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[2026] NSWCCA 126
Court of Criminal Appeal (NSW)
2026-08-21
Mitchelmore JA at [1]; Rigg J at [161]; Muston J at [162]
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: NR v R [2026] NSWCCA 126
Hearing dates: 4 May 2026
Date of orders: 21 August 2026
Decision date: 21 August 2026
Before: Mitchelmore JA at [1];
Rigg J at [161];
Muston J at [162]
Decision: (1) The applicant is granted leave to appeal against his convictions on grounds 1 and 2.
(2) The appeal is dismissed.
Catchwords: CRIME — appeals — appeal against conviction — miscarriage of justice — whether interventions by trial judge were excessive — whether by reason of judicial interventions the applicant was denied a fair trial — number of problematic interventions — not productive of unfairness rising to the level of miscarriage
CRIME — appeals — appeal against conviction — unreasonable verdict — whether complainant evidence established beyond reasonable doubt acts alleged to constitute offences — whether reasonable possibility of truthfulness of applicant’s account had been excluded — verdict not unreasonable
Legislation Cited: Crimes Act 1900 (NSW), ss 61D(1) (repealed), 61E(1) (repealed)
Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
Cases Cited: Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 Galea v Galea (1990) 19 NSWLR 263 Lee v The King [2023] NSWCCA 203 LS v The King [2024] NSWCCA 110 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 R v Thompson [2002] NSWCCA 149; 130 A Crim R 24 Smith v R [2025] NSWCCA 104 The King v ZT (2025) 281 CLR 137; [2025] HCA 9
Texts Cited: Nil.
Category: Principal judgment
Parties: NR (applicant)
Rex (respondent)
Representation: Counsel:
S Pararajasingham SC and J R Walker (applicant)
S Lind (respondent)
Solicitors:
Kamy Saeedi Law (applicant)
Solicitor for Public Prosecutions (respondent)
File Number(s): 2022/00127088
Publication restriction: Pursuant to s 578A(2) of the Crimes Act 1900 (NSW), it is an offence to publish any matter which identifies the complainant in these proceedings or any matter which is likely to lead to the identification of the complainant.
[This headnote is not to be read as part of the judgment]
The applicant was tried in the District Court before Fitzsimmons SC DCJ sitting with a jury on an indictment averring ten counts of sexual intercourse without consent contrary to s 61D(1) of the Crimes Act 1900 (NSW) (counts 1, 3-11) and one count of indecent assault contrary to s 61E(1) of the Crimes Act (count 2). The offences involved a single complainant.
The jury found the applicant guilty on counts 1-3 and not guilty on counts 10 and 11. The jury was unable to reach a verdict on the remaining counts, and following a further trial by judge alone, the applicant was found not guilty on these counts. On 19 December 2024, the applicant was sentenced on counts 1-3 to an aggregate term of imprisonment of 4 years 6 months with a non-parole period of 2 years 11 months.
The applicant’s appeal against his convictions on counts 1-3 raised the following issues for determination: (i) whether the trial judge’s interventions during the applicant’s evidence in the trial were excessive and caused a miscarriage of justice (ground 1); and (ii) whether the verdicts were unreasonable or could not be supported having regard to the evidence (ground 2).
The Court (Mitchelmore JA, Rigg J agreeing, Muston J agreeing with additional reasons on ground 1**)** held, granting leave to appeal and dismissing the appeal:
Judicial interventions
(1) The determinative question is whether the trial judge’s interventions created a real danger that the trial was unfair, which must be answered having regard to the context of the whole trial and in light of the number, length, terms and circumstances of the interventions relied upon. In the present case, both parties also relied on the relevant parts of the audio recording, which the Court listened to: at [90]-[94] (Mitchelmore JA); [161] Rigg J; [163] (Muston J).
The King v ZT (2025) 281 CLR 137; [2025] HCA 9; Galea v Galea (1990) 19 NSWLR 263; R v Thompson [2002] NSWCCA 149; 130 A Crim R 24, considered.
(2) The trial judge made three particular interventions in the course of the applicant’s cross-examination which exceeded the role of a judge sitting with a jury in a criminal trial, in particular questions that went to the extent of the applicant’s recollection about specific matters. Those exchanges came unnecessarily close to creating a real danger that the trial was unfair: at [105]-[117] (Mitchelmore JA); [161] (Rigg J); [163]-[165] (Muston J).
(3) Ultimately, whether a ground of this nature is made out is a matter of balance, degree, and judgment. After listening carefully to all of the interventions on which the applicant relied, and considering them in the context of his evidence and the trial as a whole, having regard to the subject matter of the questions and the tone in which they were asked, the trial judge’s interventions did not create a real danger that the trial was unfair so as to have produced a miscarriage of justice: at [135]-[139] (Mitchelmore JA); [161] (Rigg J); [163]-[165] (Muston J).
Unreasonable verdict
(4) The focus of the applicant’s unreasonable verdict ground was that the Crown had failed to exclude a reasonable possibility that his account on counts 1, 2 and 3, as expressed in his evidence and in the pretext call, might be true. Determining where the truth lies when faced with competing testimony is a commonplace feature of criminal trials, which in the present case was a task entrusted to the jury and in respect of which it had a clear advantage in terms of observing the tone and manner in which the applicant and complainant each gave their evidence. The matters on which the applicant relied, considered individually and cumulatively, failed to establish that it was not open to the jury to be satisfied of his guilt beyond reasonable doubt on counts 1, 2 and 3: at [149]-[157] (Mitchelmore JA); [161] (Rigg J); [166] (Muston J).
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25; M v The Queen (1994) 181 CLR 487; [1994] HCA 63; The King v ZT (2025) 281 CLR 137; [2025] HCA 9; Lee v The King [2023] NSWCCA 203; LS v The King [2024] NSWCCA 110; Smith v R [2025] NSWCCA 104, considered.
MITCHELMORE JA: The applicant was tried in the District Court, before Fitzsimmons SC DCJ sitting with a jury, on an indictment averring ten counts of sexual intercourse without consent contrary to s 61D(1) of the Crimes Act 1900 (NSW) (counts 1, 3-11) and one count of indecent assault contrary to s 61E(1) of the Crimes Act (count 2). The offences, which involved a single complainant, were alleged to have occurred in the course of four incidents between 29 December 1986 and 31 December 1987:
counts 1-3 were alleged to have occurred on 29 December 1986 at Bankstown;
counts 4-7 were alleged to have occurred on 31 December 1986 at Lake Tabourie;
counts 8-9 were alleged to have occurred on a date between 1 January and 31 December 1987 at Ashmont; and
counts 10-11 were alleged to have occurred on a date between 1 April and 31 December 1987, also at Ashmont.
The trial commenced on 13 May 2024. On 23 May 2024, the jury returned verdicts of guilty on counts 1-3 and not guilty on counts 10 and 11.
The jury was unable to reach a verdict on counts 4-9. Following a further trial by judge alone, David DCJ found the applicant not guilty on those counts.
On 19 December 2024, Fitzsimmons SC DCJ sentenced the applicant in respect of counts 1-3 to an aggregate term of imprisonment of 4 years 6 months with a non-parole period of 2 years 11 months, commencing on 19 December 2024.
On 18 December 2025, the applicant filed a notice seeking leave to appeal against conviction on grounds 1-3. By his revised grounds of appeal, dated 18 February 2026, the applicant advanced the following two grounds of appeal:
The trial judge’s interventions during the applicant’s evidence were excessive and caused a miscarriage of justice.
The verdicts of guilty on counts 1, 2 and 3 were unreasonable, or cannot be supported, having regard to the evidence.
The applicant required leave to appeal on both grounds as they raise questions of mixed fact and law: Criminal Appeal Act 1912 (NSW), s 5(1)(b). The applicant also required leave on ground 1 pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), no complaint having been made by his counsel at trial about the trial judge’s conduct that is the subject of that ground.
For the reasons set out below, I would grant the applicant leave to appeal on both grounds and dismiss the appeal.
The Crown case at trial relied primarily on the evidence of the complainant. The respondent also called evidence from the complainant’s two older (twin) sisters, SW and SM. SW was married to the applicant at the time of the alleged offending, and she participated in a pretext phone call with the applicant in August 2021, on which the Crown relied. The Crown also relied on a statement from the complainant’s friend, MB (she was unavailable at the time of the trial), who gave evidence about a conversation between herself and the complainant in 1987.
The applicant gave evidence denying that he engaged in any of the conduct the subject of the charges. He also called two character witnesses.
The conduct the subject of counts 1-3 was alleged to have occurred in December 1986, when the complainant was 14 years old. At that time, SW and the applicant were living in Bankstown. The complainant gave evidence that from 26 December 1986, she stayed with SW and the applicant for a few days.
The complainant gave evidence that on 29 December 1986, SW left for work “[f]irst thing in the morning”, leaving the complainant and the applicant alone at home. That morning, the applicant took the complainant to the beach, and they returned home just after lunch. The complainant gave evidence that upon their return, she went into the lounge room and pulled apart the divan-style lounge, lay down on it, and fell asleep. Her evidence was that at the time she was wearing a t-shirt and a drawstring skirt over her two-piece swimsuit.
The complainant gave evidence that when she woke up, she was lying face-down, on her stomach, and she felt the applicant’s hand up the back of her shirt, touching her skin. The complainant said that she “froze” and “pretended to still be asleep”. The applicant continued to rub her back, and then he turned her over, so that she was lying face-up, and started kissing her. The complainant gave evidence that the applicant then put his hands down into her swimwear and inserted his finger into her vagina, and moved it in, out and around (count 1). The complainant said that she lay still as the applicant did this.
The complainant gave evidence that the applicant then grabbed her hand and placed it on his penis, which was erect. He used his hand to move the complainant’s hand up and down his penis (count 2). At one stage, when the applicant removed his hand from hers, the complainant removed her hand from his penis, and he grabbed her hand and placed it back. The complainant estimated that this continued for about five to ten minutes. She was still lying on her back during this event, and the applicant was beside her, to her right.
The complainant gave evidence that the accused then got onto his knees and moved his waist area towards the complainant’s face. He took hold of her head and “brought it towards his body to his penis”. The applicant said to the complainant, “I’ll show you”, and with his hand still on her head, he put his penis on her mouth and then forced it into her mouth. The complainant’s evidence was that she “let it happen”, saying that she did not know why and she was frightened. The applicant then used his hand to push the complainant’s head up and back. Her evidence was that this continued for “[a] few minutes, five minutes, maybe” (count 3).
According to the complainant, the applicant then got up and said to her, “Let’s have a shower and cool down”. She followed him to the bathroom, but first went to her bedroom to get something, probably clothing. When she entered the bathroom, there was a knock at the front door and the applicant went to see who it was. The applicant did not return to the bathroom, and the complainant shut the bathroom door. The person who knocked at the door was LS, a friend of the applicant who was also staying at the Bankstown house at the time, along with his partner.
