//
[2025] NSWCCA 68
General information, not legal advice.
Court of Criminal Appeal (NSW)
2025-05-12
Ward P at [1], Yehia J at [109], Coleman J at [110]
Original judgment source is linked above.
Zoe will write a short plain-English summary of this judgment and email it to you for free: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: RJ v R [2025] NSWCCA 68
Hearing dates: 9 April 2025
Date of orders: 12 May 2025
Decision date: 12 May 2025
Before: Ward P at [1]; Yehia J at [109]; Coleman J at [110]
Decision: 1. Extend time for the filing of the notices of appeal to the date it was filed.
2. Grant leave to appeal.
3. Dismiss the appeal.
Catchwords: CRIME - appeals - appeal against conviction - where the appellant was convicted of multiple counts of assault with the act of indecency – where the appellant was convicted of sexual intercourse in circumstances of aggravation (under authority) – where the appellant was convicted of common assault – whether the trial judge’s reasons on the subject of consciousness of guilt were inadequate and failed to comply with s 133(2) of the Criminal Procedure Act 1986 (NSW) – whether the trial judge erred by applying consciousness of guilt reasoning in relation to each count on the indictment when it was not open to do so.
CRIME - appeals - extension of time in which to appeal – where the appellant seeks an extension pursuant to s 10(1)(b) of the Criminal Appeal Act 1912 (NSW) to appeal from his convictions – where the notice of appeal was filed six months after the expiry of the notice of intention to appeal
Legislation Cited: Crimes Act 1900 (NSW), s 319
Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1), 8(1), 10(1)(b)
Criminal Procedure Act 1986 (NSW), ss 66, 133(2)
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(5)
Cases Cited: A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174
AB v R [2022] NSWCCA 104
AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
ARS v R [2011] NSWCCA 266
Decision restricted [2022] NSWDC 151
Decision restricted [2022] NSWDC 285
Decision restricted [2022] NSWDC 335
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Edwards v R [2022] NSWCCA 22
EE v R [2023] NSWCCA 188
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
GE v R [2018] NSWCCA 91
Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11
Martinez v Western Australia (2007) 172 A Crim R 389; [2007] WASCA 143
Meakin v R [2018] NSWCCA 288
Mulvihill v R [2016] NSWCCA 259
Palmer v R [2018] NSWCCA 205
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
R v Centraco [2005] NSWCCA 11
R v Ciantar (2006) 16 VR 26; [2006] VSCA 263
R v Cooke [2004] NSWCCA 52
R v Laz [1998] 1 VR 453
R v RJ [2023] NSWCCA 273
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
Rolfe v R (2007) 173 A Crim R 168; [2007] NSWCCA 155
Seccull v The King (2022) 69 VR 454; [2022] VSCA 219
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Category: Principal judgment
Parties: RJ (Applicant)
The King (Respondent)
Representation: Counsel:
T Quilter and R Baldeo (Applicant)
K Jeffreys and B Costello (Respondent)
Solicitors:
Mitchell & Co, Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2018/00089346
Publication restriction: Publication of the name of the complainant or any of the child witnesses (or any information that would identify those persons) is prohibited pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). The prohibition in s 578A of the Crimes Act 1900 (NSW) also applies to the complainant.
WARD P: On 9 May 2022, following a judge alone trial before Mahony SC DCJ in the District Court, the applicant (RJ) was found guilty of several counts of sexual offences in relation to his daughter (the complainant) who was aged between 11 and 14 at the time of the alleged offences. The guilty verdicts were for Counts 1-17 and 21; the not guilty verdicts were for Counts 18 and 19 (see Decision restricted [2022] NSWDC 151 (the conviction judgment)). The applicant was also found guilty of one count of assault (Count 20) in relation to his wife (AH).
The applicant was sentenced on 10 February 2023 to an aggregate sentence of 12 years with a non-parole period of 8 years, backdated to commence on 9 November 2019.
The original indictment had included a count charging an attempt to pervert the course of justice but the hearing of that count was severed by order on 28 February 2022 of Wass SC DCJ (resulting in the separate judge alone trials). Her Honour on 28 February 2022 also ordered that the evidence that supported the attempt to pervert the course of justice count was admissible in the principal trial as evidence of consciousness of guilt. There was no appeal from that ruling and counsel for the applicant on this occasion disavowed any attempt to cavil with that ruling (see AT 12.49-13.4).
Following a separate judge alone trial before Neilson SC DCJ, the applicant was found guilty on 7 July 2022 of attempting to pervert the course of justice contrary to s 319 of the Crimes Act 1900 (NSW), by soliciting AH to encourage the complainant not to proceed with the prosecution of him with the intention of perverting the course of justice (Decision restricted [2022] NSWDC 285) and, on 8 July 2022, the applicant was found guilty of a related summary offence of knowingly contravening an Apprehended Domestic Violence Order contrary to s 166 of the Criminal Procedure Act 1986 (NSW) *(*see Decision restricted [2022] NSWDC 335).
On 24 February 2023, the applicant was sentenced by Neilson SC DCJ for the offence of attempting to pervert the course of justice and for the related summary offence. For those offences, his Honour imposed an effective term of 2 years’ imprisonment with a non-parole period of 16 months. This was partially accumulated on the sentence imposed by Mahony SC DCJ.
The total effective sentence for the respective offences was 12 years’ imprisonment with a non-parole period of 9 years.
The Crown appealed against the leniency of the sentences imposed by both Mahony SC DCJ and Neilson SC DCJ. On 8 November 2023, that appeal was unanimously allowed (R v RJ [2023] NSWCCA 273) (Adamson JA, Basten AJA and Sweeney J). By majority (Basten AJA and Sweeney J), the applicant was re-sentenced to a total term of imprisonment of 17 years with a non-parole period of 12 years and 6 months expiring on 8 May 2032.
G****round 1: The trial judge’s reasons on the subject of consciousness of guilt were inadequate and failed to comply with s 133(2) of the Criminal Procedure Act 1986 (NSW).
G****round 2: The trial judge erred by applying consciousness of guilt reasoning in relation to each count on the indictment when it was not open to do so.
The parties in their submissions addressed the grounds of appeal together (though in different order). The applicant focused on Ground 1, submitting that the appeal turns on a relatively narrow issue (AT 2.19), namely the contended inadequacy of reasons in relation to the consciousness of guilt evidence (and identifying Ground 2 as an alternative ground). The applicant says that whether Ground 2 arises depends on how the trial judge’s reasons are construed as part of the consideration of Ground 1 (see AT 12.46). The Crown, for its part, argues that, in order to assess the adequacy of the trial judge’s reasons in relation to consciousness of guilt (Ground 1), it is first necessary to understand how that mode of reasoning applied to the evidence and issues in the applicant’s trial (which is raised by Ground 2) and therefore the Crown addressed Ground 2 before considering Ground 1.
