MKR v R

JUDGMENT

1. DAVIES J: The applicant was charged with 11 counts of sexual intercourse with a child under the age of 10 years contrary to s 66A of the Crimes Act 1900 (NSW) and 1 count of indecent assault with a person under the age of ten years contrary to s 61M(2) of the Crimes Act as it was in 2001.
2. The applicant pleaded not guilty and stood trial before Williams ADCJ in a judge alone trial from 18 to 20 October 2021. By a judgment given on 22 October 2021, the applicant was convicted of all of the offences.
3. He was subsequently sentenced on 18 January 2022 to an aggregate sentence of 9 years commencing 17 October 2021 and expiring 16 October 2030, with a non-parole period of 5 years expiring 16 October 2026.
4. The applicant now appeals against his conviction on the following grounds: Ground 1: That there has been occasioned to the Applicant, MAR, a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW) because the trial judge reversed the evidentiary and persuasive burdens of proof such that the Applicant did not have a trial according to law. Ground 2: That the trial judge erred in law by failing to comply with the mandate in s 133(2)(3) of the Criminal Procedure Act 1986 (NSW) namely: failing to expose in the reasons for judgment on verdict(s) the reasoning process linking the relevant principles of law applicable in the Applicant's trial in support of the findings and consequent verdicts thereby precipitating a miscarriage of justice within the meaning of s 6(1) Criminal Appeal Act (NSW).
5. The applicant seeks that time be extended to enable him to appeal. Although he was sentenced on 18 January 2022, a Notice of Intention to Appeal was not filed until 28 September 2022. That Notice of Intention to Appeal expired almost a year before the Notice of Appeal was filed on 23 September 2024.

The offending

1. The complainant, KL, was born in October 1993. At the time of the offending she was aged 7. The applicant is the complainant's uncle, being the brother of the complainant's mother, SL. He was born in May 1978 and was aged 22 and 23 when the offending occurred. At the time of the first group of offences the complainant resided with her parents SL and CL, and her brothers JL and ML on a family farm near Tarcutta. In 2001 the family moved to a property in Lake Albert, a short distance from Wagga Wagga.
2. Counts 1 to 4 occurred at the family farm at a time when the applicant was residing with the complainant and her family. The applicant slept in a bedroom with the complainant's older brother JL and the complainant had a room of her own.
3. The offending took place on three separate occasions, and each occasion involved multiple offences. The three occasions are called Incidents 1, 2 and 3.

Incident 1

1. In November 2000 the complainant's parents and the applicant went to a friend's 40th birthday party at a property near where they lived at the time. The complainant stayed at home, being minded by her brothers JL and ML.
2. By the time the parents and the applicant arrived home, the children were in bed. The complainant was sleeping in a queen size waterbed with JL. The complainant heard her parents come home. She heard her parents go to their bedroom and then she heard someone come into the room where she was sleeping. She said it was the applicant because she could see him. She pretended to be asleep.
3. The complainant said that the applicant lifted up her nightie, pulled down her pants and "started licking my wee and bottom". The applicant said that JL was sleeping with her on the waterbed and she kept trying to wake him but he did not wake up. In the course of doing these acts, the applicant licked the complainant's vagina on the inside and the outside (count 1). He also licked her anus, inserting his tongue into it (count 2). He also ran his finger up her vagina, gently spreading her legs apart and inserting his index finger (count 3). He then removed his index finger and inserted his thumb inside her vagina, moving it in and out (count 4).
4. After the applicant had done these things he just left and went to the single bed in the same room to go to sleep.

Incident 2

1. Subsequent to Incident 1, the complainant and her family moved to the property in Lake Albert. At that time the applicant was living with his friends, Tim and Mandy Francis, at a property in Balmoral Crescent on the opposite side of Lake Albert to where the complainant's family lived.
2. One weekend in early 2001, the complainant and her family visited the place where the applicant, Tim and Mandy lived for a barbeque. At the end of the night when her parents were due to leave, they decided to leave the complainant at Tim and Mandy's place because she was asleep. She had gone to sleep in the applicant's bed. The applicant got into bed with the complainant. She pretended to be asleep and heard him whisper her name. She did not respond, and the applicant pulled down her pyjama pants and her underwear and licked on the inside and outside of her vagina (count 5). He also licked the complainant's anus but did not insert his tongue (count 8, indecent assault). He also inserted his index finger into her vagina and moved it in and out (count 6). He changed his hands into the "thumbs up" position and inserted his thumb into her vagina and moved it in and out (count 7).

Incident 3

1. Sometime late in 2001, whilst the complainant and her family were still living at Lake Albert, the complainant's parents together with the applicant and a friend of SL's called Katrina Rath went to what is called a Star Party run by a local radio station. The complainant and the applicant were sleeping in the family home after that party on a foldout sofa. The complainant thought it was about dawn the following morning when the applicant was sitting up having a cigarette and the complainant was lying next to him. The complainant said that the applicant first licked the inside and outside of her vagina and inserted his finger into it, moving it in and out for a period of time (counts 9 and 10). The applicant then inserted his toe into her vagina (count 11). He thereafter inserted his finger into her anus and pushed it in and out for a period of time (count 12).
2. After the applicant ceased this activity, and shortly thereafter, the complainant went into her mother's room and told her what the applicant had done on each of the three occasions. SL's evidence was that the complainant was crying and screaming, and it was SL's inquiry about what was wrong that led the complainant to say "I just want Uncle [M] to stop. I want him to stop hurting me". It was in that context that the complainant informed her mother what had happened.
3. The police conducted a child interview with the complainant on 14 August 2001. At that time, it appears that the complainant's parents did not wish to proceed with the matter, and it was only after the complainant reviewed her 2001 interview in 2020 or 2021 that the applicant was arrested and charged.
4. At the trial, the complainant gave evidence and her JIRT interview was played. Her parents gave evidence, as did David and Julia Ham, in respect of the first incident.
5. The applicant gave a late alibi notice in respect of the third incident. That led to the Crown calling Katrina Rath (now Katrina Job) with whom the applicant said he spent the night rather than being at the complainant's home for the third incident. Katrina Job denied that the applicant spent the night of the third incident with her and denied, contrary to the applicant's evidence, that they were ever sexually intimate.
6. The applicant also gave evidence at the trial. He denied the charges. He asserted, contrary to the evidence of the complainant's parents, that the complainant did not sleep the night at Tim and Mandy's place at the time of the second incident. He gave evidence of staying the night of the Star Party at Katrina's place and of having sex with her. He said that he had told his sister he believed the complainant was covering for her father in accusing him (the applicant).