The complainant recalled in her evidence that SW and her twin sister, SM, returned to the house later in the day. The complainant did not tell them what had happened with the applicant. She said she felt embarrassed and guilty, and that the applicant had made clear that if she said anything, her sister would not speak to her and would hate her. When asked how the applicant had made that clear, the complainant said that later on the same day, when they were packing the car in preparation to drive to Batemans Bay, the applicant said to her, “You know if you tell your sister that anything happened that she will hate you, and she won’t talk to you again”.
In cross-examination, counsel for the applicant at trial took the complainant to the statement that she made to police, dated 6 July 2020. The complainant gave evidence that when the statement was finalised, she did not read it before signing it, as she “wiped [herself] out the night before”, was hungover, and wanted to go home.
The complainant was taken in cross-examination to what she said in her police statement about the first incident. She had there said that she arrived at the Bankstown house on 24 December 1986, whereas her evidence in chief was that she spent Christmas at her aunt’s home and arrived on 26 December. Asked about the inconsistency, the complainant denied that she told the police officer that she arrived at the Bankstown house on Christmas Eve. She also denied that the reason her evidence in chief differed from the statement was because she had spoken with SW, who said she had arrived on Boxing Day, and that she had changed her evidence to match SW’s recollection. The complainant accepted that the handwritten notes she had prepared in advance of making the statement did not say anything about being at the Bankstown house on Christmas Day or who was present that day, whereas the statement contained those details (the implication being that the complainant must have divulged these details to the police officer).
The complainant agreed with the applicant’s counsel that she had read her July 2020 police statement for the first time since she made it in the week before she gave evidence at trial; and that she had made a further statement on 13 May 2024 in which she said that she had a feeling that she spent Christmas 1986 with her aunt in Sydney. The complainant gave evidence that she was “pretty sure that’s where I was, but I definitely wasn’t with [SM] and [SW]”.
In relation to the day of the alleged incident, the complainant denied in cross-examination that when she was at the beach with the applicant, she was interacting closely with him in the water and was being flirtatious with him. In relation to what happened when they returned home from the beach, there was the following cross-examination:
“Q. So when you got back from the beach to the Bankstown house, why is it that you pull apart the divan to have a sleep in the lounge room instead of going into the spare bedroom?
A. Because we – I was watching the TV.
Q. You were watching the TV?
A. Yeah.
Q. Is that the first time you’ve ever mentioned that you were watching the TV when you came back from the beach?
A. When we’re talking? Yes.”
“Q. So is that something you actually remember as you sit here today, nearly 40 years later, or is that just some explanation that you’re offering for why it was you’re in the lounge room instead of perhaps sleeping in the bedroom?
A. No, it’s not that I’m offering it. That’s just what I’m remembering.”
The complainant denied the proposition that the events she said happened in the lounge room did not happen. She maintained that after these alleged events the applicant suggested to her to come and have a shower and cool down. She maintained that they went to the bathroom together initially for that purpose. The complainant was challenged about why she returned to the bathroom after she went to the bedroom to get some clothes, and gave evidence that she did not know why.
Counsel for the applicant asked whether the complainant had really believed at the time that if she told SW, with whom she was then close, then SW would hate her. The complainant gave evidence that she did believe this, noting that she was a child at the time. The complainant said she did not know why she did not tell SM at the time.
Counsel put to the complainant that she and SW had a fight on the same day as the alleged offences, in which SW suggested that the complainant should dress more appropriately. The complainant denied this.
Although the other counts on the indictment are not in issue on the appeal, it is necessary to address them in some detail in order to contextualise and evaluate the two grounds of appeal.
The second incident was alleged to have occurred on 31 December 1986, a matter of days after the first incident. The complainant gave evidence that after they drove down to Batemans Bay, she stayed for a night with the applicant and SW at a caravan park, along with LS and his partner who had driven separately. The following day, the applicant drove the complainant home to Ulladulla. The complainant said she had begged SW to go with them but she refused as she was unwell. On the way to Ulladulla, after about half an hour the applicant stopped at a rest area at Tabourie. There was no one else at the rest area when they pulled in.
The complainant gave evidence that she and the applicant exited the vehicle, and the applicant then lifted her onto the bonnet and started kissing her on the lips. He then placed his hands down her underwear and put his fingers in her vagina (count 4). The complainant said that the applicant then removed his penis from his shorts and tried to put his penis in her vagina, at which time she cried and said, “Stop, it hurts” (count 5).
The applicant stopped. He then laid her back on the bonnet, with his hand on her chest. He kneeled down, opened her legs and put his tongue into her vagina (count 6). According to the complainant, this lasted for about 3-5 minutes. The complainant then got off the bonnet and walked away, nearly tripping because her underwear was pulled down around her ankles, and turned around. The applicant leaned on the front of the car, told the complainant to kneel down, and took hold of her head. Her evidence was that the applicant “[f]orced my head up, like, back and forwards for a while until he ejaculated into my mouth” (count 7). The complainant said that she did not consent to any of these acts.
The complainant and the applicant returned to the car and completed the drive to Ulladulla. During this part of the drive, the applicant told her to remember that if she said anything, SW would hate her and not respect her. According to the complainant, the applicant dropped her off out the front of her family home. Although her mother was home when she went inside, the complainant did not tell her what happened. She gave evidence that she did not tell her mother because she felt ashamed and thought that she would be in trouble.
Two or three days later, the complainant went to the beach with her friend, MB. She told MB that the applicant had tried to have sex with her and that the applicant had gotten her to give him oral sex. MB advised the complainant to tell her mother what had happened, but she did not do so. The complainant also gave evidence that she made MB promise not to tell anybody else because she was ashamed.
As I noted above, MB was unavailable to give evidence during the trial, and her statement was read to the jury:
“I remember back in 1987, [the complainant] and I were together at a beach called Rennies Beach, which is located in the Ulladulla area. Not long after we arrived at the beach, [the complainant] was very upset. I asked [the complainant] what was wrong. At first, [the complainant] did not want to [tell] me what was wrong.
[The complainant] then told me that her sister [SW]’s boyfriend, had sexually abused her. [The complainant] told me that she felt so upset. I said to [the complainant], ‘You better tell someone. Let’s tell my dad’.
[The complainant] was very close with my family. [The complainant] told me she did not want to.
[The complainant] and I remained very good friends and we have spoken about her sexual abuse on a few occasions.”
The third incident was alleged to have occurred in early 1987, when the complainant was still 14 years old. The complainant gave evidence that she visited the applicant and SW at their new home in Wagga Wagga, sleeping on a couch in the lounge room. During the night, she woke up and became aware that the applicant’s hands were inside her pyjama shorts and one of his fingers was in her vagina (count 8). He told her to “Shh” and she realised that he had his hand on his penis and was masturbating. The applicant then kneeled at the end of the lounge near her head, placed his penis in her mouth, and moved her head back and forth for about five minutes (count 9). He then stopped and went back to bed. The complainant gave evidence that she did not consent to these acts.
In cross-examination, the complainant was asked a series of questions about the layout of the Wagga Wagga house. It was suggested to her that the main bedroom was at the back of the house, rather than at the front of the house, which she did not recall. The complainant gave evidence that she slept in the lounge room instead of one of the bedrooms because SM and her boyfriend were also visiting at the time, as well as the twins’ stepmother. She denied that the trial was the first time she had given this evidence. She denied that the applicant did not engage in the conduct the subject of the counts.
The fourth incident was alleged to have occurred during the winter months in 1987. The complainant gave evidence that after the third incident she became quite rebellious and ended up in fights at school. She was suspended from school for two weeks, and her mother sent her to live with SW. The complainant gave evidence that one day during that stay, she and the applicant took the couple’s two dogs for a walk. The complainant asked SW “over and over” to come with them, because she usually did, but on this occasion SW had recently had an argument with the applicant and refused.
The applicant and the complainant walked to some nearby train tracks. The complainant gave evidence that the applicant pushed her against a stationary carriage and began kissing her on the lips. He then moved his hand underneath her clothing and underwear and digitally penetrated her vagina (count 10). The complainant said that while he was doing this, the applicant had hold of his penis as well.
The complainant said that the applicant then got her to kneel down and he placed his penis in her mouth, and used both of his hands to move her head back and forth on his penis and was quite forceful (count 11). As soon as the applicant let go of her, the complainant ran back to the house. The complainant said that she did not consent to these acts. She did not tell SW at the time because she was ashamed. A couple of days later, she returned to Ulladulla.
In cross-examination, the complainant was unable to say where the two dogs were when the applicant pushed her against the train carriage, or where the dogs were when the applicant got her to kneel down and put his penis in her mouth. She denied that these events did not happen. She agreed that when she returned to the house, SW was there, but she had no recollection of saying anything to her at that time. The complainant agreed that during the two weeks she was staying with the applicant and SW, they were arguing off and on.
I have referred above to the complainant’s complaint to MB. The complainant also gave evidence that in 1990, when she was living in Canberra she spoke to another of her sisters, HW, who also lived in Canberra. HW brought up SW and the applicant in conversation, and the complainant said that she “sort of started to tear up, and … said to her, ‘I have something to tell you’”. The complainant said that she told HW that the applicant had tried to have sex with her, whereupon HW stopped her, saying, “Stop. Don’t tell me any more. Don’t say any more, and the truth will come out.” The complainant did not have further conversations with HW about the allegations.
The applicant and SW were also living in Canberra in 1990. The complainant gave evidence that on the evening of 1 February 1990, she was out at a football club in Canberra and saw some other members of her family, including SW. SW became “cranky” because the complainant had not gone to work that day and SW worked at the same place. The following day, the complainant visited HW and told her that she was worried about losing her job, and HW advised her to tell SW what had happened with the applicant. The complainant telephoned SW’s home, and the applicant answered. The complainant gave evidence that she told the applicant that he needed to speak to SW so she (the complainant) did not lose her job; and that if the complainant did lose her job she was going to tell SW “what happened between us”. The applicant hung up.
The following day, the complainant and her then-partner went to a pub near their home. SW turned up at the pub and asked if she could speak to the complainant outside. The complainant followed SW outside and gave evidence that the following exchange occurred:
“She asked me, ‘What’s this shit that you said about [the applicant]? What happened in Wagga?’ And I said, ‘That’s not what I said.’ And I said, ‘I said that [the applicant] needed to speak to you’ – as in [SW] – ‘if I lose my job,’ I was going to tell [SW] what had happened between us.”
SW left without saying anything more. A week or two later, the complainant was made aware that SW and the applicant had broken up. The complainant’s evidence was that she and SW did not speak to each other for the next 17 or 18 years. She and SW reconciled in about 2006, and had a number of conversations in which the complainant told SW some of what had happened with the applicant, without going into “graphic details”. The complainant also described having told SM in more detail than she had given SW, at some point which she estimated as between 2004 and 2006.
In cross-examination, when asked about what she had disclosed to SW about what happened with the applicant, the complainant said that sometime after 2006, she told SW about the oral sex that happened in Sydney. She also told SW that something happened at the rest stop and at Wagga Wagga, without going into any detail.
