RD (a pseudonym) v R

Court of Criminal Appeal (NSW)|2021-03-10|Before: Macfarlan JA, Walton J, Hamill J, MacFarlan JA

Regina (Respondent) Representation: Counsel: T Ramrakha (Applicant) S Traynor (Respondent)

Judgment

MACFARLAN JA: In May 2019 the applicant stood trial in the District Court on an indictment containing 16 counts of indecent assault of a female under the age of 16, contrary to the now repealed s 76 of the Crimes Act 1900 (NSW). The assaults were alleged to have been committed against the applicant's three daughters, referred to below in descending age order as the First, Second and Third Daughters. The issue at trial was whether the assaults occurred.
At the conclusion of the trial the jury found the applicant guilty on all counts. He was subsequently sentenced by the trial judge to an aggregate sentence of 8 years imprisonment with a non-parole period of 6 years.
The applicant now seeks leave pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to appeal to this Court against his convictions for 12 of the offences charged, namely Counts 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14. He contends that the convictions are "unreasonable, or cannot be supported, having regard to the evidence" (ibid s 6(1)). In the course of the hearing in this Court, he withdrew the application for leave in respect of his conviction on Count 10, resulting in his convictions on Counts 3, 4, 10, 15 and 16 being unchallenged. The challenged convictions related to four assaults (being Counts 1, 2, 13 and 14) on the First Daughter and seven (being Counts 5, 6, 7, 8, 9, 11 and 12) on the Second Daughter. Counts 15 and 16 alleged assaults on the Third Daughter but the convictions on them are not challenged.
Save in relation to Counts 7 and 8, the applicant's submission in respect of the challenged convictions is that it was not open to the jury to be satisfied beyond reasonable doubt that the complainants' evidence of sexual misconduct by the applicant related to the acts particularised by the Crown concerning each count. He argues that the evidence instead constituted only more generalised assertions of misconduct. He puts a different argument in relation to his convictions on Counts 7 and 8, that the Second Daughter's evidence lacked sufficient quality and consistency to permit its acceptance by the jury.
The applicant accepted on appeal that, subject to the specific arguments referred to above, his convictions were not open to challenge. Furthermore, his application was conducted on both sides on the basis that the applicant's arguments were to be addressed solely by reference to the relevant evidence in chief given by the First and Second Daughters and that nothing in their cross-examination, re-examination or the other evidence at the trial bore on those arguments.
The particulars provided by the Crown to the applicant, and made available by the trial judge to the jury, were set out in a document marked at the trial as MFI 3. The particulars were as follows, subject to anonymisation of the complainants' names. It is appropriate to set out the particulars for all of the counts relating to the First and Second Daughters, notwithstanding that the convictions on Counts 3, 4 and 10 concerning them are not challenged. "[The First Daughter] Count 1. 1972 - in accused's bedroom, [the First Daughter] asked to undress. [The First Daughter] performed oral sex on the accused. Count 2. Same occasion as Count 1 - the accused rubbed his hands over [the First Daughter's] body including her vaginal area. Count 3. Same occasion as Counts 1 and 2 - [the First Daughter] again performed oral sex on the accused. Count 4. Same occasion as Counts 1-3 - The accused performed oral sex on [the First Daughter]. Count 13. In the shower - On an occasion when her mother was in hospital - [the First Daughter] performed oral sex on the accused whilst her sisters were asked to touch each other. Count 14. Performed oral sex on the accused whilst sisters asked to touch each other. [The Second Daughter] Count 5. 1973 - [the Second Daughter] at home alone with the accused - he took her hand and put it on his erect penis Count 6. Same occasion as Count 5 - [the Second Daughter] performed oral sex on the accused Count 7. 1974 - In the Shower - accused opened the shower curtain - the accused inserted his fingers in her vagina Count 8. Same occasion as Count 7 - [the Second Daughter] performed oral sex on the accused Count 9. 1974 Horror Movie Night - accused sat next to [the Second Daughter], placed his hand on her groin, and then inserted his fingers in her vagina Count 10. When [the Second Daughter's] mother in hospital - the three complainants were called to the accused's bedroom, and they were asked to touch each other. The accused took [the Second Daughter's] hand and placed it on the vaginas of her sisters. Count 11. Same occasion as Count 10 - the accused inserted his fingers in [the Second Daughter's] vagina Count 12. Same occasion as Counts 10 and 11 - [the Second Daughter] performed oral sex on the accused".

RELEVANT LEGAL PRINCIPLES

The unreasonable verdict ground relied upon by the applicant invokes s 6(1) of the Criminal Appeal Act. As I said in Prasad v R [2020] NSWCCA 349 at [119] with the concurrence of Wilson and N Adams JJ, the question to be addressed by the appellate court in this context is "whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty" (R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66], approving M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63). To similar effect it was stated in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (and see [1]; [117]) that "the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt" (emphasis in original). In Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 at [43]-[45], the High Court confirmed that these formulations are both authoritative and consistent with each other.
As I also said in Prasad, at [120], in addressing this ground the appellate court must make its own independent assessment of the evidence. As well, in a jury trial it must have particular regard to the advantages enjoyed by the jury in seeing and hearing the witnesses give their evidence (M v The Queen at 493; Baden-Clay at [65]) but, as stated in M v The Queen (at 494): "If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."
In support of his arguments, the applicant referred to the decision of this Court in R v AM (Court of Criminal Appeal (NSW), 2 April 1998, unrep) where Gleeson CJ, Smart and Dowd JJ, in dealing with a case in which the appellant had been charged with the indecent assault of his stepdaughter, said: "A common difficulty in cases such as this, especially in relation to allegations of indecent fondling, rather than aggressive penetrative sex, is that complaints are often of a pattern of conduct rather than of any specific incident. This does not mean that a complainant is not telling the truth, and doing her honest best to give an account based on recollection rather than reconstruction. However, an accused person stands charged with committing one or more specific crimes, not with being a person of bad habits. Although evidence of pattern of behaviour is frequently admitted, as it was in the present case, in order to show a relationship between a complainant and an accused, or to provide a context in which specific evidence about particular occurrences may be evaluated, what a jury must ultimately decide is whether there is evidence which establishes beyond reasonable doubt the guilt of an accused of the particular offence or offences charged. … The complainant's evidence in relation to the first incident was given in a manner which alternated between a description of a general pattern of behaviour and an account of a particular event. Furthermore, her description of the particular event was not consistent."
The conviction of the appellant in that case on the only count against him on which he was convicted was quashed on appeal for a number of reasons, including the following sixth reason: "Sixth, the evidence of the complainant in relation to the first incident contained a significant internal inconsistency, and was presented in a manner which raises concern as to whether she was professing to remember a particular incident or describing a pattern of behaviour. This being a case in which a great deal must have turned upon the jury's evaluation of the sworn evidence of the complainant and the appellant, the court must be very cautious about permitting its own view of the facts to lead it to a conclusion that the jury's verdict was unsafe. We are also fully conscious of the difficulties of recollection and of evidence which can confront a complainant who alleges a history of sexual abuse in early childhood. Nevertheless, the considerations listed above, taken in combination, have led us to the conclusion that the verdict in the present case is unsafe, and should not be permitted to stand."
The applicant in the present case also relied on the decision of the Victorian Court of Appeal in Wade v The Queen [2018] VSCA 304 where the complainant in a child sexual abuse case gave the following evidence in chief in relation to charge 2 against the applicant: "I want to ask you about an event where you were playing the game called the Age of Empires? ---Yep, okay. Um, so again same pattern. I would be sitting on his lap. And he would put his hands under my clothes, things like that, and he put his hands down my underwear. And again it just, it runs the same course. All right. Was there ever an occasion that struck you as different because of the temperature of his hands? ---Yeah, he had cold hands. All the time or on a particular occasion? ---On a particular occasion. All right. That's the particular occasion that I want ---? ---Yeah. ---that I'm asking about specifically? ---Yep, okay. Well, as I said, it's the same, the same progression. And I just - I remember feeling his hands, his hands on my body and they were just going under my underwear. And um, yeah, his fingers were cold. It was a horrible sensation. On that occasion - if you like, the cold hand occasion? ---Yeah. Whereabouts do you say that he touched you? ---So he touched me under my top as it - as I said, it follows the same progression. I'd be sitting on his lap and then he would go under my clothes and then he'd be on my back and my chest and then he would go to go under my underwear. And do you say on that occasion that he touched you on or around your vagina? ---Yes." (At [27]).
In finding that the guilty verdict on charge 2 was unsafe and unsatisfactory, the Court said: "[90] The complainant's evidence in chief in support of charge 2 was generalised and principally directed at a pattern of behaviour and continuum of conduct, rather than being specific and directed at a discrete incident of offending. This is apparent not only from the complainant's use of the word 'would' or a contraction of it on six occasions but also from her references to 'same pattern', 'same progression' and 'same course' in relation to charge 2. The strong impression the complainant conveyed was that she was conflating the events that she described. This impression is reinforced by the complainant's statements that 'some memories are … [b]lended' and that it was 'a jumble of memory' and her agreement when asked whether 'some of those things happened frequently and happened in similar ways, so they're blurred together'."
The Court then referred to the absence of any distinctive features which might have assisted the complainant to recall the particular occasion that was the subject of the charge. In quashing the conviction the Court also took into account that the complainant's description at trial of the alleged offending differed from the description she gave in her police statement, that she performed poorly in cross-examination and that there was no independent evidence which supported her allegations concerning the event the subject of charge 2.

