised with him.
The applicant's reliance on his urological problems as support for the proposition that he did not show AD pornographic videos is not sufficient to raise a reasonable doubt, not least because he accepted that he was still accessing pornography after those problems; and the medical evidence did not suggest that this was improbable. Finally, as to the complaint that the police did not interrogate AD's iPad, there is nothing to suggest that this would have revealed anything of relevance and E's evidence as in re-examination went unchallenged.
The challenge to conviction on Count 1 is therefore not made good.

[17]

Count 2

The applicant's submissions in relation to Count 2 raise two issues: first, AD's credibility or reliability in her account of a sexual assault at East Seaham; and, second, opportunity. As to the first, the applicant emphasises AD's evidence that the sexual assault occurred in the cabin while M was present and taking a shower whereas there was no shower in the cabin (it will be recalled that M's evidence was that she showered in the granny flat much earlier in the morning which is far more plausible given the wedding preparations that took place in the morning (the bride's hair and make up)).
As to the second, the applicant also points to the fact that no person at the wedding gave evidence of seeing AD accompany the applicant to the cabin. It is noted that R gave evidence that he saw the applicant access the cabin alone to get changed; and there was evidence that AD left the East Seaham property with another aunt (KD) at around 2pm. The applicant also points to the trial judge's instruction to the jury that the possibility of opportunity was not enough and not a substitute for a finding beyond reasonable doubt (9/03/2023; SU 55). The applicant points to AD's young age at the time (wrongly suggesting she was about three years of age when, on the undisputed chronology of her birth in 2012 and the wedding in 2017 she must have been nearly five years old) arguing that it is difficult to appreciate that, during wedding preparations attended by numerous persons, he would take the opportunity and risk of sexually assaulting her.
The applicant also points to the submission that was made (with reference to photographs of the applicant at John Hunter Hospital on 18 August 2015) that, given the size of the applicant's fingers, digital penetration of AD without injury was an unreasonable inference to make.
Again, it is submitted by the applicant, that on the evidence referable to Count 2, it was not open to the jury to find the applicant guilty of this count beyond reasonable doubt.
The Crown contends that the inconsistencies identified in AD's evidence of the sexual assault on the occasion of M's wedding did not render her evidence unreliable such that it was not open for the jury to conclude that the applicant was guilty of the offence in Count 2. In that regard, the Crown notes the evidence of the various witnesses and of the applicant in his ERISP as to the timeline of events.
In response, as to AD's credibility or reliability, the Crown says that there was a consistency through AD's evidence that the assault happened not in the main house on the property, and that they drove to the location. It is noted that AD recognised the inside of the cabin but not the outside; and the Crown suggests that her memory clarified to a degree once she saw photographs of the interior.
The Crown says that the presence of M was introduced when it was implicitly suggested in a question to AD that someone else was in the car. The Crown accepts that aspects of AD's evidence which concerned M in the shower did not "align" with the assault having occurred in the cabin (since the cabin on the hill had only one room, no shower). However, it is submitted that AD was not necessarily remembering M in the shower on the day of M's wedding and may have been remembering some other occasion when AD was in the granny flat (which had two rooms and a shower off the bedroom). The Crown submits that, particularly in the case of a very young complainant, such details are readily understood as peripheral to a starkly memorable experience of being sexually assaulted. In that regard, the Crown notes that AD said in cross-examination that she did not remember details of the day of the wedding, because all she remembered was what the applicant did to her that day, taking her away from where others were getting ready and putting his fingers in her private part.
As to the second issue, opportunity on the day of the wedding, the Crown points to the applicant's answers in his ERISP to the effect that he looked after AD and her brother for a while; that he may have had the children with him because L was setting up the caravan; and that AD may have gone with him or would have gone to the cabin with him if she was playing up at the time.
The Crown says that R's evidence minimised the opportunities available to the applicant and submits his evidence lacked credibility and was fashioned by loyalty to the applicant. The Crown points in this regard to his evidence (over four years after the wedding) that he knew 99% of the time where the applicant was on the wedding day and what he was doing. The Crown also points out that R said the applicant did not look after AD (and that he, R, did) which was contradicted by the applicant's ERISP and by E's evidence, who said the applicant told her he would keep AD "out of [her] hair" (27/02/2023; T 153.19).
The Crown says that other evidence allowed for opportunity for the offence in count 2 to have been committed on the day of the wedding noting that, according to R, AD arrived at around 11.30am or 12pm, and that J gave evidence that she asked the applicant to take the lapel flowers to LP's house at around 2pm.
As to the applicant's submission to the effect that he was unlikely to take a risk of sexually assaulting AD in the environment at East Seaham at that time, the Crown points to the experience of this Court that the fear of detection in child sexual assault cases does not universally operate as a deterrent (referring to Bolton at [41]-[44] (Harrison J), [54] (Wilson J); VP v R [2021] NSWCCA 11 (VP); RW v R [2023] NSWCCA 2 (restricted judgment)). The Crown cites the observation that such a submission is "replete with assumptions about how and why adults commit child sexual abuse" made in Sita v R [2022] NSWCCA 90 at [50] (Beech-Jones CJ at CL, Price and N Adams JJ agreeing); Bolton at [62]. The Crown says that its case involved the applicant exploiting his position of trust as a close family member of AD; and that he may have developed a good sense as to the likelihood that at a particular time his abuse may be interrupted (referring to Sita at [50]). Reference is also made to the observation of McCallum JA in VP (at [79] (N Adams J agreeing)) that "[e]xperience of such trials tells that stealth, opportunism and brazenness are common features of child sexual offending".
While the Crown accepts that the submission as to the applicant being able to have developed a good sense of the likelihood of interruption from his position as a family member is speculative, the Crown argues that, so too, is the applicant's submission that the alleged conduct was so brazen that it was unlikely.
Finally, as to the submission that the size of the applicant's fingers signified unlikelihood of digital penetration without injury, the Crown notes that the offence was committed in November 2017; and that even if AD had been injured, she was not examined for any injury until September 2021. Reference is made to the evidence of Dr Ticehurst, paediatrician and senior staff specialist at the Newcastle Sexual Assault Service, that the fact that the examination in September 2021 was normal was not unexpected, even with the history given of sexual abuse (3/03/2023; T 445-449). Dr Ticehurst said that in many forms of sexual abuse, one would not anticipate any injury and it was common to see a normal genital examination in about 95% of children. If a child is seen within two or three days of the most recent assault, there might be fewer than 10% without a normal examination. Children were often seen many weeks, months or even sometimes years after the abuse and, because the genital area heals well, it is often without trace of any injury.