SW gave evidence that she first met the applicant in 1981 or 1982 in Canberra, and they married in February 1986. A few weeks after getting married, SW and the applicant moved to Bankstown. SW gave evidence that the complainant visited them for a few days shortly after Christmas in 1986, after being at their aunt’s place, who also lived in Sydney. LS and his partner also visited around that time. SW’s evidence was that she was working between Christmas and New Year. She recalled that they drove to Batemans Bay in the applicant’s ute, with the complainant also in the vehicle. She did not recall anyone else being in the vehicle.
SW gave evidence that, in February 1991, she had attended the local football club in Canberra with the applicant and their friend, DF. She was surprised and angry to see the complainant there, because the complainant had called in sick and SW had arranged for her to get the job.
SW described an altercation that evening between herself and another family member who was at the club with the complainant. SW’s evidence was that she left the club with the applicant and DF and went home. Early the following day, at around 5:30 or 6:00am, the three of them were still up when the phone rang in the kitchen, and the applicant went to answer it. Afterwards, he came to SW and said, “You’re not going to believe it. That was [the complainant] on the phone, and if she loses her job at Nashua, she’s going to tell you about something that happened between her and I in Wagga”. SW recalled being furious at the complainant, wondering why she was trying to ruin her marriage and say something so terrible. During that day, SW made calls to ascertain the complainant’s whereabouts, and found out that she was at a local pub, and a friend drove her there.
SW’s evidence was that when she arrived, she located the complainant and asked her to come outside. She recalled first asking the complainant, “What the fuck are you doing? Like, why are you trying to ruin my marriage? How dare you? How dare you?”. SW’s evidence was that she said, “Why would you say that you’re going to tell me something that happened between you and [the applicant] in Wagga?”, and that the complainant replied, “That’s not what I said”. SW gave evidence that the complainant said, “I told him I would tell him [scil. you] about Wagga”, at which point SW’s evidence was that “It was like lightning struck me. I knew that something had happened…”. SW then said, “What the”, and the complainant continued, “If you don’t believe me, ask him about the head jobs he asked me for when we walked the dogs while you were cooking dinner”. SW said the applicant and the complainant walked the dogs in Wagga Wagga “all the time”, when the complainant was no older than 13 or 14 years old. SW recalled that the complainant was distraught and crying.
SW was driven home by her friend. There were a number of people at the house and she told them all to leave. SW and the applicant then spoke for around four hours. SW told the applicant what the complainant had said, and the applicant kept saying “Nothing happened”. She gave this evidence:
“Q. And you said he kept saying ‘Nothing happened’?
A. Correct.
Q. Was there anything else that you remember him saying?
A. Well, in the – I just kept saying, ‘Don’t fucking lie to me.’ And eventually, whether it be three and a half hours, four hours, eventually he said that something had happened.”
SW described being extremely upset, and that she soon moved out and lived with SM for at least a month before moving in with her stepmother in Goulburn. SW returned to the home in Canberra only to collect her belongings, and she did not really speak to the applicant again, excluding a pre-planned water skiing trip with him and other friends. SW subsequently moved to Queensland, and she and the applicant divorced.
SW did not speak to the complainant for about 18 years. When she and the complainant made contact again, they occasionally spoke about what happened with the applicant but not at “great length”, because, SW said, “it was very hard to listen to”. When they met up again, the first thing the complainant told her about was what happened on the drive from Batemans Bay to Ulladulla. The complainant also told her that when she visited the Bankstown home at Christmas time in 1986, the applicant had rubbed up against her in the surf and, when they returned home, had invited her into the shower, which was interrupted by LS coming to the home. The complainant elaborated a little on the “walking the dogs business”, but SW said she “did not want to hear any more”. The complainant told her there was a lot more she did not know.
SW gave evidence of a recorded pretext phone call that she made to the applicant on 3 August 2021, in the presence of a Queensland police officer. The recording of that call was tendered, played, and admitted into evidence (Exhibit J), with the transcript of the call provided to the jury as an aide memoire. During the call, the applicant denied what SW said about the complainant’s accusations.
In cross-examination, when taken back to Christmas 1986, SW said she could not recall what day the complainant came to stay with her and the applicant, but she had a clear recollection that the complainant had been staying in Sydney beforehand. SW agreed that when she went to work during this period, the applicant and the complainant went to the beach. She denied having any conversation with the applicant in which he said that he felt uncomfortable about the complainant’s behaviour towards him at the beach, including being quite flirtatious and getting close to him in the water. SW also denied that the applicant said to her anything along the lines of telling the complainant to put some clothes on when everyone was around.
In relation to the trip from Bankstown to Batemans Bay, SW did not agree that the vehicle they were in might have been her Torana, giving evidence that they always travelled in the applicant’s ute because her car was older and she only used it to go to and from work. She agreed that she and the applicant owned one dog at the time, and said that the dog would have travelled in the tray of the ute.
SW gave evidence that when she and the applicant were living in Wagga Wagga the complainant visited quite a lot, including on one occasion for “quite a reasonable amount of time”. SW’s evidence was that when the complainant stayed with them in the Wagga Wagga house, she had her own room. In relation to the layout of that house, SW was taken to Exhibit 4, which was a photograph of the house with the ute parked out the front. SW was taken through the three sets of windows that could be seen in the photo, from left to right. She gave evidence that the first set of windows was the lounge room, the second set was a spare bedroom, and the third set was the main bedroom that she shared with the applicant. In the course of that questioning, she was asked about the spare room windows:
“Q. And that was a spare bedroom?
A. Correct.
Q. And do you see in the left hand, or the left side window, that that window appears to have a board in it?
A. Yes.
Q. In relation to that board, was the bedroom that you and [the applicant] occupied, did the doorway of the main bedroom, was it across from the doorway to this particular bedroom where the boarded window was?
A. No.
Q. Do you have any memory at all of that board being placed in the window because of the light would come through that into the bedroom where you and [the applicant] would sleep?
A. No.
Q. And that you like to sleep with the door open, so you’ve blocked that particular window out?
A. Never.”
“Q. You say that when you have this conversation with [the complainant] that she says – well, she clarifies what she says that she said to [the applicant] on the phone. Is that correct?
A. When I said, how dare you say that something happened between – you’re going to tell me if something happened between you and [the applicant] – she said, I didn’t say that.
Q. What did she say?
A. She said, I told him that – I would – what happened – I would tell [SW] what happened in Wagga. And as soon as I heard that, I knew something had happened because he said between her and him; she didn’t.”
“I haven’t had children because of this. I couldn’t keep my younger sister safe in my own home. I didn’t even know about it. I’ve never believed to this day that people – you see it all the time. You see people on the thing saying someone must have seen something. I never saw anything. I encouraged their relationship. I was absolutely disgusted with myself as – as an older sister that I could not keep him away from her.”
It was suggested to SW that the conversation between her and the applicant when she returned home from the pub did not occur, which SW denied. She also denied that the applicant never made an admission to her that something occurred between him and the complainant. SW agreed, as she had in chief, that she went on a water skiing trip with the applicant and other friends after this, but she denied that she was still living with the applicant at the time. SW denied that she remained with the applicant until April 1991 and left when the applicant was away on a work course.
In relation to the alleged incident in Bankstown, SW accepted that she did not include anything in her police statement about the complainant telling her, when they met at the pub, that something happened in Bankstown, although her evidence was that she knew about this before they reconciled. SW also agreed that she did not include anything in her police statement about the complainant telling her about the alleged incident on the way back to Ulladulla. SW accepted that she and SM had discussions about what happened between the complainant and the applicant, but about how bad it was that things had happened, as opposed to the detail of what happened.
SM gave evidence that she visited SW and the applicant around Christmas in 1986, staying at her stepmother’s unit elsewhere in Sydney. SM recalled being driven back to Canberra in a ute driven by the applicant, with SW and the complainant also in the vehicle.
SM gave evidence that she became aware at some point that SW and the applicant had divorced and SW had moved to Queensland. Her evidence was that a lot later, she “knew that [SW] and [the applicant] had had an altercation and something was mentioned about [the complainant].”
SM said that she and the complainant became distant from each other, and that “probably 18 years ago, 20 years ago, [the complainant] was living in Wagga, and then she just started telling me about what had happened”. SM recalled that the complainant told her about the incident in Wagga Wagga that was the subject of counts 10 and 11. She also gave evidence that the complainant told her about the first incident in Bankstown:
“Q. Okay and, so can you please tell us what [the complainant] told you about Sydney?
A. … she said, that they had gone to the beach, come home, they were laying on the green divan which we had from Red Hill, it was a fold out sort of thing, it all folded up on top of itself, and you could pull it out like a bed. And she was laying there on her stomach and she felt his hand, she fell asleep and felt his hand on her back and she sort of woke up thinking he must think it’s [SW].
Q. Just before you continue, these are things [the complainant is] telling you?
A. Yeah, this is her words. She thought that he would wake up and go, oh you know, it’s not [SW]. And she laid there a bit, and then he started kissing her and put his hands up into her pants and then got him to give her oral sex.
Q. When she was telling you this, what was her demeanour? Do you understand what I mean by demeanour?
A. She was crying at that stage.”
On another occasion, about 10 years later, the complainant told SM about the events during the drive to Ulladulla in 1986: SM gave evidence of the complainant telling her that whenever anything happened, the applicant used to say to her, “Don’t tell [SW], because if you do tell her she’ll never speak to you again. She will blame you”.
In cross-examination, SM gave evidence that she did not know in December 1986 that the applicant and SW’s friends were visiting, and she did not know when she arrived at the Bankstown house during that period. She had a distinct memory of travelling to Canberra from Bankstown in the ute, describing them as “jammed in” and that when they stopped at Goulburn the complainant “virtually fell out because she was sitting on the floor”. When asked whether she was ever at Wagga Wagga at the same time as the complainant, SM said that there were times when the complainant was there and SM’s stepmother was there as well. However, her recollection was that the complainant went there “four times, maybe. Not a great amount of time”.
Detective Senior Constable Axisa and Detective Senior Constable Gjuratic were the officers responsible for investigating the complainant’s allegations. Each gave evidence in chief and was cross-examined by the applicant’s counsel.
DSC Axisa gave evidence about her communications with the complainant between November 2019 and July 2020, for the purpose of preparing a statement. Her evidence was that she met with the complainant over two days in July 2020, because “the information that she needed to provide with – to me was quite hard for her to disclose and open up about”; and the complainant was distressed and needed the time to continue the following day. DSC Axisa gave evidence that she went on parental leave at the end of July 2020, and DSC Gjuratic took over.
In cross-examination, DSC Axisa gave evidence that when the complainant returned on the second day, the two of them went through what they had done the previous day, and continued from there. She confirmed that when they finished, the complainant was given a physical copy of the statement to read before she signed it; and it appeared to DSC Axisa that the complainant read the statement at that time. She could not recall the complainant making any changes to the statement, either at the outset of the second day or on reading the statement before signing it.