DISPOSITION OF THE APPLICATION FOR LEAVE TO APPEAL

Consideration of the proposed appeal in the present case must necessarily turn upon a close examination of the evidence in chief of the First and Second Daughters in relation to the counts on which the applicant's convictions are challenged. The question to be answered in relation to each challenged conviction is whether, having made proper allowance for the jury's advantage over this Court in seeing and hearing the relevant complainant give evidence, it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt of the particular charge made against him. In this respect the evidence needs to have been specific to the particular charges and not merely have constituted "generalised assertions" (see KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11 at [14]) of misconduct by the applicant. To assist in assessing the evidence, I have added emphasis to various parts of the passages quoted from the First and Second Daughters' evidence.

Counts 1 to 4 - an occasion in the applicant's bedroom alone with the First Daughter (the First Daughter's evidence)

The First Daughter's evidence in chief in relation to these counts, which all concerned assaults on her, was as follows. As noted earlier, the applicant's convictions on Counts 3 and 4 are not challenged. "Q. You've told us about a situation where you were with your sisters where things like this were happening. Did these things ever happen to you when it was just you and the accused alone? A. Yes. Q. What's your first specific recollection of that? A. I'd be asleep at night, or in my bed. He would tap me and shake me to wake me up. He'd tell me to go to his room. He would tell me to take my clothes off. I was wearing a nightie. I took my nightie off. He would take his clothes off, and he would tell me to sit on the bed. He'd stand in front of me. He would grab the back of my head, and then he would force his penis in my mouth [Count 1]. Q. Did he say anything while he was doing this, or did he just do it? A. No. He was just doing it. He was just telling me - instructing me what to do. He would - that would last a few minutes, five minutes maybe. Then he'd tell me to get onto the bed, which I did. I was is to [sic] scared not to. He would - he also got on the bed as well, under the sheets with me. He would start rubbing my body, from my chest, down my stomach, my vagina [Count 2]. After a few minutes, he then told me to lie on top of him upside down in the sixty-niner position. He then told me to put his penis in my mouth, and then he instructed me to move my legs to either side of his face. Q. Can I ask-- A. And he-- Q. Sorry. A. That's okay. And then he proceeded to give [me] oral sex, licking my vagina [Count 4]. This lasted a few more minutes. I'm not sure how long, maybe five minutes. He ejaculated into my mouth, but at the time I thought he peed in my mouth [Count 3]. I didn't know what it was. Q. That had never happened before? When he ejaculated in your mouth? A. No. No. This is the first time. Q. What was your reaction to that? A. I was horrified. I thought he had peed in my mouth. I thought it was disgusting. He then got up. He said sorry, and went into the bathroom. I was too scared to move off the bed. I held it in my mouth until he was out of the room before spitting it on to the floor beside the bed. After he came back from the bathroom, he told me to get dressed and go to bed, which I did. Q. And that was the first time that you performed oral sex on him and he ejaculated in your mouth. A. Yes. Q. Was there anything else about that particular series of assaults that helps you recall what happened then? A. It was the first time that he forced me to do the sixty-niner, oral sex. Having him doing oral sex on me at the same time as me doing oral sex on him. Q. Did you ever know what a sixty-niner was? A. No. Q. How old were you in 1972? A. I was eight." (Emphasis added.)
As the Crown submitted on appeal, the latter part of this evidence, dealing with Counts 3 and 4, was in a conventional form. It recounted the First Daughter's actual memory of what occurred, namely, that this was the first occasion on which the applicant ejaculated in her mouth and the first occasion on which he forced her "to do the sixty-niner, oral sex" in which she performed oral sex on him and he performed it on her. This part of the evidence, if accepted, readily established Counts 3 and 4. It is unsurprising that the applicant did not challenge his convictions on these counts.
That evidence however stood in contrast to the earlier part of the evidence, which the Crown relied upon in support of Counts 1 and 2. Although the First Daughter gave the evidence in response to a question asking her for her "first specific recollection" of a sexual assault occurring when she was alone with the applicant, her evidence was expressed in terms of what habitually occurred, characterised by her frequent use of the word "would", or an abbreviation of it.
It is possible that the witness specifically recalled Counts 1 and 2 occurring on a particular occasion, rather than conflating the events she described with other occasions when there may have been a similar pattern of behaviour, but in my view she did not clearly express that to be the case. The observations which I have quoted from R v AM and Wade v The Queen in [9]-[12] above are relevant in this regard. It was open to the Crown to ask the First Daughter to give evidence of what did occur rather than what would have occurred, but it did not do so. In these circumstances, it was not in my view open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the acts charged in Counts 1 and 2. His convictions on those counts should accordingly be quashed.
The Crown submitted on appeal that Counts 1 to 4 were "clearly linked in time, place, and by reference to a specific memory" of a particular occasion. It submitted that it would be "artificial to divorce" the evidence in relation to Counts 1 and 2 from that concerning Counts 3 and 4.
There is however in my view a clear distinction in the evidence. That concerning Counts 1 and 2 is in a general form, not appearing to address a specific occasion. The witness then turned to address a particular occasion and gave evidence in support of Counts 3 and 4.

