R v Knox

District Court of NSW|2023-09-27

JUDGMENT Introduction The appeal Magistrate's reasons Grounds of appeal S v The Queen Sequence 1 Re sequences 6 & 7 Tendency evidence Complaint evidence Sexualised conversations LB re magazines and nudist beach The remaining tendency evidence Markuleski Implausibility / innocent explanation Appellant's evidence Liberato Mahmood Collusion / contamination Conclusions S v The Queen Tendency issues Markuleski Implausibility / Innocent explanation Liberato Mahmood Collusion / Contamination Impact on magistrate's orders Orders

Introduction

The appellant, appeals his convictions of 6 offences in the Local Court. Five of the matters were sequences of aggravated indecent assault, with one sequence of aggravated act of indecency. There was a further sequence of aggravated act of indecency which was dismissed and that is relevant to consider in relation to a point taken as to the Markuleski direction. The Crown has also lodged a leniency appeal. Submissions have not yet been heard on that aspect, pending the outcome of the conviction appeal. These reasons deal with the conviction appeal.
Of the seven charges, five of them were allegations by the complainant PB and two by the complainant LB. PB and LB are sisters and are nieces of the appellant's then wife. The date range for each of the seven charges was between 28 April 1997 being PB's ninth birthday and 31 December 2000. PB was born on 28 April 1988 and LB on 7 December 1990. PB and LB were therefore aged approximately between 9 years and 12 years, 8 months old and 6 years, 4 months and 11 years old respectively in the 3 year, 8 month period it is alleged the offending occurred ("the charge period").

The appeal

There is no issue as to the nature of this appeal, which, as provided for by s18 of the Crimes (Appeal & Review) Act and as has been made clear in numerous decisions such as Charara and Dyason, is a rehearing on the evidence before the magistrate, but with fresh evidence permissible with leave. That did not occur in this case.
In the Crown submissions reference was made to McNabb v DPP [2021] NSWCA 298. That case is authority for the proposition that an appeal under section 18 does require demonstration of a factual, legal or discretionary error in order to succeed. The judgment of Bell P in reaching that conclusion acknowledges that there is authority that no error is required.
Based on cases such as Charara v R [2006] NSWCCA 244 and Dyason v Butterworth [2015] NSWCA 52 the approach to a section 18 appeal can be summarised as follows: 1. An appeal against conviction is to proceed by way of a rehearing on the basis of evidence given in the original Local Court proceedings: s18(1) Crimes (Appeal and Review) Act 2001. 2. The appellate judge is to form their own judgment of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the hearing: Charara v R [2006] NSWCCA 244 at [18] 3. The Court is entitled to consider the reasons of the magistrate including an assessment of credibility issues because the appellate function could not properly take place without reference to them: Charara v R [2006] at [23]-[24] 4. The Court is obliged to give the judgment which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23]. 5. The Court is not obliged in every case to undertake a complete review of the whole evidence and form its own view of the appellant's guilt regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lunney v DPP [2021] NSWCA 186 at [44].
The approach may also be described in the way stated by Justice Gageler in Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1 as the "correctness standard" which was his Honour's way of describing the standard being spoken of in Fox v Percy. With respect, that approach is entirely in line with what is said by Bell P at paragraphs [25] through to [28] of McNabb which included at [25]: "the task for a District Court judge in hearing a section 18 appeal is to form his or her own judgment on the facts and to determine on the basis of the evidence that was before the magistrate (supplemented by any further evidence received pursuant to section 18 (2) of the CAR Act or as a result of the calling of a witness pursuant to section 19) whether that evidence was sufficient to demonstrate the appellant's guilt beyond reasonable doubt. If it did not, error will have been established. Error of law in reaching the conviction may also be established and the rehearing will involve the court reaching a fresh conclusion as to the appellant's guilt on the basis of evidence given in the local Court but without the error of law which tainted the result at first instance." His Honour then went on to observe that a dismissal of a section 18 appeal against conviction will necessarily carry the conclusion that the magistrate did not commit "some legal factual or discretionary error" citing Allesch.
Conversely, his Honour noted that upholding an appeal will occur because the judge on the rehearing will have concluded the appellant's guilt was not established beyond reasonable doubt which necessarily involves a conclusion that the magistrate committed some legal, factual or discretionary error.
In other words under section 18 the District Court judge will not interfere unless it is shown that the magistrate's decision is wrong and if that conclusion is reached there will certainly be an error of law, fact or discretion; so that what the District Court judge is doing is determining the correct result based on the material being considered.
In the present case and in line with the suggestions of Lunney the appellant in written submissions, supplemented orally, identified various grounds of appeal. They will be referred to below, though not in the order in which they appeared in the outline of submissions. Those grounds of appeal are wide-ranging, and it assists to first outline the magistrate's reasons. In this regard, a significant part of the reasons deals with the application of the Crown to lead tendency evidence, with the magistrate determining that the tendency evidence would be allowed.

Magistrate's reasons

At p4-5 of the transcript of her judgment given on 21 February 2023, (JT4-5) the magistrate identifies the matters requiring determination (nb. The transcript references in these reasons are from an electronic version of the transcript which has been annotated, and so may not be in line with the printed transcript. The reference should be within a page or 2 of the page cited). There was no issue concerning the age of the complainants, which was an element of each of the offences, and what was in issue was whether the conduct constituting the sexual offence occurred, be it, for example, the rubbing of the appellant's penis against the complainant in sequence 1, or whether he made PB watch his erect penis for sequence 2.
Notably, at that stage of the magistrate's reasons, the magistrate noted the onus of proof and that it never shifts to the appellant, and that a rejection of the appellant's case does not relieve the prosecution from its onus to prove the case against the appellant. This is a short form and incomplete Liberato direction. Significantly the magistrate stated: 1. Proof of each of the charges relating to PB is dependent on her evidence, meaning the magistrate needed to be satisfied beyond reasonable doubt on the critical aspects of her evidence. So too with LB. 2. Rejection of part of a complainant's evidence will not result in rejection of the whole of her evidence ("may" instead of "will" would be a better way to express this). Reasonable doubt about some evidence must be considered in determining other parts of the complainant's evidence; this being a short form Markuleski direction. 3. The magistrate declined to give herself a direction pursuant to s165B of the Evidence Act, for reasons that are not challenged. 4. The magistrate gave herself a Mahmood direction, in terms that are not challenged, namely that the question is whether there is reasonable doubt as to the appellant's guilt, and not whether the fact finder can resolve an issue of fact, which although not stated, can be seen to be saying, knowing what a Mahmood direction is, that the fact finder is not to speculate on what the evidence may possibly have been. There were significant witnesses not called in this matter, including the appellant's wife in the charge period, who was present in the house when the conduct asserted in the evidence was allegedly happening. One ground of appeal is that the magistrate only superficially applied the Mahmood direction. 5. The magistrate directed herself, pursuant to s294(2) of the Criminal Procedure Act that a delay in complaint does not necessarily mean the allegations are false, and there may be good reasons for the delay.
Her Honour then dealt with the tendency issue. The detail of the tendency notice is set out below. The magistrate set out the evidence of each complainant as to both the alleged offences and other conduct, such as the magazines, the shower conduct and nudist beaches, and then referred to the evidence of AB, including the evidence considered below.
Her Honour noted the position of the appellant at the hearing that the tendency evidence did not have significant probative value. That position is maintained on this appeal, specifically in relation to the alleged tendency supported by AB's evidence, the train conversations, the magazines, and the nudist beach matters.
In her Honour's reasons as to tendency, she correctly deals with the question of admissibility by treating the evidence at its highest. She then sets out why that evidence, as accepted, supports the Crown case in respect of each of the charges, and then deals with the question of significant probative value. In the course of this, her Honour set out why she accepted the evidence of the complainants in this regard. Her Honour then found that the tendency evidence strongly supported the Crown case; in short, that the appellant had a tendency to have a sexual interest in the complainants, and that his conduct, which was accepted as established, of showing pornographic magazines, and of sexualised conversations and going to nudist beaches, together with the cross admissibility of the evidence of the alleged offending, was of significant probative value of the facts in issue as to whether the alleged offending occurred.
The magistrate determined the tendency argument by properly taking the Crown case at its highest and then found, at JT14 and 16, the evidence was of significant probative value, again, taken at its highest, and further that the significant probative value substantially outweighed the danger of unfair prejudice.
Her Honour then turned to the particular charges and found all the sequences alleged by PB were proven beyond reasonable doubt, save for sequence 2. One ground of appeal is based on the dismissal of sequence 2, and whether or not the magistrate has properly instructed herself with, and applied a Markuleski direction.
The magistrate's reasoning is considered below as is relevant to the various grounds of appeal. In short, with the exception of sequence 2, the magistrate accepted the complainants' evidence which she considered was supported by the tendency and complaint evidence. The magistrate made mixed findings as to the evidence of the appellant.

Grounds of appeal

The appeal challenges each of the convictions on various grounds. The appellant also maintains his argument from the hearing in an overall sense that the allegations reflect innocent conduct that has with the passing of time been reconstructed to be something sinister and criminal.

S v The Queen

One ground of appeal raised a point that had not been raised before the magistrate. That point was that in respect of sequence 1, the evidence to support it from the complainant was so general and uncertain that for the reasons stated in S v The Queen (1989) 168 CLR 266, the charge should be dismissed. The same point is taken in respect of sequences 6 and 7 where LB is the complainant.
In the written submissions of the appellant the aspects of S relied on included the following. Firstly from the judgment of Dawson J, that the law requires that there be certainty as to the particular offence of which an accused is charged, if for no other reason that he be able to plead autrefois convict or autrefois acquit, should they be charged a second time.
From the judgment of Toohey J that the objection is that, the accused does not know with any certainty the charge he has to meet. In that judgment reference was made to Johnson v Miller (1937) 59 CLR 467 and the judgment of Dixon J where it was said: The question is whether the prosecutor should not be required to identify one of a number of sets of facts, each amounting to the commission of the same offence as that on which the charge is based. In my opinion he clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint in spite of its apparent particularity is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act matter or thing alleged as the foundation of the charge. (underlining added).
Lastly the following passage from the joint judgment of Gauldron and McHugh JJ: In the course of argument it was stated by counsel for the Crown that it was impossible to particularise or identify any individual act as the offence the subject of any account in the indictment. Accordingly it was said unless the case could be left to the jury on the basis allowed by the trial judge no case could be prosecuted. While the evidence as given by J at the trial suggest that there may be practical difficulties in particularising or identifying one or all of the offences charged, it is not obvious that it is wholly impossible so to do. Whatever practical difficulties may exist, those difficulties (even if amounting to an impossibility) cannot justify a criminal trial attended with such uncertainty that the verdict or verdict must also be seen as uncertain.