DSC Axisa was asked about specific parts of the statement, including that the complainant arrived at the Bankstown house on 24 December 1986, rather than 26 December. DSC Axisa’s evidence was that in this and other parts to which she was taken, she had recorded what the complainant said. She also gave evidence that while the complainant had prepared some notes in advance of the meeting, of which DSC Axisa took a copy, she did not use the notes to prepare the statement.
DSC Gjuratic gave evidence that she interviewed SW, SM and the complainant’s friend, MB, and assisted in the preparation of their statements. She also gave evidence that she spoke to the complainant’s sister, HW, during the investigation, who said she did not recall having a conversation with the complainant. LS, the applicant’s friend who was also staying in the Bankstown house around Christmas 1986, could not be located. The complainant’s mother declined to provide a statement. In cross-examination, DSC Gjuratic gave evidence that she did not attempt to make contact with DF, who was with the applicant and SW on the night of the incident at the club in February 1991, when the applicant was alleged to have answered a phone call from the complainant. She confirmed that the applicant did not have a criminal record at the time of his arrest on these charges.
The applicant gave evidence and was cross-examined. In his evidence in chief about the first alleged incident, the applicant’s evidence was that the complainant arrived at the Bankstown house on 24 December 1986. He recalled taking the complainant to the beach one day between Christmas and New Year, and that they went for a swim. He recalled that during the swim, the complainant was a little bit close to him in the water and was rubbing against him.
The applicant gave evidence that when they returned home, LS and his partner were at the house. Other than arriving home, he did not recall much happening. The applicant denied performing any of the sexual acts that the complainant accused him of committing against her in the lounge room, or saying anything to her about having a shower to cool off. He did recall that when SW returned home, he asked her to have a word to the complainant about her behaviour, and that she needed to put more clothes on because he was a bit uncomfortable. This led to an argument between SW and the complainant.
The applicant agreed they had driven to Batemans Bay a day or two later, and said this was because SW had rung the complainant’s parents and arranged for her to be returned to them in Ulladulla. He gave evidence that they left Bankstown in the morning and took SW’s car because it had more seats than his ute and SM and the complainant were with them, as well as the dog. The applicant did not have a specific recollection of dropping SM in Canberra, but he did recall driving to Batemans Bay and staying at a caravan park that night with LS and his partner.
The applicant gave evidence that early to mid-morning the following day, he drove the complainant back to Ulladulla. He denied stopping at the rest stop and he denied the sexual acts of which the complainant gave evidence. He also denied telling the complainant that if she told SW about the sexual conduct, SW would hate her. The applicant was then asked in chief:
“Q. What happened when you dropped [the complainant] off home?
A. Went and her dad came out and invited me in for a drink, cool drink, cordial something like that. Her mother was there. She had a bag and stuff with her.
Q. Sorry, who had a bag?
A. [The complainant] did.
Q. How long were you at the house for?
A. Maybe 15 minutes or so.”
“Because nothing particular, I just remember because I had to put a board up in the front bedroom to block the light coming through that bedroom into our bedroom because [SW] would only sleep with the door open. She had some particular quirks, and she didn’t like sun beaming into the room.”
The applicant’s evidence was that the first time the complainant visited them in Wagga Wagga was between 30 June 1987 and 4 July 1987. He remembered the date because they moved into the house on 30 June 1987, and he left for ski training on 4 July. In the meantime, the complainant had visited with SM and SM’s then-partner, to deliver a horse for SW. He denied that the complainant first visited their home in Wagga Wagga in February, and that he had sexually assaulted her on that occasion.
The applicant could not recall the complainant visiting Wagga Wagga for an extended period such as two weeks, although he did recall her visiting a second time in October 1988, because the complainant turned 16 and SW wanted to take her out for dinner. He had no specific recollection of walking the dogs with the complainant, although he said he would walk them regularly and it was possible that they had walked the dogs together. The applicant denied that anything like what the complainant alleged had occurred when they were out walking the dogs.
The applicant gave evidence that he left Wagga Wagga in July 1989. SW was very unhappy there, and days after his return from an overseas ski trip she “packed up her gear and left”. He arranged for SW to stay with his parents in Canberra and applied for a reposting. The applicant obtained the reposting and he and SW moved into a house in Canberra. The applicant described a series of absences from home due to his work and skiing competitions, which caused problems in his relationship with SW. He gave evidence that by the end of 1990, their relationship was “untenable”.
The applicant gave evidence that their fifth wedding anniversary was on 1 February 1991, and they went out for dinner and then went to the football club with DF. He agreed that there was an altercation involving SW and others that evening but he did not become aware of it until later, after SW had left the premises. He caught up with SW and DF as they were walking home. When they arrived home, the applicant went to bed. He denied answering a phone call from the complainant and having a conversation with her, or speaking to SW immediately afterwards. He also denied having any subsequent confrontation with SW about the complainant. The applicant gave evidence that the water skiing trip occurred shortly thereafter and that he and SW shared a bed in a cabin during that trip.
After their return to Canberra from that trip, the applicant travelled to Singleton for a work course, and SW was not there when he returned home. The applicant asked a friend where she was, and the friend told him that she had left with DF. The applicant gave evidence that he did not speak to SW after 1991 until he received the pretext phone call from her. He was in shock upon receiving that call.
In cross-examination about the first Bankstown incident in December 1986, the applicant accepted that he could be mistaken about his recollection that the complainant was present on 24 December 1986, and that she was present on Christmas Day. His memory was that the complainant was present on 26 December, but he could not recall where she was sleeping.
In relation to his evidence that the complainant brushed up against him in the surf, the applicant accepted that this could have happened accidentally or by mistake. He also accepted that he could be mistaken in his recollection that when they arrived home, LS and his partner were there. The applicant had no specific memory of the complainant going into the lounge room to lie on the divan, and he denied all of the offending conduct that the complainant alleged, which the Crown prosecutor put to him sequentially.
In relation to the drive to Batemans Bay, the applicant maintained in cross-examination that they took SW’s car. He denied that when driving the complainant back to Ulladulla, they stopped at the rest stop, and he denied that any of the conduct that the complainant alleged happened there, which the Crown prosecutor again went through sequentially. He maintained that when they arrived at the complainant’s house in Ulladulla, the complainant’s father was out the front and that he went inside.
In relation to the offences alleged to have occurred in Wagga Wagga, the applicant maintained his evidence about the bedroom he and SW shared being at the back of the house. He also maintained that the complainant only visited once in 1987, when she came with SM and SM’s then-partner to drop off a horse shortly after they moved in, and that her other visits were in 1988. The applicant had no recollection of the complainant ever staying with them when the weather was hot, and he denied that he engaged in the conduct that the complainant alleged occurred in early 1987.
In relation to the second incident that the complainant alleged occurred in Wagga Wagga, the applicant said that he had no memory of the complainant staying with them for a period of two weeks. He also said that he and SW only had the one dog in 1987, and while he was sure he took it for walks he had no memory of any train tracks anywhere in the vicinity of where they lived. He denied the conduct the subject of the second incident. He maintained that he and SW had taken the complainant out for dinner for her 16th birthday in Wagga Wagga, in 1988.
The applicant denied speaking to the complainant on the phone on the night of his five-year wedding anniversary, in February 1991, maintaining that he went to bed as soon as they got home, and he had not spoken to the complainant since Wagga Wagga. The applicant said that he had no specific memory of the following day, and he denied that he had a lengthy conversation with SW later in the day. More specifically, he denied having a conversation with SW in which he kept saying that nothing happened between him and the complainant before eventually admitting to SW that something had happened.
When asked if his relationship with SW deteriorated “from this point”, the applicant said: “No. Our relationship was – I – like, looking back at it now, our relationship was certainly unhealthy.” He disagreed that after they returned from the water skiing trip, SW did not stay at their home.
The applicant submitted that the cumulative effect of the trial judge’s interventions during his evidence was akin to cross-examination, and contributed to an atmosphere that would have led the jury to be more sceptical of his evidence than they would otherwise have been.
In support of this ground, the applicant read and relied on the affidavit of Michael Kukulies-Smith, solicitor, affirmed 10 April 2026, which exhibited a complete audio recording of the applicant’s evidence as well as 31 individual extracts from the cross-examination. The respondent read and relied on the affidavit of Hazel Pais, solicitor, affirmed 24 April 2026, exhibited to which were seven extracts of the audio from SM’s evidence at trial, as well as an extract of approximately 40 seconds of the audio from the applicant’s evidence.
Senior counsel for the applicant submitted that the Court did not need to listen to all of the applicant’s evidence but should listen to each of the extracts exhibited to the affidavit of Mr Kukulies-Smith. Counsel for the respondent did not oppose that course, and submitted that the Court should listen to additional extracts from the applicant’s evidence, one of which was identified in Ms Pais’ affidavit, and a further four of which were identified in a table that the respondent’s counsel handed up at the hearing. Counsel for the respondent also invited the Court to listen to the seven extracts from SM’s evidence, by way of comparison and to contextualise the applicant’s submissions about the trial judge’s interventions during his evidence.
In exercising the appellate function under s 6(1) of the Criminal Appeal Act, the Court may listen to the recording of a witness’s evidence if satisfied that there is a “‘real forensic purpose’ for doing so”: The King v ZT (2025) 281 CLR 137; [2025] HCA 9 at [18] (“The King v ZT”), referring to Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12. In the present case, both parties submitted that the effect of the trial judge’s interventions on the jury would be better understood by listening to the recording and not merely reading the transcript, with both parties relying on tone, volume and pacing. In those circumstances, and where the total amount of audio identified was not overly burdensome, I have listened to all of the extracted portions on which the parties relied.
In Galea v Galea (1990) 19 NSWLR 263 at 281-282, Kirby ACJ set out a number of guidelines regarding judicial intervention, in a passage that has been approved in subsequent cases including appeals from criminal trials. Relevantly for present purposes, his Honour stated:
“1. The test to be applied is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside ….
2. A distinction is drawn between the limits of questioning or comments by a judge when sitting with a jury and when sitting alone in a civil trial. Although there is no relevant distinction, in principle, between the judicial obligation to ensure a fair trial whatever the constitution of the court, greater latitude in questioning and comment will be accepted where a judge is sitting alone. This is because it is conventionally inferred that a trained judicial officer, who has to find the facts himself or herself, will be more readily able to correct and allow for preliminary opinions formed before the final decision is reached ….
3. Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel's shoes and ‘into the perils of self-persuasion’ ….
4. The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions. ….
5. It is also relevant to consider the point at which the judicial interventions complained of occur. …
6. … The conduct of criminal trials, particularly with a jury, remains subject to different and more stringent requirements: see Whitehorn v The Queen (1983) 152 CLR 657 discussed in R v R (1989) 18 NSWLR 74 at 84F per Gleeson CJ.”
“(a) A miscarriage of justice may ‘involve an impairment of a party’s opportunity of putting his defence fully and fairly to the jury’ (R v Mawson [1967] VR 205 at 207 to 208).