Count 13 - in the shower with the three daughters (the First Daughter's evidence)

The First Daughter gave the following evidence in chief relevant to this count. "Q. What's your next specific recollection about any incident between yourself and the accused? A. In about 1974, '75, when I was 10, my mother was pregnant with my brother, and she was in and out of hospital. She suffered septicaemia, so she was in and out of hospital for roughly around three months. She started going into hospital around my 10th birthday. Q. That was in October? A. In October, yes. Q. In 1974? A. Yes. My brother was born on 5 January '75. … Q. And what was the arrangement for you to get ready for bed in the evening with showering and bathing [when their father was looking after the children whilst their mother was in hospital]? A. [The applicant] would tell us to go and get - go into the shower with him; get undressed, get in the shower with him. That's where another incident would always occur, and it happened on a very regular basis; almost nightly. Q. Are you able to describe to the members of the jury what happened to you, [First Daughter]? A. He would choose one of us to get on our knees. On one particular time that I'm thinking of, he'd asked me to do it; get on my knees and he would put his penis in my mouth. At the same time, he would have - [Second Daughter] and [Third Daughter] would be in the bathtub as well with us, and he would be instructing [Second Daughter] and [Third Daughter] to wash each other and touch each other's breasts, vagina, bottoms; just general washing each other as well, kissing, cuddling. Q. Is this with all of you in the shower, was it? A. Yes. Q. And was-- A. The shower was above the bathtub. Q. So it was inside the bathtub? The shower is inside the-- A. Yes. Yes. Q. And the four of you would be in there at the same time? A. Yes. We would have two - well, in this instance, I was on one end of the bathtub on my knees with my father standing in front of me, where he could also see [Second Daughter] and [Third Daughter], instructing them to touch each other, which they did. He would force his penis into my mouth, in and out for a short period of time, a few minutes. Then he would tell me to go to [Third Daughter] and tell [Second Daughter] to go to him, get on his (as said) knees and do the same. I saw him put his penis in her mouth, just as my sisters the same for me. He would move his penis in and out of her mouth, and then he would stop, tell [Second Daughter] to go to me. Tell me and [Second Daughter] to wash each other, kiss and cuddle, touch each other's vaginas while he - while I - I could also see him forcing his penis into [Third Daughter's] mouth, in and out. When he finished he'd turned around. I don't know whether he ejaculated or not. I think he did. Then he would get out of the shower and then go to the toilet, which was the next room. He would tell us to finish washing, and then get dressed - dried and dressed, and then we all would go to the kitchen table for our meals. … Q. Forgive me for asking this again, I think you might have already said, but this incident that happened in the shower, you're able to specifically recall that one event, but how often did it happen? A. Almost every night. And it happened a lot longer too, after [the son] was born." (Emphasis added.)
I have reached a different conclusion in relation to the evidence concerning Count 13 to that which I reached concerning Counts 1 and 2. In respect of Count 13, the evidence read as a whole in my view indicates that the First Daughter recalled a specific occasion and the occurrence of the two acts particularised in relation to the Count, namely, the First Daughter performing oral sex on the applicant and her sisters being asked to touch each other.
The witness started by giving evidence of what regularly happened but then commenced to describe "one particular time that I'm thinking of". Certainly, she uses the word "would" a number of times but what follows indicates a specific recollection of acts occurring on the occasion to which she referred. Thus she says that she "was on one end of the bathtub on my knees with my father standing in front of me, where he could also see [Second Daughter] and [Third Daughter], instructing them to touch each other, which they did". She uses the word "would" again but then says "I saw him put his penis in her mouth, just as my sisters the same for me" and that she could "see him forcing his penis into [Third Daughter's] mouth, in and out". Her statement that she did not know whether the applicant ejaculated or not (on that occasion) and that "I think he did" indicates that she was recounting her memory of what occurred.
In these circumstances it was in my view open to the jury to rely upon this evidence to be satisfied beyond reasonable doubt that the applicant was guilty of the charge in Count 13.

Count 14 - watching television incident (the First Daughter's evidence)

The First Daughter's evidence in chief concerning this count was as follows: "Q. Do you recall any other events while your mum was in hospital? Any specific recollections of events that occurred while your mum was in hospital? A. Yes. It had to have been a weekend. Dad was at home with us. We'd be watching TV. Q. It may seem like a stupid question, but do you remember what you were watching on TV? A. Young Talent Time. He'd go in and out of the lounge room. You know, getting a bear [sic], coming back, sitting down and watching TV with us, and he would-- Q. Getting a beer did you say? A. Drinking beer, yes. After a while he would - he got up, and he told us all to go into his room, which we did. He told us to took [sic] all our clothes off. He took his clothes off too, and he would tell [Second Daughter] and [Third Daughter] to kiss and cuddle, touch each other. Vagina, breasts. He'd grab my hand, put my hand on his penis, forcing me with his hand over my - rubbing his penis up and down for about a minute or so. He would then move my hand away. Then he'd grab the back of my hand and [put] his penis in my mouth and continue in and out for a few minutes, maybe five - maybe five minutes. He would stop, tell me to go to [Third Daughter], start kissing and cuddling [Third Daughter], touching her breasts, vagina. I would see him put his penis in [Second Daughter's] mouth, in and out, for a period of time, a few minutes. He would take his penis out of her mouth, tell her to go to me, and tell me and [Second Daughter] to cuddle and kiss, touch each other on the breasts, vagina. Q. Can I just ask you, when you say you have to kiss her, do you mean kissing on the lips or something else? A. Kissing on the lips. Giving cuddles. Touching each other. And I'd also see him putting his penis in [Third Daughter's] mouth and doing the same with her in and out her mouth. That would go for a few minutes, if more. He would stop and he would always go to the toilet, and as he's going to the toilet, he'd tell us to go and get dressed and then go to our room and play. We'd go to our room and we'd just start crying and sobbing." (Emphasis added.)
As in relation to Count 13, it was in my view open to the jury to be satisfied beyond reasonable doubt that the First Daughter's evidence established the applicant's guilt on Count 14. Taken as a whole, I consider it clear that the First Daughter gave evidence of her recollection of a specific occasion as particularised in relation to Count 14 when she performed oral sex on the applicant and he told her sisters to touch each other.
She was asked about "specific recollections" and referred to a weekend on which the family was watching television, identifying the program concerned. She used the word "would" (or a contraction of it) a number of times but interspersed that with language indicating that she was recounting her recollection of a specific occasion. For example, she said "he got up", "he told us", "which we did", (again) "he told us", "he took". The lapse into use of the word "would" did not deprive the evidence of its character of a recollection of what occurred on a particular occasion.
Whilst the view taken in other cases concerning evidence given in them is of limited relevance, it may be useful to note the following features that distinguish the present case, so far as it relates to Count 14, from Wade v The Queen to which I have referred in [11]-[13] above. 1. The evidence in Wade was of a more general nature than in the present case as the complainant in Wade referred to the accused's acts as following the "same pattern", "same progression" and "same course". 2. In quashing the conviction in Wade, the court took into account a number of factors referred to in [13] above that were not relied upon in the appeal in the present case. 3. The complainant in Wade conceded that some of her memories were "blended" and were "blurred together". 4. In Wade there was, as I point out in [13] above, an absence of distinctive features which might have assisted the complainant to recall the particular occasion which was the subject of the charge. As noted in [27] above, that was not however the case here.