Extension of time

1. As noted earlier, the Notice of Intention to Appeal was filed more than 7 months out of time, that Notice expired, and, almost a year later, the Notice to Appeal was filed.
2. The explanation for the delay is set out in a lengthy affidavit of the applicant's solicitor, Eugene O'Sullivan.
3. The position, in short, is that after the applicant was sentenced, he did not have access to funds to engage a solicitor or barrister to provide him with an opinion as to prospects of success for an appeal. When the family were able to get some money together they instructed Jacob Robertson, JDR Law in Canberra and the barrister who appeared at the trial for the applicant, Mr James Sabharwal, to provide an opinion.
4. The applicant then engaged Boxall Legal in Canberra, and that firm filed a Notice of Intention to Appeal. It is not clear why the applicant ceased engaging Jacob Robertson and Mr Sabharwal. Mr O'Sullivan says that he has tried to contact Mr Robertson but the website of the firm indicates that he is on sabbatical for two years.
5. After the filing of the Notice of Intention to Appeal, the appeal was not able to be prosecuted because the family was not able to raise the necessary funds.
6. The applicant and his family then engaged Chapman Gray and Associates, Solicitors in Caboolture in Queensland to assist them with prosecuting the appeal and providing them with an opinion as to prospects of success. Although the firm did some work on the matter, the principal of the firm left for Thailand and did not return. The firm apparently went out of business and the principal solicitor is no longer a solicitor in Queensland.
7. Eventually, the applicant had sufficient funds to engage Mr O'Sullivan and his firm and to brief the applicant's present counsel, Mr Gabriel Wendler.
8. Mr O'Sullivan says in his affidavit that he is unsure of whether any applications were made to Legal Aid.
9. The Crown opposes an extension of time being given, principally because the prospects of success on the appeal do not warrant the grant of an extension, but also from a finality point of view from the perspective of the complainant and the community. The Crown says, with some justification, that the evidence about delay is unsatisfactory in a number of respects. It is difficult to understand, for example, why it cannot be ascertained what, if any, application was made to Legal Aid. Coupled with that, is the fact that the evidence about the lack of resources of the applicant and his family is exceedingly general, and no explanation is given about why JDR Law and Mr Sabharwal ceased to act in the matter when it is said that the family obtained some money to enable them to provide an opinion on prospects of success.
10. Ordinarily, the question of whether an extension of time should be granted is bound up with the merits of the appeal. Whilst the principle of finality cannot be ignored, it would be an unusual case if some merit was shown in relation to the issues sought to be appealed for an extension to be refused, particularly if there is some explanation for the delay. It is clear that the delay in the present case cannot be laid entirely at the feet of the applicant. As the Crown accepts, the delays on the part of the lawyers acting in 2023 were regrettable. It is, nevertheless, necessary to deal with the grounds of appeal before reaching a final view on the question of an extension of time.

Ground 1: That there has been occasioned to the Applicant, MAR, a miscarriage of justice within the meaning of s6(1) of the Criminal Appeal Act 1912 (NSW) because the trial judge reversed the evidentiary and persuasive burdens of proof such that the Applicant did not have a trial according to law.