(b) A miscarriage may ‘result from the jury being led to believe from the judge’s intervention that he is himself convinced of the guilt of the accused person’ (R v Mawson at 207 to 208). Trial judges should not create the impression by the way in which they question the accused that they have thrown their weight on the side of the prosecution: Mercer (1993) 67 A Crim R 91.
(c) It is for counsel to examine the witnesses ‘and not for the judge to take it on himself lest by so doing he appear to favour one side or the other’ (per Denning LJ in Jones v National Coal Board [1957] 2 QB 55 at 63 to 65).
(d) A departure from the due and orderly processes of a fair trial may amount to a miscarriage of justice or may infringe the principle that criminal justice must not only be done but must also appear to be done: R v Mawson (at 207 to 208).”
“The judge may readily achieve clarification by pointing out, at an appropriate time, usually in the absence of the jury, evidential ambiguities or obscurities to counsel. That is by far the most desirable course. It should be left to counsel, whenever possible, to deal with such matters. If the judge undertakes the task by questioning witnesses, there is the danger that he or she will assume, albeit temporarily, the role of counsel and become identified with the cause of one side or another. Unfairness can readily be the consequence.”
In addition to listening to the specific parts of the evidence on which both parties relied, I have reviewed the transcript of all of the witness evidence in the trial. As the applicant acknowledged in his written submissions, and as the respondent emphasised, his Honour intervened on a number of occasions during the evidence in chief and cross-examination of the complainant and SW, as well as during the cross-examination of SM. The trial judge’s interventions in the evidence of those witnesses, which the applicant described as “unobjectionable”, variously involved (without seeking to be exhaustive):
asking the witness to clarify answers, including so as to ensure descriptive evidence was put on the record;
asking the witness to wait for the questioner to finish asking the question before answering; and
asking the witness to answer the question that was asked and no more.
In the extracts from the recording of the evidence of SM on which the respondent relied, his Honour can be heard giving several directions to SM about the need to answer the question and, separately, to allow the questioner to finish her question before SM answered. The trial judge’s tone is generally neutral, although in the extracts towards the end of her cross-examination his Honour’s tone reflected a degree of frustration.
The trial judge’s interventions in the applicant’s examination in chief were brief, neutral in tone and otherwise unremarkable. The applicant submitted that it was the interventions in his cross-examination that were of an entirely different character and effect. He submitted that the trial judge’s interventions involved cross-examination about his credibility, expressed doubts about the reliability of his memory, and undermined his evidence about key issues.
I do not propose, nor is it necessary, to set out each of the occasions on which the applicant relied. Some of the interventions were unremarkable and were referred to in the applicant’s submissions without specific comment, including when the trial judge intervened for the purpose of:
correcting the Crown prosecutor;
asking the applicant whether he had a copy of an exhibit in front of him; and
asking the Crown prosecutor to read out more of the transcript of the pretext call, as a matter of fairness to the applicant.
In relation to the interventions on which the applicant placed more reliance, they may be grouped into the following categories:
directions to the applicant about how he was giving evidence;
judicial “cross-examination” of the applicant; and
questions of the applicant to clarify his evidence.
“Q. It says, ‘Date of last removal: 11 March 87’?
A. That’s right.
Q. Doesn’t that indicate that she was, in fact, removed from the Bankstown house on 11 March 1987?
A. Well, she doesn’t go in the truck with the furniture. The removal means the furniture.
Q. Is that--
A. People. She’s not the one getting tracked, I was the solider.
Q. Why does it say, under her section, ‘Date of last removal: 11 March 1987’?
A. Because that’s the date of our last removal.
Q. And that includes--
A. ‘Removal’ being the furniture and effects at the property was taken by a company called Dollimore[s], because I have another document, and then they get – put into temporary storage, because – and then they lost it, actually.
Q. Your furniture was removed from your Bankstown house on 11 March?
A. That’s right, and put into temporary storage.
Q. Where was [SW] then?
A. She was with me on 11 March.
Q. She was down in Wagga on 11 March?
A. No. This is – this is from – this is an application for reposting, okay, which is completed 11 March 89 saying that – and if you actually have a – have a look under that section 3, I’ve already categorised her to be living at [an address in Canberra]. She’d left me.
[Q. Right, but--]
[A.] As per the other document, which is to notify the army that she was at [an address in Canberra].
Q. You moved from Bankstown down to Wagga--
A. You’re talking about Bankstown, but this – this document isn’t Bankstown.
HIS HONOUR: Mr [surname] [Mr [surname], Mr [surname]].
WITNESS: Yeah.
HIS HONOUR: You’ve heard throughout this trial, and I’ve said the same to every witness, you’ve been here and heard me say it, the Crown will give you the opportunity to answer a question.
WITNESS: Okay.
HIS HONOUR: And the Crown will make sure that she doesn’t cut you off when you’re answering a question, as long as your answer is responsive. You are to give the Crown the same courtesy. In other words, you are not to start answering a question or speaking over the Crown until she has finished her question. Do you understand?
WITNESS: Yes.
HIS HONOUR: That’s as much for your benefit as anything else. You might think the Crown’s asking you a particular question, but, in fact, it might be that she’s asking something totally different.
WITNESS: Okay.
HIS HONOUR: If you don’t wait for the question to be finished, then it may be that you [may] misunderstand the question.
WITNESS: Yes.
HIS HONOUR: It is very important the Crown will give you the courtesy that she will wait for you to finish answering a question before she asks the next, and you will give her the same courtesy. That you will wait for her to finish asking a question before you answer it. Do you understand?
WITNESS: I do.
HIS HONOUR: Also, if I stop, you’re not to talk over me, either.
WITNESS: Okay.
HIS HONOUR: Do you understand that?
WITNESS: Yes.
HIS HONOUR: All right. Thank you. Madam Crown, can you please start the question again?
CROWN PROSECUTOR: Thank you, your Honour.”
As the applicant submitted, where the transcript recorded his Honour saying the applicant’s name, his Honour repeated the applicant’s name three times, which I have reflected in square brackets in the above extract. The applicant sought to characterise that repetition as reflecting his Honour’s increasing volume and agitation. However, the relevant portion did not, on my listening, reveal his Honour’s tone to become materially louder or more agitated. His Honour’s concern at the time – which the jury would have appreciated – was to have the applicant stop talking, which he did not do when his Honour first said his name. That the applicant continued to speak at this point provides the context for what his Honour said to him, towards the end of the extract, about not talking over his Honour if his Honour stopped him.
The applicant submitted that what his Honour said to him was disproportionate to the circumstances and could be contrasted with what was said to other Crown witnesses, characterising the latter interventions as shorter and with his Honour also emphasising that no criticism was intended. However, a point of difference between the applicant and the other witnesses to whom a similar instruction was given was that the applicant had been present throughout the trial. His Honour intervened after the applicant had interrupted the Crown prosecutor’s questions four times, in quick succession. In reminding the applicant that his Honour had given a similar instruction on a number of occasions, his Honour was also reminding the jury that the issue was a familiar one, in respect of which his Honour had said that he intended no criticism in raising it. Particularly in circumstances where the jury had seen and heard other witnesses being given a similar direction, I do not accept the applicant’s submission that this intervention served to create a negative atmosphere in relation to his evidence at an early stage of his cross-examination.
There were, as the applicant submitted, a number of other occasions during his cross-examination when his Honour intervened for the same or similar purpose, asking the applicant to listen to the question being asked and to answer the question, and/or to not answer a question with a question. The applicant submitted that his Honour’s tone expressed “frustration” on a number of these occasions, and that such interventions otherwise contributed to the “atmosphere” of his cross-examination. However, having listened to each of these exchanges, I did not find the tone to be materially different throughout the cross-examination, or materially different from the tone his Honour adopted when making similar interventions during the cross-examination of SM.
It is the case that towards the conclusion of the cross-examination, his Honour directed the jury to ignore the applicant’s response to a question in relation to the pretext call, on the basis that it was not responsive. Before doing so, his Honour asked the applicant’s counsel if she agreed that the answer was not responsive, and she agreed. The applicant submitted that his answer was incomplete, and that it was easy to see that he was going to say something “to the effect that he may not have given considered answers to questions asked of him during the pretext call because the call came as a surprise and was about matters he had not thought about for a long time”. Instead of being able to complete his answer, the applicant submitted, the jury was told he was such an unsatisfactory witness that his evidence should be ignored. This submission overstated the effect of the intervention, which was limited to striking out one response on the basis that it was non-responsive. As the respondent submitted, the direction was confined and corrective and fell within his Honour’s role of ensuring the receipt of responsive evidence.
“Q. I’m going to put it to you that, in fact, you didn’t go inside at all to see her parents, did you?
A. No, I went inside, because they offered me a drink. So that’s not correct.
Q. You didn’t, in fact, have a drink with her dad at all, did you?
A. I just said I went inside and had a drink with her father, who’s now deceased, is my understanding.
HIS HONOUR
Q. Mr [surname], you said before that these events, it was about 37 years ago?
A. I think so.
Q. Do I understand your evidence that nothing untoward happened?
A. Absolutely nothing, your Honour.
Q. When did you first have to think about what happened 37 years ago? Was it when the police spoke to you?
A. When I read a statement produced by [the complainant].
Q. How [many years ago, how] long ago was that?
A. That was two years ago, your Honour.
Q. [So] 35 years later, you’re able to remember these details, are you, having not really--
A. I’ve had two years--
Q. --anything of significance?
A. Sorry?
Q. As far as you were concerned, there was nothing of significance that happened with [the complainant]. Correct?
A. Nothing of significance at all. I have no – no memory. The questions that are being asked are prompted – my answers are prompted by reading [the complainant’s] statement two years ago, and I’ve waited for two years.
Q. But you say you can remember some of the details, including even when you dropped her off, if you went inside or not, some 37 years later?
A. Your Honour, I’ve conceded in a number of things here to say that yes, it is a possibility. I was a decent person. I wouldn’t drop someone off. She had a bag with her, her father was there, so it makes sense, and I’ve formed that as a memory. Whether that’s a false memory, your Honour, I don’t really understand.
Q. Sorry, do I understand that maybe it’s not a memory at all, that it’s something you’ve thought that, because you’re a decent person, you wouldn’t have done something?
A. That is possible, your Honour.”
The applicant submitted that this intervention was “forensically devastating to the applicant’s credibility and reliability” because it gave the jury the impression that his Honour did not believe the applicant to be a truthful witness. Senior counsel for the applicant submitted at the hearing that its effect was to cast doubt on the likelihood that the applicant could recall details of events 37 years later, thereby underscoring the implausibility of the evidence he had given. The applicant further submitted that when the primary judge said, “do I understand that maybe it’s not a memory at all, that it’s something you’ve thought that, because you’re a decent person, you wouldn’t have done something?”, the “something” to which his Honour was referring included the conduct the subject of the counts. The applicant submitted that his earlier response was “a concession … on a narrow point” which was expanded by the primary judge to encompass the offending as well, and thereby undermined his denials.