[18]

Determination

As to the credibility and reliability of AD's account of this incident, the most problematic aspect of that account is obviously that AD was initially adamant that M went in the car with them to the cabin; that M was having a shower in another room in the cabin at the time the assault occurred; and that she could hear the shower while the applicant was putting his finger(s) inside her vagina. Although the Crown suggests that aspects of AD's account (such as there being two rooms in the cabin) were peripheral to the central memory of the assault itself, the memory of M being present in the cabin and having a shower is not a failure to remember peripheral detail; rather, it is a recollection of something that objectively cannot have happened (the taking of a shower in a cabin where there was no shower and in another room where there was only one room in the cabin). Hearing the shower might be explicable if it was raining at the time, noting that the applicant said in his ERISP that it started to rain at some point in the morning (when the children were there).
Against that, however, is the possibility that M having a shower in the cabin is a genuine mistaken recollection; that, as the Crown submits, she may have had in mind an incident involving M and a shower in some other place. It is not, perhaps, surprising that AD associated M with the wedding (since M, as the bride, would have been at the forefront of attention on that occasion) and thus may have thought for some reason that M would have been in the car with them going to the cabin.
What is certainly reliable in AD's account is her description of driving up to the cabin and her immediate identification of the inside of the cabin. The question is whether AD's mistaken recollection of M taking a shower at the cabin is such as to undermine her overall account to the extent that the jury ought to have had a reasonable doubt as to count 2.
The force of AD's evidence is the description she gave of the applicant shaking his finger inside her and of his body shaking when he was doing that. Insofar as the applicant suggests that watching pornographic videos would have influenced the account AD gave of sexual activity, this would not explain her description of the applicant's finger shaking; nor of his body shaking while he was doing this. Therefore, it was open in my opinion for the jury not to have had a reasonable doubt that such an act occurred. The lack of injury to AD is not something that would give rise to a reasonable doubt given the length of time before AD was examined and the medical evidence as to children's recovery from injury of the kind that might have been occasioned by digital penetration. Nor is it safe to reason from the photographs taken of the applicant at the John Hunter Hospital that the size of his fingers would have made such penetration either impossible or likely to cause injury.
The only doubt in my mind as to count 2 derives from the description of M's presence in the cabin at the time. I return to this after first considering the question of opportunity.
As to this, the relevant time line can be simply stated as follows, synthesising the various accounts (and discounting R's inherently implausible evidence that, four years after the event, he remembered the applicant's movements "99%" of the time, which was itself contradicted on R's own account of events as to the time when he was not in the applicant's company).
E arrived at the property at 7am and she and KD were busy with the bridal preparations in the main house. The applicant arrived at the property at about 9am or 9.30am. LP and EP arrived at the property at about 9am and went to the paddock where the marquee was set up for the reception; they went back to LP's house around 10.30am and then returned to the paddock at about noon and were there for some time (between 15 minutes and half an hour). L arrived at the property with AD and her brother, about 11.30am or noon.
At some time in the course of the morning, the applicant says he was on the verandah at the main house with the three children (AD, her brother and another child). His estimate that he was there for a couple of hours does not fit with the time of AD's arrival, his time at the paddock, his changing at the cabin and then his departure with the lapel flowers some time around 1.30pm to 2pm (see below). The applicant was seen by LP and EP at the paddock where the marquee was at around 12 to 12.30pm.
By 1.30 to 2pm the applicant was dressed, ready for the wedding, because that is when M and J place the applicant as leaving to take the lapel flowers to the groomsmen (M says he left immediately when they arrived at about 1.30pm, J says it was around 2pm).
AD and her brother left the property with KD at around 2pm.
On that timeline, the opportunity to commit the offence is the time between around 12/12.30pm (when the applicant was seen in the paddock) and 1.30/2pm (when the applicant left with the lapel flowers for the groomsmen). There may have been a brief opportunity between say 11.30am to 12pm or 12.30pm depending on the accuracy of the times given by various of the witnesses. However, the more likely opportunity is when the applicant accepts he went to the cabin to get dressed for the wedding. That would be ample opportunity for the incident in count 2 to have occurred assuming that the applicant took AD to the cabin (as he accepted he may have done or would have done if AD was "playing up") when he went there to get changed.
I reject the submission that the offending was unlikely because of the hive of activity going on at the property (since the hive of activity was at the main house and to a lesser extent at the paddock, not at or near the cabin). I also reject the proposition put adamantly by the applicant in his ERISP that there was no privacy in the cabin (see ERISP Q/A 807ff).
As noted above, the wedding preparations were centred at the main house (when the bride and her attendants were getting ready) and the marquee (which was being set up for the reception). The cabin was up a dirt track on a small hill. There would have been no reason to think that people would be passing by or going up to the cabin while the applicant was there. (And, as the authorities referred to by the Crown recognise, it is not uncommon that fear or risk of detection does not deter persons who commit offences of this kind.)
Ultimately, while I consider that there is no reasonable doubt that the applicant digitally penetrated AD with his finger or fingers on at least one occasion (having regard to the compelling nature of AD's description of the physical event on that occasion), I am not satisfied beyond reasonable doubt that it was on the occasion of M's wedding day at the cabin on the East Seaham property (because of AD's initial confidence that M was there having a shower in another room in the cabin at the time and the objective evidence that makes that account impossible - there being no shower and only one room in the cabin).
Therefore, I consider the jury ought to have had a reasonable doubt as to count 2 and the applicant should be acquitted of that count.