Reasons for judgment

1. His Honour delivered judgment two days after the trial concluded with counsel's addresses. His Honour first set out in some detail the evidence, principally the evidence of the complainant but interspersed with evidence of other witnesses and the applicant as the need arose when the facts were being recounted.
2. The trial judge then relevantly said this in relation to the onus and burden of proof: This is a criminal trial and because the crown accuses [MAR], it is for the crown to prove the case against him and that case has to be proved beyond reasonable doubt. That does not mean that every fact relied on has to be proved beyond reasonable doubt but what must be so proved is each and every element of each offence and the essential facts underlying those elements. The accused does not have to prove or disprove anything, he is presumed at all times to be innocent of any offence unless the tribunal of fact finds otherwise. So what the crown must prove beyond reasonable doubt in regard to the 11 sexual intercourse offences is that 1) between the dates in question; 2) at the location in question; 3) the accused had sexual intercourse with the complainant, and 4) the complainant was under the age of ten. Now there is no dispute as to the dates or the places. There is no dispute that if the complainant is accepted what she described as happening falls within the extended meaning of sexual intercourse in the Crimes Act. There is no dispute that at the relevant times and places the complainant was under the age of ten, in fact aged seven. As to the indecent assault again there is similarly no dispute as to place and date, the complainant being under ten or that the conduct that she alleges occurred would constitute conduct that would not be acceptable in general society and was therefore indecent. What is in dispute is whether any of these acts occurred, that is, the main underlying fact for each count which the crown must prove beyond reasonable doubt. As the trier of fact I am expected to use my common sense and experience of life in assessing what witnesses say, how they say it and what can be deduced from what they say. I am no different to a jury deciding the same things and the same considerations apply to me. In that regard I note that the complainant was only seven years old when she was interviewed by police and I have factored that into account in that she was a very young child placed in what must have been a worrying situation, and being asked to put into adult terms what she says happened to her by way of a sexual nature. I also take into account [SL's] difficulty with memory following her fairly recent brain aneurism. I also take into account that a number of the witnesses are trying to remember details of what happened 20 years ago in circumstances, for some, where there was no particular reason for them to remember such details. [MAR] gave evidence and was cross-examined. He did not have to do that and him giving evidence in no way shifts the burden of proof from the crown having to prove the essential facts and ingredients of each offence, and to negative any reasonable possibility of the alibi that has been raised. He does not have to prove anything; that is the responsibility of the crown. … In any event whether or not I accept his evidence is irrelevant to the requirement that it is for the crown to prove the case. If there are defects or gaps in the crown case they cannot be rectified by any view I have of his evidence. Of course, as is usually the case, the only witnesses to acts of a sexual nature are the participants, and whereas, in the case here, the complainant makes allegations which are denied by the accused, I need to examine the complainant's evidence carefully and critically to the extent that I might be able to say that I am satisfied of what she says beyond reasonable doubt. There are 12 counts on the indictment and if I found that the complainant's evidence was unreliable as to one or more of those counts I would have to consider her reliability as a witness in regard to the other counts. The fact that an early complaint is made is no longer regarded as independent corroboration of an offence having been committed, but it is something that can be taken into account supportive of what the complainant says and as to what occurred. … Some of the areas where common sense and experience come to the fore arise in questions such as How can the complainant recall what's happened 20 years ago?'; Why would [MAR] risk assaulting the complainant in bed next to her brother who may have been a light sleeper?' Whether he was or not is almost impossible to be definitive about. Why, if there was a complaint of pain made to the mother, was the complainant not taken to the doctor?' Is the witness remembering what happened or reciting what they've been told happened?' `Why was no observations (sic) of any animus between the complainant, as a child, and the accused if what she says was happening did in fact happen?' This was a fairly close family situation; a mother, father, daughter and the mother's brother. The fact that people do not necessarily behave in an expected way does not mean that what they then allege did not happen. Whilst no independent person saw the alleged behaviour there are many surrounding circumstances that support the complainant's recollection of those surrounding events. … Whilst it has been put to the complainant that she is mistaken as to her identity of the offender it has not been suggested that nothing at all happened. Granted the complainant's age at the initial interview of seven, and that is now 27, I found her evidence to be truthful, credible and believable and consistent. She did not appear to be making things up now, and in fact, despite having access to the early recording, the JIRT recording, she could not now remember any licking having occurred on the first occasion. Further, there is no evidence that her later involvement in contacting the police and being provided with information has influenced her evidence in anyway (sic), and the detail of her recollections in the JIRT interview are, in my opinion, very convincing. … …I am satisfied beyond reasonable doubt that her identification of the accused as being the person who did these things is correct. Apart from age differences between [MAR] and [CL] the complainant was not dealing with some complete stranger but someone that was well known to her and by her, in particular the detail that she was able to give as to his clothing after the star (sic) party was not disputed by him in his evidence and that is significant. The only major challenges to the complainant's evidence was that she was mistaken as to the offender's identity and not that what happened to her did not happen by someone. Each count on the indictment has to of course to be considered separately to determine in each case whether or not the crown has discharged its onus. That situation is not affected in any way by the fact that I have not accepted parts of [MAR's] evidence. I am satisfied that the three occasions have been established beyond reasonable doubt. Having regard to my findings I am satisfied that [MAR] was present on each occasion. I am also satisfied beyond reasonable doubt that the other persons said to have been present were also there. … Nothing rational has been put before me that causes me to have a concern as to the complainant's reliability, credibility or accuracy in her recollection of events, or that she has made all this up, or that she has wrongly identified the accused, or that she is in some way protecting her father, for something that her father has allegedly done to her. … As I indicated at the outset, having regard to the above, I am satisfied the crown has proved the elements and the essential facts of each offence beyond reasonable doubt, and I find the accused guilty in regards to counts 1 through to 12 of the indictment. (emphasis added)

Submissions

1. The applicant pointed particularly to three passages in the reasons for judgment (italicised above) to submit that his Honour reversed the evidentiary and persuasive burdens of proof. The applicant directed attention to the trial judge's use of the word "might" in the first italicised passage, "that I might be able to say", to submit that, if that was the standard, the trial judge could be satisfied if proof beyond reasonable doubt might be possible. The applicant submitted that the standard of proof could never be satisfied simply by a finding that the complainant "might" have been telling the truth.
2. In relation to the second italicised passage containing the rhetorical questions, the applicant submitted that there was an insinuation that, unless those questions were answered in favour of the applicant, the Crown would succeed.
3. In relation to the third italicised passage, the applicant submitted that the judge could only be referring to the applicant putting forward something "rational" to cast doubt on the complainant's credibility. Yet, the applicant had no obligation to put anything forward to disprove the Crown case.
4. Those findings, the applicant submitted, led to a miscarriage of justice.