Read in context, his Honour’s last question was limited to picking up the applicant’s earlier response, which was to the effect that he was a decent person who would not have dropped someone off without carrying her bag and having a drink. I do not accept the applicant’s submission that the “something” to which his Honour referred in the last question of the above extract encompassed, or was intended to encompass, the offending conduct.
That said, the trial judge should not have taken up the reliability of the applicant’s recollection in the way that he did. The respondent may be correct that his Honour, by this questioning, was seeking to clarify that the applicant had an actual memory of these events, when he had repeatedly given evidence that he could not recall various matters given the passage of time; and that by asking these questions, the applicant was able to explain that his memories may partially have been based on inferences. However, questioning of the character that his Honour took up was properly the province of cross-examining counsel. The applicant’s description of this intervention, as “forensically devastating to [his] credibility and reliability”, overstated its likely impact, but his Honour should not have entered this area. Asking these questions gave rise to the danger to which Ipp AJA referred in Thompson, of becoming identified with the cause of one side.
The applicant submitted that as this evidence was followed shortly by a short adjournment, it was reasonable to expect that the jury spoke about the intervention during the break. If that was a reasonable expectation, it is significant that the applicant’s then counsel did not raise the exchange with his Honour at that point in time. The respondent’s submission, that the absence of comment from the applicant’s counsel suggested that she did not perceive any unfairness to the applicant, has some force, at least as to that point of the applicant’s evidence.
The second and third instances of judicial intervention on which the applicant relied in this category occurred during cross-examination about the layout of the Wagga Wagga house, as to which I have set out the evidence in chief at [74]. The first of those exchanges was as follows, starting with a question from the Crown prosecutor:
“Q. Yes. Mr [surname], I’m going to put to you that you’re in fact incorrect where you say the main bedroom was in the house at Wagga Wagga.
A. Well I would say that we would need some evidence to support your theory and my memory is that the bedroom was behind there, the board was placed up to stop the light coming in, that’s it.
HIS HONOUR
Q. Just a moment, just whilst I remember. Mr [surname], you said you can’t remember whether it was you or your wife who put up the board?
A. That is correct, your Honour.
Q. So when you gave evidence yesterday, ‘I just remember because I had to put up a board in the front bedroom to block the light.’ Was that correct or not? That it was you who put it up?
A. I actually don’t have that memory.
Q. Sorry?
A. I actually can’t remember who put the board up, your Honour.
Q. So line 2339, so when you said yesterday, ‘Because I had to put a board up in the front bedroom to block the light’ was that true that it was you, or not?
A. I was asked a question and my answer is I had to put a board up. Specifically, whether or not I physically did it, or [SW] did it, I have no memory of. I’m only – I actually don’t have a memory of that. So I see them as different things but.
Q. Sorry, what do you mean you see as different things?
A. Well, physically doing it versus I had to do it – I had to mow the lawn. Did I physically mow the lawn? I may not have. That’s just my answer.
CROWN PROSECUTOR
Q. Mr [surname], the evidence about putting the board up to stop the light coming into the room, it’s something that you’ve made up, isn’t it?
A. No, it’s not.”
(Emphasis added.)
The applicant submitted that these questions were directed at undermining his exculpatory account, which was apt to be undertaken by the Crown prosecutor rather than the judge. Senior counsel submitted that it had the effect of cross-examining the applicant on a prior inconsistent statement, which amounted to questioning on reliability, and then became about his credibility when his Honour asked, “was that true that it was you or not”.
Counsel for the respondent accepted that the trial judge’s question as to whether what the applicant had said in chief was “true” could on one view be seen as asking a question that went to his credit, and submitted that what she advanced about the broader exchange should not be taken as endorsing the trial judge asking a question of this nature. Looking at the overall exchange, however, counsel submitted that the trial judge was seeking to clarify the applicant’s evidence, which was, first, that he “had to put a board up” and, then, that he could not recall who put the board up. His Honour was endeavouring to do no more than clarify the applicant’s evidence as to whether or not he put the board up. The respondent otherwise emphasised the peripheral nature of the details about the layout of the house, which was only relevant for counts 8 and 9 on the indictment, on which the jury did not reach a verdict. The complainant alleged that those offences took place when she was sleeping in the lounge room, which was contrary to SW’s evidence that when the complainant stayed she always slept in one of the bedrooms. The respondent submitted that in those circumstances, it did not matter where the main bedroom was.
The applicant acknowledged that the particular detail of the layout of the house may have been peripheral. However, he submitted that questions directed at reliability and credibility had particular significance in a historical sexual offence case, where the evidence was “oath-on-oath”, and the jury was being invited to undertake a close analysis of the witnesses.
Again, differences between the applicant’s evidence in chief and what he said in cross-examination were not a matter for his Honour to take up with the applicant, and still less to take up in a question formulated in terms of the truth of his evidence. What ameliorated the impact, having listened to the extract, was that his Honour’s tone was not critical and did not convey an impression of disbelief, such as one might associate with cross-examination undertaken by counsel. Consistently with his Honour’s tone, the applicant answered the questions frankly and in a tone that was not at all defensive. Without in any way condoning his Honour engaging in this line of questions, considering the extract as a whole conveys the impression that his Honour was asking these questions opportunistically – in his words, “just whilst I remember” – with a view to clarifying the evidence the applicant had given.
The second of the interventions concerning the layout of the Wagga Wagga house on which the applicant relied took place about five minutes later:
“HIS HONOUR
Q. Sorry, Mr [surname], can I just understand, which bedroom do you say was the bedroom that you and [SW] used? Was that the back corner one?
A. It was at the back, but it wasn’t in the corner. It was sort of where she’s got it marked as the bathroom. I believe they’re flipped around.
Q. [And] You say that the board was put up because, what, [SW] liked to sleep with her bedroom door opened. Is that right?
A. That’s right.
Q. The bedroom with the board on it, did that have a door on it?
A. Yes, it did.
Q. Do you recall whether the doors could simply have been kept shut to keep the light out?
A. Probably could’ve. I don’t know what the logic was, your Honour. I was asked to do it in some manner. But, yeah.
Q. That would have kept the light out, obviously, simply shutting that bedroom door?
A. Yeah, it would have.
Q. Was the light also coming through the other bedroom from the front?
A. No, because it’s down the hall a little bit, so no, I wouldn’t think so.
Q. I thought there were two bedrooms across the front?
A. No, there was only one across from it. Two at the front, one at the rear.
Q. Sorry, so the one of the board is one of the ones at the front?
A. Correct.
Q. What about the other one at the front? It would have had the light coming through, too?
A. It appears to have blinds. It appears that that has blinds, whereas it doesn’t appear to have blinds on that one.
HIS HONOUR: Yes. Sorry, Madam Crown.”
The applicant submitted that although his Honour may have been aiming to tease out the details of his evidence, the questions had the effect of conveying a sense of implausibility in his account. The applicant submitted this passage needed to be read with the previous intervention, which had occurred only a few minutes earlier, and had the effect of further undermining his reliability and credibility.
Particularly in circumstances where the questioning was of no material significance to the issues in the case, the intervention was unnecessary and unwarranted. Again, as with the previous questions, and without condoning them, his Honour appears to have asked the questions in this extract without much, if any, forethought. However, I do not accept that the extract conveyed a sense of implausibility in the applicant’s account, considered on its own or in combination with the earlier extract on the same subject.
The final significant example on which the applicant relied in this category concerned the pretext phone call, with the cross-examination involving the Crown prosecutor reading out portions of the call transcript and asking the applicant to respond.
“Q. It then continues on the next page. She asks you, ‘How can you not remember?’ You respond, ‘Because I blank, I don’t know if I blanked it out of my mind or what.’ And she says, ‘It’s so crystal clear in my mind what happened that night.’ Then you continue, ‘To me, it was, I was a soldier and at that point you’d found someone else.’ She says, ‘I haven’t found anything else.’ And you said, ‘And it was all over.’ And she continues to say, ‘I was with you. It was our 5th wedding anni, and we had, we’d just been out and had dinner, and then we were having sex on the lounge.’ When I read out that particular answer you gave, ‘Because I blank, I don’t know if I blanked it out of my mind or what’ what were you referring to?
A. I think I was coming up with an excuse as to why I couldn’t remember something. I can’t remember. Yeah, I won’t--
HIS HONOUR
Q. Sorry?
A. I think I was coming up with an excuse why I can’t remember something from 35 years ago, at that point in time of the conversation. I don’t remember.
Q. Sorry, do I understand you to say, that when you were on the phone you couldn’t remember any of that had happened, but do you say you now have a memory of something about what happened that night?
A. What I’m saying, your Honour is, I was receiving rapid fire questions at that point, and my answers were, I don’t know I can’t remember. That was my answer at that point in time.
Q. But you now have a memory of some of it. Is that what you’re saying? Or at least some of the events of that night?
A. Some of the events, your Honour.”
The applicant submitted that in this exchange the trial judge undermined the applicant’s memory, and in doing so effectively assisted the prosecution to cross-examine him. He submitted that this was reinforced by his Honour’s tone. Senior counsel submitted that this had the effect of highlighting an inconsistency in the applicant’s position concerning the state of his memory, which went beyond the line of questioning the Crown prosecutor was undertaking at the time.
Having listened to this exchange, I accept the respondent’s submission that the trial judge asked the above questions in an even tone, adopting neutral and explanatory terms. As the respondent further submitted, his Honour’s questioning was directed at clarifying the applicant’s evidence about the state of his memory at the time of the pretext call, and why he was able to recall more at the point of giving evidence in the trial. The applicant’s responses in this regard were consistent with his case in closing, which was that SW effectively put him “on the spot” with the phone call, and it was only subsequently that he came to focus on the period and was able to recall some of the detail.
As I noted above, the applicant also relied on five shorter interventions, which he submitted contributed to his general complaint. The first was at 2:23.55 of the recording, and concerned the applicant’s evidence about when he was on a skiing trip, which the applicant submitted amounted to an expression of doubt on the part of the trial judge. His Honour asked two questions which sought to clarify the applicant’s evidence about whether he remained in Thredbo in the period between 4 July and 29 August 1987. Having listened to the recording of the exchange, I do not consider that his Honour was expressing doubt or otherwise challenging the applicant’s evidence.
The second shorter intervention was at 2:44.30 of the recording, and concerned the applicant’s evidence about the timing of a photograph of him and one of the dogs he shared with SW. The applicant dated the photograph to February or March 1987 on the basis that he was on leave at the time. His Honour intervened to ask the applicant whether he would need to have been on leave for the photograph to have been taken. The applicant submitted that his Honour’s question cast doubt on the plausibility of what was “admittedly sort of [a] strange account” about the circumstances in which the photo could be taken. His Honour’s question was unnecessary but of little moment in the circumstances given the applicant’s frank agreement that he did not need to be on leave in order for the photo to have been taken.