Counts 5 and 6 - home alone with the applicant (the Second Daughter's evidence)

The Second Daughter's evidence in chief relevant to these counts was as follows: "Q. When is the first specific memory you have of anything which is not just physical violence occurring in your home? A. I was probably around aged seven when he-- Q. Did you say eight or seven? A. Aged seven. Q. Aged seven sorry? A. I was about aged seven was the first time that he - that I can remember that he sexually abused us. Q. Can I ask you to just talk about that a little bit. What do you specifically recall of that first memory that you have of the sexual abuse? A. I can remember him like touching me and then he, he would try and get me to touch him and-- Q. Can I just ask you, when you say he got you to touch him, what do you mean exactly by that? A. He would get us to touch his penis. Then, he would also touch my vagina. And yeah. Q. Do you remember anything about how that incident started and how it came about in the first place? A. I don't remember a lot of the incidents surrounding it, I remember the act of what he was doing. I can't remember what room it was or I know it had to have been at [home], it would had to have been there, but, all those fine details I can't remember. I can just remember what he did to me or what he made me do. Q. You've mentioned that he made you touch him on the penis; is that right? A. Yes. Q. And do you recall whether anything happened after that? A. Yeah, he, he ejaculated on me, in my mouth and on my face and, just disgusting. Q. If I can just ask you about that, I know it's very hard [Second Daughter], that act when he ejaculated in your mouth, can we just take it a step back. How did that come about that he ejaculated in your mouth? A. Well, he, at first he started, he wanted to - me to touch him with my hand on his penis [Count 5]. And then it sort of, then he would touch me and then on my vagina and then he would, it just and then he told me to suck it, suck his penis [Count 6] and then yeah, and then he ejaculated and he put, like he put, even put my head down towards his penis. Q. How did he do that? A. He just put, put, put his hand on top of my head and pushed me down towards him. Q. You indicated with your hand at the top of your head? A. Yeah, he just sort of like, because I was shorter I guess, but and he's just pushed my head down towards his penis. Q. Because you were only seven years old at that time? A. (No verbal reply) Q. You would have been significantly shorter than him I imagine? A. Sorry? Q. You were a fair bit shorter than him at that time? A. Yes. Yes. Q. And how did that - I know it's a difficult question, how did that make you feel when he was doing that to you? A. Disgusting, like I, I didn't know what was really going on, I didn't know whether and I was upset, because after it happened like I'd go to my room and cry for a while and but then he'd also tell us not to cry and don't let mum know, like, like, don't let your mother know that you're upset and so, I, I, learnt to keep things in a lot. Q. Did he - you mentioned that he ejaculated in your mouth and it was disgusting, what happened immediately after that. Do you remember? A. Well, I was a bit worried, but, I don't know why I was worried about this, probably because mum was really fanatical on keeping the house clean, but, I just remember like grabbing it in my mouth and like spitting it out into my hand and then I remember being worried about it getting on to the floor, because mum, we'd get in trouble off mum. I don't know why I remember that, but, yeah. I was worried about making a mess of it, mess. Q. Did you go somewhere there then did you? A. Yeah, I went, I probably went to, that's probably after that that I went to my room. Laid on my bed and cried I guess. Q. Did your dad say anything to you? A. Yeah, he told me not to tell anybody. That it was our secret and he didn't want me talking about it to mum and a lot of things along those lines. Q. Was that, that incident that happened to you in 1973, that you just described, was that - is that the first time you can remember your dad doing those things to you? A. Yeah, that, yeah, that seems to be the - as I said, I'm not really sure what age I was when I started, but I was quite young, so I'm assuming it was around aged seven, because that was my first memory. Q. This is your first specific memory, when you were seven, but, there may have been incidents before that you say? A. There may have been, but. Q. But you don't have any specific recollection of that? A. No, yeah, I know it probably did happen lot more, but, yeah. Q. If we can just now talk about after that first time, you had your hand on his penis and performed oral sex on him. This is 1973 we're still talking about. Were there further incidents of that nature during the course of that year? A. When I was seven? Q. Yes? A. Yes. Probably, yeah, but I couldn't tell you how many times in that year but I'd say there was, yes. Q. And what is it [Second Daughter] that helps you remember the two incidents that you've described to the jury today? A. I think may be because the first time, the first time that he ejaculated in my mouth and all over me, he, that's the first time that he did it, so, I don't know maybe that's the reason why I remember that, so. That particular time. Q. This happened when you're alone with your dad? A. Yes. Q. You don't recall specifically where your sisters were that day? A. No, no, I can't recall. Q. You just remember that you were alone? A. Yeah. Q. With your dad at home? A. They must have been off with mum somewhere because, yeah, normally have. Q. They weren't there anyway? A. Sorry? Q. They weren't there? A. No." (Emphasis added.)
Read as a whole it is in my view clear that the witness was professing an actual recollection of an occasion in 1973 when the acts particularised in relation to Counts 5 and 6 occurred. These were that the applicant took her hand and put it on his erect penis and that the witness performed oral sex on the applicant. The witness did not say in terms that the applicant "took her hand and put it on his erect penis", as stated in the particulars, but her evidence to the effect that he got his daughters to touch his penis was materially the same.
The witness was asked about her first specific memory and then said that she could remember the applicant touching her but used the word "would" to describe further acts. When she was directed back to the particular occasion she said "I don't remember a lot of the incidents surrounding it, I remember the act of what he was doing … all those fine details I can't remember. I can just remember what he did to me or what he made me do". Her evidence lapsed into use of the word "would" at times but it did so in a context which made it clear that she was recounting what occurred on the particular occasion, with the applicant's ejaculation in her mouth for the first time being a stark reason for remembering it. For example, her statement that she remembered, after the applicant ejaculated in her mouth, "spitting it out into my hand and … being worried about it getting on to the floor" indicates that she was recalling a particular incident.
In these circumstances, the challenges in relation to convictions on Counts 5 and 6 should be rejected.