Consideration

1. It must first be borne in mind when considering both grounds of appeal that the judgment given by the trial judge was effectively an ex tempore judgment, as his Honour noted at the beginning of the judgment. The evidence concluded just before lunch on Wednesday 20 October 2021. Addresses followed after lunch, and the trial concluded later that afternoon. His Honour indicated that on the following day he had three other matters to deal with, and that he wanted to see a transcript of evidence given on that last day. It is clear from a reading of the judgment that it had not been prepared in advance by the trial judge. That is a matter of some significance when matters that are pointed to by the applicant are largely matters of expression. In any event, the judgment must be read as a whole (Hopgood v R [2019] NSWCCA 246 at [47]), and for that reason the whole of the portions of the judgment dealing with onus and burden of proof are set out above at [32].
2. A reading of the judgment as a whole makes perfectly clear that his Honour was in no doubt, and said so, that the onus was on the Crown to prove the applicant's guilt beyond reasonable doubt and, as his Honour said, the accused did not have to prove or disprove anything. The Judge referred to the fact that the applicant gave evidence but said that he did not have to do so, and that his giving evidence in no way shifted the burden of proof from the Crown having to prove the essential facts and ingredients of each offence, and that the applicant did not have to prove anything.
3. Those particular remarks were made immediately before his Honour used the expression "to the extent that I might be able to say that I am satisfied of what she says beyond reasonable doubt". In my opinion, his Honour was not saying that it was sufficient that he "might" come to a sense of satisfaction beyond reasonable doubt. What his Honour was saying, perhaps unfortunately expressed, was that he needed to examine the complainant's evidence carefully and critically so that he would be able to reach the position of satisfaction beyond reasonable doubt. As the Crown put it, it refers to a contingent conclusion that might, subject to examination of the evidence, be able to be reached.
4. Nor do I consider that the posing of the rhetorical questions insinuate, as the applicant submitted, that there was an onus on the applicant. Indeed, an examination of the questions asked show clearly that they were challenges to the Crown case and not to the position of the applicant. They were all matters raised by counsel for the applicant in his closing address. The trial judge was obliged to consider them.
5. The first question ("Why would [MAR] risk assaulting the complainant in bed next to her brother who may have been a light sleeper?") is the question one would ask of the Crown. It is another way of saying that the circumstances of the offending suggested that the offending was unlikely. Similarly, the question about why the complainant was not taken to the doctor at the time suggests that there was nothing serious that happened. The question about a lack of animus between the child and the accused, about which evidence was given by the applicant, must be a question effectively directed to the Crown to suggest that the lack of animus cast doubt on the complainant's account.
6. The asking of those questions by the trial judge appears to have been simply a way for the judge to challenge the Crown case until satisfactory answers could be given to those questions. The questions were, in effect, raising possibilities that need to be excluded.
7. The third and final passage challenged must first be seen in the light of the very clear directions the trial judge gave himself about the onus and standard of proof. A jury is told that, after examining the evidence, if there is a reasonable possibility consistent with innocence, they must find an accused not guilty. All that the trial judge was doing in the passage commencing, "Nothing rational has been put before me" is undertaking that process. The judge was simply saying that there was no evidence of a reasonably possible explanation consistent with innocence. To construe that remark as a suggestion that the applicant had an onus to put something before the court would be to ignore what the judge had said a number of times earlier, that the onus was on the Crown and that the applicant did not have to prove anything.
8. The applicant has identified these passages and seized upon them without reading the judgment as a whole and not having apparent regard to the fact that this was effectively an ex tempore judgment. I do not have any doubt from a reading of the whole of the judgment that the trial judge did not reverse either the evidentiary or the persuasive burdens of proof. His Honour clearly stated the correct principles and adhered to them.
9. I would reject this ground of appeal.

Ground 2: That the trial judge erred in law by failing to comply with the mandate in s 133(2)(3) of the Criminal Procedure Act 1986 (NSW) namely: failing to expose in the reasons for judgment on verdict(s) the reasoning process linking the relevant principles of law applicable in the Applicant's trial in support of the findings and consequent verdicts thereby precipitating a miscarriage of justice within the meaning of s 6(1) Criminal Appeal Act (NSW).