[19]

Counts 6, 7 and 8 - Dunbogan incidents

As to Counts 6, 7 and 8 (the Dunbogan incidents), which the applicant addresses before turning to the remaining (North Rothbury) counts (3, 4, 5 and 9), the applicant raises again inconsistencies in the evidence and the question of opportunity.
The applicant points to the fact that AD alleged that her mother was away shopping (but not her father) when the assaults occurred, whereas there was overwhelming evidence that both AD's parents were away shopping and that they did not attend the Boxing Day lunch. It is noted that J's evidence was that the applicant had the care of AD. The applicant also points to AD's evidence that R and J were not present at Dunbogan during the Christmas period, which was contrary to the evidence of those and other witnesses. Finally, the applicant says that AD alleged the sexual assaults occurred in the applicant's cabin where her mother slept but that E said she did not sleep in the applicant's cabin (rather, the family slept in a campervan).
As to opportunity, the applicant says that on Boxing Day members of the Christmas party watched cricket in the applicant's unit where people were coming and going; and that this makes it highly unlikely that he had the opportunity to commit two episodes of sexual intercourse (cunnilingus and fellatio) and one of sexual touching (mouth to breast) in the bedroom of his cabin.
Again, the applicant submits that it was not open to the jury to find that these counts had been proved beyond reasonable doubt.
The Crown acknowledges that a number of defence witnesses gave evidence that both E and L went shopping on Boxing Day, although E did not remember whether it was 26, 27 or 28 December and L accepted when he was shown photographs that the Port Macquarie shopping trip was not that day. Nevertheless, the Crown says that if E and L did go to Port Macquarie on Boxing Day, then they must have left not before about 11am and returned within three hours. In that regard, the Crown points to the photographs taken at 10.47am at the campsite showing E and L present there at that time; and the later photograph at 3.54pm showing L at the campsite. (The Crown also notes that the 10.47am and 1.50pm photographs each showed EP at the campsite, not watching the cricket; and the Crown submits that, insofar as EP was adamant as to the extent that he and the applicant watched the test match together, it may be inferred that this was unreliable.)
The Crown says that the evidence supported the opportunity to commit the offences in counts 6, 7 and 8. The Crown submits that, on an independent assessment of the evidence, opportunity for the applicant to have committed the offences may have arisen on the day or two before Christmas, before other family members arrived at Dunbogan (as AD said); and similarly that there was opportunity in the days after Boxing Day, before the family left Dunbogan on 30 December 2018; but in any event, the Crown says that it was well open to conclude that there was opportunity for the applicant to commit the offences on Boxing Day itself, during the hour or so after lunch. The Crown says that the two episodes of sexual intercourse involving fellatio and mutual oral intercourse may not have taken long (although I note that AD's account was that it was a "little bit long"), particularly given that AD's evidence that it stopped when E rang to say she was returning soon. E said that when she returned AD was with the applicant sitting in the lounge room watching TV and no one else was in the villa at that time.
The Crown says that whether E gave AD the LOL box on the same day as the offending or another day is the kind of detail that it may be expected that AD would not remember clearly.
The Crown places emphasis on the evidence by LP that, after he returned from fishing with R on Boxing Day (around 2.30pm or 3pm), he saw L at the riverbank and that L was "cranky" that the applicant would not take AD and her brother out on his boat. The Crown notes that R gave similar evidence. The Crown says that it may be inferred that L had returned from shopping and found that AD had stayed with the applicant at the cabin in the campground, leading to that disappointment.
As to the inconsistency in AD's evidence that the offence occurred in the cabin where E slept (since AD and her parents were sleeping elsewhere at the caravan park on this occasion), the Crown says that AD's evidence may simply have reflected that, on occasions when L was working, E took AD and her brother to visit the applicant. The Crown says that it is not clear whether AD was referring to the cabin being a place where her mother sometimes slept or where she slept on that occasion, but says that if it was the latter that gives rise to no cause for doubt about AD s evidence of the commission of the offences.
The Crown further says that AD's evidence of the sexual acts involved in counts 6, 7 and 8 contains details that it is unlikely an eight year old child would fabricate (referring to Bolton at [44]). In particular, the Crown says that AD described activity of simultaneous cunnilingus and fellatio in a way that it may be inferred AD was likely only to have learned from having been shown it in a pornographic video and from having actually been positioned in that way herself.