Sequence 1

Applying these principles to sequence 1, which is the beanbag allegation, the way it was put in oral submissions was that the evidence amounted to the complainant saying the alleged offending conduct happened all the time but without any particularisation that would allow the appellant to be properly able to meet it.
There is some merit in this submission because of the evidence of PB. PB's evidence in a significant way was in the character of saying what the appellant "would" do. For example at T15.01 is this answer: "I can. So one of the incidents that we would have that I had there with him would he'd be sitting. he would be sitting in the green bean bag this is while we were watching TV. He generally would be watching neighbours from the recorded. So we'd be re-watching it. He would sit there and he would grab one of us or myself he would grab me".
The next question asked if she is able to describe a particular time where the appellant grabbed her and she answered: "yes. So what he would do is that he would sit there with his legs spread apart and he would pull me into him-he would like catch me and pulled me to him and rub me up and down the front of him"
A further attempt at particularity is made in the next question which was answered as follows: "Yes. This would generally happen when Noelene would be sleeping about the lunchtime mark when she would be sleeping"
The prosecutor, perhaps tiring of seeking some particularity, then proceeds to ask questions as if a particular occasion had been identified by asking at line 25 "so he grabbed you. What part of the body did he grab you on?". The answer given was: "So he would just grab any part. Like if you-he would grab me by the hand, the foot, the leg pulled me back into him. So my back would be facing them and then he would hold me down and then he would rub me up and down the front of his genitals".
In fairness to the prosecutor there was then a further attempt to have evidence of a specific time and the answer was that the question was not understood; see line 35.
The closest the evidence gets to a specific time is at line 41 where this answer is given: So that time was when [LB] was sitting on the couch. I was walking past because he would block off going out. There was only one exit out of the lounge room to get to the other side and you because he's so long his legs would go all the way down and his arms would be able to reach us either way and in that time that's when he pulled me in and would do that
An important part of this allegation is that it is alleged that on the occasion of this charged offence, the accused said "can you feel it? Does it feel good?". At T16.41 the complainant was then asked whether that happened all the time meaning the speaking of the words and the answer was "not all the time. I wouldn't say that wording would he would say that all the time but that is a phrase that he would use quite regularly". The complainant then said that those words were spoken on that occasion.
At T 17.03 the complainant was asked what she did after that was said and said "after that there was nothing. It was blank. You get let go and there is and you don't say anything because you weren't meant to be making any noise".
In my view there is no doubt that the evidence just recounted demonstrates the complainant describing a situation which allegedly happened on more than one occasion. This includes reference to the words being spoken. Such a position clearly creates difficulties for an accused person. If a particular occasion can be identified then it may be that the accused can actually recall what is being referred to and there may have been something about that particular occasion which would assist a defence. Further, it is unclear what is alleged to have occurred on the occasion the subject of the charge; did the appellant grab the complainant by the hand, the leg, the foot, or one or more of those body parts?
The Crown relied upon R v JT [2017] NSWCCA 272. That was a case where a stay had been granted in respect of four counts subject to the provision of further particulars. Judge Bennett SC at first instance found that the indictment suffered from latent ambiguity in the way discussed in S. The facts in that case were that the appellant was a 14-year-old at the time of the alleged offending when the complainants came to stay with him and his family for a six-month period. There were six counts in the indictment, the first four in respect of the complainant KM and it was those counts that were the subject of the appeal. The allegations were of fellatio, digital penetration of the vagina and two counts of frottage.
In determining the appeal Adams J noted that the respondent conceded the appeal should be allowed in respect of count 2 and that some detail had been provided in respect of count 4 as the event was witnessed by the complainant's sister. The court held that there were sufficient details provided by the evidence for the accused to know the nature of the charges. The case was distinguished from S on a number of bases including: 1. That in S there had been an unsuccessful attempt to gain particulars prior to arraignment, but not in JT. That is the position here, that is, no particulars were sought. Despite this, and also that the point was not raised in argument at the hearing, there is no point taken by the Crown on the raising of the point for the first time now. What it suggests is that the view of the appellant before the hearing was that there were sufficient particulars. Or it may simply have been something that should have been attended to that was not. In any event, what really matters is what the evidence was and whether it was able to support the charge in light of the principles set out in S. In line with JT however that particulars had not been sought is a matter I take into account. 2. In S there was nothing to distinguish from the number of offences asserted by the evidence which one was the subject of the charge apart from one occasion being the first time it occurred. With respect subject to the presence of the complainant's sister LB that is the position here also. 3. There was a prospect in S that the first occasion of sexual intercourse may have been outside the period of the indictment. That is not a possibility here. 4. In S there were overlapping periods in the indictment which again is not the case here so there is no issue of one of the general occasions being referred to being outside the charge period. With respect, that does not advance matters greatly, though it does demonstrate the more complex nature of S. 5. At [55] her Honour notes that the jury in S was invited to convict so long as they were satisfied at least one act of carnal knowledge occurred within the particular period specified and they were not instructed that they all had to agree on which particular act of carnal knowledge was found proved in respect of each count. 6. In S it was established the applicant did not have the opportunity to test the credit of the complainant because the surrounding circumstances of the particular occasion founding the charge was not clear. There was some evidence of surrounding circumstances in this case, but equally it must be said that evidence was characterised by the generalised nature of that evidence as has been set out above.
In JT at [57] reliance is placed on the short period of time in which the various allegations are said to have occurred namely six months. I note here it is three years and eight months. In JT it was said the complainant could identify where in the house the particular acts took place; that does not advance the position here in respect of sequence 1 because all of the generalised evidence concerning that matter occurs with the beanbag in the same room.
At [58] Adams J states that all the relevant particulars are contained in the two interviews of the complainant and offers the view that it is difficult to see how further particulars could have been obtained in any event. With respect, I consider that statement to be whilst doubtless correct in terms of the case at hand at odds with the passage of Gauldron and McHugh JJ cited above. That is in short, that if difficulties exist even to the point of impossibility in providing particulars, that does not justify a criminal trial attended with such uncertainty that the verdict or verdict must also be seen as uncertain. In other words if on the material, in this case the evidence that was heard by the magistrate, it is uncertain as to just what occasion the charged event is alleged to be then it should not be left to the jury and in this case would be dismissed by the magistrate.
The Crown argued that there was evidence identifying a particular occasion sufficient to enable the case to be met by the accused. The submission in that regard was short and in effect in respect of sequence 1 relied on the fact that what was being described as a discrete incident was when LB was sitting on the couch. If there was only one time that LB had been sitting on the couch when this occurred then, based on JT, the Crown would be in a strong position. Yet the appellant points to the transcript at T82 of 29 September 2021 where in the course of asking questions concerning the beanbag it was asked "now you say that [LB] was involved in this. She was sitting there on the couch, all that sort of thing?" and the answer was "that's right" and it was also agreed that he would grab LB as well.
That question suffers from a great lack of particularity itself but it is enough to allow an inference that the reference to "involved in this" was a reference to more than one occasion.
Ultimately I come to the conclusion that whilst these allegations are very vague they are not so vague as to fall foul of the principles set out in S. The reason for that is because of the alleged presence of LB on the couch and it is not established on the evidence that LB was on the couch at other times when this conduct is occurring to PB. That said it would seem to me very likely that LB, the younger sister on holidays in Byron Bay visiting her uncle, would indeed often be in the lounge room of the small house where the TV is located at a time when her older sister is passing through it. Further, PB's own evidence at T87 21 September 2021 was that LB was also the subject of grabbing. Assuming that is something PB saw, it shows occasions when they were both in the lounge with the appellant in the bean bag, making the assertion of sequence 1 being identifiable by LB's presence a little less likely.