Ultimately, nothing turns on the order in which the grounds of appeal are addressed. However, I note at the outset, in relation to Ground 2, that the applicant made clear in oral submissions that he does not contend that consciousness of guilt reasoning can never be used in a multi-count sexual assault matter (AT 12.42-43; 13.1) and he accepts the proposition drawn by the Crown from authorities such as Rolfe v R (2007) 173 A Crim R 168; [2007] NSWCCA 155 at [67] (Rolfe) and ARS v R [2011] NSWCCA 266 at [80]-[83] (ARS) to the effect that, in matters involving multiple counts of sexual misconduct towards a child, for an admission to be admissible it is not essential that it be specifically referable to a particular offence charged on the indictment. Rather, the complaint raised by Ground 2 is that the consciousness of guilt evidence was not capable of proving matters such as penetration of the complainant in relation to the counts that allege specific sexual conduct (see AT 12.44-46). Thus it is not necessary to address much of the Crown’s submissions in relation to Ground 2.
The applicant seeks an order quashing the guilty verdicts and ordering a re-trial pursuant to ss 6 and 8(1) of the Criminal Appeal Act. The Crown submits that neither of the grounds of appeal has been established and that leave to appeal should be refused or, if leave be granted, the appeal should be dismissed.
As noted, the applicant requires an extension of time pursuant to s 10(1)(b) of the Criminal Appeal Act and r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) because the notice of appeal was not filed until 22 October 2024, over six months after the expiry of the notice of intention to appeal. The applicant relies on an affidavit of his solicitor, Ian Westrip, sworn 20 September 2024 in respect of the application for extension of time.
In my opinion, both the extension of time for appeal and leave to appeal should be granted but, for the following reasons, the appeal should be dismissed.
The Crown alleged that the applicant committed a total of 21 offences, occurring on 14 separate occasions between 29 January 2015 and 19 March 2018. The applicant was aged between 34 and 36 at the time of the alleged offences and had no previous criminal history (Ex S). The complainant (the eldest child of the marriage between the applicant and AH), was, as noted earlier, aged between 11 and 14 at the time of the alleged offences. The complainant is visually impaired.
Of the 20 counts on the indictment that relate to offences against the complainant, 10 were of aggravated indecent assault (under 16 years), five were of aggravated (under authority) sexual intercourse with a child above 10 years but under 14 years, three were of aggravated (under authority) sexual intercourse with a child above 14 years but under 16 years, and two were common assaults. The sole count involving AH was of a common assault (committed when the applicant was confronted by AH as to the allegations made by the complainant on 19 March 2018).
In summary, the Crown case was that the applicant commenced sexually offending against his daughter, in various ways, from when she was aged 11, 12 or 13 years and continued that offending until the complainant was aged 14 (i.e., the offending commenced some time between 29 January 2015 and 31 December 2017 and stopped in either February or March 2018). The offending stopped shortly before the first disclosures were made by the complainant to her mother (as described below).
The complainant in her interviews with the police described the applicant engaging in sexual conduct that included: squeezing and rubbing her breast; rubbing and squeezing her bottom and rubbing her vagina (including with his penis); anally penetrating her with his penis; placing his penis against her face and mouth; placing her hand on his penis; and placing his penis inside her mouth.
All but two of the offences were alleged to have occurred in the family home. Those other two offences were an offence (Count 6) which was alleged to have occurred at the applicant’s parents’ home and an offence (Count 18), in respect of which there was a not guilty verdict, which was alleged to have occurred in the home of the applicant’s brother.
The complainant did not tell anyone about the sexual offending until after an incident when AH found the applicant in the complainant’s bedroom acting in a manner that AH found suspicious. On that occasion, when AH entered the complainant’s bedroom, the applicant was close to the complainant’s bed and, the complainant’s clothes had been disturbed. As soon as AH entered the bedroom, the applicant moved quickly to the window and claimed that he was looking at the view. (The complainant in her first interview with police said that on the previous Wednesday the applicant had indecently assaulted her in the bedroom.) This incident was the subject of Count 19 on which the verdict was not guilty.
…She was telling him, “[g]et out of the house criminal”, and she was yelling at him, and he was yelling at her… He said, like, “[w]hat do you want? I’ll give you” – like, “[c]lose the matter”. It was this kind of conversation between them. …So it was an argument between them. And he was saying to her “[w]hat do you want? I’ll give you.” And it was like saying to her to “[c]lose your mouth”. It’s enough. People” … …So from what I heard him saying to her, like “[w]hatever I want to give you.” Cars, because he had two cars. Things, gold. Things like that, I heard from distance.
The above verbal exchange between AH and the applicant, in the presence of ASH, is the first of the conduct that was relied on by the Crown as consciousness of guilt.
After the applicant had left the house on 20 March 2018, AH went and saw the community elder, before attending the police station with the complainant where she made a statement (see [121], [235] conviction judgment, trial transcript at T 190.19-20). Later that afternoon, the complainant was interviewed by the Child Abuse Squad (MFI 2, [237] of the conviction judgment, trial transcript T 400.6). The complainant had two interviews with the police (the first on 20 March 2018 and the second on 4 April 2018). In the first interview, the complainant disclosed the conduct relied upon for Counts 1, 2, 3, 5, 7, 8, 9, 11, 12, 15, 16, 17, 19, 20 and 21 (see MFI 1). In the second interview the complainant disclosed the conduct that was relied upon for Counts 4, 6, 10, 13, 14 and 18 (see MFI 1).
On the afternoon of 20 March 2018, the applicant was arrested and was interviewed by police ([237]-[239] conviction judgment, Exs J and K). In that interview the applicant was told the police were investigating a number of sexual assaults committed by him against the complainant (Q10) as well assaults committed by him the previous day on both his wife and the complainant (Q133 and Q138). The applicant exercised his right to silence in part (generally declining to comment on the sexual allegations) but did make comment about some of the allegations ([485]-[488]). Implicitly, he denied aspects of those allegations (see Exs J and K). The police further interviewed the applicant on 16 April 2018 ([241] conviction judgment, Exs L and M). In that interview, the applicant answered some questions about cancelling the phone services for phones used by AH and the complainant ([489] conviction judgment).