Counts 7 and 8 - in the shower (the Second Daughter's evidence)

The applicant's challenge to his convictions on these counts is based on a different submission to that applicable to his convictions on the other counts. The applicant contends that the convictions on Counts 7 and 8 were unreasonable because the evidence given by the Second Daughter on this topic was "quite clearly poor and inconsistent", resulting in the evidence lacking credibility. He based this contention on the evidence referred to below which was also the basis of the Crown's response to the contention.
The Second Daughter's initial evidence on this topic was as follows: "Q. And can I just ask you about how you used to sort of get yourself ready for bed in the evening, and how did that happen, and which of your parents was responsible for kind of supervising that activity? A. Well, I would - I would just go into the shower and just shower myself, but then Dad would walk in. I remember one particular day he walked in and - actually, sorry, it must have been after, because I remember I was just starting to develop, and he - I - we had a shower curtain, and then when he came in I just pulled the shower curtain across to cover myself, and then he's grabbed the curtain and pushed it back, and then he got this disgusting smirk on his faces (as said), and looked at my breast and says, 'Ooh', then looked - stare - staring at me, and I just felt really disgusted, and Dad would make - he wouldn't let me cover myself. Q. All right? A. And then he would - and then he decided to fondle me again, which is with him touching my vagina and fingers, and that was one time that he pushed my head down towards him, again, to perform oral sex on him. Q. Sorry, are we talking about the same time, or are we talking about-- A. That was the same time, in the shower. Yeah. Q. Yes. What happened, sorry? A. He started fondling me and then putting his fingers in my vagina, and then he would get me - there was another time when he got me to suck his penis, and he put - pushed his head down - that was another time that he did that. Q. All right? HER HONOUR Q. Sorry, did you say he pushed his head down, or he pushed your head down? A. Sorry, he pushed my head down. Sorry. SOLICITOR ADVOCATE Q. I know it's very hard to remember back now; just to clarify, just to make something clearer, though, [Second Daughter], when you say there was this time you remember that you were in the shower and your dad pulled the curtain across and you described an incident where he started touching you and then put his fingers in your vagina, when you say then there was another time, are you talking about on the same day, or are you talking about a different day that- A. Different day. Q. And what happened on the different day? A. Pretty much the same things. Q. And apart from him putting his fingers in your vagina, did anything else happen during these - the shower incident, or shower incidents, you're talking about? A. He would kiss me and put his tongue in my mouth. That's - that's about it, I think. Yeah. Q. And the time that you're talking about where you were in the shower and he's pulled the curtain across, do you remember how old you were when that incident occurred? A. That one? I was probably about eight or - about eight or nine. Q. And again, would that have been-- A. Actually no, sorry. I was probably about - that was after Dad split - sorry, after mum had [the son], so it would have been after, so I would have been about ten. It was when I started developing. Q. And hence, the comment that he made about your breasts? A. Yeah. Q. Because how old were you at that stage; ten? A. I was about ten, yeah." (Emphasis added.)
The trial judge subsequently suggested to the Crown, in the absence of the jury, that "some of those incidents … may require some more focused questions and failing that, perhaps s 32" (referring to s 32 of the Evidence Act 1995 (NSW) permitting a document to be used to revive a witness's memory in certain circumstances). After that, the Second Daughter gave the following further evidence: "Q. [Second Daughter], when you were giving your evidence before we had morning tea, we were talking about - you were talking about an incident that occurred in the shower when you're alone with your dad and he opened the curtain; made a comment about your breasts and there was subsequently an incident where he inserted his fingers in your vagina. You indicated that there were two incidents that occurred; two shower incidents as I understand them? A. No, there was only one shower incident. Q. Only one shower incident. And there was one - I'm sorry, so, when you - so there was the occasion where there was a shower incident and he put his fingers in your vagina. If we can just go to that particular incident. Is that the extent of your recollection of that incident that he put his fingers in your vagina or did anything happen after that? A. Well, as I said, he put, he wanted me to put my hand on his penis and then he ended up coming as well, that time as well, that's pretty much all I can recall. Q. And again this is when you're about ten or 11? A. Yeah. HER HONOUR Q. You said before the break … when you were talking about what happened in the bathroom and you described how your father placed his fingers in your vagina, you then went on to say something about another time he had you suck his penis. Is that a separate time in the bathroom or the same time in the bathroom? A. No, that was the same time in the bathroom." (Emphasis added.)
The Crown was then given leave under s 32 to attempt to revive the Second Daughter's memory by having her read part of a statement she had given to police. That having occurred, the Second Daughter gave the following further evidence: "Q. Yes. [Second Daughter], when you were giving evidence about the incident in the shower, and you said you recalled that incident in the shower that occurred after your mum came home from hospital, now reading that portion of your statement, is that the same incident you were describing to the jury before, or is that a separate-- A. No, that's the same. Q. The same incident? A. Same incident. Yeah. Q. Where - your recollection at the time of making the statement was that this happened when you were about eight? A. (No verbal reply) Q. Just in paragraph 14 [of the police statement]? HER HONOUR Q. Go back to paragraph 14? A. Yes, I did say that." (Emphasis added.)
It is then necessary to set out in full the evidence that the Second Daughter later gave on this topic: "Q. Today, you've described an incident in the shower where your dad's come in and opened the curtain? A. Mm-hm. Q. There was an aspect of what your dad said or did - remember, you said that he made a comment about your breasts? A. Mm-hm. Q. And - sorry, what was the - I'll just ask you, what was the comment that your dad made to you about your breasts? A. He just got this smirk on his face and said, 'Ooh, they're looking at me.' Q. And at that stage of time, had you - were you in that sort of prepubescent phase where you'd started developing breasts? A. Yes, that's how I know - that particular - yeah, this one. Q. Yes. And is that something that assisted you when you were giving evidence today to focus your mind on when that incident occurred? A. Which one? The one when I was eight, or-- Q. No, no, no, the incident you've described today in the shower-- A. Yeah. Q. We'll get onto any other incidents in a minute, but the incident you've described today-- A. Yep. Q. --in the shower, what is it about what occurred on that day that assists you to remember that that was after - after your mum came home in 1975? A. Because I started to - developing then, and I was about ten when I started developing, so I wouldn't have been developing at eight, so-- Q. Now, looking back at your statement about when you were eight years old, is that the same incident you've described in Court today, or is that a - is that a different incident? A. That's a separate one, yeah. Q. This is a separate incident? A. Yeah, the one that I was - yeah, I was a bit confused on your question before. Q. I'm sorry? A. I just remember-- Q. It probably is the way I asked the questions, and I apologise. But now reading that, today, this is in 1974, when you were eight years old, is there anything you can - any specific memory you have now, when you were eight, that you can tell the jury about now? A. Well, it actually just came to me. I do remember one other incident in the shower, but that actually started when we got up for breakfast and Dad was home this day for breakfast, but he wasn't normally, so - and it was a school day, because they always gave me Cornflakes to eat, and I hated Cornflakes, and if it's sitting in the bowl too long it goes soggy and horrible, so I wouldn't eat it, and then Dad got the bowl and put it on my head, and I had Cornflakes-- Q. I'm sorry, he tipped it over your head; is that right? A. Yeah, he tipped it over my head, and he - then mum told him, 'Oh, that's good, now you can go in and wash her hair now', because she - I had to go to school. Q. Right? A. So, I remember going into the bathroom that time with him, and he was washing my hair, and then his hands started to wander again, touching. Q. All right? A. Well, they - it wasn't - didn't last that long, cause that was before I - I had to go to school, so-- Q. All right? A. I didn't actually mention that in there. Q. Sorry, just to be clear, though, this incident in paragraphs 14 to 17 in your statement, that is an incident that you've just described, that happened just after breakfast time? A. Mm-hm. Q. Is that what we're talking about here? A. Yeah. Q. And sorry, what happened in that - at that time? You went in to have a shower? A. Yeah, he had to wash my hair cause I had Cornflakes and milk all through my hair. Q. Yes? A. And then while he was doing that, like, I was leaning over the bath, cause I didn't wet my whole body, just my head. Q. Yes? A. And then I had to change my clothes, and then he decided to fondle me then as well. Q. And-- A. Cause mum wasn't in the bathroom; she was in the kitchen with the other two. Q. All right? A. My sisters. Q. And again, when you talk about 'fondling', are you talking - what specifically are you talking about? A. He would touch my vagina, and he also - and - and the kissing, and-- Q. What do you remember about the kissing? A. I remember his beard. It was awful. He had a really bushy beard, and he would kiss me and his hair would go in my mouth, so that's a scratchy - I remember his scratchy beard. HER HONOUR Q. Can you describe how it was he touched your vagina on this occasion? A. Yeah, he - he put his fingers in. Q. He put his fingers in? A. My vagina. Yes. Q. Sorry, [Second Daughter], the reason we're asking these questions is you need to actually explain what happened rather than just briefly saying things? A. I didn't realise. Okay, sorry. HER HONOUR: Thank you. SOLICITOR ADVOCATE Q. And you said that this was a relatively short incident, but did he do anything after he put his fingers in your vagina? A. No, it didn't last very long that time, cause I had - as I said, I had to go to school, so it didn't - didn't last very long that time, so yeah, I just remember him, yeah, putting his fingers in my vagina and kissing me at that time." (Emphasis added.)
The effect of this evidence of the Second Daughter so far as it was arguably capable of supporting Counts 7 and 8 was as follows: 1. She first clearly described an occasion when the applicant came into the bathroom while she was showering, looked at her then-developing breasts and smirked disgustingly at her. She was able to say that this occurred when she was about 10 years of age because it was then that her breasts started developing. 2. Both initially and later in her evidence, she said clearly that the applicant put his fingers in her vagina on this occasion. This conformed with the allegation in Count 7, as particularised. 3. In her initial evidence on this topic, the witness also said that the applicant "pushed my head down towards him, again, to perform oral sex on him". She did not, at least in terms, say that the oral sex which was the act particularised in respect of Count 8 was actually performed. 4. In that initial evidence, the witness went on to say that "there was another time when he got me to suck his penis … that was another time that he did that". This tended to confirm that she had not earlier been saying in relation to the shower incident that oral sex had occurred. When asked by the questioner whether she was talking about the same day or a different day when she said "there was another time", the witness responded, "[d]ifferent day". This doubt is increased by the witness's statement near the end of her initial evidence that "he wanted me to put my hand on his penis and then he ended up coming as well, that time as well" without suggesting, at least in terms, that oral sex occurred. On the other hand, almost immediately after, when the questioner referred to the shower incident during which the applicant placed his fingers in the witness's vagina and said "you then went on to say something about another time he had you suck his penis", the witness corrected the question and said "[n]o, that was the same time in the bathroom". This contradicted her other evidence to which I have referred.
Whilst I consider that it was open to the jury to convict the applicant on Count 7, I do not consider that the witness gave evidence in support of Count 8 that was reasonably capable of acceptance. As the applicant submitted, the Second Daughter's evidence did not contain any clear support for that count and lacked sufficient quality and consistency to permit its acceptance. In my view the jury ought to have had at least a reasonable doubt as to whether the applicant committed the act alleged in Count 8. His conviction on that count should accordingly be quashed.