[20]

Determination

The inconsistencies to which the applicant points in relation to AD's account of the Dunbogan incidents are not such in my opinion as to undermine AD's account to such an extent that the jury ought to have had a reasonable doubt as to the applicant's guilt on this count.
The only real inconsistency in AD's evidence (as opposed to there being conflicting accounts between the witnesses as to who was present at the Boxing Day lunch) was as to the reference by AD to the assault occurring in the cabin where E slept. I agree with the Crown that this could mean either where E slept on that particular occasion (which would have been incorrect) or where E usually slept when visiting the applicant.
As to AD's recollection that J and R were not there over the Christmas period, that is a detail that one would not necessarily expect a child to remember years after the event without there being some particular significance attached to their presence on the relevant occasion.
As to opportunity, I accept the Crown's submissions that even if the conduct occurred on Boxing Day, there was opportunity for the incident to take place, particularly since it is clear that EP was at the campsite (not in the cabin watching the cricket) at least at 10.47am and 1.50pm, respectively. True it is that the conduct would have been risky if it occurred on that day when members of the family were coming and going (watching the cricket or using the bathroom) but, as noted earlier, risky behaviour does not give rise of itself to a reasonable doubt.
I note that it was left to the jury as being more likely that the Port Macquarie trip was on 27 or 28 December but I accept that the consistency of the defence witnesses' accounts puts this as likely occurring on 26 December 2018.
Most compelling, in my opinion, is the description AD gave on what occurred in that his head was "down there" and then that she was "flipped around"; and her account that when they stopped (after E had called) and were watching TV they were watching "just shows" and it was "nothing inappropriate". Even accepting that, on both sides' accounts, AD had seen some pornographic videos as a young child, her descriptions of the physical acts are redolent of those by someone who has not just watched but had been involved in the performance of those acts.
I have thus concluded that the verdict of guilty on these counts is not unreasonable and it was open to the jury to find the applicant guilty on these counts.

[21]