At the time of the disclosures by the complainant, AH was pregnant with the couple’s third child. In November 2019, while the criminal case against the applicant was ongoing, the applicant’s mother contacted AH about seeing her grandchildren. AH allowed that visit. Following this, the applicant contacted AH through messaging applications on his mother’s phone and contact between AH and the applicant resumed ([125]-[127] conviction judgment; trial transcript 28/03/2022; T 199.46-201.20; T 203.9-32).
AH said that there was electronic communication between her and the applicant from November 2019 as well as face to face contact between November 2019 and June 2020 ([126], [129] conviction judgment; trial transcript T 199.45; T 204.8-23). During the face to face conversations between the couple, they discussed the pending criminal case ([127]-[129] conviction judgment). These conversations were relied upon by the Crown as further conduct evidencing consciousness of guilt.
Some of the in person contact was at the family home or near the home in the applicant’s parked car ([132]-[133] conviction judgment) but on two occasions AH met the applicant at a park in Wetherill Park. The first of those was at the end of May 2020 ([130] conviction judgment). The conversation in this meeting was not recorded. AH’s evidence was that during that meeting the applicant encouraged her to speak to the complainant and try to convince the complainant to say “this thing did not happen” and “I just made all this thing up” (28/03/2022; T 203.18-25; T 204.41- 45). The second meeting at the park (when part of the conversation was recorded) was on 4 June 2020 ([135]-[137] conviction judgment) (see below).
First he told me “[l]et [the complainant] speak to me” or, or, or “[y]ou try to convince her if she said this thing did not happen, then they will not hurt, harm her, they will not punish her.”
He tried to convince her and tell her that that’s he, her dad and he will not get angry at her or in or hurt her. And if she said that this thing did not happen and “I just made all this thing up” they will not hurt her.
…
Every time he saw me he will pressure me. Every time he saw me he said the same words.
AH’s evidence was that the applicant only encouraged her to speak to the complainant about withdrawing the allegations when she and the applicant were together in person; there were no communications of that kind via the messaging applications ([129] conviction judgment). AH’s evidence was that the applicant was careful about where her phone was when he made such suggestions (30/03/2022; T 222.22-30).
The applicant’s conduct in both the non-recorded and recorded conversations, in seeking to persuade AH to convince the complainant to withdraw her complaint, was relied on by the Crown as part of the consciousness of guilt evidence. The Crown points out that the conduct that occurred on the occasions where there was no recording was not materially different from what was said during the later audio recorded conversations.
As adverted to above, during that second meeting at the park, AH secretly recorded parts of her conversation with the applicant using a telephone with an audio recording function and then later provided the recordings to the police ([138], [242]-[244], conviction judgment). AH brought a second phone with her on 4 June 2020, as she said the applicant would check her phone and make her leave it in the car. The conversation was in Arabic. A translation of the recorded conversations from 4 June 2020 was admitted in evidence as Ex C at the trial.
The Crown relied on material in the recorded conversations between AH and the applicant both as general admissions and as consciousness of guilt evidence (namely, the applicant’s attempts to persuade AH that she should speak to the complainant and persuade her to retract what she had said to the police).
In this regard, the Crown points to the following parts of the Ex C transcript (emphasising the italicised portions):
[Applicant]: [... say to her mum and in the end you are not going to benefit from anything if he is harmed, his family is not going to forgive you, nor will my family forgive you, nor will I forgive you, nor will your siblings. You are not going to benefit anything, you are not going to benefit anything at all, the opposite, you are going to have a reputation, there is going to be a view about you, your life will have a curse on it, your life will have a curse on it. So it won’t be of use, all these things won’t be of use. Don’t tell me that I spoke with her].
[AH]: [So what]? Okay, okay [if I, if she is convinced of what is being said, what is she supposed to do, what is she supposed to say? What is she supposed to say]? ... [So does she say that everything that I said is a lie? How? I didn’t understand].
[Applicant]: [What dear?]
[AH]: [So what does she say? So what is her position going to be? What does she say to them? That what was said was a lie or what? I didn’t understand?]
[Applicant]: [Look, they are not going to drop the case until she says this].
…
[Applicant]: [... she isn’t going to win. So the first two, three days but then after that, in the end this remains her father]. ... [So in the future, tomorrow when she is older ... she may hate herself because of it]. [So I want you to bring her around].
[Applicant]: [Tell her, speak with her, he misses you. You don’t have to speak, just see him, just see him because he is going to die. He just wants to see you. And it’s not about the case, you are his daughter, and you know how much he loves you. And he is getting this message to me, and the ambulance came for him two, three times, because he is devastated, devastated and regretful and he wants to just repair something].
[Applicant]: [Don’t think that dad is upset with you because in the end, this is between you and him. He knows that he wants to reconcile with you and he wants you to return as his daughter and he doesn’t have any other intentions, his daughter and that’s all. He wants to compensate you for all of this and give you more freedom. Give him a chance. Go and speak with him. Speak what is in your heart. Speak what is inside of you. But, but keep something in your mind, if he is imprisoned and is kept away from his family more, you are not going to have stability, you are going to have more despair than now. You are not going to listen now to this but when you get older, and then don’t put all the fault onto dad by himself, you’re also at fault. If you had, for example, dad, we all know how dear and valued you are to dad, he has never done anything by force or against your wishes or that. If you had spoken with him once then he would have understood that this thing is uncomfortable for you, but you wanted this thing. Mum, if she says to you, no and what is this, you say to her I spoke, I asked you a number of times [the complainant] are you uncomfortable and you said no, the opposite, you were actually happy, because he is very] comfortable [with you].
Say to her mum, did you say this or not? And then say to her I plead with you and he pleads with you, you can get him out, you can get him (unintelligible), alright? But the things you said [the complainant], forget them.
…
He isn’t going to say to you that it happened and he isn’t going to say to you that it didn’t happen, forget them. Say to her mum, now how much did dad get upset with me? But I need him, I still need him. You are going to need dad, don’t lose him. If he was stupid at that time, he is now wise. He knows the wrongfulness, he felt the, the, punishment. And don’t think that jail is going to change anything, the opposite, it may make him worse, while you are living in this country... along these lines, and tell her I can’t speak with you because dad is the one that knows, as they say, your manner. Speak, go, alright? Face him and then take your justice from him, speak everything that is inside you, but don’t let these ones trick you and to trick me, in the end, all they want is that we won a case, so their income increases ….]
Called to give evidence in the Crown case were the complainant, her mother (AH), her younger brother (SJ), and the applicant’s cousin (NAK).
The complainant’s evidence in chief mainly comprised of two police interviews (Exs A and B being the recordings; MFI’s 2 and 3 and the transcripts thereof). The applicant does not take any issue as to the accuracy of the summary by the trial judge of those parts of the interviews that were relied upon for each count (see judgment at [9]-[39]). The trial judge summarised the complaint evidence at the trial at [40]-[100] and [449]-[471] of the judgment. His Honour accepted that most of the complainant’s evidence was truthful and reliable ([449], [521]-[523]).