1. The applicant highlighted four areas where directions were not given or were said to be inadequate and where there was a failure to expose the reasoning process linking the relevant principles of law to the findings of fact. Those areas were the alibi evidence direction, the character evidence direction, the Markuleski direction, and the absence of a Liberato direction.
2. The applicant drew attention to the provisions of s 133 of the Criminal Procedure Act 1986 (NSW) ("the CPA") and to what was said in Fleming v R (1998) 197 CLR 250; [1998] HCA 68 and Barwick v R [2023] NSWCCA 139.
3. Section 133 provides: 133 Verdict of single Judge (1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.
4. In Fleming, the High Court set out some points of construction concerning ss 32 and 33 of the CPA (as it then was), and how they related to s 6(1) of the Criminal Appeal Act 1912 (NSW). The wording of s 33 is identical to the present wording of s 133. Relevantly for the present matter the Court said: [27] Fourthly, whilst they are differently framed, the requirements of s 33(2) and (3) are expressed in terms of legal imperatives and a failure to observe either or both of them is to make a wrong decision on a question of law within the second limb of s 6(1) of the Criminal Appeal Act. Such failure may also mean that justice has miscarried, within the meaning of the third limb, because justice according to law, to which the accused was entitled, included compliance with the mandatory requirements of s 33. [28] Fifthly, whilst s 33(2), when specifying that which a "judgment" must include, does not use the expression "reasons for judgment", it should not be taken as intending that the requirements of s 33(2) be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached. [29] Sixthly, the judgment may record what the judge regarded as a principle of law which then was applied, but the principle may have been erroneously formulated. There may have been a literal compliance with s 33(2), but by this means there is disclosed an error of law which, without there being a breach of s 33(2), attracts at least the second limb of s 6(1) of the Criminal Appeal Act. [30] Seventhly, if the judgment fails to show that the judge applied a relevant principle of law, two possibilities are presented. One possibility is that, notwithstanding such failure, the principle was applied. Upon that hypothesis, there has been a breach of s 33(2) by reason of the omission from the judgment. The other possibility is that the principle was not applied, with the result that, independently of the question of breach of s 33(2), there has been an error of law which may attract at least the second limb of s 6(1) of the Criminal Appeal Act. The obligation imposed by s 33(2) was to ensure that the judgment included all principles of law which the judge applied. Unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded. [31] Finally, there may be a breach of s 33(3) with respect to the requirement to take a warning into account. The present appeal is put as such a case. Section 33(3) is framed in a fashion which differs from that of s 33(2) and which emphasises the particular importance attached by the legislature to the requirements of the law with respect to warnings. Section 33(2) requires the inclusion of principles of law applied and of factual findings relied upon, whilst s 33(3) obliges the judge to take the particular warning into account. [32] The obligation imposed by s 33(3) "to take the warning into account" is not only to be discharged but also to be seen to be discharged. The means by which the obligation may be discharged is that indicated in s 33(2), namely the inclusion in the reasons for judgment of the particular requirement for a warning among the principles of law applied by the judge. The various requirements that warnings be given have been expressed as rules of law or practice. The failure to give such a warning does not always lead to the setting aside of a conviction. But that does not mean that it is not a principle of law within the terms of s 33(2). The judge is obliged by s 33(3) to take the warning into account and in doing so the judge applies a principle of law. (citations omitted)
5. In Barwick, Wright J (with whom Basten AJA and Button J agreed) said at [56]: In order to comply with the obligations in s 133(2) and s 133(3) to include the principles of law applied by the judge and the findings of fact on which the judge relied and to take into account any applicable warnings, it is not sufficient for the judge merely to include a bare statement of the applicable principles of law and warnings and the findings of fact made. Rather, there must be exposed in the judgment the reasoning process linking the principles of law and justifying the findings and, ultimately, the verdicts reached: Fleming at [28] and see also at [30]-[33]. … Thus, in a case such as the present, complying with s 133 should have involved justifying the findings and verdicts by explaining how the applicable directions or warnings were actually taken into account in reaching the trial judge's conclusions as to findings of fact and the ultimate finding of whether the accused was guilty or not guilty.
6. In McDonald v R; Obeid v R; Obeid v R [2023} NSWCCA 250 this Court (Bathurst CJ, Basten AJA, Button J) said when discussing warnings about lies: [208] Secondly, the respondent noted that there was a difficulty arising from the appellant's reliance upon an alleged failure to comply with s 133(3) of the Criminal Procedure Act, as demonstrating error of law. There is a difference between the operation of s133(2) and s 133(3). Subsection (2) requires that a judgment record "principles of law" applied by the judge and "findings of fact" on which the judge relied. Warnings are dealt with in subs (3), under which the judge is required "to take the warning into account in dealing with the matter". Generally, as noted in Dansie v The Queen, the reasons of the judge must demonstrate that the judge did take the warning into account: however, it does not follow that the direction must be stated in the language which would be used in relation to a jury. For example, while it may be necessary to direct the jury that they be satisfied that a lie was "deliberate" before relying upon it, an express finding in the judgment that a lie was deliberate would demonstrate compliance with that aspect of s 133(3). Similarly, a jury may need to be directed as to what it may mean to identify a lie "with precision". However, where a judgment identifies in express terms the lies relied upon and found to have been deliberate, with sufficient precision, it should be inferred that the judge has complied with the terms of the warnings derived from Edwards v The Queen. … [210] As the respondent submitted, what was described, more than once, as an "Edwards-type direction", cannot be characterised as a "principle of law" for the purposes of s 133(2). It lacks the necessary degree of obligation and specificity. Obligation is missing because judgment must be exercised as to whether, and if so in what terms, a direction should be given. Accordingly, the fact that the findings of the trial judge demonstrated with a degree of clarity that the relevant principles identified in Edwards were applied, also demonstrated the absence of an error of law sufficient to engage non-compliance with either s 133(2) or s 133(3). (citations omitted; emphasis added)