Count 9 - 1974 horror movie night (the Second Daughter's evidence)

The Second Daughter gave the following evidence concerning the incident the subject of this count: "Q. Is there anything else that you used to do as a family on Friday nights? A. Yeah, we used to watch horror movies. It was just horror movie night, so-- Q. Okay? A. Yeah. Q. You often just used to sit around as a family, watching movies? A. Yeah. Yeah. Q. On a Friday night? A. Yep. Q. And do you have any specific recollection of-- A. Yeah. Q. --sitting around with your family, watching a movie? A. Yes. Yes. Q. Are you able to tell us about that? A. Well, that was a good - good time, sort of, most of the time. First, we enjoyed staying up and watching TV, and we were watching the horror movies, and then - but there was one time that Dad - I - there was about ten minutes left of the movie, and [First Daughter] and [Third Daughter] and mum all went to bed and I was by myself with Dad. I was just lying on the floor, and he came over to me and started rubbing my back, and then - yeah, and one thing led to another, and he was-- Q. You were laying on the floor, watching the movie? A. Yeah. Q. And he came - did he come and lay next to you, or was he sitting next to you; what happened? A. Yeah, I think he sat next to me, and then he was just stroking my back, and then it, sort of, one thing led to another, and another incident happened like where Dad would fondle me, or I'd have to fondle him, and-- Q. And what - you were asked to fondle him, and he fondled you. Did anything else happen? A. That night? Q. Yes? A. He just told me not to tell anyone, like normal. Q. When you say he 'fondled you', what exactly do you mean by that? You just need to tell us about what you mean by him fondling you? A. He would put his fingers in my vagina and get me to put - he would get my hand and put it on his penis, and ask me to stroke it." (Emphasis added.)
As particularised, this count involved the applicant placing his hand on the Second Daughter's groin and inserting his fingers in her vagina. It was in my view well open to the jury to find that the Second Daughter's evidence established that this occurred.
The witness professed to recall a particular occasion which she was able to identify, even to the point of recalling how long was left of the movie when the rest of the family left her and the applicant together. The witness then spoke in definitive language of what occurred: "he came over to me", "one thing led to another". She then said that "another incident happened like where dad would fondle me, or I'd have to fondle him". In its context, the reference to "another incident" referred to something that happened (that is, an "incident") on the occasion that she recalled. Her explanation of her "fondling" reference indicated that it did not just occur on this occasion but it was clear that she was giving evidence that, irrespective of whenever else it also occurred, it did happen on this occasion and that it involved the acts particularised in relation to Count 9.
The applicant's challenge to his conviction on Count 9 should accordingly be rejected.