AH gave evidence in relation to the assault count against her (Count 20) ([117]) as well as evidence of her contemporaneous observations in relation to Count 19 ([102]-[108]) (the not guilty count relating to an alleged act of indecency in the applicant’s bedroom which led to the complainant’s disclosures and evidence of complaint in relation to the other counts) ([109]-[114]). AH also gave evidence about the applicant’s admissions and post-offence conduct. The trial judge generally regarded AH as an honest and reliable witness ([472]-[476]), accepting her evidence as reliable, particularly in relation to Counts 19, 20 and 21 ([476], [555]).
SJ gave evidence about observations he made on 19 March 2018, including that he heard his father assault his mother (Count 20) and saw his father assault the complainant (Count 21) ([185]-[186]). The trial judge accepted that SJ was a reliable witness in relation to those events ([477]).
Complaint evidence was given both by AH and NAK. The trial judge found that the complainant made complaints of sexual misconduct by the applicant to AH, over several days following 19 March 2018, which included complaints of anal penetration by the applicant ([517](15); [109]-[114]). The trial judge found that the complainant made generalised complaints of misconduct to NAK, which did not involve details of the particular counts on the indictment ([517](15), [211]-[223]), and found that NAK’s evidence was reliable ([480]).
The Crown also relied on the expert evidence of Dr Tania May, who examined the complainant on 19 April 2018. Dr May did not record any abnormalities upon the complainant’s anogenital examination, nor any evidence of recent or old injuries, but Dr May said that she would not expect to see any evidence of recent or old injury if anal or oral penetration had occurred ([231]-[233]).
The Crown was given leave to rely upon tendency reasoning ([298]-[299]). The Crown contended that the applicant had a tendency to have a particular state of mind (namely, to have a sexual interest in the complainant) and to act on that sexual interest by sexually and indecently assaulting the complainant ([283]).
The applicant, as was his right, did not himself give evidence at trial. However, he called a number of witnesses (his brother-in-law, who gave evidence about his observations of AH on 19 March 2018; a friend, who gave evidence of good character; and another friend, who was in Queensland with the applicant at a time relevant to Count 18 (of which the applicant was found not guilty)). The applicant also tendered further evidence ([265]-[280], [482]-[484]). The trial judge accepted the applicant was a person of good character ([517](11)).
The applicant’s case was that the sexual incidents did not occur. In cross-examination of the Crown witnesses (and in closing address) the applicant contended that the complainant and AH were not honest witnesses (see 22/03/2022; T 59.32-36, 13/04/2022; T 504.4-17, T 510.25-37).
In order to use consciousness of guilt reasoning as contended by the Crown, your Honour must be satisfied first that the conduct was deliberate. Second, it must relate to a material issue… Third, the motivation for the conduct is a realisation of guilt and fear of the truth. And fourth, the conduct must be capable of being seen as an indication of consciousness of guilt of the specific offence with which the accused is charged. [As explained below, the applicant emphasises that this fourth condition was accepted as part of the consciousness of guilt direction his Honour recorded]
Here the Crown submits that each of those things are satisfied. There can be no doubt that the accused was deliberately attempting to have his wife persuade the complainant from continuing with the court proceedings and the offences for which he was charged, and that he did so because he knew that he as guilty for the offences for which he’d been charged. His acknowledgement of guilt is also intricately linked to the things he said to [AH].
These attempts to dissuade the complainant from continuing with the proceedings both in the recorded conversation and the earlier conversations that were recounted by [AH] that are in the same vein are not the only evidence that the Crown submits can be used as a basis of consciousness of guilt reasoning. The Crown also submits that the offers the accused made to [AH] on 20 March 2018 and witnessed by her brother also amount to conduct that can be relied upon by the Crown as evidence in consciousness of guilt. On p 189 of the transcript, [AH] indicated that when the accused returned, which was the day following the allegations made to him and him leaving the house, the accused said “Come, let’s talk. What do you want from me? You want me to give you the car? You want to - you want me to give you money?”
…
That conversation is also supported by the evidence of [AH]’s brother, [ASH], and the relevant evidence in the transcript is primarily on p 381 of the transcript. He gave evidence that he heard [AH] say “Get out of the house, criminal” and that he heard the accused say “Like, what do…close the matter”. He also recounted that the accused said, “What do you…I’ll give you”. And it was like saying to her “Close your mouth, it’s enough”. He also recounted hearing the accused say, “Whatever I want to give you” and referenced cars because he had two cars, things, gold, things like that, “I heard from distance”.
In terms of consciousness of guilt I will address on that in due course but just as a general proposition the consciousness of guilt argument is a hopeless argument for the Crown because it is illogical. An innocent person would probably have more motive to not go to trial for these incredibly serious charges than a guilty person. So that’s a fundamental problem in the consciousness of guilt argument. It might be a criminal offence, it might be pervert the course of justice but that’s not the point and that’s not part of these charges. It’s not part of this matter.
There is nothing to say that an innocent person has more of a desire to go to trial for such serious charges than a guilty person. In fact, if anything, it’s quite likely that an innocent person may have a greater motive to want the case dropped perhaps through legal means. So the consciousness of guilt argument can’t go anywhere and indeed is not in accordance with what the current law is in relation to that and I will take your Honour to a proper authority in due course.
Now, again, the Crown seeks to rely on consciousness of guilt. Consciousness of guilt is simply that inference is not an available inference on the evidence because the reason being is there’s of transcript 252, TT252. [AH] was cross- examined on a statement she gave, and the evidence is they had a conversation earlier at a park and he didn’t discuss the case. There was the - then the conversation in June 2020 when they met at the park when [AH]’s recording the conversation and the evidence is she brought up the case. Furthermore, the evidence is that, we say, is that the complainant was the one to initiate contact with the accused. Now, how does that establish consciousness of guilt? He stays quiet for all this time and suddenly comes aware of his consciousness of guilt; it simply doesn’t make any sense.
…
… As I said, exhibit 12, 13, 14 and 5, they were the various exhibits I talked about before. Again, they don’t support any consciousness of guilt inference. The fact that the accused says, “I’m very sorry,” a number of times, that’s perhaps being reconciliatory. It’s not an admission of - the fact that he says he’s sorry a number of times can’t heighten what the Crown alleges what are his so-called admissions at the start of that particular meeting in the park. It’s not conceded that they’re admissions of a sexual interest in the complainant. He’s saying sorry to whatever he admitted to or supposedly admitted to at the start of the conversation in the park and again, there are other available inferences.