Re sequences 6 & 7

The appellant relies on the principles of S in respect of sequences 6 and 7 also. In respect of those sequences, LB is the complainant, not PB. The evidence in chief for these two sequences is at or begins at T42 of 24 May 2022 as follows: Q. Okay, and do you remember any particular occasion when you're swimming with [the appellant] at the beach? A. Yeah, yes. So the one time I really - was we - my aunty said, "Take her into the water," as she always did, and then we walked down to the water and we wouldn't go deep. It would just be like knee high and I could just float around and paddle around and he would always - he would get on his heels, sit on the back of his heels and we would swim around him. But this one time, and he did it often if it was just us, and he would grab my hips and place me in front of him and, like, when the waves would come up - so he's on his heels. He would, like, prop you up and push himself against you, like, almost in a thrusting action. I just remember just trying to move, like, play but you're just held in this one spot. So when the waves would come up and hit you in the face, you're just stuck because he's holding you by the waist and would just go in the motions, like. Q. When you say he would push himself against you? A. Yep. Q. You were making some gestures when you were saying that and is it fair to say that you were using two of your hands and you had them about 20 centimetres apart and you had them in line, roughly in line with your hips? A. Yeah. Q. Okay. What-- SMART: Objection, your Honour. At this point I'd ask that my friend not lead. HER HONOUR: Yes, I think, well, it was just describing what was shown. It's sort of hard to do it without putting it into words, but anyway. MAGNI: Sorry. Q. So when you're saying he's thrusting himself? A. Mm. Q. What part of the body is he using? A. His groin area, like his penis, like. Q. And where is he - which way are you facing? Are you facing him? Facing away from him? A. Facing the ocean, facing away. Q. And what part of his body is - is there any part of his body contacting your body? A. Yes. Q. What part of the body is contacting your body? A. His crotch area. Like, you could just-- Q. Can you, and I know - "crutch area" is not very specific. A. Okay. Q. Can you describe the specific parts of the body that are touching you? A. I could feel - now I know, I could feel his penis. I felt it, like, just he thank you just rub it. Like, it would just be on your back. That's just exactly what it was, like. Q. And could you feel - can you describe how the penis felt? A. Yes. Q. Was it an erect penis, a flaccid penis? A. It was just like a mushy, bony. You can just feel like it was there. Like, it was just - it was-- Q. So can you describe - you said a mushy, bony? A. Yeah. It was almost like there was like a finger or like some type of - it wasn't like just my back was on his stomach. You could feel that there was a bulge and something poking at your back. You could feel that when you would go rub - when he would move his body up and thrust you down, you could feel it. Q. And what was he - where could you feel that? What part of the body on you could you feel that on? A. On my like buttocks and my back. Like, he would just-- Q. So you gave some evidence there about a particular occasion where your Aunty [NB] told [the appellant] to take you into the water? A. Mm hm. Q. Can you just focus on that particular occasion? Do you remember on that occasion what you were wearing? A. I just had bottoms on. I don't - that was it, like. Q. And do you remember what Graeme was wearing? A. Yeah. He was wearing his red, like, he always wore budgie smugglers, like the swimsuits. Q. And you said they were red? A. Yeah, yes. Q. Did he always wear red ones? A. There was - he had like two, I think. I remember seeing a red one and like a bluish grey one. Q. And so that particular occasion he's wearing his red Speedos and he takes you out into the water and then what does he do? A. So he would do the thrusting and then when he would release him, he would just grab your hand and just place it on his crotch and he would just rub. Like, he would just and go "woo" and just make you cup it. Like, he would get his hand over my hand, place his hand on his penis and go "woo" and then you would just - you would turn and look and then you would just try to keep swimming because that's all I wanted to do. Q. So can you recall a particular time where that sequence of events had happened? Your - you've been told - [NB] said to [the appellant], "Take her out into the water." You're wearing pants which are - no swimming top. You said before that by the time you were ten you would probably be-- A. Yeah. Q. --wearing a swimming top? A. Yeah. Q. He then thrusts you and then you said that he got his hand to cup his penis? A. Yeah. Q. And that's just a distinct time that you can remember? A. Yes Q. Recalling that particular sequence of events? A. Yeah, because I just remember just wanting to just play and just not being able to and getting the - the water just hitting your face, like, just why can't you move, like. Q. And did he say anything in particular to you when he was doing this? A. No. Just the when he would cup your hand he would go "woo" and then he'd just say, like, "Do you feel it?" or, "Do you" - just creepy stuff, like. Q. So the noise you're making is like a "woo". Is that exactly how he would say it or would it-- A. Yeah, he'd go-- Q. --be louder or - because you're quite quiet when you were saying that. A. No, he goes "woo hoo" like a - like a "woo hoo", like a-- Q. Like almost like a wolf whistle noise, is that-- A. Yeah. Q. --what you mean? A. Just always did it, always made that noise. Q. And then so after this time, do you remember how that ended? A. Just like any other time, just go under the water and just normal. (underlining and bold added)
In the Crown's written submissions it was argued that this event covering both sequences and 6 and 7 were sufficiently particularised or sufficiently able to be identifiable as a specific incident by reason of the evidence that the complainant gave that the appellant wore a pair of red speedos; that she was not wearing a swimming top; and that her aunt Noelene had told the appellant "take her into the water"
The appellant argues that is not particularisation at all. This is because the evidence was that the appellant often wore red speedos and indeed the evidence was that he would either wear a pair of red speedos or a blue/grey pair of speedos when at the beach. As to the complainant not wearing a swimming top the evidence was of the complainant at T40 in her examination in chief when asked what she would wear generally at the beach when she was really little that she would wear "just-just undies like bottoms you know" and "we weren't really accustomed to wearing swimming togs and stuff like that". The Crown is correct to point out that the evidence was the complainant by the time she was 10 would probably be wearing a swimming top (see at T45), with the evidence in chief being the complainant agreed that she did not wear a swim top until she was around about 10. The date range of all the charges as noted above ends on 31 December 2000 which is 24 days after LB turned 10. Consistent with that evidence then the offence is particularised according to the Crown by reason of it occurring in the first three years and seven months of the date range but possibly not in the last month.
I accept the submission for the appellant that those two matters are not matters that particularise the allegations, which are said to occur on the one occasion so that it becomes some identifiable specific occasion. This is because there were many occasions where the appellant was wearing red speedos and many occasions almost to the point of always on the evidence where the complainant did not wear a top. The evidence of LB just set out shows that the conduct complained of allegedly occurred on numerous if not many occasions.
The remaining point of particularisation relied upon by the Crown is the fact that on this occasion the aunt had said to the appellant "take her into the water" with the "her" being a reference to the complainant. But as highlighted above that evidence is then followed by the words "as she always did" so that so far as identifying a particular occasion this does not assist. Furthermore, in that same passage set out at [43] above in that same answer the complainant says "but this one time and he did it often if it was just us". In other words, it is being alleged that he did it often if it was just he and the complainant or possibly also her sister. In other words, the occasion being spoken about is an occasion where the aunt was present. Yet the aunt was present on many occasions as indicated by her instruction to the appellant being something that always was done by her. Thus the answer is not something that enables the identification of a specific occasion.
Arguably it could be said that this evidence amounts to saying that the alleged offending occurred when it was "just us" and that it was this "one-time" when the aunt was present that is the charged event. Unlike the alleged presence of LB in sequence 1 this is not a one-off event.
On balance, I do not consider that there is any sufficient particularisation given by reference to the fact that the aunt was present.
Sequence 7 is an allegation evidenced by the answers to 2 questions already set out above but which can conveniently be set out again, and they are: Q. And so that particular occasion he's wearing his red Speedos and he takes you out into the water and then what does he do? A. So he would do the thrusting and then when he would release him, he would just grab your hand and just place it on his crotch and he would just rub. Like, he would just and go "woo" and just make you cup it. Like, he would get his hand over my hand, place his hand on his penis and go "woo" and then you would just - you would turn and look and then you would just try to keep swimming because that's all I wanted to do. And Q. He then thrusts you and then you said that he got his hand to cup his penis? A. Yeah.
The factual distinction between sequences 6 and 7 lies not in the extent of any particularisation but as to the nature of the act said to constitute the offence. That is, so far as particularisation is concerned and trying to identify a particular occasion on which this has occurred the position is the same as with sequence 6. Indeed the position is possibly less particular for this sequence because there is not a reference in the evidence concerning the cupping of the penis to it being "but this one time". That phrase is found in reference to the sequence 6 though overall it could be read as something that occurred on more than one occasion given that the evidence goes on to describe how the appellant allegedly "would" behave. In respect of sequence 7 as shown by the passage just set out there is the same use of the word would clearly indicating a general statement and a more than one occasion event without any qualifier of "but this one time". In any event, the better interpretation of that phrase "but this one time" is a reference to the alleged charged occasion, not to a one-off type of conduct.
In setting out the complainant's evidence at [43] above various parts are underlined. The majority of the highlighted passages identify the use of the word "would". That is often considered not to be a word consistent with an actual recollection of a specific event and at the very least could be described as somebody describing something in a general way and not specifically referable to a specific occasion. That is what is occurring here.
I note the following about the passage set out above at [43]: 1. The first passage in addition to being one where the word "would" frequently appears, (in fact 8 times, plus one "wouldn't"), reads consistently with how the appellant has presented his case, namely that this is innocent conduct, with this passage describing a man playing with a young child in the surf. 2. I note also that the fourth following question does not accurately put the evidence just given by the complainant. The question was "so when you're saying he's thrusting himself?". The complainant did not say the accused would thrust himself; but said that he would push himself against her "like, almost in a thrusting action". This is an example of a leading question hidden behind the guise of repeating what the questioner thinks the witness has just said but with the potential to distort the evidence. The appropriate question would have been to ask "what do you mean when you say he would like prop you up and put himself against you like almost in a thrusting action", rather than putting the positive assertion that he was thrusting himself. 3. The description in this passage of the appellant's penis is variable. One description was that it was "mushy bony", which seems to be a description of both a flaccid and erect penis at the one time. It was described as a bulge and something that could be felt poking at her back. A bulge on an adult male wearing Speedos could well be a non-erect penis though the word poking suggests something more erect. Whilst this does give some support to the Crown case of this conduct giving some sexual gratification it is also evidence that could be viewed as being incidental touching in the course of innocent play. 4. Also supportive of innocent play is the evidence as to the appellant saying the word "woo" and "woo hoo". Those words seem very much consistent with a person clowning about, though the appellant denies ever saying such words in relation to any charge. The suggestion that these words are somewhat sexual arises only due to the very leading question suggesting "like almost like a wolf whistle noise", a suggestion which comes entirely from the questioner and not the witness. Further, that suggestion was answered ultimately by the words "just always did it always made that noise" and so was not embracing the wolf whistle suggestion. 5. The words in bold "now I know" are significant. That evidence means LB did not know at the time that what was occurring was what she now alleges to be an offence. In other words, at the time, she did not consider there was anything untoward but later came to a realisation she believed she had felt a penis. In the meantime, nothing at all changed as between her and the appellant, and their positive relationship continued. In the facts and circumstances of this case, this is good support for the argument of the appellant, that these alleged offences are innocent events that have been misconstrued and distorted with the passing of time. 6. To emphasise the point being made by the appellant, the passage cited above concludes with the question as to how does the complainant remember the episode ending and she answered "just like any other time, just go underwater and just normal".
The principles relevant for determining whether this charge is adequately particularised by the evidence so as to not give rise to a case of latent ambiguity have been discussed above. It is a key part of the circumstance being dealt with by S that the charge being faced by an accused is of conduct which is said to have occurred on multiple occasions and with the lack of particularisation meaning that it cannot be determined on which occasion the charged act allegedly occurred with any particularity so as to allow a person to meet the case being raised against them. The foregoing discussion clearly shows that in respect of sequence 7, there is no doubt that the evidence is that the offending conduct being alleged occurred on more than one occasion. The complainant's evidence "but this one time" was a reference to the alleged occasion of sequences 6 and 7. Yet, consistent with the conclusion at [53] above, when the evidence overall of LB is considered, and with the repeated evidence in general terms describing things that "would" happen, it is being alleged that the act asserted by sequences 6 and 7 is being said to have occurred on multiple occasions.
The situation is that in respect of an event that occurred no later than 31 December 2000, it is said some 20 years later in evidence that on some occasion within a three-year eight-month period, being an occasion when the appellant was wearing a pair of swimmers of the type and colour that he often wore, and being an occasion when the complainant's aunt was present which she often was, and being an occasion when the complainant did not wear a top which she did not do for 3 years and 7 months of the 3 year 8 month period, the complainant and appellant were playing in the surf as they commonly did, that the appellant carried out the acts alleged to constitute sequences 6 and 7, which it is alleged he did more than once, if not many times.
The challenge made by the appellant to the lack of particularity of sequences 6 and 7 is successful. Those charges ought to have been dismissed for a want of particularity. It is being alleged against the appellant that he acted in a criminal way numerous if not many times throughout a three-year eight-month period and it is not possible on the evidence to determine which occasion is being referred to by sequences 6 and 7, giving rise to latent ambiguity.
Further, if that conclusion be wrong, and the sequences were not dismissed on this basis, they should in any event be dismissed for the following reasons: 1. based on the foregoing analysis of LB's evidence above, and particularly from [52] et seq, the evidence is so imprecise and vague in circumstances where it is accepted that there were many occasions of this behaviour occurring without any such offending conduct; 2. the acceptance by the magistrate of the evidence of the appellant in some respects; 3. LB's evidence in at [43] in bold "now I know" (and considered at [53e] above),

Tendency evidence

The Crown served a tendency notice dated 9 September 2020. Argument was heard about that aspect prior to the commencement of the hearing with the magistrate largely reserving her reasons. That was an appropriate course. Yet it does also illustrate a point relevant to tendency evidence and the significance it may have in this case. That point is that in determining whether evidence as to tendency will be admissible the Crown case is considered at its highest. For example in this case one of the tendencies alleged is to indecently assault the complainants including in the manner as alleged in respect of sequences 6 and 7. Thus for the tendency argument that evidence is taken at its highest as establishing that those acts did occur and also free of the need to establish the degree of particularisation required for the charge itself. In a jury trial once that evidence is admitted it is then for the jury to determine for itself whether they consider that evidence is sufficiently persuasive or strong enough to make out the tendency asserted. In a hearing without a jury the factfinder must remain alert to those two distinct phases relating to evidence said to bear out an asserted tendency.
The tendency notice asserted one tendency as to a state of mind and then 4 particular ways in which it was said there was a tendency to act on that state of mind. The asserted tendency to have a particular state of mind was "a tendency to have a sexual interest in the prepubescent/pubescent nieces of his wife aged 7-14 years, in particular, the two complainants [PB] and [LB]".
The four tendencies relied on as to acting on that state of mind were: 1. A tendency to indecently assault the complainants aged 7-11 years in particular by rubbing his erect penis on their back legs hands and when they were visiting him and his wife on school holidays and Byron Bay. 2. To engage in voyeuristic activities with the complainants aged 7-13 years by showing them pornographic magazines and images or watching nude adults through binoculars and nudist beaches. 3. To gain sexual gratification by watching the prepubescent complainants aged 7-11 years in the shower they were naked and involved in the private act of showering in the bathroom with the "swinging doors" at his house in Byron Bay. 4. To initiate sexualised conversations with the pubescent complainants aged 13-14 years when alone with them whilst walking to the train station.