Counts 10, 11 and 12 - sisters together in applicant's bedroom (the Second Daughter's evidence)

The Second Daughter gave the following evidence relevant to these counts. As noted above, at the hearing before this Court, the applicant withdrew his challenge to the conviction on Count 10. "Q. [Second Daughter] just moving ahead now, what's your next specific memory if at all about any incidents with your dad? A. The next one that I remembered was when my mum was in hospital having [the son], she was in hospital for about two months, and she because she was, had toxaemia and that was a time when I know dad touched us quite a few times, like, more than once in the two months, because mum wasn't there, so he had free reign I guess. And that was, that was when he got all three of us and we had to go into his room which is - been(?) at the front of the house and he laid us all in the bed naked and told us to take our clothes off and then he's asked us to put our hands on each other's vagina and to - like of course I wasn't doing it, we, we did it, but I was just put my hand like that and then he would say, 'No, you've got to move your fingers and' you know [Count 10]. Q. So, he was actually giving those instructions to you-- A. Yes. Q. --that you how - how to actually touch? A. Yes. Q. Your sister [First Daughter] and your sister [Third Daughter]? A. And that was the reason why I remember that one was the first, that was the first time or the only time that I can remember all of us being together, and that was when I realised that he wasn't just doing it to me; he was also doing that to them as well. Q. Okay. That's what helps you remember that particular occasion? A. Yeah. Q. That it was the first time that you were all together and you were asked to do that? A. Yeah. Yeah. Q. And [Second Daughter], this was when your mum was in hospital-- A. Yes. Q. --over the Christmas break, December 1974 and January 1975? A. Yes. Q. And this particular occasion, where you were asked to do this to each other, where did this happen? A. It happened in the - in his bedroom, in the front room. That was where mum and Dad shared when they were still together. Q. And do you remember how it came that you were in that bedroom with your dad, on the bed? A. Well, Dad just came and got us all, and told us all to go into the room and get undressed, and lie in the bed, and - and when we did that, then he started telling us to fondle each other, and - and then Dad joined in, and he started fondling us, and-- Q. How did he do that? A. With his hands. He would - he also, I remember getting our hands and putting it onto my sister's, and then he'd say, 'Move your fingers' and, you know, this is how I want you to do it, sort of thing. Q. And did he do anything himself with you? A. Yes. He - he - I'm trying to think of the word-- Q. Just whatever word you feel comfortable with, [Second Daughter]? A. He was pulling himself off. Q. He was masturbating? A. Yes, masturbating. That's the word, sorry. Yeah. Q. And he asked you to put your hands on - and are you saying he took your hand and put it on your sisters' vaginas and asked you to move your hands? A. Yeah. Yep. Q. Did he do anything else with his hands? A. Yeah, he - he also touched us with his fingers. Q. When you say - sorry, I have to ask you - sorry, touched you? A. With - he would put his fingers in our vaginas [Count 11]. Q. And you're recalling this incident because it's the first time you and your sisters were together and this was happening, and he's done this with his hand; put his hand - his fingers in your vagina? A. Mm-hm. Q. And your sisters' vaginas? A. Mm-hm. Q. Did anything else occur on that occasion? A. I think he ejaculated on us. Q. And you know how you were telling us that he made you touch each other; did he make you and your sisters do anything else? A. No, not that I can - no. He would kiss us, and things like that, like - and then put his tongue in our mouth." (Emphasis added.)
Later, the Second Daughter gave the following further evidence: "Q. I'm going to - I just want to ask you now about the incident where these - that you described as the first time that you and your sisters were asked to touch each other? A. Mm-hm. Q. This is after your mum came home from hospital, and - I'm sorry, at the time she was in hospital. I'm sorry, that's my fault. A. Yeah. Yes. Q. And your dad called you into his bedroom, and he grabbed your hands and placed it on your sister's vagina - or grabbed your hand and placed it on your sisters' vaginas - A. Yes. Q. --and you were all lying on the bed; is that right? A. Yep. Q. And where were you lying in relation to your sisters? A. I think I was in the middle. I think [First Daughter] - I can't remember exactly what sequence we were lying in, but I remember I was in the middle, because I had to touch both of them. Q. Okay? A. And I can remember wishing I was on the end, so I didn't have to do that. Q. And then you described that he - by the way, was he clothed or unclothed at that time? A. He was unclothed. Once he went in - he was clothed at first, but then he got us to strip off and then he also stripped off; took all his clothes off. Q. And you described how, after you were made to touch each other on the vagina, that he put his fingers in your vagina; is that right? A. Yes. Q. And do you remember how that - what happened after that? How did that situation-- A. Well, it hurt a little bit. Q. Yes? A. But, yeah, it just hurt a little bit when he did that. Q. How did it make you feel when he was doing those things, when he made you do those things to your sisters? A. Disgusted. Ashamed. Confused. Q. Do you remember whether you were looking at your sisters or talking to your sisters as this was happening? A. I don't think any of us were saying very much at all. Dad was doing all the talking and instructing what he wanted us to do and as - we were only young kids and we, we, we used to get in trouble for talking out of line or whatever and so we didn't, I don't, I don't remember talking to them at all about that. I just remember doing it, what dad wanted us to do. Q. And that was he wanted you to touch your sisters and I think you said he wanted you to move your hands around I think that was your evidence too wasn't it? A. He wanted us to put our fingers inside each other's vaginas. Q. When you say he wanted you to do that, is that something that he said or indicated? A. Yes. Q. Do you remember what he said, I mean it's hard now to remember I know but? A. I can't remember exactly but it was along the lines of, 'no, this, this is how I want you to do it' and then he would grab our hands and like show us, you know, what he wanted us to do. And he would grab our hands and put it on. Q. Do you remember anything about him, because he was naked, do you remember anything about him while this was happening? A. Yeah, he, he ejaculated, that's pretty much yeah. Q. How did he and what were the circumstances of him ejaculating? A. He was, he would actually play with himself while he was watching us, I think he was obviously getting off on it. And-- Q. How long did this go on for, this incident in the bedroom? A. I can't recall exactly how long it went for. It might have been half an hour may be. I can't recall exactly how long. Q. And you've described that he was masturbating, did he do anything else with his penis? A. He would make us put it in our mouth for oral sex with him. Q. But on this occasion when he ejaculated, he didn't ejaculate in any of your mouths? A. No, I don't think he did that time, no. I can't recall, no." (Emphasis added.)
It was for good reason that the applicant withdrew his challenge to his conviction under Count 10. The Second Daughter gave clear evidence to establish that count, as particularised. Thus, she recalled that on the occasion which she was able to identify because it was the first time the three sisters had been assaulted at the same time, the applicant called them to his bedroom and told them to touch each other. The Second Daughter recalled that he took her hand and placed it on the vaginas of her sisters. To the extent that the witness used the word "would" in her description of the events it was clear from the context of her frequent use of the past tense that she was recounting what occurred on the identified occasion.
Count 11 was particularised as the applicant's insertion of his fingers into the Second Daughter's vagina on the same occasion. The witness first referred to this act as what the applicant "would" do but it immediately followed her statement that "he also touched us with his fingers". In context, it is clear that she was explaining that the touching of which she gave evidence in the past tense included the applicant putting his fingers in her vagina. The Crown's follow-up, leading, question referred to that act as something which the witness did recall. The jury was in a much better position than this Court to determine what the witness's response of "Mm-hm" signified. Its verdict was consistent with it understanding it as assent. When the Crown later asked the witness to confirm that the applicant put his fingers in her vagina, she answered "yes". No objection was taken to the question. She then followed this statement up by explaining that "it just hurt a little bit when he did that".
In these circumstances, it was in my view well open to the jury to find that Count 11 had been established.
Count 12 was particularised as an act of the Second Daughter performing oral sex on the applicant. In her initial evidence of the occasion, she referred to the applicant masturbating himself but made no reference to oral sex. Her reference to the applicant ejaculating on the sisters was consistent with her reference to him masturbating and did not suggest that there must have been oral sex. Moreover, at the conclusion of the passage of evidence (see the end of [44] above), the witness answered "no" when asked whether the applicant made her and her sisters do anything else.
When the witness later gave evidence about the same occasion, she again referred to the applicant having ejaculated. When asked "what were the circumstances of him ejaculating", she referred to him masturbating, not to oral sex (see the end of [45] above). When then asked whether the applicant did anything else with his penis apart from masturbating, the witness replied "[h]e would make us put it in our mouth for oral sex with him" (emphasis added). When asked in the next question whether he ejaculated on that occasion in any of the sisters' mouths, the witness said "[n]o, I don't think he did that time, no. I can't recall, no".
This did not in my view amount to evidence reasonably capable of establishing Count 12. The witness was given by the questioner opportunities to say that oral sex had occurred but, significantly, refrained from stating that it had. The highest her evidence rose on this issue was a generalised assertion as to what the applicant "would" do. In relation to this count, that evidence, even when considered in its context, could not reasonably be understood as evidencing a recollection of the witness that oral sex had occurred on this occasion. The applicant's conviction on Count 12 should accordingly be quashed.