Firstly, it’s just as rational for an innocent person, if not more rational to not want to go to trial. One overlooks the point that perhaps the accused at that point in time still actually had hopes for his family, as one does with a family. It’s a long investment, emotional investment and time and so forth. These are things that overlooked by the Crown. He would have - an inference is it’s far more likely that he would want to get his family back together. In fact, the evidence seems to be that he actually took his duty as a father quite seriously.
Again, the issue about the keys and the car, if you actually look at the evidence and read between the lines, all the accused was doing was he took away two keys for two cars and in a conciliatory manner returned one set of the keys, that doesn’t support a consciousness of guilty inference, that’s simply just conciliatory conduct.
...
Well, it’s all subjective but one could look at that evidence and say, well, he had two sets of keys, he came back and returned a key, which is - the evidence is there, your Honour and that’s a pretty ordinary thing to do. In terms of offering money, well, your Honour has seen the evidence before the Court, there was a fight over money. So, again, it’s not that inconsistent with the evidence. There was a fight over the money. It seems to be quite consistent with the evidence, it just means he was being conciliatory, it’s not evidence of consciousness of guilt.
The trial judge summarised the evidence in detail ([5]-[281]), including AH’s evidence about the conversations relied on by the Crown ([130]-[143]), and the applicant’s case. His Honour then considered and determined the Crown’s application to rely on tendency evidence ([282]-[299]) before summarising the parties’ closing addresses ([300]-[375]) (referring to the submissions made regarding the consciousness of guilt argument by the Crown and the applicant). At [382]-[383], his Honour set out the elements of the alleged offences.
From [376]-[448], the trial judge recorded the various general directions of law that he gave himself, including a general direction as to the assessment of witnesses; the need to find the complainant’s evidence to be both honest and reliable, and to examine it very carefully; a tendency direction (at [416]-[424]) and a direction as to admissions. The trial judge did not expressly give himself a “separate consideration warning” such as that described by McHugh J said in KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11 at [36] (to consider each count separately and to consider it only by reference to the evidence that applies to it). However, the applicant accepts that the terms of the trial judge’s “Markuleski direction” ([394]), along with the fact that mixed verdicts were returned, demonstrates that the trial judge was conscious of the need to consider each count individually (see R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290) (Markuleski).
The consciousness of guilt direction, which had been agreed between the parties, was in the following terms ([444]-[448]):
444 This direction concerns the evidence the Crown says can be relied upon as evincing a consciousness of guilt. The Crown submits that the following evidence can be relied upon in that way:
(i) The evidence of AH and ASH that the accused offered to give AH things if she “closed the matter” and did not say anything about the allegations. This included asking AH what she wanted, and the offer of a car, money and gold.
(ii) The evidence of AH that prior to the meeting in the park on 4 June 2020, the accused had encouraged her to tell the complainant to drop the proceedings.
(iii) Attempts by the accused evidenced in exhibit C to have AH encourage the complainant to drop the proceedings.
445 In order for each of those areas of evidence to relied upon [sic] in the way contended by the Crown, I must be satisfied in respect of each area of evidence:
(i) The conduct by the accused in question was deliberate;
(ii) It relates to a material issue, in that it was a deliberate attempt by the accused to have the evidence not given by the complainant about the alleged offences.
(iii) The motivation for the conduct was a realisation of guilt and fear of the truth, in that the accused did so knowing that if the complainant did give evidence truthfully that he would be implicated in the offences, because he knew that the complainant was not lying.
(iv) The conduct must be capable of being seen as an indication of a consciousness of guilt of the specific offence with which the accused is charged.
446 I must remember, however, that people do not always act rationally, and that conduct of this sort may sometimes be explained in other ways.
447 If I am satisfied of the maters set out at (i)–(iv) above, and that the evidence does point unequivocally to a consciousness of guilt, then I am able use it in support of the Crown case. If I am not so satisfied, that is, if there is a reasonable possibility, or there are other available rational inferences, that the accused said the things alleged by the Crown for a reason other than because he knew he was guilty, then I am required to put that evidence to one side and not use it in any way against the accused.
448 I also take into account that, if accepted, this evidence does not prove the accused’s guilt on its own. It can be considered along with all of the other facts that the Crown relies upon and which I find established on the evidence in considering whether the Crown has proved its case beyond reasonable doubt.
Pausing here, the applicant attaches significance to the fact that his Honour expressly included, as a pre-condition for reliance on the consciousness of guilt evidence, the requirement in (iv) that the conduct must be capable of being seen as an indication of a consciousness of guilt “of the specific offence with which the accused is charged”. The applicant submits that the origin of that precondition comes from the 2004 decision of R v Cooke [2004] NSWCCA 52 in the analysis by Simpson J (as her Honour then was) at [23] (there, a case where flight from the police was relied upon as an implied admission). In that case, where there was a single count, an alternative explanation for the flight was the accused’s breach of an apprehended violence order that was unrelated to the single count on the indictment. The applicant relies on this to submit that it was critical for his Honour to say how he was using the consciousness of guilt evidence (and to what extent), and the applicant complains that his Honour failed to do so (AT 7.3-6).
The trial judge set out his assessment of the witnesses in the Crown case and the applicant’s case (at [449]-[489]). His Honour’s assessment of the complainant at [449] was:
449 ... She was a composed, thoughtful and clearly intelligent child and young woman, who gave her evidence without embellishment. She gave a clear account of the first occasion the [applicant] touched her sexually when she was 12 and asleep in her mother’s bed (Count 1). He touched her breasts, under her clothing and told her he was doing it to bring her closer to him and that she was not to tell anyone because it would destroy their family and she would be to blame for that.“
His Honour rejected the applicant’s submissions that AH manipulated the complainant to complain; that the complainant was contaminated in her evidence by AH; and that the complainant was acting; or faking or tailoring her evidence.
His Honour summarised and gave a detailed analysis of Ex C (at [490]-[516]).
At [517], his Honour recorded a number of findings of fact, including (at [517] (14)) that the Ex C recordings showed the applicant:
…made admissions of sexual misconduct towards [the complainant], which included touching the complainant inappropriately on her breast, kissing her inappropriately and looking at her inappropriately. In the same conversation, he also denied other sexual misconduct, including penile/anal penetration of [the complainant].
The findings of fact also included that the complainant made complaints to AH over several days that followed 19 March 2018, including complaints of anal penetration by the applicant, and that she made generalised complaints of misconduct to NAK (at [517](15)).