Complaint evidence

The submission for the appellant in this regard was that the evidence of the complainants' aunt, AB, which is recognised to be complaint evidence does not strongly support the fact in issue that he had indecently touched the complainants.
The point being made by the appellant was that complaint evidence cannot be tendency evidence. The argument is it can only be complaint evidence, that is evidence which a jury or factfinder is able to use as to the credit of a complainant and as further evidence as to the fact of the matter being asserted.
In the appellant's written submissions it is accepted that evidence of complaint might show consistency in relation to reporting of the allegations engaged towards their credibility but it does not establish a tendency.
It was the Crown's argument on the appeal hearing that the hearsay evidence of AB of the matters said to establish the tendency was admissible by reason of section 66 of the Evidence Act and could therefore be tendency evidence.
In my view, the parties are somewhat at cross purposes. The appellant accepts that the complaint evidence can show consistency and aid the credit of the complainants and the Crown accepts that the complaint evidence may be relied upon in relation to establishing a tendency. What seems to be the cross purpose is a confusion between the complaint evidence supporting other evidence relied on for the tendency and it being tendency evidence itself.
In my view, the evidence of AB is admissible by reason of section 66 and can be relied upon with other evidence to make out the tendency being asserted. That does not make it tendency evidence; it is evidence supporting a finding accepting the other evidence of tendency.
That said the complaint evidence in this case is vague and generalised. As set out in the submissions for the Crown on the appeal the complaint evidence from PB to AB was "[the appellant] did something" and "[the appellant] did things to… me". AB also gave evidence that PB wished to speak to her mother ([NB]) and that PB and NB then met at the A hotel. After this meeting, PB said to AB "I told her everything" and "I told her details". There was no evidence from AB of the words spoken by PB to NB, and no evidence of NB, the complainant's mother. Nor was there any evidence of this occasion from a friend of NB, L, who was also involved.
This complaint evidence is self-evidently of very little probative value for it does not give any indication of what words were said by PB in relation to the alleged conduct of the appellant.
The Crown also relied on the evidence of AB at T 33 of 7 June 2022 and in particular the fact of her straddling his knee and that he would rub her and to quote the Crown submissions "feeling him get hard like rubbing on him".
When reference is actually made to the transcript, the evidence is not quite so clear. That evidence was: Q. The first time. A. The first was she'd tell me about being on his knee, like, and then that was with the kissing, I think. And then sitting on him, on his lap, like feeling him get hard, like, rubbing on him. Q. When you say, "feeling him get hard", what do you mean? A. Like, I guess he was getting aroused, he was getting erect. Q. Did she ever elaborate on what part of the body she meant by that? A. His penis, she didn't say - she told me that, like, she didn't say penis, but she said with himself, that she'd tell me. Q. Did she elaborate about what position she was sitting in or circumstances of how she came to be sitting on his lap? A. No - I shouldn't say no, I can't remember that, but I can't say no, cause I - she probably did tell me that.
There is nothing wrong with the Crown's submission so far as it goes but when viewed in the context of the whole of the evidence given in that passage it can be seen in a different context. Asking the witness what she meant about evidence which is repeating what someone else has told her is plainly irrelevant. The point of complaint evidence is to hear from someone other than the complainant what the complainant has told others. The answer preceding that question is not in direct speech and has the qualifier "like". It is reasonable to be disposed to think that by that answer the witness is saying the complainant said words to the effect of she felt the appellant get hard, though there does remain some room for doubt about it due to not being direct speech. Rather than asking for an interpretation from the witness a better question would be to ask her to use the words the complainant used. The need for such a question is demonstrated when the witness then goes on to say "like I guess he was getting aroused, he was getting erect". Putting aside that this is said to be a guess which may well just be a turn of phrase, what that shows or at least reasonably suggests is that is not what the complainant said.
Insofar as erections are concerned when asked what part of the body is being referred to albeit there is no evidence of the complainant referring to a body part in particular, the evidence is of what she did not say and that is that she did not say penis. The answer to the question as to what body part the complainant meant, itself an objectionable question, is difficult to unravel and in full is to say "his penis, she didn't say-she told me that, like, she didn't say penis, but she said with himself, that she'd tell me". The one sure thing that can be gleaned from this evidence is that the complainant did not say penis. Most favourably for the Crown case, it would seem to be saying that taking the preceding evidence into account, that he was getting hard with himself. If the evidence was simply that he was getting hard then one would sensibly conclude what is being spoken of is an erection. Just what is meant by the addition of "with himself" is unknown. Sensibly read, however, it would appear that whatever was said by the complainant created the impression in the mind of AB that he was getting hard, most likely his penis. For what it is worth the evidence is of him "getting" hard which logically means somewhere between flaccid and fully erect, and so possibly more like a penis that may be felt due to accidental contact, than if it was a fully erect penis.
I would also note that this complaint evidence refers to kissing which has formed no part of the complainant's evidence as to the alleged misconduct of the appellant.
The result is the complaint evidence of AB, which is relied on to support the allegations of PB and also to be cross admissible as supporting the tendency evidence, is very vague, and to some extent with reference to kissing, inconsistent with PB's evidence (no point is taken about an absence of a s293A Criminal Procedure Act direction; her Honour's comments at JT 21 plainly allow for acceptance that this has not led to any error in that regard, and in determining this appeal, a 293A direction is taken into account). The complaint evidence is more supportive of sequences 3 and 4. The appeal point fails and the evidence of AB is admissible towards making out the tendency evidence.
It remains to be seen just what weight the magistrate gave to the complaint evidence and the tendency evidence.

Sexualised conversations

Another point taken on the appeal concerning tendency evidence was in respect of the alleged tendency to initiate sexualised conversations with the complainants when aged 13 or 14 years old when alone with them walking to the train station.
PB was 13 or 14 in the period 28 April 2001 through to 27 April 2003 and LB was of that age between 7 December 2003 and 6 December 2005. The conversations are therefore no closer than 16 months after the alleged range of dates for the offending and as far away as one month short of five years after the offending.
The argument is that sexualised conversations after the dates of the alleged offending do not give strong support to the commission of the offences.
The appellant did not argue that as a matter of principle evidence of tendency must predate the alleged offending. The point argued was that the evidence did not have significant probative value as required by the section 97 relevant to this case. Further section 101 was not satisfied, which requires the probative value of the evidence must substantially outweigh any prejudicial effect it may have on the defendant.
This is evidence of an inappropriate sexualised conversation. It supports the tendency as to his state of mind and a tendency to act on that state of mind. The question therefore is whether it has significant probative value. In so far as acting on the tendency to have a sexual interest by making sexual comments, it certainly has significant probative value; the crucial question is to what extent does it make more likely the happening of the events in issue. The point taken on the appeal is based on the timing of the conduct, and in my view, without any challenge on principle, that tendency evidence cannot post-date the alleged offending conduct, that ground on these facts fails. Further, the inherent nature of tendency evidence is that it is prejudicial and what is relevant here is whether it is unfairly prejudicial in the sense that it may be misused by the factfinder. I consider the factfinder in this instance well able to give an appropriate direction that in using the tendency evidence it is not to be substituted for the evidence supporting the actual offending.
I would therefore reject this ground of appeal. That said, it remains for the evidence to be considered by the judge of the facts as opposed to the judge of the law (here of course, the same person), as to whether these comments were actually made and as to the fact finder's view as to the extent the alleged tendency makes more likely the happening of the events in issue.

LB re magazines and nudist beach

There was no challenge to the use of the evidence as to the accused watching the complainants in the shower, so that too is evidence that needs to be assessed amongst all the other evidence and not, after having been admitted at its highest. The appellant did challenge however the evidence relating to LB as to the so-called pornographic magazines and attending at a nudist beach as being tendency evidence of acting on his sexual interest by participating in voyeuristic activities with the complainants as being relevant to the fact in issue of the commission of the offences.
It is relevant to remember the oft-cited passage from Hughes: "The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence".
As just noted, in relation to the magazines the objection is taken only in respect of LB. That is the occasion where what occurred was an accident; LB's evidence at T37-38 was of the magazines falling out of the cupboard when the appellant was taking toy cars down to show LB. More than one magazine fell out and LB's evidence is that she saw only one magazine. LB made observations as to only 1 magazine.
I accept the appellant's submission that this really goes nowhere in establishing a tendency to be voyeuristic. Even if that be wrong and it was admitted as tendency evidence in my assessment the evidence is that it was an accident and it would not support to any meaningful extent the tendency alleged. This is a conclusion reached limited to just how it came to be that the magazines were seen by LB. That the magazines were of adults assists the appellant. The suggestion, somewhat understated, appears to be that he is somehow seeking to groom the complainants, or somehow loosen their inhibitions as to nudity. The probative value of this as to the actual charged matters is in my view insignificant. I would also note the word "groom" appears in the 454 pages of the transcript twice, so that does not seem to have been a featured aspect of the Crown case.
As to the occasion on the Queensland beach, the unchallenged evidence of the accused was that there were families and people wearing clothes on that beach as well as nude people. It was not put by the Crown that was not the case so that the Crown accepts that was how it was. On the Crown case the appellant said to LB "Look they're playing leapfrog", thus directing her attention to people who were naked. The evidence concerning this incident is at T48-49. The appellant is alleged to have handed the binoculars to LB and made a creepy comment, though just what that was is not clear. When then asked what the appellant said about the game they were playing (the people on the beach), the answer was "Look they're playing leapfrog" and then handed LB the binoculars. This comment is said by the accused to be the result of collusion between the complainants, which is dealt with below, but it is far from creepy. Accepting this to be so, it provides evidence that is not significantly probative of the tendency being alleged. The description of "leapfrog" may seem to be of people engaging in sexual activity, yet that was not something that was argued to be the case.
In my view neither of these instances evidences a tendency to be voyeuristic, and if that be wrong, then only to a small extent. Further, the tendency to be voyeuristic, by way of magazines or a nudist beach in this way has little impact on the likelihood of the alleged offences occurring so that it is of little relevance.
The appeal in this regard is successful.
It is useful at this point to note the effect the success so far on the appeal has, and how it goes together with the overall submission of the appellant that the evidence of the Crown does not satisfy the onus the Crown bears. This is particularly so given the repeated reliance by the magistrate on complaint and tendency evidence to support her conclusions.