CONCLUSIONS AND ORDERS

For the reasons I have given, I have upheld the applicant's challenges in respect of Counts 1, 2, 8 and 12 but rejected his challenges to his convictions on the remaining counts the subject of his application for leave to appeal.
In these circumstances, his convictions on Counts 1, 2, 8 and 12 should be quashed and verdicts of acquittal entered. Notwithstanding submissions by the Crown to the contrary, verdicts of acquittal, rather than orders for new trials, are appropriate. At least in the absence of special circumstances (which are not present here), the Crown should not be permitted to attempt to obtain convictions at a further trial by improving its case. (See R v Taufahema (2007) 228 CLR 232; [2007] HCA 11 at [51]-[52]; and more recently, R v A2 [2019] HCA 35; (2019) 93 ALJR 1106 at [84]-[85]). To achieve convictions, the Crown's case would need improvement because, as I have held, it was not open to the jury on the evidence that was adduced to return verdicts of guilty on Counts 1, 2, 8 and 12.
As the aggregate sentence that the trial judge imposed on the applicant related inter alia to the four counts on which the applicant is entitled to an acquittal, the sentence should be quashed. As this Court does not have evidence as to the applicant's current circumstances and the parties have not addressed submissions to it concerning resentence, the proceedings should be remitted to the District Court for the applicant to be resentenced.
For these reasons, I propose the following orders: 1. Grant leave to appeal in respect of the applicant's convictions on Counts 1, 2, 5, 6, 7, 8, 9, 11, 12, 13 and 14. 2. Allow the appeal in relation to the applicant's convictions on Counts 1, 2, 8 and 12 charged in the Indictment dated 22 May 2019. 3. Quash the convictions on those Counts numbered 1, 2, 8 and 12. 4. Direct a verdict of acquittal on those Counts. 5. Quash the aggregate sentence imposed on the applicant on 16 July 2019. 6. Remit the proceedings to the District Court to resentence the applicant in respect of his convictions on Counts 3-7, 9-11 and 13-16 inclusive. 7. Otherwise dismiss the appeal. 8. Pursuant to Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 5.10, applicant to be detained in custody until his resentencing has concluded. 9. List the matter for mention in the District Court at the Sydney Downing Centre in the arraignment list at 9.30am on Friday 21 May 2021.
WALTON J: I agree with the orders proposed by Macfarlan JA for the reasons given by his Honour.
HAMILL J: I have the advantage of having read the draft reasons circulated by Macfarlan JA. I have reviewed the record of the trial and considered the ground of appeal by reference to the principles enunciated by the High Court in cases such as M v The Queen (1994) 181 CLR 487; [1994] HCA 63 and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 and reiterated and applied more recently in Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394. I agree with the orders proposed by Macfarlan JA and with his Honour's reasons for favouring those orders.
I agree with the presiding Judge that the form in which the evidence said to support counts 1, 2, 8 and 12 was given, and the substance of that evidence, is such that the jury ought to have entertained a reasonable doubt as to the applicant's guilt. The verdicts on those counts were unreasonable and unable to be supported having regard to the generalised evidence relied on by the prosecution at trial. There was no specific evidence capable of supporting those counts and, had an application been made at the conclusion of the prosecution case, the jury ought to have been directed to return verdicts of acquittal.
I also agree with Macfarlan JA's analysis in relation to the remaining counts. The failure of the Prosecutor at trial to steer the complainants away from the use of the expression "would have" (or similar) was unfortunate but in relation to counts 5, 6, 7, 9, 11, 13 and 14 the evidence established that the respective complainants were bringing to mind, and testifying to, specific and particular occasions and sexual acts.
I do not accept that the inconsistencies and ambiguities surrounding counts 7 and 8 - the incident or incidents in the shower alleged by the Second Daughter - gave rise to a reasonable doubt in relation to count 7. However, I agree with Macfarlan JA, for the reasons articulated by his Honour, that count 8 cannot be permitted to stand. It is not clear in relation to that count that the complainant was giving evidence of a specific occasion or speaking either in terms of a general pattern of behaviour or of some other occasion. The evidence was incapable of sustaining a finding of guilt, beyond reasonable doubt, in relation to count 8.
The verdicts of the jury establish that the complainants were accepted by the jury as honest and reliable witnesses: cf Pell v the Queen at [39]. My review of the evidence satisfies me that this acceptance was not only open, it was correct. I do not entertain a reasonable doubt as to the applicant's guilt in relation to count 5, 6, 7, 9, 10, 11, 13 or 14 or the remaining counts as to which no arguments were advanced. The verdicts on those counts were not unreasonable or unable to be supported having regard to the evidence. In reaching those conclusions, I have taken into account the things said in the cases of Wade v the Queen [2018] VSCA 304 and R v AM (Court of Criminal Appeal (NSW), 2 April 1998, unrep). As the judgment of Macfarlan JA shows, the extent to which the matters discussed in those judgments will result in the quashing of a verdict will depend on a careful analysis of the evidence relating to the individual counts.
I agree with, and respectfully adopt, the careful analysis of the evidence and arguments advanced on appeal undertaken by Macfarlan JA and join in the orders his Honour proposes.

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Pursuant to Supreme Court (Criminal Appeal) Rules 2021(NSW)r 5.10, applicant

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