Under the heading “Determination” ([518]-[556]), the trial judge set out his reasons for verdict, beginning with his Honour’s acceptance of the evidence of the complainant as being truthful and reliable in respect of most of her evidence ([519]).
As to the post-offence conduct relied on by the Crown, the trial judge found the applicant exhibited a consciousness of guilt in “a number of ways” ([522]):
522 … First, by saying to AH on 19 March 2018 words to the effect of “What do you want to close the matter? A car... money or gold?” ... Secondly, I am satisfied that the [applicant] exhibited consciousness of guilt in the recorded conversation (Ex C) by exhorting AH to get [the complainant] to change her evidence, so that the case against him would be withdrawn. However, I am mindful that at all times the onus remains on the Crown to prove the elements of the offences beyond reasonable doubt.
Pausing here, the trial judge thus expressly accepted two of the three ways in which the Crown had submitted that the evidence exhibited a consciousness of guilt (see as set out in the conviction judgment at [444], extracted above) but went on immediately to make clear that he was mindful that the onus lay on the Crown to prove beyond reasonable doubt the elements of the offences charged.
At [524], his Honour rejected the applicant’s submission that the applicant in Ex C had not made admissions of sexual interest and misconduct with respect to the complainant, concluding that “[a]t no time did the [applicant] state to AH that [the complainant] was lying, rather, he wanted AH to persuade [the complainant] to lie so that the charges might be withdrawn”.
At [531], after determining a number of other matters (not here relevant), his Honour addressed each count separately ([531]-[556]). The applicant emphasises that, in so doing, his Honour did not make further reference to the consciousness of guilt issue (unlike reference to tendency evidence in this section of the reasons). (I attach a different significance to this than the applicant does, as I explain below).
The trial judge accepted that Count 1 was proved beyond reasonable doubt and from this reasoned that the applicant had the two tendencies identified by the Crown ([533]). His Honour used that conclusion in consideration of Counts 2 to 11 and Counts 13, 14 and 16 ([534]-[550]). With respect to each of Counts 1-17 and 21, his Honour expressly recorded that he accepted the complainant’s evidence supporting that count (and with respect to Count 20, that he accepted AH’s evidence).
In relation to Count 18 (which resulted in a not guilty verdict), his Honour noted inconsistencies in the evidence and stated, explicitly being mindful of the Markuleski direction, that “[w]hilst I do not accept the complainant’s evidence here, I am satisfied that she did give honest and reliable evidence in relation to the other counts, and the evidence she gave here was mistaken as to the dates”. His Honour was not satisfied that the applicant was present in his brother’s home at the time the offence was alleged to have taken place (see conviction judgment at [552]) and considered it possible that the complainant confused this incident with an incident concerning her uncle, who was found guilty in separate proceedings.
In relation to Count 19 (again resulting in a not guilty verdict) his Honour was not satisfied to the criminal standard that any act of indecency took place, given inconsistencies in the evidence but stated that “[t]his finding is not based on my finding in relation to the complainant’s credit”.
At the outset of the applicant’s submissions as to the adequacy of the trial judge’s reasons (Ground 1 as to adequacy of reasons), the applicant identified the following four matters as relevant (referring to DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 (DL) at [32]-[33]).
First, the applicant says that a conclusion that an accused person’s conduct exhibited a consciousness of guilt is “almost invariably” a significant finding in determining liability for a criminal offence. The Crown cavils with this necessarily being so.
Second, that to avoid circular reasoning, it is important to determine how the evidence contributes to a finding of guilt (rather than simply reflecting a finding of guilt), referring by way of example to Meakin v R [2018] NSWCCA 288 (Meakin) at [260] and [263] (where Fagan J observed that the Crown address “went very close to complete circularity”).
Third, that trials involving multiple counts require special care because of the possibility that an accused person’s conduct is explained by a consciousness of guilt in respect of only one, or some, of the offences (citing R v Ciantar (2006) 16 VR 26; [2006] VSCA 263 at [78] (Ciantar)).
Fourth, that whenever parties make “polarised” submissions (as the applicant argues occurred in the present case, where the Crown argued the applicant’s conduct showed a consciousness of guilt to the “offences” [13/04/2022; T 487.7] whereas defence counsel argued the conduct did not demonstrate a consciousness of guilt), a trial judge is not presented with a binary choice of accepting one or other position.
The applicant argues (using the language from R v Laz [1998] 1 VR 453 (Laz*)* at 467) that it is conceivable that his conduct (in exhorting his wife to persuade the complainant to change her evidence) was carried out because of: a realisation of guilt and fear of true evidence about one or all of the following (i) one or some of his acts of penile-anal intercourse; or (ii) one or some of his indecent assaults; or (iii) one or some of his common assaults; or because of a fear that he would be unjustly convicted of false accusations; and that the same possibilities arise as to his earlier conduct on 19 March 2018 (with the additional possibility that he was then only concerned with reconciling with his family).
Turning then to the appeal grounds themselves, the applicant’s complaint as to the adequacy of the reasons (Ground 1) is that there is uncertainty in respect of which counts (out of the various counts) the trial judge found that the applicant’s post-offence conduct exhibited a consciousness of guilt (the applicant referring in this context to Ciantar at [81]-[83]).
The applicant emphasises that the trial judge included, as a mandatory precondition to using the post-offence conduct as evidence of consciousness of guilt, that the conduct be “capable of being seen as an indication of consciousness of guilt of the specific offence with which the accused is charged” ([445](iv)) but did not explain how the consciousness of guilt reasoning applied in respect of each separate count (see the reasons at [531]-[556]).
As to Ground 2, the Crown argues that, applying the principles in Rolfe (affirmed in ARS and GE v R [2018] NSWCCA 91 (GE*)) and Palmer v R [2018] NSWCCA 205 (Palmer),* there was no requirement in the present case that the evidence of post-offence conduct evincing a consciousness of guilt be specific to any particular count on the indictment. It is noted that, in Palmer, Basten JA stated that the above principles relating to “general” or non-specific admissions extend to post-offence conduct relied on as consciousness of guilt (at [38]). (As already noted, the applicant accepts, in principle, that consciousness of guilt reasoning in a multi-offence case involving sexual offending does not require specificity as to particular counts – the complaint here appears to be that it could not have applied to certain of the counts (the penetrative counts) because of its generality.)
The Crown argues that the cases relied upon by the applicant in his submissions (The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; Ciantar; A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174 (A2); Mulvihill v R [2016] NSWCCA 259; Meakin; and Edwards v R [2022] NSWCCA 22) almost exclusively concern the separate issue of whether the tribunal of fact could attribute the post-offence conduct to the principal charge, rather than a pleaded alternative (or other lesser) offence; none involving or contemplating proceedings concerning multiple counts alleging sexual offending against a child, where the central dispute in the trial concerns the credibility and reliability of the complainant.