Counts 3, 4, 5 and 9

Turning then to the remaining counts which each occurred at the North Rothbury house, the applicant quite fairly concedes that the evidence as to these counts is more cogent than as to the counts addressed earlier (AT 29.24-25) but the applicant submits that the reliability of the allegations of sexual assaults at the North Rothbury house is influenced by the reliability of the allegations in respect to the other counts. Hence, the applicant submits that, if it was not open to the jury to be satisfied to the requisite standard in respect to counts 1, 2, 6, 7 and 8, then it should follow that it was also not open for the jury to find counts 3, 4, 5 and 9 proved beyond reasonable doubt.
Pausing here, while it is permissible to take into account the reliability of a complainant's evidence on one count when considering others, I do not accept that the doubt raised in relation to count 2 infects the credibility of the North Rothbury accounts. It was a specific difficulty with AD's recollection of M being present on that occasion that led to the doubt I have in relation to count 2. There is not a similar difficulty with the North Rothbury counts.
As to the North Rothbury counts (counts 3, 4, 5 and 9), the applicant points to the evidence that he often baby-sat AD and her brother; and he poses the rhetorical question as to why he would sexually assault AD at night when her parents were present when he had better opportunity when he was babysitting AD. (Rhetorical questions are in my opinion inherently risky, as there is usually a temptation to answer them and that may not be in the way the questioner anticipates. One obvious answer to this one is that there was opportunity and, once AD became accustomed to the conduct and started to like it, the risk of detection must have been much reduced.)
The Crown's response to the applicant's rhetorical question as to why the applicant would choose to offend at night, with the concomitant risk of detection, is that this does not raise a doubt. The Crown says that, given the layout of the North Rothbury house (with the main bedroom at one end and the remaining bedrooms at the other), it may be thought that the applicant's proximity to AD overnight, and distance from her parents, emboldened the applicant. Further, the Crown notes that E gave evidence that the applicant was involved in looking after AD when she had night terrors; and that there were occasions when the applicant would settle her and he would tell E he would check on her. The Crown says that such evidence indicates that the applicant generally did not have difficulty nor inhibition in accessing AD as a parent might.
The Crown also points out that evidence of AD's disclosure to E included that on one occasion AD and the applicant were under the blankets doing something in the spare room when her brother came in, suggesting that this conduct was not occurring during sleeping hours. The Crown says that, while this did not give rise to any charges, it indicates that the premise of the applicant's submission (that the abuse only occurred at night) is countered by evidence to the contrary. In any event, the Crown says that, aside from the occasion in count 9, when AD reported the applicant hiding her under the blanket when L was leaving for work, it is not clear on the evidence whether her parents were actually at home, asleep, at the times the assaults occurred.
The second matter raised by the applicant in relation to these counts is that he revealed to police in his ERISP that he had a prostate problem that required regular visits to the toilet at night before police suggested to him a modus operandi whereby he would flush the toilet signalling an opportunity to have sexual relations with AD.
As to this, the Crown says that no weight would be placed upon the applicant telling police he had a prostate problem mandating regular toilet visits since the applicant was well aware the police were investigating allegations of sexual abuse involving AD. The Crown says that the questions in the ERISP interview had been progressively narrowing upon topics of which bedroom he slept in at the North Rothbury residence, babysitting AD, and whether he stayed overnight after he moved out. It is submitted that volunteering information that he had a prostate problem mandating regular toilet visits begs the question why the applicant decided to volunteer that information, suggesting that the applicant might have anticipated being asked about what happened overnight and was seeking pre-emptively to justify why he was in the hallway at the same time as AD on nights that he stayed at the house.
The third matter raised by the applicant on this count is as to the reliability of the description by AD of the "bio-mechanical sexual activity" at North Rothbury (namely, her account of the applicant lying on top of her), given his weight (around 120 kilos).
As to the submission by the applicant as to the implausibility of the acts alleged, the Crown says that it was not "highly unreliable" for AD to allege that the applicant lay on top of her. The Crown says that the applicant's submission wrongly assumes that "lying on top" necessarily equates with placing full weight on AD and the Crown says that it does not.
As to Count 9 on the indictment (the last incident of alleged sexual assault or penile/vaginal intercourse and the most recent in time), the applicant points out that AD was wearing a "onesie" and that she said nothing about this incident to her mother.
The Crown's response to this is that, given the context and purpose of the complaint to her mother, it was of no moment that AD may not have specified that she was wearing a onesie on an occasion (or occasions), the Crown referring generally to Rubinstein v R [2023] NSWCCA 288 at [126] (Adamson JA, Button J and RA Hulme AJ agreeing). The Crown cavils with the proposition that AD said nothing about the incident in count 9 to her mother, noting that AD referred both in the JIRT interview and in her disclosure to her mother to there having been a number of incidents.
In that regard, the Crown notes that count 9 involved penile-vaginal intercourse and that E's evidence of the disclosure in July 2021 (27/02/2023; T 165.45-166.3) was that AD was upset and that AD: … came out and said that Pop had shown her a video of people doing things that were inappropriate on an app called Doodleplum. Then she told me that they would sometimes lay on top of each other, sometimes with their pants on, sometimes with their pants off. I said "What do you mean", she then showed me what she meant by sitting on top of me and she proceeded to go on to tell me that he sucked her privates and he made her suck his and hold her head and proceeded to show me how he held her head. She just kept saying things that he had shown her and made her do.
The Crown points out that, when AD lay on top of her mother to show her what she meant, AD moved herself up and down.
The applicant, on appeal, appears to raise again the suggestion put during the trial that AD had a motive to fabricate allegations of sexual assault when she discovered that her relationship with him had become subordinate to the relationship and close attention he was suddenly paying to her cousin; and that AD was consumed by jealousy and resentment that translated to fabricated allegations of sexual interference by the applicant with her (see 9/03/2023; SU 32, 35-36; it may also be noted that J gave evidence at trial that AD was jealous of the attention her cousin was receiving from the applicant, see 6/03/2023; T 585.23-25).
As to this, the Crown says that it was open to the jury to reject as wholly unconvincing the applicant's suggestion that AD had a motive to fabricate allegations of sexual assault driven by jealousy of the attention the applicant paid her cousin. The Crown says that AD gave candid, age-appropriate answers, when this was put to her in cross-examination (21/09/2022; T 44.32-45), that belied the proposition: Q. [AD] you were getting very jealous of [her cousin], weren't you? A. I don't - I don't know. … Witness intermediary: Could counsel just make sure [AD] understands what the word "jealous" means? Witness: I know what it means. Counsel: See, before [her cousin] came to live with poppy, you basically had poppy all to yourself, didn't you? A. I don't remember about that because it's - I just only remember what he showed me and what he was doing when he came and - and on the wedding and that on - a few days before Christmas Day. … Q. They weren't giving you enough of their free time; would you agree or disagree with that? A. I - I really don't know. It's been a while and I'm just starting to get a bit tired.
In the Crown's submission (with which I agree) an assessment of the whole of the record of the trial shows that AD's evidence was compelling. It is noted that AD described in detail sexual activities such as the mutual oral intercourse at Dunbogan, linking those activities with something she had seen in a video that the applicant showed her. The Crown says that AD's statement that "[h]is body was just shaking while he was doing that", at East Seaham, compellingly conveyed a child's description of an adult's sexual arousal. Similarly, her statement that (JIRT Q/A 287-290): … he started to move his body for some reason… I think, um, he started to move his body… And then, um, he, uh, so it kind of, um, when I was laying on it, it kind of felt like he was, he wa, um, you know how sometimes those chairs and they're just like, like that… help you feel be, relaxed, he kind of felt like that.
The Crown says that the applicant's question, "[d]id that feel good?", was a detail which it may be thought was drawing upon an actual memory. The Crown attaches significance to the fact that AD (consistent, the Crown says, with the experience of courts in hearing accounts of victims of sexual assault) explained that she did not remember details of who was there on the day of the wedding, because all she could remember was "what pop did to me, did on the day" (21/09/2022; T 13.3-4); that AD articulately explained that memories of tangential matters were difficult to recall (when she said that she could remember lying on the bed, and the applicant came over and told her to pull her pants down, but "I can't remember that much… and then, um, I did. I was only young then… And then he did that" (JIRT Q/A 138-140)); and that AD conveyed that sequencing events accurately was also not easy for her when she said that "I sometimes tell the bits before it, um, before. Though sometimes I might tell, um, people the things after and not tell it before and they sometimes get confused" (JIRT Q/A 240). Nevertheless, the Crown characterises AD's evidence of the sexual acts performed by the applicant and which he had her perform (and his statements that she should not tell anyone) as unambiguous and consistent.
The Crown submits, and I accept, that the form of the evidence and the nature of the issues in this trial to a substantial degree involved oral testimony amounting to "word on word" (referring to Lee at [27]-[33]) and that the jury was obliged to weigh the credibility and reliability of a number of witnesses in the Crown case as well as those called by the defence. The Crown says that on the central allegations, it is clear from the verdicts that AD's evidence was accepted by the jury beyond reasonable doubt for every count in the indictment, enlivening the constraint referred to in Z v R.
The Crown maintains that in the present case, the advantage of the jury was considerable. However, the Crown says that, even without the benefit of seeing and hearing the oral evidence given at trial, the record of the trial reveals the authentic candidness of AD and the convincing plausibility of her account. By way of one illustration, the Crown refers to the statement at the end of the JIRT interview she spontaneously told the interviewer that "No. Wait, I, I just remembered one thing. I started to like it that's why I started to follow him" (JIRT Q/A 671).