The remaining tendency evidence

What now remains of the tendency evidence is the cross admissible evidence as to all the other sequences, including the evidence of 6 and 7 (which can be relied on as tendency if established on the balance of probabilities), and the other conduct of the train station conversations, the showing of magazines to PB and the nudist beach allegation concerning PB, and the showering evidence. In respect of these matters it is noted: 1. There is nothing clandestine about this behaviour in that it occurs in the ordinary course of daily activities. Clearly, as demonstrated by the facts of Hughes, that is not conclusive at all, but it remains a matter relevant to take into account. 2. As to showering, the appellant returns to the unit, which is small, and necessarily must pass by the bathroom with the shower. He lives there with his partner, with no need for great privacy. His wife's nieces visit for holidays, and he sees no need to renovate the doors simply for the visits of his prepubescent nieces. He necessarily must pass by the batwing or bar room doors of the bathroom, and readily concedes he looked at the complainants as he passed by. There was no suggestion he stopped at the doorway and leered at the complainants, other than the evidence of saying "Woo Hoo", which he denies; he was passing by in his own house and looked in the bathroom. Whilst this can be construed as consistent with the Crown case, for the reasons just stated, it is not something on which great weight can be placed. The challenge of the appellant to this evidence was not that it could not be tendency, but that the conduct was consistent with the appellant's argument of this being innocent conduct which has with the passing of time, come to be perceived as sinister. The evidence may be suggestive of a sexual interest, or it may simply be a lack of respect of privacy. Based on all the evidence, whether or not this evidence is considered to support the tendencies alleged, or accepting that it does, it adds little to making it more likely that the charged matters occurred. 3. I have found that sequences 6 and 7 offend the principle for which S is authority, and are just too vague and general to be left to a jury. That does not prohibit or exclude that evidence as tendency evidence. Yet, for the same reasons that the S point succeeded, it is difficult to place significant weight on a matter about which the evidence reveals so little. 4. The train station conversations are creepy if not perverted. The appellant's argument as to collusion is addressed below. Accepting the conversations occurred as alleged, it shows the appellant in a very poor light, and supports the tendency alleged, which is to do this very thing, that is, initiate sexualised conversations. Yet, as with the other tendency evidence beyond the charged matters, this is not conduct of physical interaction with the complainants. It suggests a sexual interest perhaps, or that he gets some sexual gratification from such interaction, but it shows, at a time possibly years after the alleged offending, that the appellant does not act in a physical way on his alleged sexual interest. This evidence should not be given, at least in isolation, much weight by a factfinder. 5. In respect of the nudist beach allegation concerning PB, the first point is that they did not go to the nudist beach. The appellant took PB to a lookout from which that beach can be seen, along with a large part of the Tasman Sea. To suggest that the point of going there was to watch people who may be nude on the beach is in my view somewhat speculative. PB's evidence was the appellant said to her to tell him what she could see. There was evidence of LB that the appellant took them whale watching using the binoculars to do so; see PB at T108 and LB at T48 where she said "we'd use binoculars for whale watching when we were in Byron and stuff". My view is that this evidence adds little if anything to the likelihood of the alleged offences occurring. I note also at JT13 her Honour says the evidence is of the appellant handing binoculars to the complainants to observe adults at nude beaches; with respect, that is not the evidence. As already noted, the evidence at T28 from PB was initially that the appellant "would" "give me the binoculars to have a look out at the naked people and describe what I could see", yet when asked "he tells you to do something" the answer is "to tell him what I can see". It needs to be borne in mind that this is occurring at a lookout where there is a nudist beach "on the other side" (the other side of what is never made clear), and also a view of the ocean, and of beach to the north if the nudist beach is south. For the appellant to ask the complainant what she could see leaves open inferences other than to look in the direction of the nudist beach. 6. The evidence of the magazines shown to PB must be considered. Her evidence was of opening a closet (which appears to be the closet with the model cars, something accepted in cross examination) not knowing what she was looking for and then seeing the magazines. The evidence also was of the appellant giving PB a magazine to take to her room. She refers to naked men and naked women. That said, the one "vague" thing PB remembers is of a woman. PB was firm in cross examination that she saw men and women in the magazine having sex. That conflicts with the one vague memory she says has of what she saw. Further, when the appellant was cross examined it was positively put to him that the magazines were Playboy and Penthouse. Just what those magazines portrayed is speculation, save that the appellant was insistent the magazines did not display that type of material, but were simply of naked women in explicit poses, but not, in his words "hard core". The appellant denied giving a magazine to PB, and to keeping such a magazine in his drawer at that time, as had been asserted by PB. In assessing this evidence, the issue of the Markuleski direction discussed below is relevant. As with most if not all of PB's evidence, what is being said about this magazine and what she saw is vague. The evidence of the appellant in this regard is not difficult to believe, and may well be true. 7. As to the evidence of the 5 sequences for which PB is the complainant, they can each be relied on as tendency evidence for the other charges. Her Honour deals with this evidence for tendency purposes at JT8 to 13. Possibly the most persuasive evidence in the Crown case is the accepted evidence in respect of sequence 1 of the appellant saying to PB "can you feel it? Does it feel good?" and in respect of sequence 4 the evidence of the appellant saying "can you feel that, can you feel me getting hard", which emerges from a proposition put in cross examination, not in chief. That evidence needs to be considered and weighed up along with all the other evidence. 8. Consistent with that, it must be remembered that whilst each of these pieces of tendency evidence may have little probative value, the evidence needs to be considered overall. Even on that basis, the evidence does not greatly advance the Crown case. 9. A further point needs to be made about the tendency evidence of other conduct, that is, not the charged conduct. That conduct was all conduct of the appellant that did not involve the touching of the complainant or anybody else. Insofar as it relates to the magazines it is described as voyeuristic and may support the tendency to have a sexual interest by reason of the clear sexual nature of those magazines and arguably seeking to lessen the child's inhibitions or perhaps groom the child though little was made of such a submission at the hearing. Yet it cannot be ignored that those magazines were of adult women not prepubescent children. Similarly insofar as the voyeurism at the nudist beach both at Suffolk Park and Queensland is concerned the people on the beach were adults.
The result is that in my view the tendency evidence that remains following the above rulings does not, in the words of section 55 of the Evidence Act, rationally affect the assessment of the probability of the offending occurring in any significant or meaningful way.