As to Laz*,* the Crown says that this was a decision in relation to a unique factual scenario (involving a specific lie relating directly to one of the two counts on the indictment) where the issue on appeal was the adequacy of the directions on the applicant’s admitted lie, which was left to the jury on both counts. The Crown points out that Laz was described in R v Centraco [2005] NSWCCA 11 (Centraco) by Hidden J as a case that turned upon its own facts (and that in Centraco the appeal against the admissibility of general admissions was dismissed). The Crown argues that essential to the ultimate reasoning in Laz was a requirement that, before a lie could be used as consciousness of guilt, the jury had to be satisfied beyond reasonable doubt that the lie could be so attributed (which line of reasoning has been expressly disapproved in New South Wales). The Crown argues that M**artinez v Western Australia (2007) 172 A Crim R 389; [2007] WASCA 143 and Seccull (2022) 69 VR 454; [2022] VSCA 219 do not assist the applicant’s argument or provide a useful analogy.
As noted above, the focus of the applicant’s submissions on this appeal was on the adequacy of the trial judge’s reasons as to the use (and extent of use) of the consciousness of guilt reasoning.
The applicant accepts that the adequacy of reasons given in a judge-alone trial is a question of degree (see AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [84] per Heydon J; and see also DL per Kiefel CJ, Keane and Edelman JJ at [32]-[33], Bell J at [80]-[82] and Nettle J at [130]-[132]).
While brief, in my opinion the reasons at [522], read in conjunction with the submissions recorded at [311]-[314], make clear the trial judge’s conclusion that the applicant demonstrated a consciousness of guilt by offering a car or gold to “close the matter” and by exhorting his wife to persuade the complainant to withdraw her evidence so the charges would be withdrawn. This clearly related to the overall sexual misconduct and was not particular individual counts. Hence, it was accepted as a general admission of sexual misconduct (not relevant to the common law assault charge against the applicant’s wife).
I consider that a fair reading of his Honour’s reasons (particularly when one sees how his Honour referred later to the tendency evidence) is that, although his Honour accepted that two areas of the evidence demonstrated a consciousness of guilt, it was ultimately not necessary for his Honour to rely upon that evidence when reaching the conclusion that each count (other than Counts 18 and 19) was established beyond reasonable doubt (which explains why his Honour did not refer to it in the specific determination of the particular counts).
I do not accept that the consciousness of guilt finding contributed to his Honour’s overall assessment of credibility of the complainant nor that this “permeated” the conclusion his Honour came to in relation to each count on the indictment (as the applicant suggests – see AT 10.4-5). Rather, his Honour explained the basis for his finding as to the complainant’s credibility and separately addressed each count (without needing to rely on the consciousness of guilt evidence). His Honour, in my opinion, made clear what he was relying on when making the findings on each count and the fact that he did not make reference to consciousness of guilt reasoning at [531]ff is a clear indication that he was not relying upon it. I do not accept that this reading of his Honour’s reasons involves, as the applicant suggests, a “disaggregation” of those reasons. Rather, I have had regard to the whole of the reasons in reaching this conclusion.
That disposes of Ground 1.
As to Ground 2, the statement of the pre-condition in [445](iv) by reference to the “specific offence” charged does not in my opinion point to error in the finding at [522] that the evidence established a consciousness of guilt in the ways stated and it is not material to his Honour’s ultimate conclusion as to the relevant counts.
For the above reasons, I would make the following orders:
Extend time for the filing of the notices of appeal to the date it was filed.
Grant leave to appeal.
Dismiss the appeal.
YEHIA J: I have had the considerable advantage of reading the reasons for judgment of Ward P in draft. I agree with the orders proposed by her Honour and with her Honour’s reasons.
COLEMAN J: I have had the advantage of reading the reasons for judgment of Ward P in draft. I agree with her Honour’s reasons and conclusions.
A fair reading of the primary judge’s reasons as a whole makes plain that his Honour used the evidence admitted as consciousness of guilt as a general admission by the applicant of sexual misconduct against his daughter. That evidence was but part of the totality of the evidence considered by his Honour for each count alleging sexual misconduct by the applicant against his daughter in assessing whether the Crown had proven the elements of those counts beyond reasonable doubt.
I agree with the orders proposed by Ward P.
**********
RJ
R [2025] NSWCCA 68
(2008) 232 CLR 438
(2018) 266 CLR 1
(2015) 256 CLR 47
(1998) 197 CLR 250
(2021) 274 CLR 351
(2001) 206 CLR 221
(2006) 16 VR 26
(2001) 52 NSWLR 82
(2022) 69 VR 454
(2016) 258 CLR 308
The applicant now seeks leave pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) to appeal his convictions for those offences dealt with by Mahony SC DCJ (to whom I will refer as the trial judge). That notice of appeal has been filed out of time and therefore an extension of time is required. The applicant does not appeal from his conviction for the attempt to pervert the course of justice offence. Nor does he appeal from the sentences ultimately imposed on him.
After the applicant left the bedroom, AH questioned the complainant privately about what had happened. The complainant did not immediately disclose the details of the sexual offending to AH. However, over the following days, the complainant did make disclosures to AH, including that the applicant had “touched” her (placing the first time it had happened as six months earlier), had played with her chest, and had put his “penis in my backside”.
At about 8pm on 19 March 2018, AH confronted the applicant about the disclosures. AH said “I know everything and I don’t want to see your face. You leave the house” and told the applicant that the complainant “told everything and I know what you’ve done”. The applicant collected some belongings and called his father; then he went into the complainant’s bedroom and asked her “Why you said these things and why you not telling the truth?”. The applicant also said “You don’t have any proof what I’ve done”. When AH called the complainant and said “Tell me in front of him what is done”, the complainant responded “Yeah. You’ve done it with me”.
During the confrontation on 19 March 2018, the applicant slapped both AH and the complainant (this being the conduct charged in Counts 20 and 21). AH threatened to call the police. The applicant’s father arrived and took the applicant away from the family home that night. AH gave evidence that when the applicant’s father came “[t]hey just brought some papers for the car because I was driving and using a car that was in his name” and that the applicant said “[y]ou have to sign these papers because dad said you can’t use it anymore”. AH said that she signed the paper and the applicant left (see trial transcript 28/03/2022; T 188.11-12) ([118] of the conviction judgment).
On 20 March 2018, in the morning, AH’s brother (ASH) came to the family home and AH told him about the allegations. Her brother suggested they visit an elder in their community. On the way to that visit, AH saw the applicant in his car. AH and ASH returned to the family home, arriving there at the same time as the applicant ([120], [224] of the conviction judgment; trial transcript 1/04/2022; T 374.45-50).