The third shorter intervention was at 3:34.15 of the recording, and concerned the train tracks in Wagga Wagga, relevant to counts 10 and 11. The applicant gave evidence that he had no recollection “of trains or anything in Wagga, and there was none very, even within where we lived”. The trial judge then asked:
“Q. Sorry, do I understand you [to] say you have no recollection of train tracks in the vicinity where you were living?
A. No. No, I don’t. Except on the – if you’d like to ask me where I do have a recollection, I can.”
The applicant submitted that based on the tone and content of the intervention, the primary judge was expressing “surprise or scepticism” or “incredulity” at an apparent gap in the applicant’s memory. The recording does not support that submission.
The fourth shorter intervention was at 3:43.50 of the recording, when the applicant was being cross-examined about the presence of DF on the day of the applicant and SW’s wedding anniversary in February 1991:
“Q. So he turned up at your house?
A. No, he either turned up at the house or at the club. Exactly what I had previously said.
HIS HONOUR
Q. Well what you said was, ‘Probably at our house.’
A. Yes, so probably at our house is the same answer I’ll give now.”
Although the applicant submitted that this question amounted to the primary judge putting that his position had been “less definitive” in his examination in chief, it was no more than reminding the applicant about his previous evidence, which he adopted.
The final shorter intervention was at 4:06.30 of the recording, when the Crown prosecutor was cross-examining the applicant on the contents of the pretext phone call. The prosecutor asked the applicant to explain what he meant by a comment recorded in the transcript of the call, that “[the complainant] was a young girl coming onto me, and I was pushing her away, and she was trying – and she was – I’m not blaming her”. The initial questions in the extract below are asked by the Crown prosecutor:
“A. Well, that’s incomplete, because [SW] started talking over me.
Q. I have read the entire portion though.
A. Yeah, but that’s a transcript. If you listen to it live, and watch it in context, it’s part of her attack.
HIS HONOUR:
Q. Mr [surname], what you’re just being asked is when you said in the phone call with [SW], ‘[the complainant] was a young girl coming on to me, and I was pushing her away – and she was trying – I’m not blaming her’, the Crown’s asking you what did you mean by that?
A. Okay.
Q. That is, I assume, ‘[the complainant] was a young girl coming on to me, and I was pushing her away, and she was trying.’ What did you mean by that?
A. That was in relation to – my answer to that would be that’s in relation to what I spoke to [SW] about in Sydney, was ‘Tell [the complainant] to put some clothes on and stop behaving in this manner.’ That’s the only context I had, in my mind, of any link of anything.
Q. Sorry, do you say that she was coming on to you?
A. That was my perception at that point in time, in Sydney, at the beach, and what I spoke to [SW] about.”
“[CROWN PROSECUTOR]
Q. Who was sitting where in the Torana when you left to go to Batemans Bay?
A. I have no idea. [SW] would have been in the front.
Q. You don’t have a recollection of where people were sitting?
A. No. It was 37 years ago.
HIS HONOUR
Q. Sorry? Sorry, what was that?
A. It was 37 years ago. I don’t have any recollection of where people were sitting in the car.”
“[CROWN PROSECUTOR]
Q. Did you recall whether or not [SW] went anywhere that day?
A. No. I don’t recall any of it. It’s a non-event.
HIS HONOUR
Q. Sorry, what was a non-event?
A. The day. The day was a non-event. I don’t know.”
The applicant submitted that the trial judge’s interventions during his oral evidence led to an unfair trial for the following reasons.
The interventions commenced early in the cross-examination, with the first of the interventions (see [100] above) being “vigorous”, which he submitted signalled that his responses or approach was suspect and cast a shadow over the balance of the cross-examination, with further interventions reinforcing that he was a suspect witness.
The trial judge asked questions which assisted the prosecution and elicited responses which were damaging to his case. The interventions were critical of the applicant and while some were directed to clarifying his evidence or reminding him to wait for the question before answering, these were “decisively outweighed by those undermining the applicant’s case”.
The applicant was the subject of the most regular and the longest interventions of any witness, which must have stood out to the jury.
In circumstances where, relevantly for counts 1-3, the applicant was relying on a denial of any offending supported only by his recollection as well as the persuasive value of the pretext call, interventions that had the effect of undermining his credibility and reliability or the explanations he gave were of particular significance and should have been left to the prosecutor.
The applicant submitted that by the end of the cross-examination, “it must have been clear to the jury that the trial judge had thrown his weight behind the prosecution case and the conclusion that the applicant was a witness who should not be believed”.
The determinative question — whether the trial judge’s interventions created a real danger that the trial was unfair — must be answered having regard to the context of the whole trial and in light of the number, length, terms and circumstances of the interventions relied upon. During the cross-examination of the applicant, the trial judge made three particular interventions which, in my view, exceeded the role of the trial judge sitting with a jury in a criminal trial. The passage of primary concern was the trial judge’s going so far as to ask the applicant if evidence he had given in chief was “true… or not” (see [110] above). His Honour should also not have engaged in questioning the applicant about the extent of his recollection, which occurred on two occasions (see [105] and [110] above). The authorities have made it very clear that a trial judge should not engage in such questioning. Even though the tone was neutral, those two exchanges came unnecessarily close to creating a real danger that the trial was unfair.
Nonetheless, having listened to the recording of each of the passages on which the applicant relied, I have ultimately concluded that his Honour’s questioning of the applicant did not create a real danger that the trial was unfair. Of particular relevance to my conclusion was the largely consistent tone that his Honour adopted during all of the interventions on which the applicant relied, which did not reveal a tone of partiality or hostility. The occasions when his Honour’s tone disclosed some frustration were limited to when the applicant did not wait for the Crown prosecutor to ask the question, or did not answer what was asked. As I have noted above, the trial judge had given similar instructions to a number of other witnesses in the trial, such that by the time the applicant gave evidence the jury would have been well aware of the instruction and that its purpose was not to be critical but to secure responsive evidence.
I accept senior counsel for the applicant’s submission that the effect of his Honour’s questions in the passages of most concern could have applied to counts 1-3, notwithstanding the different subject matter of the particular questions. That said, it is of some significance that the interventions that I have found to be of most concern occurred in the course of cross-examination on peripheral subject matter that was most relevant to counts 8-9, on which the jury was unable to reach a verdict.
It is also of some significance that the applicant’s counsel did not raise any issue during the cross-examination, although I do not give this much weight in circumstances where the interventions occurred at various points during the cross-examination. The dispersal of the interventions, however, does tell against the applicant’s submission that they had a cumulative effect in terms of undermining his evidence, in circumstances where a limited number of the interventions call for the particular criticism that I have made of them above. As counsel for the respondent further submitted, in her closing address the applicant’s trial counsel also relied on some of the answers that the applicant gave to the trial judge’s questions, suggesting that her non-objection could be explained as a rational forensic choice in the circumstances.
I note that the applicant also sought to rely on remarks that David DCJ made about the cross-examination, in her Honour’s reasons on the retrial. Extracts from her Honour’s reasons in the applicant’s written submissions indicate that her Honour was critical of the manner in which the applicant was cross-examined, and also referred in that context to the interventions his Honour made. However, in circumstances where this Court has only those extracts, and none of the evidence that was before her Honour on the retrial, I have placed no weight on her Honour’s comments, noting that her Honour’s views could in any event not be determinative of the issues on this ground.
Considering the interventions in the context of the applicant’s evidence as a whole, which ran for a little over four hours, they were not productive of unfairness rising to the level of miscarriage. Notwithstanding that no objection was made at trial, I consider that ground 1 warrants a grant of leave to appeal. However, I would dismiss the ground.
“[7] … the function to be performed by the Court of Criminal Appeal when determining an appeal on the unreasonable verdict ground is not to determine whether there was error in the factual findings on which the trial judge relied in ultimately finding the accused guilty of the offence tried. The function to be performed by the Court of Criminal Appeal 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 that offence.
[8] That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that ‘the question which the court must ask itself’ when performing that function is ‘whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’, that question being ‘one of fact which the court must decide by making its own independent assessment of the evidence’.”
(Footnotes omitted.)
“It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred [on the unreasonable verdict ground]. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”
The jury’s advantages are not confined to witness testimony and may extend to all of the evidence in the trial, to which they bring their collective wisdom and experience of ordinary affairs: The King v ZT at [9]. In relation to witness testimony, the advantages of the jury may extend to an assessment of matters such as “the tone and manner in which the witness or participants spoke or conducted themselves; their maturity; their emotional state and intelligence; and how they interact with others, including family members, associates, strangers or officials (eg, police officers)”: The King v ZT at [10].
The focus of this ground of appeal was the applicant’s submission that the Crown had failed to exclude a reasonable possibility that the applicant’s account on counts 1-3, as expressed in his evidence at trial and the pretext call, might be true. He relied on a number of aspects of the evidence in this regard.
The applicant first submitted that his evidence, which included that there were other persons at the Bankstown house at the time of the first incident in December 1986, was plausible and found some support in the evidence of Crown witnesses, in particular SM, who agreed that she and her partner spent “one or two nights” at the Bankstown house over Christmas. However, that others were staying at the house around the time of the alleged conduct was not relevantly in dispute. What was in dispute was whether anyone was at the Bankstown house when the applicant and the complainant arrived home from the beach. The complainant’s evidence was that no one was at home at that time.
The applicant next submitted, and it may be accepted, that his denials in his evidence were consistent with what he had said to SW in the pretext call on 3 August 2021. The applicant had said:
“[The complainant], [the complainant] was a young girl coming onto me and I was pushing her away and she was trying, and she was, I’m not blaming her, right … but nothing, nothing ever happened.”
“SW: … If you don’t believe me, she said it was in Sydney when I was at work and what’s his name … [LS and his partner] were staying there and it was after Christmas and we’d just, we just got married, we were in Sydney … And you guys --- … [went] to the beach and guys were fo [sic], in the waves and all the rest of it and you were all over her and then you ---
[Applicant]: Nuh.
SW: --- yeah, you came back and then you two were having, gunna have a shower, you were both in the bathroom about to have a shower and then you head the key door open [sic] [wi]th …at the front.
[Applicant]: Well, I don’t … know where all that story’s coming from, but none of that happened.”
The applicant emphasised that what SW said happened in this call was not consistent with the complainant’s account. However, the complainant gave evidence that she did not tell SW all of the details about what happened. SW corroborated this in her evidence, saying she did not in fact want to know all of the details about what had happened. There was thus some explanation as to the difference in the level of detail between what SW said about these counts in both her evidence and the pretext call, and the complainant’s evidence.
Insofar as the applicant relied upon the narrative in his own evidence as giving rise to a reasonable doubt, the following observations of Kirk JA in Lee v The King [2023] NSWCCA 203 are pertinent (setting out the argument and the first part of his Honour’s response):
“[27] At the heart of the applicant’s argument on ground 1 is the contradiction between the testimonies of C and the applicant. The applicant argues that his own testimony provides a reasonable narrative which is not contradicted by any corroborated evidence, and therefore that the jury must have entertained a reasonable doubt as to the applicant’s guilt. In other words, in light of his own account the jury could not have accepted beyond reasonable doubt that the two counts which C described as occurring did in fact occur.