The alibi direction

1. The trial judge said this in relation to the alibi evidence: On 19 October 2021, after the trial had started, the crown was served with a notice of alibi defence in regard to this particular night. That notice stated that [MAR] stayed with Katrina that night after walking her home and then returned to 5 Graham Street next morning at 9am. However in his evidence he said the next morning Katrina drove him to where he was living at Balmoral Street. In evidence he also gave details of what transpired between him and Katrina after they got to her place, which involved a drink and sexual intimacy, and him staying the night - that appears at transcript p 78, and 79. Katrina was called and gave evidence - transcript p 65. At the time she was a single mother with a ten to 11 year old son. She was asked if she remembers the star (sic) party but she could not, nor could she remember ever having attended one. However I am well satisfied that she did attend the party on the night in question, and I refer to Detective Rowles' evidence at p 62 where he said, after speaking to Sharon in the statement that I have read, and she was asked, "Q. Was that in relation to asking her about the recollection of identity of who may have gone to the star party with her? A. That's correct. Q. Can you tell the court what she said? A. Yep. Upon her reflection it's most likely that the Katrina that attended the star (sic) party on that evening would have been Katrina R opposed to her next door neighbour who is Katrina A". And the reason for her recollection is that at the time Katrina A's, who was the next door neighbour, husband had sustained a brain injury and it was unlikely that it would have been her, and Katrina R was her friend at the time so it makes more sense that it would have been her. Katrina in her evidence said that she knows [MAR], she knows Sharon and Clint because of her friendship with Sharon. She denied [MAR] ever stayed the night at her place and, more emphatically, ever having any sexual relationship with him; saying at transcript p 70 "I'm positive it didn't happen". I see no reason not to accept her evidence and I am satisfied that the crown has eliminated any possibility or probability the alibi facts could have occurred. To that extent then I do not accept [MAR]'s evidence in that regard. … [MAR] has denied that anything of a sexual nature occurred between himself and the complainant on the night of the star party because he says he spent the night with Katrina. … [MAR] gave evidence and was cross-examined. He did not have to do that and him giving evidence in no way shifts the burden of proof from the crown having to prove the essential facts and ingredients of each offence, and to negative any reasonable possibility of the alibi that has been raised. He does not have to prove anything; that is the responsibility of the crown.
2. The applicant submitted that the direction was both erroneous and inaccurate. He submitted that the trial judge's finding concerning the alibi was a conclusion and the conclusion did not, within the meaning of s 133(2) of the CPA, explain the steps leading to the conclusion that the Crown had disproved the alibi evidence.
3. The applicant submitted that the three steps which ought to have been followed, but were not, were these: If I accept the alibi as true or it's a reasonable possibility its true, I must acquit the accused on counts 9 to 12. Secondly, if I reject the alibi, I am still obliged to consider the evidence as a whole before I can convict the accused. Thirdly, if I reject the alibi but nevertheless consider that it could reasonably be true, then I must acquit the accused on counts 9 to 12.
4. The applicant submitted that his Honour considered the alibi evidence in terms of the Crown disproving it either as a possibility or a probability, whereas the cases speak in terms of the Crown removing or eliminating any reasonable possibility that the accused was not in or at the relevant place when the crime was committed.

Consideration

1. In R v Kanaan (2005) 64 NSWLR 527; [2005] NSWCCA 385 this Court (Hunt AJA, Button and Hoeben JJ) said: [135] ... An alibi asserts that, at the relevant time, the accused was not at X (the scene of the crime) but at Y (somewhere else, according to the alibi evidence). The issue which it raises is whether there is a reasonable possibility that the accused was at Y, rather than X, at that time. To prove beyond reasonable doubt that the accused was at X, the Crown must remove or eliminate that reasonable possibility: Regina v Youssef (1990) 50 A Crim R 1 at 2-3. An appropriate direction to the jury would be: The Crown must establish beyond reasonable doubt that the accused was at X at the relevant time. The Crown cannot do so if there is any reasonable possibility that he was at Y at that time, as asserted by the alibi evidence. The Crown must therefore remove or eliminate any reasonable possibility that the accused was at Y at the relevant time, and also persuade you, on the evidence on which the Crown relies, that beyond reasonable doubt he was at X at that time. [136] The trial judge did not give in terms either the direction which the appellant now says should have been given or one along the lines suggested in the last paragraph. He did, however and on a number of occasions, make it very clear, in the context of directions concerning the onus and standard of proof, that any reasonable possibility that the alibi was true had to be eliminated before the appellant could be convicted. He said that the "crucial issue" was whether the evidence of Rossini could be accepted beyond reasonable doubt "notwithstanding what had been put forward by way of alibi", that Rossini's evidence could not be accepted unless they "reject[ed]" the evidence of alibi, that the Crown had to "exclude" the alibi and that, even if the alibi evidence was rejected, the Crown had to prove that the appellant was at Five Dock discharging the firearm. (See [14]-[15], [21] and [56] of the Summing-up, quoted in par [113], supra.) [137] In light of those directions, it must have been very clear to the jury that for the appellant to be convicted they would have to reject the evidence of alibi beyond a reasonable doubt. Moreover, a fair reading of the judge's overall directions on this issue would have ensured that the jury did not engage in an impermissible mode of reasoning - namely a conclusion of guilt as a direct consequence of rejecting the alibi. That this was the general effect of the directions given is supported by the fact that no objection was taken at trial by the very experienced counsel appearing for the appellant.
2. There was no requirement for the sentencing judge to give himself the direction set out at [54] above. The correct alibi direction, which appears in the bench book, is taken from the judgment in Kanaan at [135]. In the present case the applicant did not call alibi evidence except for his own evidence that he was with Katrina Job. Ms Job gave evidence for the Crown to refute the applicant's evidence.
3. The trial judge, at the conclusion of considering Katrina Job's evidence, said: I see no reason not to accept her evidence and I am satisfied that the Crown has eliminated any possibility or probability the alibi facts could have occurred, However, the judge's later statement clarified that his Honour did not consider that a probability had to be rejected. His Honour later said that the applicant did not have to give evidence and that it: in no way shifts the burden of proof from the Crown having to prove the essential facts and ingredients of each offence and to negative any reasonable possibility of the alibi that has been raised. (emphasis added)
4. In any event, in the passage where his Honour referred to "probability" his Honour clearly accepted Ms Job's evidence.
5. A reading of the judgment as a whole makes clear that the judge was aware, and directed himself, that where an alibi is put forward the burden of proving the accused's guilt continues to rest on the Crown. That was why the judge said (taking the two passages together) that the Crown had eliminated any reasonable possibility that the alibi evidence was true.
6. His Honour did not fail to give himself the appropriate direction and did not fail to explain how it was that the alibi evidence was rejected.