[22]

Determination

Reviewing the transcript of the JIRT interview and the pre-recorded evidence, the most compelling part of AD's testimony was her description of the physical aspects of what was done to her, including her observation that the applicant's body was shaking when he digitally penetrated her; her demonstration of how the applicant pushed her head next to his penis (including that he did not push hard); her description of the feeling of vibration during the penile-vaginal intercourse; and her demonstration to E of how the applicant's body had moved when he was lying on top of her.
The various matters relied on by the applicant in support of his contention that the verdicts on the North Rothbury counts were unreasonable are not persuasive.
The rhetorical question posed by the applicant as to why he would carry out the offences at night when he had other opportunities to do so is, as adverted to above, readily answered by reference to the fact that the layout of the house and the interactions between the applicant and AD do not make this implausible. The suggestion that early disclosure of his prostate problems in the ERISP points in some way in favour of the applicant's account is similarly unpersuasive; and the suggestion that the sexual activity described was unreliable given the applicant's weight does not grapple with the fact that AD demonstrated to her mother how the applicant's body moved up and down.
As to the question of motive, the suggestion that AD's disclosure was prompted by jealousy is both speculative and in my opinion fanciful. It would require accepting the proposition that a young child (who had been earlier diagnosed with autism and ADHD) was able not only to fabricate a series of sexual acts in different locations and at different times but also compellingly to describe the physical sensation of at least some of those acts (i.e., vibration; shaking of the applicant's fingers; the "not hard" pushing down of her head) and of the applicant's body shaking at the time. Nothing in the record of the JIRT interview or pre-recorded transcripts suggests that this was fabrication on AD's part.
In my opinion, it was open to the jury to be satisfied beyond reasonable doubt as to counts 3, 4, 5 and 9 (and the concession as to the relative cogency of the evidence in relation to those counts was well-made).