Markuleski

One of the grounds in the written submissions is headed "not guilty verdict re-sequence 2". The submission sets out the passage from her Honour's judgment from JT 25 which has been analysed below at [101]-[103], and notes in respect of sequence 2, there was no other supporting evidence or concessions.
It was submitted that none of the remaining sequences in relation to PB were corroborated or were the subject of complaint or other supporting evidence or concessions.
I do not accept that submission taken as a whole. The magistrate has taken the complaint evidence such as it was, and the tendency evidence that she admitted as being supporting evidence and has taken the evidence of the appellant conceding much of the surrounding circumstances as being concessions. That said, the complaint evidence is problematic as discussed above in relation to tendency and like PB's evidence overall is very vague. Further, it follows from the determination of the tendency issues that the magistrate has placed far too much weight on the tendency evidence. As to concessions by the appellant, I tend to the view expressed by the appellant's counsel on the appeal. That view was that it is a somewhat odd approach to rely on the denial of the appellant in relation to sequence 2 as being a matter amongst others leading to the dismissal of that charge and yet when reasonable concessions are made by the appellant in connection with the other charges that is said to be supportive of the complainant. What that also shows is that despite his belligerence, weight was placed on his denial at least in respect of sequence 2, and for that matter on his concessions in relation to the other matters. In respect of his evidence otherwise, it seems to me it should also be given greater weight than it was. Returning to the appellants point however what really emerges is that his evidence is entirely consistent with an alternative inference of it being innocent conduct such as the horseplay with the beanbag or the common life experience of a relative playing with a younger relative in the surf.
The appellant also makes an effective point in that contrary to what was being said by PB there was not even evidence from LB, who is alleged to be present at the time of sequence 1, that she ever saw anything untoward.
In short, in my view the magistrate was wrong to decide sequence 1 without taking into consideration the finding in relation to sequence 2 and her method of referring to it in hindsight in my view was not a proper way of taking it into account. Furthermore, her Honour should have given it greater weight in respect of sequences 3, 4 and 5.
The fact that sequence 2 was dismissed by the magistrate should not lead to the facts that were alleged there being forgotten. As noted below at [103], that allegation is bizarre. That is, not only was the complainant not accepted, but what she was saying was self evidently a very unlikely event.
The evidence for sequence 5 comes from PB so that the Markuleski direction is relevant there also. In the appellant's written submission reference is made to the photograph in evidence which is submitted would have been of a different size in the period 1997 to 2000. It is not clear what photo is being referred to here; it would appear most likely to be photographed numbered either 8 or 9 of Exhibit 1. In any event, it suffices to know that they show the front of the house shielded by trees to both the left and the right to some extent and it is obvious that it is more than likely if not certain that the plants in the photograph would have grown in the 20 years since the alleged offending. It may well be that the accused was more visible from the shower than would now be apparent.
With particular reference to sequence 5, the submission of the appellant was that this was another example of innocent behaviour becoming viewed as sinister many years later. As with the other charges, the appellant denied ever arousing himself whilst naked in the outdoor shower. To support this his case was that it was visible from the street rendering such conduct somewhat unlikely. Furthermore, this is a house located in a beachside suburb with an outdoor shower where he commonly on returning from the beach would have a shower, remove his speedos at the end and then take a step or two into his laundry, a sequence of events that in all the circumstances sounds every day. This view is favourable to the appellant's argument that the offending alleged is innocent behaviour that has become distorted with the passing of time.
The following reasons set out in some more detail why the argument of the appellant concerning the Markuleski direction is accepted.
At JT24 the magistrate found the appellant guilty of sequence 1. She then considered sequence 2. The reasoning for this is at JT24-25 and is as follows: 1. The magistrate notes the allegation of the appellant discussing erections and made her watch his erect penis, and told her to watch him get hard over a woman before approaching a woman on the beach and getting an erection. 2. The magistrate notes the appellant's submissions as to no complaint, the appellant's denials, including of drawing "69" in the sand, and of concoction. 3. The magistrate found the evidence of drawing a 69 was not incredible, and noted PB was unshaken in cross examination. 4. The magistrate noted the appellant denied doing it as he knows many people on the beach. Yet the magistrate inferred that PB was saying the woman was not known to the appellant. 5. The magistrate noted the beach was not one with a passing parade of walkers, so a lack of witnesses is not surprising, and the lack of complaint by the woman is not surprising as there was no evidence she looked at the appellant's speedos, whereas PB's attention was drawn to them.
At this point, the expectation of the reader is that the finding would be guilty. Yet the magistrate then states the quality of PB's evidence was not as strong as her recollections of sequences 1,3, 4 and 5. Her Honour concluded that given the lack of complaint or any other supporting evidence or concessions, she was not satisfied beyond reasonable doubt that the appellant made PB watch his erection.
There are a number of difficulties with this reasoning, as follows: 1. The allegations are bizarre and should be recognised as such. That does not mean they did not happen, as bizarre conduct is not unknown in criminal offending. It is a concern the magistrate fails to acknowledge the bizarre or most unlikely nature of this allegation. It is plainly something relevant to take into account, and it is ignored. 2. The lack of witnesses was a feature of all the allegations. 3. The suggestion that a man unknown to a woman, wearing speedos and gaining an erection would go unnoticed, whilst possible, seems unlikely, yet the magistrate uses this to explain away why no woman complained. 4. The position of the appellant, that he would not do that as he knows many people on the beach, can be seen more broadly as meaning he does not want to be known as some deviate in his community, not that he would only do it with a woman he does not know. 5. The magistrate relied on a lack of concessions, which must be a reference to concessions by the appellant. So faced with an absolute contest of PB's version against the appellant's flat denial, the denial prevails. 6. The evidence shows that it is not correct to say that PB's evidence of other incidents, which is presumably a reference to sequences 1, 3, 4 and 5, is stronger. As shown above, the evidence of sequence 1 was very vague, and for sequences 3 and 4, much the same. Sequence 5 is more specific, though aided by some leading questions; see at T32 of 21 September 2021. Those four sequences are allegations in general terms, made in terms of the appellant "would" do each of the things alleged by those sequences. What he allegedly did was brush a hand over PB's vagina, or rub his penis against her, in the midst of many occasions of innocent enjoyable play, whether this be at home on the bean bag or in the surf, or (sequence 5) "would" tap on the window before showering naked and allegedly masturbate in an outdoor shower most likely visible from the street. The allegations of sequences 1, 3 and 4 are far more generalised, and less strong, than the specific allegation of sequence 2, of a specific occasion which occurred only once. The details of sequence 5 are more comparable in terms of detail to sequence 2, see at T31 of 21 September 2021, yet the details of sequence 2 are the most specific of all. From T18-21 of PB evidence she tells us: 1. "he showed me to watch his penis get hard"; 2. PB says he had a t-shirt on and they were sitting down; 3. Then he asked if PB ever saw a man get a hard-on over a woman, says no, and he said watch this; 4. Then he went to talk to this lady "and then obviously I saw him get a hard-on over this lady"; 5. I saw his penis grow bigger, inside his speedos; 6. the speedos were blue; she then says she watched his penis grow hard earlier before the lady came; T19 7. He returns from lady and says "and that's how a man gets a hard-on over a woman" 1. There is no sound basis if any basis for the magistrate to rely on the evidence not being "as strong" as the other sequences.
Immediately after finding the appellant not guilty of sequence 2, the magistrate gave herself a Markuleski direction. Yet she has already decided sequence 1. Sequence 1 is a charge where the accepted facts were of there being occasions of innocent horseplay between the appellant and PB. It is said on some fairly unspecific occasion, but when LB was there, although LB gives no evidence of it, he touched her vagina and rubbed his penis against her. That is a difficult matter to find beyond reasonable doubt in those accepted facts, and plainly requires total acceptance of PB. Yet in respect of sequence 2 her allegation is fanciful. That would be a strong factor to take into account in determining sequence 1.
The Markuleski direction consisted of simply saying "I now give myself a Markuleski direction". Her Honour did not set out what it was, and she should have. The usual form of the direction is: Giving separate consideration to the individual counts means that you are entitled to bring in verdicts of guilty on some counts and not guilty on some other counts if there is a logical reason for that outcome. If you were to find the accused not guilty on any count, particularly if that was because you had doubts about the reliability of the complainant's evidence, you would have to consider how that conclusion affected your consideration of the remaining counts.
At JT 25 her Honour said: My above findings in relation to sequence 2 is that while her account was credible and not far-fetched beyond belief, etcetera, her recollection of other incidents was stronger, and there was no supportive evidence as opposed to those other counts. Proof of this charge, sequence 2, can be distinguished from proof of the remaining charges and the significant probative value of the tendency evidence.
With all due respect to the magistrate, the meaning of those words is at best unclear. Having found the allegation credible and not far fetched beyond belief "etcetera", she again says the evidence of the other sequences was stronger, which is far from obvious (to the point of not being so) and not explained by the magistrate, and says there was no supportive proof as opposed to the other sequences. The magistrate contradicts this by relying on the tendency evidence, but that evidence is as applicable here as with the other sequences, just as the complaint evidence is.
In respect of sequence 3 and 4, the magistrate accepted PB's evidence, saying she had a clear recollection of this single incident. This was supported by the complaint evidence and tendency evidence. She accepted the appellant said "can you feel me getting hard". There was no consideration of the rejection of sequence 2 beyond what has been discussed above. I would also note that it is not so clear from the evidence that this was a single incident. The evidence is of a particular occasion, and hence there is no S argument, but the evidence in chief of this incident included at T21: "so what he would do is, on this occasion he had me in the ocean and what he would put his leg up, so he had - so I would be saddled on his knee, like, on his thigh, with my back facing him, and he would rub me up and down his thigh. At that point in time too, he would rub his hands on my inner thigh as well". This again is the language of generality, and whilst of a specific occasion, it is not being said it only occurred once.
In respect of sequence 5, again PB was accepted, said to be reliable, honest and accurate, again with no further consideration of sequence 2. Her Honour also relied upon the shower evidence re tendency.
Section 18 requires a review of the evidence and for a decision to be made based on that evidence as viewed by the appeal judge. My view of sequence 2 is that it was rightly rejected, but the reason for that rejection is its inherent unbelievability.
That has significant consequences for the balance of the sequences of PB, in light of the Markuleski direction set out above.

Implausibility / innocent explanation

The appellant gave evidence and that evidence is noted below. Part of the argument for the appellant at the hearing and again on this appeal is that the charges are all explicable by an innocent explanation. In making that submission the appellant was also putting that not only was it capable of innocent explanation but that for the circumstances to amount to the offending that is alleged is implausible, the prime example of which is said to be the dismissed sequence 2. It was further put that given the delay in raising any concerns about the conduct the complainants' evidence is a reconstruction distorted by the passing of time, so that an innocent act has been transformed into a sexualised one.
These arguments were made in respect of sequences 1, 3, 4, 6 and 7.
I have dealt with sequences 1, 6 and 7 in considering the submission relying on S. With respect I agree with the magistrate in relation to sequence 1 insofar as the conduct of the appellant alleged by that sequence is not implausible. The appellant overstates the logistics or perhaps biomechanics of sitting in a beanbag and its consequences as to the accessibility of the groin area. In my view plainly it is possible for conduct as alleged to occur.
The stronger point for the appellant is that it was not in dispute that the horseplay of the type that was said to provide the innocent explanation did otherwise occur. In addition to that, in respect of sequence 1, there was evidence that PB thought that was what was occurring at the time of the alleged offending, when she gave this evidence at T81 / 92 of 21 September 2021: Q. He did play with you-maybe I should rephrase that. I think you use the words something like brothers wrestling or play wrestle or something like that? A. Yes. At the time that's what I thought that that was happening to me. Q. How old were you when you thought that it was something different? A. Once I started getting into high school. It would have been the 13, 14 mark, where you start to - you click - I quickly clicked onto what actually happened to me and that it wasn't normal for an uncle to do those things to you. (bold added)
The evidence is that at that time PB thought what was happening was actually "play wrestle". That is a strong piece of evidence which may on its own, or together with other concerns, create reasonable doubt as to the appellant acting in the way alleged in respect of sequence 1. It is also evidence consistent with the case of the appellant, and is very strong evidence allowing for a finding that the explanation provided for by the appellant by his evidence might be true. As discussed below at [127] et seq, a properly given Liberato direction may result in an acquittal on that sequence though it may also be the Crown case does not meet the necessary onus.
That view is further supported by what I consider the very persuasive evidence at least in large part of the appellant. That is dealt with below but in summary, he was very direct in his answer of many of the questions put to him. The magistrate was undoubtedly correct to describe him as at times belligerent but that does not mean that somebody is being untruthful. I am conscious of and take into account the fact of the magistrate having the benefit of observing the appellant give his evidence. Presuming as we do in this country that the appellant is an innocent man unless and until the Crown satisfies the onus it bears, and assuming what he is saying is correct, namely that innocent horseplay has been misconstrued with the passing of time to become something perverse and sinister, makes it quite understandable that a person being accused of the perverse and sinister and criminal behaviour many years later could behave in the way the appellant did in the witness box. That is not to say that it is to his credit but simply that it should not result in a rejection of his evidence overall, without properly considering that further evidence. Further in that regard, the magistrate has not rejected his evidence overall and indeed part of the basis of her finding as to sequence 2 was the denial by the appellant of that charge.
Sequences 3, and 4 and had it been necessary to consider, 6 and 7, can be viewed in a similar way. The difficulty with the allegations of sequences 3 and 4, putting aside the implausibility argument for a moment, though it should be observed that the alleged positioning of the appellant would suggest he is something of a contortionist, is that in circumstances where the evidence was of frequent trips to the beach on holidays with his young nieces, and in all the surrounding circumstances of them post the alleged offending continuing to happily attend for such holidays, and that there was much enjoyable playing in the surf, then given the rejection of sequence 2 and the need to apply the Markuleski direction, and the difficulties identified with sequence 1, there does emerge reasonable doubt in respect of these two charges. To my mind there is a significant amount of doubt raised as to that offending, being sequences 3 and 4.
Returning briefly to the implausibility argument for sequences 3 and 4, PB gave evidence the appellant stood on one leg, with some part of the foot of his other leg against the first leg, so as to seemingly create a seat. Yet PB also says she straddled his thigh. Those 2 positions, whilst not impossible, are not comfortably compatible, and are unlikely.
I have already determined sequences 6 and 7, however were they allowed to be put before the jury, then for the same reasoning already given as to their vagueness matched up with this accepted frequent innocent behaviour, I would come to the same result even though there is not available here the application of the Markuleski direction. That said, I do not accept the argument of the actual logistics of the offending alleged for those sequences to be implausible.