[28] That argument overstates the force of contradictory testimony in an appeal of this kind. A great many cases – especially those involving sexual assault – depend upon the jury’s evaluation of the evidence of one person in light of the evidence of another or others. That a complainant’s evidence is contradicted by apparently plausible evidence of a defendant does not mean the defendant is entitled to be acquitted on appeal. Nor does the fact that a complainant’s evidence was uncorroborated mean that the jury must have entertained a reasonable doubt: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [53]. Witnesses for either side may forget, exaggerate, reconstruct and/or lie. Determining where the truth lies when faced with competing testimony is a commonplace feature of criminal trials. The jury is ‘the body entrusted with the primary responsibility of determining guilt or innocence’: M at 493. The appeal court must apply the principles summarised above.”
The Crown case on counts 1-3 was one of competing evidence which made it necessary for the jury to examine carefully the honesty, credibility and reliability of the complainant and the applicant: see LS v The King [2024] NSWCCA 110 at [252] (Ward P). In undertaking that task, the jury had a clear advantage in terms of observing the tone and manner in which they each gave their evidence and conducted themselves, their maturity, their emotional state and intelligence: The King v ZT at [10]. Insofar as the applicant sought to rely in this regard on David DCJ’s observations about the applicant and her finding that he was credible, I place no weight on the limited extracts of her Honour’s reasons that were provided in the applicant’s written submissions, for the reasons I have already given.
The applicant submitted that his evidence was materially weakened not by the Crown prosecutor’s cross-examination, but by the trial judge’s interventions, which operated to undermine the Liberato direction that his Honour gave in summing up. At the hearing, senior counsel for the applicant submitted that while the Court would not ignore the answers that the trial judge elicited from the applicant, the Court would nonetheless place less weight on the circumstances of their having been adduced by the trial judge than a jury may have. For the reasons I have given on ground 1, I do not consider that the judicial interventions on which the applicant relied would have had the effect for which the applicant contended, of undermining the Liberato direction.
The applicant then turned to the complainant’s evidence on counts 1-3, submitting that there were good reasons to doubt it.
First, the applicant submitted that the complainant’s account of the conduct constituting counts 1-3 involved the applicant engaging in the alleged conduct in an open part of the house, at a time when other persons were either already at the house or were expected to arrive soon. The applicant submitted that this was implausible. That may be the case if there were other people in the house at the time, as the applicant contended. The complainant’s evidence, however, was that no one else was home at the time. As the respondent submitted, and consistently with the cases to which I have referred above, in resolving this issue as between the applicant’s evidence and the complainant’s evidence the jury had the advantages which are not available to an appellate court, and to which deference must be given.
The applicant next relied on the fact that the complainant’s early complaint evidence, to MB, did not include allegations that were specific to the conduct the subject of counts 1-3, and her evidence about what she said to SW in 1991 referred only to Wagga Wagga, and not Bankstown. SM’s evidence was that the complainant first mentioned the Bankstown offending to her in around 2002 or 2004, and SW’s evidence was that she did not hear about the Bankstown allegations until after she and the complainant had reconciled. However, the absence of more specific complaints about the conduct the subject of counts 1-3 did not undermine the complainant’s evidence. Insofar as the complaints she made to her sisters were concerned, both SM and SW gave evidence that they had been told about aspects of counts 1-3. The absence of significant detail was understandable in relation to SW in light of her stated reticence to hear about what happened.
The applicant also relied on the complainant having added new details in cross-examination, namely, that she had been watching the television in the lounge room, so as to explain why she fell asleep on the divan rather than in the spare bedroom. However, the complainant not mentioning this detail until she was cross-examined could equally have been viewed by the jury as consistent with it being a peripheral circumstance that occurred to her when asked the question about why she had gone to lie down in the lounge room. As the respondent submitted, it was open to the jury to consider this a reasonable explanation for the additional detail, noting that the complainant accepted that she was only mentioning it for the first time in cross-examination.
Finally, the applicant emphasised the complainant’s refusal to make fair concessions when giving evidence, including that she could have made a mistake in preparing notes ahead of her police statements. As with the other matters on which the applicant relied, this was a matter for the jury to consider in assessing her credit and reliability. As the respondent submitted, the jury had the advantage over this Court of seeing the complainant and the other witnesses each give evidence in person.
In Smith v R [2025] NSWCCA 104, Bell CJ made the following observations concerning witness evidence which are pertinent in the present case:
“[37] A court of criminal appeal, in a case where a jury verdict is challenged on the basis that it is unreasonable or cannot be supported having regard to the evidence, proceeds on the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable: Pell at [38]. The Court is required to examine the record to see whether, notwithstanding the jury’s assumed assessment of the credibility and reliability of the complainant, it is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt, ‘either by reason of inconsistencies, discrepancies, or other inadequacy, or in light of other evidence’: Pell at [39].
[38] Inconsistencies or discrepancies may exist at several levels. They may be internal inconsistencies or discrepancies within a complainant’s evidence, as between a complainant’s evidence and other testimonial or documentary evidence, or, where there are two (or more) complainants (such as in the present case), as between those complainants. Inconsistency may also arise in the case of a jury’s verdict on multiple charges: see MacKenzie v The Queen (1996) 190 CLR 348 at 366-7; [1996] HCA 35; Nguyen v R [2017] NSWCCA 145 at [34]-[48]; Holt v R [2021] NSWCCA 140 at [103]-[112].
[39] The ‘mere existence of discrepancies or inconsistencies’ in witnesses’ evidence is ‘scarcely surprising or unusual’ and does not necessarily compel a conclusion that a jury’s verdict is unreasonable: Hanna v R [2023] NSWCCA 182 at [24], [85]. Far from it. As was held in RA v R [2020] NSWCCA 356 at [15]:
‘It is not the law that the establishment of inconsistencies in the evidence in a criminal trial of itself establishes that the jury ought to have entertained a doubt. The resolution of such matters is their quintessential role.’
[40] A court of criminal appeal, in affording a measure of deference to the jury, must also bear in mind that juries are ‘well able to evaluate conflicts and imperfections of evidence’: MFA [(2002) 213 CLR 606; [2002] HCA 53] at [96]; see also Gray v R [2020] NSWCCA 240 at [100]; AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136 at [101]. By way of example, this Court in Hamilton (a pseudonym) v R [2020] NSWCCA 80 at [69] concluded that:
‘Whilst there were, unsurprisingly, inconsistencies and imperfections in the evidence, none of them, whether taken individually or as a whole, suggest that the jury misused its very considerable advantage over this Court in having seen and heard the witnesses give their evidence and that it should have had a reasonable doubt concerning the applicant’s guilt.’”
(Emphasis in original.)
Having considered the arguments that the applicant advanced in support of this ground individually and collectively, and having made my own independent assessment of the evidence, I conclude that the applicant has failed to establish that it was not open to the jury to be satisfied of his guilt beyond reasonable doubt on counts 1, 2 and 3. I would grant leave to raise ground 2 but I would dismiss the ground.
For completeness, I note that counsel for the respondent submitted on this ground that it was useful for the Court to listen to the recording of the pretext call, so as to understand SW’s tone in response to the applicant’s denials, in particular her incredulity. The respondent submitted that as this was a matter that the jury would have taken into account, it was appropriate for this Court to do the same when reviewing the reasonableness of the verdict. Counsel for the respondent accepted that it was also open to the Court to give some deference to the jury’s advantage in both listening to that call and hearing SW give evidence.
In light of the conclusion I otherwise reached on ground 2, I have not listened to the pretext call. In any event, the primary purpose for which the respondent asked the Court to listen to the call was to hear SW’s tone in response to the applicant’s denials. Having regard to the purpose for which the call was made, I was not satisfied that this was a “real forensic purpose” on which the Court would undertake the task of listening to the recording.
I propose the following orders:
The applicant is granted leave to appeal against his convictions on grounds 1 and 2.
The appeal is dismissed.
RIGG J: I have had the considerable advantage of reading the draft judgment of Mitchelmore JA. I agree with the orders proposed by her Honour, and her Honour’s reasons. Having undertaken my own assessment of the evidence at trial, and the arguments advanced in support of ground 2, I am not of the view that it was not open to the jury to find the Crown case proved beyond reasonable doubt.
MUSTON J: I too have had the advantage of considering the draft judgment of Mitchelmore JA and agree with the orders proposed for the reasons given by her Honour.
Like Mitchelmore JA, I have listened carefully to the recordings of the extracted portions of the evidence on which the parties relied and have concluded that the same three interventions made by the trial Judge exceeded what was appropriate in the context of a trial before a jury. As the judgment of Mitchelmore JA makes clear, determining whether – either individually or collectively – these interventions resulted in a miscarriage of justice is a matter of balance, degree and judgment. I have not found the resolution of that issue easy.
The interventions occurred during the cross examination of the applicant. The offences he was alleged to have committed were historical. Given the age and nature of the central allegations made by the complainant, very little contemporaneous or objective evidence bearing on them was placed before the jury. Rather, the outcome of each charge turned largely on the approach taken by the jury to the conflicting accounts of the relevant events given by the complainant and the applicant respectively. Consistent with the Liberato direction they had received, if the jury was satisfied that the account provided by the applicant even might have been true, they were required to acquit. In those circumstances, the jury’s assessment of the credibility and reliability of the applicant’s evidence was central to its task.
Viewed in that context, it is particularly troubling that the most problematic of the trial Judge’s interventions directly probed the reliability of aspects of the applicant’s evidence. Those interventions came perilously close to creating an unfair trial. However, they represented a very small aspect of what was a lengthy cross examination. The tone adopted by the trial Judge in making them did not disclose any sense of hostility or incredulity. And, as has been noted by Mitchelmore JA, the most problematic interventions related to peripheral matters, which were more directly connected to the counts on which the applicant was ultimately acquitted or in relation to which the jury was unable to reach a verdict. Although the matter is finely balanced, I am not satisfied that the interventions of the trial Judge were sufficiently unfair to have produced a miscarriage of justice and, in those circumstances, Ground 1 has not been made out.
Turning to Ground 2, I have conducted my own assessment of the evidence at trial. I agree, for reasons analogous to those provided by Mitchelmore JA, that the verdicts of guilty on Counts 1, 2 and 3 were not unreasonable. The applicant has failed to establish that it was not open to the jury to be satisfied of guilt beyond reasonable doubt in respect of those counts.
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NR
R
(2022) 274 CLR 651
(1990) 19 NSWLR 263
(1994) 181 CLR 487
(2020) 268 CLR 123
(2025) 281 CLR 137
(1983) 152 CLR 657
(1989) 18 NSWLR 74
(1996) 190 CLR 348
(2002) 213 CLR 606
(2022) 110 NSWLR 339