[23]

Conclusion

Other than in relation to count 2 the appeal should be dismissed. I am not left with a reasonable doubt in relation to the verdicts on counts 1, 3-9. The verdict on count 2 should be quashed and a verdict of acquittal entered on that count alone. In those circumstances the matter should be remitted to the District Court for resentence.
HAMILL J: I have the considerable advantage of having read the judgment of Ward P which was circulated in draft. I agree with the orders favoured by the President largely for the reasons her Honour provides. Her Honour's comprehensive analysis of the facts and evidence enables me to be quite brief and to focus on the matters which persuade me that the evidence established the applicant's guilt beyond a reasonable doubt on all counts except for the second. As to the second count, I have a reasonable doubt as to the applicant's guilt and that doubt cannot be explained or dispelled by the advantages enjoyed by the jury.
I approached the grounds advanced by the applicant in accordance with High Court authority and in particular the judgments in Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50, M v The Queen (1994) 181 CLR 487; [1994] HCA 63, MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 and Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25.
I undertook a review of the whole of the evidence to determine whether it was "open to the jury", as that expression is used in M v The Queen, to reach verdicts of guilty on any or all of the nine counts upon which the applicant was convicted. The task of the Court in determining an unreasonable verdict ground was settled by the High Court in M v The Queen and that function is "to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty" of the offence with which they were convicted. [1] I proceeded on the basis that a reasonable doubt entertained by an appeal Court is one that "in most cases" ought also to have been experienced by the jury. [2] That proposition is qualified by a consideration of the "advantages" enjoyed by the jury and its constitutional role as the arbiter of facts in serious criminal cases. Those advantages extend beyond seeing and hearing the witnesses give evidence and include the opportunity for collaborative deliberation and the requirement of unanimity. [3]
Unlike Ward P, I did not watch the recordings of the complainant's "JIRT" interview or recorded evidence except for those parts identified by counsel for the respondent which are, as Ms Bonner submitted, important because they show the complainant making certain gestures or demonstrating things with her hands. I have not viewed or listened to the applicant's recorded interview with police.
On the written record of the trial proceedings, the child's evidence was compelling even though it was not corroborated as to the sexual conduct alleged. The matter referred to by Ward P at [104], concerning the complainant's feeling of shame and her unguarded disclosure that she "started to like" what was happening provides a cogent, perhaps irresistible, reason to accept the child as a witness of truth. Similarly, I agree with the President's assessment that the matters to which her Honour refers at [152] lend credibility to the complainant's account of what happened to her.

[25]