Appellant's evidence

The accused's evidence commences at T10 of 6 December 2022.
He gave evidence about the layout of the TV area/kitchen where the beanbag was. There was evidence of the layout of his bedroom and consistent with other evidence where the so-called pornographic magazines were. He described them as "I had a year's worth from the 80s of Playboys and Penthouse, the same year. There is 24." There was no evidence better than this as to the content of these magazines. He denied showing those magazines to PB. He recalled the occasion where LB saw a magazine saying it was just probably a Playboy and was just sitting there.
His evidence as to the mirrors in the bathroom turned out to be more accurate than that of the complainants'. He never denied that he would look into the bathroom when the girls were there. He explained there was no privacy due to the nature of the doors that were there. He said he never stood there too long looking at the girls but did admit to staying for two or three seconds and you get a full view as he walked past the cowboy doors. He denied ever going into the bathroom while the girls were showering and indeed that was not Crown's case. He denied ever saying woo woo. He accepted that someone in the second bedroom could see him showering on the outside shower. He said he would have a shower, take his swimmers off and put them on the line but that whilst having a shower he would be wearing something. He described how he and the complainants would go to the beach. He admitted to taking the girls up to the headland up to a lookout. He took many people up there and named and identified some of them. When asked what could be seen from there he said half of Kings Beach, cliffs, rainforest, ocean. He said you can see dolphins, whales in whale season and turtles which was consistent with the evidence of the complainant's saying they would look for whales. He denied ever seeing anybody play leapfrog or that he gave any instructions to look at Kings Beach, again something that is consistent with the PB's evidence (PB's evidence was "tell me what you can see"), though it is different with LB. He gave evidence of his conduct on the beach seeking to ensure that the children were safe so that he would be able to grab them when the waves were going out; T 32.
In cross examination the most striking part of the evidence was the directness of the appellant. The appellant answered "yes" to the first 21 questions he was asked. Many of the following questions are similarly answered in a very direct way. Notably in relation to the Queensland beach when put to him whether he he had a concern about taking a year eight child to a secluded nudist beach he answered "it's not-we go there is always families there, surfers there and there was-so it's not-it's not all nude. There's family there is surfers there. That's why surfers go round there because it's good surf".
He denied that PB had ever said the word leapfrog all that he had said it to LB. He accepted that LB may have seen naked people at the Queensland beach.
A review of the appellant's evidence shows that whilst there were occasions of belligerence such as responding to the question asked by saying "we've been through this. Let's move on" the vast majority of his evidence was very impressive no doubt leading to the positive recognition it received in part at least of the judgment of the magistrate.

Liberato

Although not referred to in the terms of a Liberato direction there were submissions made by the appellant in writing that the charges in relation to the beanbag (sequence 1) and sequences 3, 4, and 5, as well as 6 and 7 are capable of innocent explanation. In oral submissions, express reference was made to the Liberato direction.
The only reference to a Liberato direction in the magistrates' reasons is at JT 19. That is the part of the judgment dealing with tendency. A Liberato direction is not appropriate to be given when considering whether there is tendency evidence because the court must take the approach at that stage of taking the Crown case at its highest that is assuming that it is accepted.
A common form of a Liberato direction is as follows: First, if you believe the accused's evidence, obviously you must acquit. Second, if you find difficulty in accepting the accused's evidence, but think it might be true, then you must acquit. Third, if you do not believe the accused's evidence, then you should put it to one side. Nevertheless, the question will remain: has the Crown, upon the basis of evidence that you do accept, proved the accused's guilt beyond reasonable doubt?
It was at JT 25 that her Honour turned to proof of the charges. In determining the charges there is no reference made to whether or not the version of events given by the appellant might be true.
It is plain that the magistrate rejected part of the appellants' evidence most notably his denial of stating the words "woo woo" when looking into the shower when the complainants were showering. She also accepted, against his denial, that he said this in connection with some of the allegations at the beach.
But it cannot be that that amounts to a rejection of his evidence altogether as most clearly demonstrated by her reliance on his denials in coming to the result that she did for sequence 2.
It is also clear that the magistrate took into account unfavourably to the appellant his demeanour in cross-examination. At JT 22 was this passage in connection with the alleged voyeuristic shower conduct: The defendant agreed that if he heard the shower, "Of course, you're going to look and see who's in the shower. Yeah. But I'd never stand there too long." Two or three seconds. In contrast to the way in which [PB] and [LB] responded to extensive cross-examination, the defendant, while cross-examined relatively briefly on the bathroom showering, showed himself to be impatient, domineering, and belligerent towards the Crown's advocate. He refused to concede that a person hearing the shower would not look into the bathroom. I found his denial that he ever said, "woo woo", unconvincing. Of course, I have to give myself a Liberato direction. My view of the defendant's evidence does not relieve the Crown of satisfying me that I should accept the evidence of each complainants that he stood and stared at them in the shower and said, "woo woo." Given the defendant's concessions that he would look at who was in the shower, in the context that he had two young girls visiting at the time, given the consistency between the accounts described by the girls, I accept the evidence of each of them that he stood outside the bathroom, watched them in the shower and said, "woo woo", loudly for the person in the shower to hear. This finding negates any suggestion that it was an accidental or innocent glance, or that it was a later misinterpretation of innocent conduct. I accept this evidence as evidence of the defendant's tendency to have a sexual interest in his nieces, and to act on that interest.
The appellant is described by the magistrate as impatient, domineering and belligerent towards the Crown's advocate, and having reviewed that part of the transcript I agree with that description with perhaps less emphasis on the domineering but certainly impatient and belligerent. This part of the judgment is dealing with the tendency evidence but it can fairly be taken to be her view of his evidence when the charges were being considered which commences at JT 25. It is revealing to note that when you read the judgment when the actual charges are being considered that the focus is very much on whether or not the evidence of the complainants can be accepted, as is to be expected, but with little if any consideration given to the appellant's version of events.
In relation to sequence 1, it is not a case of rejecting the accused evidence but noting the concessions he made, a matter which is favourable in any analysis of witnesses evidence. As already noted, not only is it favourable on the facts in this case but it is entirely consistent with the appellant's case of the events being capable of innocent explanation. Indeed the magistrate refers at T26 to the appellant's appropriate concession. The magistrate then goes on to say that notwithstanding that evidence, that is the appropriate concession made by the appellant, that she is satisfied of the evidence of PB and gives a range of reasons for it.
Whilst the consideration of whether the appellant's version of events might be true necessarily involves consideration of the evidence of the complainant there has not been a proper consideration here of whether what the appellant says might be true. There can be remaining suspicion.
Her Honour then looked at the complainant's evidence of saying she wanted to go to the appellant's house and saying "I don't know just normal. He was my uncle. Apart from what he did to me he was a great uncle". With respect that is evidence consistent with the appellants case.
A difficulty for the appellant in this sequence is the finding of the magistrate that the appellant said to PB "can you feel it? Does it feel good?" That is fairly persuasive evidence if one works on the assumption that what he is referring to is his penis but even with that assumption, the range of other matters considered above, being the vagueness of the allegation, that PB thought what was happening was "play" wrestling (see [115] above), and the proper application of the Markuleski direction, result in there being reasonable doubt about this sequence. For present purposes (in dealing with the Liberato point) there has not been any consideration of the appellant's evidence when considering the actual charges, and in competition with the view of him being belligerent, in certain parts of his cross examination there is praise for his appropriate concessions.
As to sequences 3 and 4 as noted above this was not a single incident. This is at JT 29. The judgment at this point consists of simply setting out in detail the complainant's evidence. It was relying on the tendency evidence of a sexual interest in PB that countered the argument of it being an innocent event yet there is no consideration of the evidence of the appellant. Again however with this sequence there is the allegation accepted by the magistrate of the appellant stating "can you feel me getting hard", which seems to relate to count 4 rather than count 3. The magistrate accepted those words were said as they were very close to each other. As already noted there was no evidence in chief to that effect, rather it was a proposition put in cross examination (which is difficult to comprehend) but in any event, it is the evidence. Nevertheless, I take the same approach in all the circumstances as with sequence 1 (see at [138]).
Similarly with sequence 5, there is no consideration of the appellants evidence but rather reasons for rejecting the criticisms of the complainant's evidence. Consistent with the appellants case the complainant conceded it was possible for someone to see the outdoor shower if they were walking past.. The only reference to the evidence of the appellant is again in reference to his concessions supportive of his innocent conduct namely simply taking his swimmers off before going into the laundry. The fact that PB was correct about that as noted by the magistrate hardly supports the alleged act of masturbation.
In my view what the height of the prosecution case comes down to in respect of sequences 1, 3 and 4 is of the words that were actually spoken by the appellant. There has not however been a proper consideration, recognition and application of a Liberato direction though it would be fair to say that the magistrate rejected the version of events given by the appellant. It is not however that simple because whilst that can be taken from her judgment there is so much of his evidence that she has accepted.
When all the evidence is considered, and in particular the vagueness of the allegations and the three points set out at [191] below in summarising the "innocent explanation" argument, together with the evidence of the appellant that the magistrate accepted, the case being put by the appellant may be true. A proper application of the Liberato direction would result in acquittal and whilst the evidence concerning what was said favours acceptance of the Crown case, there remains reasonable doubt, a conclusion that gains further support given that the source of that evidence is PB who is the subject of a Markuleski direction.

Mahmood

The written submissions briefly refer to this. The point is made particularly with reference to the absence of the complainants' mother NB, and her friend L. As to NB there are various issues, principally that she was alleged to be in the house at the time of the alleged offending, and as to whether PB made any complaint and if so what to her at the A hotel, where L was also involved. The direction requires that the factfinder cannot speculate as to what the evidence may be, but may take the absence of the witness into account. In this case, it simply means there is no evidence as to what was said to NB apart from PB, and the reliance on the complaint evidence should take that into account.