The character direction

1. In his reasons for judgment the trial judge said this: Further, he has raised character as an issue and I accept that he has not committed any dishonest or sexual-related offences in the last 20 or 30 years. His good character can be relied on to indicate, 1. that he is a person who is unlikely to have offended in the way alleged, and, 2. that he is a person who is likely to be truthful in giving evidence. Of course good character is not a defence to any charge but it is a factor that needs to be taken into account in the way indicated.
2. The applicant submitted that what the trial judge said in relation to character was simply a formulaic recognition of the application of character without relating to the credibility of specific explanations. When the applicant's counsel was asked how that was to be done, counsel submitted that the trial judge should have directed himself that the applicant had not committed any dishonesty offences, that the applicant had given evidence that he was family man, married with two or three children and that when he lived with the complainant's mother they all got on well. Reference was made to what was said in Barwick in relation to character evidence.
3. The position in Barwick was significantly different from the position of the applicant in the present case. Although the trial judge in Barwick said that the appellant gave his evidence in a forthright manner and did not have any issues with his memory about people, places, sequences and dates, she went on to say that having assessed him as a witness she did not accept parts of his evidence. However, she did not identify the parts that were not accepted anywhere in her judgment. She gave no specific reasons for not accepting the parts of his evidence, and the second limb of the good character direction was not expressly considered or mentioned in the face of "impressive and powerful" evidence of the appellant's good character from 14 witnesses: see at [71], [82]-[84]. Further, her Honour said nothing about the credibility of the appellant when determining whether or not to accept or reject his evidence: see at [88].
4. In FB v The Queen [2020] NSWCCA 137, Basten AJA said: [27] Before considering the approach to rebuttal evidence, it is appropriate to note the principles applicable with respect to character evidence generally. In Simic v the Queen, the High Court held: "There is no rule of law that in every case in which evidence of good character is given the judge must give a direction as to the manner in which it can be used. … No doubt, speaking generally, it is right to add … that if such a direction is asked for it would be wise to give it. In the present case no direction as to the evidence of the applicant's good character was asked for. There is no reason to believe that the jury would not have understood that a man of good character would be unlikely to commit a crime of savage violence such as that with which the applicant was charged. In other words, there is no reason to conclude that the jury would have failed to give the evidence as to good character such weight as it deserved. No miscarriage of justice was in our opinion occasioned by the omission to give a direction on this question." [28] In Melbourne, the High Court was invited to find that such directions should now be required and that the failure to direct the jury with respect to the appropriate use of good character evidence would generally constitute a miscarriage of justice. That invitation was rejected. The admissibility of good character evidence is anomalous and "must be regarded as an indulgence granted to the accused which continues to be maintained for historical reasons." There are difficulties in defining in advance what is good character, and in defining precisely how the jury should take the evidence into account. (citations omitted)
5. In Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32, Hayne J said at [157]: There is no reason to depart from the conclusion stated in Simic, namely, that there is no rule of law that in every case in which evidence of good character is given the judge must give a direction as to the manner in which it can be used. Of course, if a direction is given, it must be accurate. Ordinarily, however, unless the evidence that is led about the character of the accused has an immediate and obvious connection with an issue in the case, it is better that the judge say nothing of how the jury may use such evidence in reasoning to its conclusions beyond any restatement of counsel's arguments that may be thought necessary or desirable." (emphasis added)
6. The applicant's counsel, in his closing address said only this concerning the applicant's character: To put his character in issue, there are some, as I've put to the issue, some street offences going back to the early 90s, but nothing of offence of dishonesty or of a sexual nature. That's of a man of 43 years of age.
7. The trial judge gave himself a character direction in accordance with that submission. His Honour was not under an obligation to give himself a direction as to how the evidence of good character was to be used, nor was he obliged to explain how he used it. Indeed, it is difficult to see how that could be done in a meaningful way. To record, as the applicant submitted, that he was a family man with children, and when he lived with the complainant's mother the family got on well with him, says nothing more than that he was a person of good character.