The remaining counts

I have taken my conclusion in relation to count 2 into account when considering the allegations in the other counts and the complainant's credibility more generally: see, for example, Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56 at 453, and generally R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 and MFA v The Queen (supra). I have also considered the inconsistencies and other issues raised by the applicant and the applicant's denials of wrongdoing in his interview with police.
Many of the inconsistencies and matters of detail properly and fastidiously catalogued by counsel for the applicant, and identified by the President in her judgment, were not matters of great moment in the overall context of the issues between the parties. Most are readily explicable by the passage of time and the young age of the complainant. As I said earlier, the complainant's evidence was quite compelling and the jury, which was provided with comprehensive directions as to the high standard of proof and the need for close scrutiny, plainly accepted it.
Matters of more substance were raised in relation to counts 6, 7 and 8. However, neither the inconsistencies as to who was present at the Dunbogan property at relevant times nor the related issue of the applicant's limited opportunity to commit the offences when nobody else was around are such that the jury ought to have entertained a reasonable doubt given the other matters which pointed to the complainant's honesty and reliability. In making this assessment, I have born in mind the applicant's steadfast denial of wrong-doing, the evidence of the defence witnesses and the requirement of proof beyond reasonable doubt.
As to the conflicts in the evidence given by the family members called by each party at the trial, some of which were quite stark, the jury was entitled to accept the evidence favourable to the prosecution. It seems the allegations have caused division in the family. It was open to the jury to accept parts of the evidence which provided some support for the complainant, albeit on peripheral issues. Equally, the jury may properly have concluded that some of the matters raised by the applicant - such as the suggestion that the complainant and her one- or two-year-old brother were accessing pornographic websites by using a voice activation function - were entitled to little weight or, perhaps, should be rejected altogether.
Even allowing for the evidence favourable to the applicant, the focus of the analysis was on the complainant's credibility, in terms of her honesty and reliability. As I have indicated more than once, aspects of her evidence were quite compelling. Ward P has explained why that is so and I adopt respectfully her Honour's reasoning in that regard.
Even allowing for the diminution in the reliability of the complainant's evidence arising from the acquittal on count 2, the guilty verdicts on the remaining counts were not unreasonable. It was open to the jury to accept the complainant's evidence, as I do based on a review of the evidence at trial, and to do so beyond reasonable doubt.
For those reasons, which do little more than amplify matters referred to by Ward P, I agree with the orders proposed by her Honour including that the matter should be remitted to the District Court for re-sentence.
DHANJI J: I have had the advantage of reading the judgments of Ward P and Hamill J in draft. I generally agree with Ward P's reasons and with additional reasons of Hamill J. Unlike Ward P I have not viewed any of the recordings, either of the complainant or the applicant's ERISP. I have taken this approach on the basis of the authorities referred to by Ward P at [155]-[158]. With respect to count 2, both Ward P and Hamill J make clear, their doubts in relation to the applicant's conviction on count 2 is a doubt related to proof by the Crown of that count as particularised. That is also the basis for my doubt in relation to that count. This is significant in my consideration of whether my doubt in relation to count 2 causes me to have a concern with respect to the applicant's convictions on the remaining counts. It does not. I agree with the orders proposed by Ward P.

Parties

Applicant/Plaintiff:

Respondent/Defendant:

Legislation Cited (3)

Crimes Act 1900(NSW)

Criminal Appeal Act 1912(NSW)

Children (Criminal Proceedings) Act 1987(NSW)

Cases Cited (50)

[This headnote is not to be read as part of the judgment] The applicant was convicted in March 2023 following a jury trial in the District Court on nine counts of child sexual offences relating to his granddaughter (AD), contrary to ss 66A, 66DA and 66EB of the Crimes Act 1900 (NSW). In August 2023, the applicant was sentenced to an aggregate sentence of 18 years imprisonment with a non-parole period of 11 years. The offending occurred over a period of four years, when AD was between three and seven years old. The majority of the counts related to conduct at AD's home, with one (Count 2) relating to an incident at a family member's wedding, and three (Counts 6-8) relating to conduct on a family holiday. The applicant sought leave to appeal against his conviction on two grounds, both alleging that the verdict was unreasonable or could not be supported. The first ground related to the verdicts on all counts, and the second ground (raised in the alternative) related to the verdicts only on Counts 1, 2, 6, 7 and 8. Held (Ward P, Hamill J, Dhanji J agreeing) granting leave to appeal and allowing the appeal in part, quashing the conviction in relation to Count 2 and otherwise dismissing the appeal: (1) The relevant question on an unreasonable verdict ground of appeal is whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. This requires the Court to undertake its own independent assessment of the evidence, but the Court must not disregard the consideration that the jury has had the benefit of having seen and heard the witnesses (Ward P at [141]-[142]; Hamill J at [262]; Dhanji J at [275]). M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50 cited. (2) It is clear that the jury must have found AD to be credible and reliable; it is not the role of the Court to duplicate the function of the jury in its assessment of the credibility of the witnesses who gave evidence (Ward P at [160], Hamill J at [265], Dhanji J at [275]). (3) It was open to the jury to convict the applicant of Counts 1 and 3-9, as any inconsistencies in AD's accounts were not such as to undermine her evidence to such an extent that the jury ought to have had a reasonable doubt as to the applicant's guilt (Ward P at [186], [229], [259], Hamill J at [270]-[272], Dhanji J at [275]). The most compelling aspect of AD's testimony was the description of the physical aspects of what was done to her (Ward P at [234], [255]). (4) In relation to Count 2, while there was no reasonable doubt that the conduct complained of occurred on at least one occasion (having regard to the compelling nature of AD's description of the physical event), the Court could not be satisfied beyond reasonable doubt that it was on the relevant occasion, due to the objective evidence that rendered the initial account given by AD of the surrounding circumstances impossible. The jury therefore ought to have had a reasonable doubt as to Count 2 (Ward P at [217], Hamill J, not deciding the first point, at [265]-[268], Dhanji J at [275]).

[1997] HCA 56

[2002] HCA 53

[1987] HCA 50

[2023] NSWCCA 2

[2016] HCA 35

(2022) 110 NSWLR 339

(2001) 205 CLR 50

(2022) 274 CLR 651

(1997) 191 CLR 439

(1985) 159 CLR 507

(1994) 181 CLR 487

(2002) 213 CLR 606