Collusion / contamination

It was argued by the appellant at the hearing that PB and LB had discussed the events the subject of the charges. It was a submission firmly rejected by the magistrate. It is first dealt with in her judgment at page 12 in relation to tendency and the fact of both complainant saying the appellant would say "woo woo" when looking at them in the shower. At that point in the judgment no reason is given for the conclusion that the submission had no foundation.
Then at JT 20 when dealing with each of the charges the submission of collusion and concoction is referred to and is then rejected by the magistrate. It is simplest to set the passage out in full: In relation to collusion and concoction, counsel submits that there is a possibility that the complainants concocted their evidence, or that [PB"s] dominance over [LB] contaminated the reliability of [LB's] accounts. He points to the similarities in their evidence, saying, "woo woo," using the term "leapfrogging", and points to their relationship as sisters. He submits that there were many opportunities for them to discuss their case. They lived together as children, and then later as adult flatmates. They went on the same day to sexual assault counselling, and they first attended the police station together, and [LB] made her statement the following day. He also points to [LB's] phone call to their mother about [PB] as evidence that she and [PB] had already discussed the defendant's conduct towards them. I do not accept those submissions for the following reasons. A relationship with siblings is not unusual in allegations of child sexual assault, nor is the fact that, as siblings, they had many opportunities for private discussions. There is no evidence beyond the words, "leapfrog", and, "woo woo", that their evidence was identical. In some respects, it was not. There was no evidence of malice towards the defendant, or motive to concoct a false account. [LB's] discussion with her mother about his assault on [PB] is evidence that [LB] had been told by [PB] that [the appellant] had done things to her. There is no evidence to refute their denials that they had not discussed the particular nature of the acts, the location, or the time of the acts or any other detail. There was no evidence arising from their discussion which suggested concoction or contamination. Their evidence was that they were not particularly close as adults. They were counselled separately, and they made their statements separately. There was no evidence that between counselling and making their statements,that there was any discussion about what they would say to the police. A discussion about attending a police station together falls short of a suggestion that they then, during separate interviews with detectives, gave concocted or contaminated accounts.
In the submissions of the appellant for this appeal much the same evidence is relied upon.
There are some additional pieces of evidence referred to including at T 56-57 of LB telling her mother when she was in high school about the appellant touching her and PB and that the appellant had done "creepy stuff" to "them". In other words, she knew at high school about things allegedly done to PB. That might well be something of a double-edged sword as it suggests the complainant's were complaining to each other in high school though by the time PB was in high school there had already been some three years pass since the end of the sequence range. Nevertheless, it is an unavoidable inference that in order for LB to say that, she must have some knowledge from some source as to the alleged conduct of the appellant towards PB and the obvious most likely source is PB. This evidence was not referred to in the judgment. In fact at JT 31 the judgment notes that LB agreed that she knew the appellant touched PB but remained unshaken that she never discussed the details of the alleged offending.
That last point suggests that possibly LB knew about it from some source other than PB. Query what source that could be and it is not revealed by the evidence. Further, the case is remarkable for the fact that it is said that LB never witnessed anything of the offending against PB including on the occasion she is alleged to have been in the lounge room for sequence 1 or in relation to the events of sequence 3 and 4. It becomes increasingly likely that the source of her knowledge about the alleged offending against PB is PB.
The evidence concerning the use of the term "woo woo" is simpler to explain on the part of the complainants. The allegation is this was said when he was in the surf or passing in the shower and the fact that they both say he said it in my view strengthens the Crown case rather than weakens it for they both are witnesses to it being said. It is notably denied by the defendant. Of course, should the defendant's denials be accepted the argument gains force.
The other standout piece of evidence on this topic concerns the rather remarkable occurrence of people leapfrogging naked on the beach. The evidence of PB (T25) was that the appellant gave her the binoculars and asked her what she could see, and she did so, and laughed and told him that they were playing leapfrog. The point here is that the word leapfrog is the word of PB, not the appellant. This incident occurred most likely in the charge period, and in any event, prior to the binocular event referred to by LB.
In the binocular event relating to LB, on LB's version the word "leapfrog" was first stated by the appellant. This weakens the argument for the appellant, as it would be stronger if the word came from LB. Yet that does not exclude the possibility that LB is simply telescoping some actual experience, such as the admitted trip to a nudist beach, with some information gained from PB.
It too can go either way. On the appellant's argument, it is simply something made up by the complainants which they discussed. On the other hand on the Crown case whilst it may first have occurred on my analysis as being something said by PB without prompting from the appellant he may have taken that up with LB for that evidence suggests that the suggestion came from him.
It is also said that there may have been some contamination by the role of AB in dealing with both PB and LB. That argument was not developed by any reference to the evidence, but presumably relies on the fact that complaint was made to AB and AB spoke to both PB and LB. I do not accept that submission.
The appellant identifies other evidence to support this ground of appeal namely the similarity of language used by the complainant explaining why they did not complain or tell police certain things.
The answers given in respect to LB were that her "understanding improved" and "we were taught to speak up". For PB the examples given were "I was a child I was doing as I was told" and "I was unaware of what was actually happening to me and what it exactly was". She also referred to a lack of education.
The point is not very strong based on this evidence and does not really add to the argument. What is relevant emerging from this evidence in my view is, as noted above with the evidence of PB as to sequence 1, the statement by her at T 88 on 21 September 2021 "I was unaware of what was actually happening to me and what it exactly was" is another statement similar to "yes. At the time that's what I thought, that that was happening to me". The charge being referred to at T 88 was also charge 1. The significant aspect of this in terms of assessing the complainant's evidence is it is plainly reconstruction.
I agree with the submission that it would be a remarkable thing if two young girls experienced the alleged offending and when years later take steps to disclose the alleged offending did not talk to each other about it. That is a view that cannot be maintained without evidence. The evidence in this case, as discussed above and including the "leapfrog" references, allows for an inference that there has been some discussion between the complainants.
Just how far that goes in influencing the outcome in this case is another matter. In my view is just another matter to be taken into consideration in determining whether the Crown has satisfied the onus it bears.
Insofar as it is a ground of appeal in this case I would uphold it on the basis that the evidence allows for the inference to be made that there was discussion between the parties. It does not allow for a finding that there has been deliberate or malicious concoction nor even for that matter some kind of illegitimate collusion. It is simply that they have discussed it to some extent which cannot be determined and there are some similarities in their evidence which may have resulted from it.

Conclusions

What follows is a statement of the range of conclusions reached in respect of the various grounds of appeal considered above.

S v The Queen

The appeal ground seeking that sequence 1 be dismissed, relying on S, fails due to the feature identified in the evidence of LB being present on that occasion. The evidence as to sequence 1 nevertheless remains troublingly vague.
The appeal ground relying on S in relation to sequences 6 and 7 succeeds.

Tendency issues

The challenges to the tendency evidence concerned the complaint evidence of AB, and the admission of evidence of alleged sexualised conversations when walking to the train station, and of a voyeuristic tendency based on events concerning so called pornographic magazines (in relation to LB), and an attendance at a nudist beach (again, concerning LB, but in my view there is a good argument as to evidence of PB concerning a nudist beach).
The appeal fails concerning the complaint evidence point, but it is noted the complaint evidence is vague to the point of providing only minimal support to the charges alleged.
The appeal also fails as to the conversations on the way to the train station.
The appeal succeeds in relation to the admission of the evidence as to the magazines in relation to LB and the nudist beach in relation to LB. No point was taken as to the tendency evidence concerning PB and the magazines or the nudist beach, nor as to looking at the complainants in the shower.
The examination of the tendency issues required consideration of the complaint evidence. This showed the complaint evidence to be very generalised. The magistrate has put significant weight on complaint evidence which gives very little description of what is alleged to have occurred. The direction as to delays in or variations in complaints made by a complainant is relevant here. Yet where the variation is a lack of detail as opposed to a variation in detail it is, in the facts of this case characterised by generalisation, something upon which not great weight should be placed, and the magistrate has given it too much weight.
The tendency evidence that remains following the above determinations has been considered at [90] et seq above. That evidence should be given little weight, and certainly does not provide a logical reason for accepting the evidence of PB on the other charges following its rejection in respect of sequence 2.

Markuleski

The appeal succeeds on the Markuleski ground.

Implausibility / Innocent explanation

The argument that the offending conduct in sequence 1 is implausible fails; it has more attraction in respect of sequences 3 and 4, where the evidence does appear to paint the appellant as something of a contortionist. Nevertheless, it does not have the result of conclusively showing the conduct did not occur, but is another factor to consider in determining that question.
The argument that the offending conduct is capable of innocent explanation is accepted. This is supported by a range of factors detailed above, and without detracting from that detail, included the following three factors: firstly, the concession by both complainants in respect of at least some of the offending that at the time it occurred it was thought to be innocent conduct ie "play wrestle" (PB), or that "now" she is aware of the offending (LB), meaning at the time she was not; secondly, the concession by the complainants that there was much innocent behaviour of the type in which it is alleged the offending occurred; and third, the acceptance by the magistrate of the appellant's denial of sequence 2, along with his overall evidence which was remarkably frank, albeit at times belligerent.

Liberato

The argument that the allegations may be capable of innocent explanation, discussed above, which was accepted, means that the proper application of a Liberato direction results in the sequences being dismissed. This ground was discussed commencing at [127] above.

Mahmood

Whilst this direction was referred to, it has not been properly applied, for had it been, there was a further reason to place less weight on the complaint evidence.

Collusion / Contamination

The conclusion on this ground is that contrary to the position of the complainants, it is most likely they have discussed the subject matter of the allegations. It is another matter that should have been taken into account by the magistrate, and was not.

Impact on magistrate's orders

At [9] above the approach to a s18 hearing in the view of Bell P (as he then was) was set out. My task on this appeal is "to form my own judgment on the facts and to determine on the basis of the evidence that was before the magistrate, whether that evidence was sufficient to demonstrate the appellant's guilt beyond reasonable doubt. If it did not, error will have been established". I have come to the conclusion that in this case it did not, for the variety of reasons outlined above, which includes having identified a number of errors by the magistrate.
The alleged words spoken at the time of sequences 1 and 4, (so shortly after sequence 3 also) give support to the Crown case, particularly in respect of sequence 4 where the reference is to "getting hard". Speaking those words does not fit with the innocent act theory.
Yet there are a range of other matters which taken together leave reasonable doubt about whether the appellant performed the necessary act to make out the necessary element of each of the offences alleged.
It can be seen from the above reasons and conclusions that the appeal succeeds in respect of each sequence (see inter alia in respect of sequence 1, [42], [96], [104], [115] and [116]; re sequences 3 and 4, [96], [98], [108], and [118]; re sequence 5, [96], [98] and [109]; and re sequences 6 and 7, [55], [57] and [120]). Without detracting from the above reasoning, the evidence in respect of all the counts was to varying degrees vague, with ironically possibly the most detailed evidence being of sequence 2. Sequences 6 and 7 are dismissed on the basis of the S argument, and in any event would have been dismissed for the reasons stated at [57] and [120] above. The effect of the success of the appeal as to the range of matters for which the conclusions have just been set out has meant that the complaint and tendency evidence should be given little weight. This means that the evidence of PB had little if any other support. A proper application of the Markuleski direction as discussed above has resulted in PB's evidence not satisfying the onus the Crown bears on those charges. Further, the appellant's argument that the conduct complained of is capable of innocent explanation is one that is considered may be true, so that the application of the Liberato direction also results in the sequences being dismissed.

Orders

The appeal is allowed.
The convictions in respect of sequences 1, 3, 4, 5, 6 and 7 are set aside.

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