Liberato direction

1. The trial judge did not give himself a Liberato direction as formulated in De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [12].
2. The applicant submitted that his case was diametrically opposed to that of the complainant because he testified that there was never any sexual contact with the complainant. He also gave evidence in respect to counts 9-12 that he could not have committed those crimes because he was not present at the time and place they were alleged to have been committed.
3. The applicant submitted that before his Honour reached the conclusion that the Crown case had been proved reasonable doubt because his Honour concluded that the complainant's evidence was reliable, the trial judge was required to identify the Liberato reasoning process and reflect it on the face of his findings.
4. The applicant submitted that there were controversies that fed into the question of whether the case had been proved reasonable doubt. The controversies were the applicant's denial that the incidents took place, there was the alibi issue, there was the evidence that suggested someone else was responsible for what happened to the complainant, and there was evidence about whether Katrina Job was indeed the person relevant to the alibi.
5. In Liberato v The Queen (1985) 159 CLR 507 Brennan J said at 515: When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.
6. In De Silva, the judgment of Kiefel CJ, Bell, Gageler and Gordon JJ said: [10] This is not to say that the occasions calling for a Liberato direction should be few. The Liberato direction serves to clarify and reinforce directions on the onus and standard of proof in a case in which there is a risk that the jury may be left with the impression that the evidence on which the accused relies will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the evidence of the complainant suffices to establish guilt. Subject to statute, a Liberato direction should be given in a case in which the trial judge perceives that there is a real risk that the jury might view their role in this way. [11] The Liberato direction is addressed, in terms, to a trial at which there is conflicting sworn evidence. Intermediate appellate courts have expressed differing views as to whether a Liberato direction is appropriate in a case in which the conflicting defence version of events is not given on oath, but is before the jury, typically in the accused's answers in a record of interview. If the trial judge perceives that there is a real risk that the jury will reason that the accused's answers in his or her record of interview can only give rise to a reasonable doubt if they believe them, or that a preference for the evidence of the complainant over the accused's account in a record of interview suffices to establish guilt, a Liberato direction should be given. Where the risk of reasoning to guilt in either of these ways is present, whether the accused's version is on oath or in the form of answers given in a record of interview, the Liberato direction is necessary to avoid a perceptible risk of miscarriage of justice. When an accused gives, or calls, evidence there is a natural tendency for the focus to shift from the assessment of the capacity of the prosecution case to establish guilt to an assessment of the perceived strengths or weaknesses of the defence case. Recognition of this forensic reality suggests that the risk that the jury will reason in either of these ways is more likely to arise in a trial in which the conflicting defence account is on oath. [12] In Johnson v Western Australia, Wheeler JA identified one possible shortcoming in using Brennan J's statement in Liberato as a template for the direction: a jury may completely reject the accused's evidence and thus find it confusing to be told that they cannot find an issue against the accused if his or her evidence gives rise to a "reasonable doubt" on that issue. For that reason, it is preferable that a Liberato direction be framed along the following lines: (i) if you believe the accused's evidence (if you believe the accused's account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused's evidence (if you do not believe the accused's account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt? (citations omitted)
7. It may be observed from what is said in De Silva that the occasions calling for a Liberato direction are those where there is a risk that the jury may wrongly reason that the evidence of the accused will only give rise to a reasonable doubt if the jury believes it to be truthful or that a preference for the evidence of the complainant is enough to establish guilt. The risk that is being spoken of there does not sit easily with a judge alone trial where the judge has correctly directed himself or herself on the onus of proof.
8. In the portions of his Honour's judgment set out above, it is clear that his Honour did not fall into the errors that are spoken of in De Silva, and it is clear that his Honour accepted, and stated, that it was for the Crown to prove its case and that his Honour needed to examine the complainant's evidence carefully and critically to satisfy himself of what she says beyond reasonable doubt. There was no real dispute about the identity of Katrina because the applicant gave evidence that it was Katrina Rath (Katrina Job) with whom he spent the night after the Star Party. No issue was raised about her identity in the defence closing address. In any event, the trial judge accepted Ms Job's evidence and determined that the Crown eliminated any possibility that the alibi facts could have occurred. In that regard, the Judge said that he did not accept the applicant's evidence.
9. It may be doubted if there was a serious controversy about who the offender was. Although counsel for the applicant put to the complainant that she was mistaken that it was the applicant in relation to the first incident, and although he put to the complainant's mother that she thought the complainant may have been mistaken about the identity of the person, he accepted that he had no firm basis for putting to the complainant that the offender was her father. That was where the matter rested because nothing was said about that matter in the applicant's closing address.
10. Certainly, his Honour gave consideration to the issue of the identification of the offender, but his Honour was clearly of the view that the complainant's evidence should be accepted for reasons his Honour gave, particularly because the applicant was known to the complainant and there was an age difference of some 10 years between the applicant and the complainant's father.
11. In the light of what the trial judge said in the course of his judgment, I do not consider that there was any risk that his Honour may have reached a guilty verdict simply because he found the applicant's evidence unreliable or that he did so simply by preferring the complainant's evidence. In the circumstances, a Liberato direction was not required to be given.

Markuleski direction

1. The trial judge said: There are 12 counts on the indictment and if I found that the complainant's evidence was unreliable as to one or more of those counts I would have to consider her reliability as a witness in regard to the other counts.
2. The applicant accepted that by saying that, his Honour gave himself the direction but submitted that even though it didn't "activate", that did not absolve the trial judge from going through the controversies and making findings that were referable to that direction. The applicant submitted that the trial judge should, in his reasons, have demonstrated that the direction was not applicable in the circumstances. That was said to be a requirement from s 133(2) of the CPA.
3. The submission by the applicant's counsel is difficult to understand. He accepts that the judge correctly gave himself a Markuleski direction but submitted that, although in the circumstances it had no application because the judge accepted the complainant's evidence on all counts, somehow the judge should have included reasons that to the effect that he did not have to apply the Markuleski direction.
4. In my opinion, nothing in s 133(2) or in Fleming or in Barwick requires a trial judge to adopt such a course.
5. A standard form of the Markuleski direction is given to a jury as a hypothetical. They are ordinarily told: If you were to find the accused not guilty on any count…, you would have to consider how that conclusion affected your consideration of the remaining counts. It must follow that if either the jury or a judge did not find the accused not guilty on any count, there would be no necessity to consider how that conclusion would affect the other counts. Adopting the applicant's submission would result in the triumph of form over substance.
6. In my opinion, there was no error on the part of the trial judge in this regard.

Conclusion

1. Although the applicant does not establish error in respect of either ground of appeal, that does not automatically mean that an extension of time should not be given to argue this appeal. The appeal raised a number of arguable points relating to the obligations of a trial judge in a judge alone trial to comply with s 133 of the Criminal Procedure Act. Further, as noted earlier, a lengthy part of the delay was caused by the Queensland solicitors without fault on the part of the applicant.
2. Accordingly, I propose the following orders: 1. Extend time for the applicant to appeal to 23 September 2024. 2. Grant leave to appeal. 3. Dismiss the appeal.
3. N ADAMS J: I agree with the orders proposed by Davies J for the reasons provided by his Honour.
4. YEHIA J: I have had the considerable advantage of reading the draft judgment of Davies J. I agree with the proposed orders and his Honour's reasons.

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