The applicant, AH and ASH went inside the family home. AH gave evidence that the applicant said to her ([120], [472] of the conviction judgment; trial transcript 28/03/2022, T 189.33-42) “Come … “Let’s talk, what do you want from me? You want me to give you the car? You want to, you want me to give you money?” and that she said “I don’t want anything, just leave the house…I will call the police and I will not be quiet … I just want a divorce … I don’t want anything from you but divorce” ([120] conviction judgment, trial transcript 28/03/2022; T 189.41-42). ASH witnessed that conversation from a distance of four to five metres away ([227], [481] conviction judgment, trial transcript 1/04/2022; T 382.2-3). ASH gave evidence that (T 381.10-50):
AH gave evidence that on five or six occasions, including the first in person meeting, the applicant said to her words to the effect that she should encourage the complainant to say she had made the whole thing up ([127]-[129] conviction judgment, trial transcript at T 203.17-32), saying:
While the applicant accepts that the verdict of not guilty on Count 18 “might” imply that his Honour was not satisfied that the applicant exhibited a consciousness of guilt to that offence when he carried out the relevant post-offence conduct, complaint is made that there is nothing to show that the evidence was confined to any particular count (or counts). That said, the applicant says the absence of any reference to the complainant’s mother (AH) in the reasons at [445](iii), tends to imply that his Honour did not necessarily find the applicant exhibited a consciousness of guilt to the offence against his wife (Count 20) when he carried out the relevant post-offence conduct.
The applicant further complains that, on the assumption that his Honour did conclude that the applicant’s conduct showed a consciousness of guilt in relation to each count that resulted in a guilty verdict, the reasons do not reveal any analysis as to how his Honour dismissed the reasonable possibilities that the conduct exhibited a consciousness of guilt to only one, or some, of the counts; nor any analysis as to how the post-offence conduct showed a consciousness of guilt to particular counts because of its combination with other evidence.
The applicant contends that the trial judge’s reasons lacked clarity and analysis on this topic, criticising the reasons at [522] as amounting to a “bald conclusionary statement” (referring to Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [64]; AB v R [2022] NSWCCA 104 at [115]), and says that the balance of his Honour’s reasons on other topics has limited utility in revealing his Honour’s analysis of this issue because, to avoid circularity, it was necessary to show how the consciousness of guilt reasoning contributed to, rather than reflected, the findings of guilt.
The applicant thus submits that the trial judge’s reasons were inadequate and that this justifies the quashing of the conviction pursuant to both the second and third limbs of s 6(1) of the Criminal Appeal Act 1912 (NSW) (citing Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [27]).
In the alternative (by reference to Ground 2), the applicant submits that it was not open to conclude that the applicant’s post-offence conduct showed a consciousness of guilt in relation to all the counts on the indictment to which verdicts of guilty were entered. Insofar as his Honour reached that conclusion, the applicant says that this was a factual error that was productive of a miscarriage of justice (citing Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 (Filippou*)* at [4]; [48] per French CJ, Bell, Keane and Nettle JJ; and EE v R [2023] NSWCCA 188 (EE) at [28]-[42] per Beech-Jones CJ at CL, as his Honour then was (EE)). The applicant submits that the error is one that might reasonably have affected the trial judge’s ultimate finding of guilt and that it warrants an order for retrial (citing EE at [40]).
The Crown submits that, in the context of the issues in the trial, where there was a series of offences against a single complainant whose credibility and reliability was the central issue at trial, the post-offence conduct was relied on by the Crown as an implied general admission of the applicant having engaged in sexual conduct with the complainant. The Crown says that the basis on which the evidence was admitted and then relied on in closing was that the conduct was capable of being seen as an indication of a consciousness of guilt of the charged conduct, rather than some unrelated offence or other discreditable behaviour.
Further, the Crown says that the majority of the consciousness of guilt evidence was an extension of the applicant’s explicit general admissions to sexual misconduct with his daughter and largely occurred contemporaneously with those admissions. The Crown notes that there is no appeal in relation to the trial judge’s use of the general admissions evidence nor to his Honour’s reasons in relation to that evidence, and the Crown argues that as they apply to the present matter, it is artificial to distinguish between the express admissions and the implied admissions (the latter arising by the consciousness of guilt evidence).
The Crown thus contends that, in accordance with the principles in Rolfe, ARS, GE and Palmer, both the general admissions of the applicant, and the consciousness of guilt conduct of the applicant, were available to the trial judge as supporting that the charged sexual conduct occurred; and says that what, if any, weight the trial judge attributed to that evidence was a matter within his Honour’s discretion.
The Crown argues that the fact that the trial judge did not refer to the evidence of post-offence conduct in providing his reasons for verdict from [518] is an indication that this evidence did not play any significant role in his determination of any count. The Crown says that what was necessary (as his Honour directed himself at [381] and [522]) was a close consideration of the complainant’s honesty and her accuracy with respect to each count, in light of the asserted inconsistencies and implausibilities raised by the applicant.
The Crown argues that reliance on the post-offence conduct was neither necessary nor sufficient in order to find the applicant guilty of any count: that it was not needed where the complainant’s evidence was accepted as truthful and reliable and, as an implied admission of a general type, it was not able to resolve the reasonable doubts held in relation to Counts 18 and 19.
The Crown thus says that, in the context of the matters in dispute in the trial and the way in which the Crown relied on the consciousness of guilt evidence, the trial judge did not err in finding that the applicant did exhibit consciousness of guilt in exhorting AH to persuade the complainant to withdraw her complaint; and says that there was no error in his treatment of that evidence.
As to Ground 1, the Crown says that the fundamental finding that the trial judge was required to make in this case was whether the complainant was a truthful and reliable witness in relation to each of the counts on the indictment (noting that the applicant does not challenge the reasons in that regard).
The Crown says that the essential dispute, with respect to the consciousness of guilt evidence, was as to whether it constituted an implied admission to engaging in some sexual conduct with the complainant, or whether there was a reasonable possibility that it was explicable on another basis (in particular, a fear of being unjustly accused and/or a desire to reunite the family), the resolution of this issue being at [522]. The Crown accepts that detailed reasons were not provided for that conclusion but emphasises that reasons were given at [523]-[524] for his Honour’s rejection of an innocent explanation for the general admissions, with which the consciousness of guilt evidence was closely linked.
The Crown submits that, in the context of the issues in this trial, the trial judge was not required to give any more detailed explanation as to his treatment of aspects of the evidence that did not contribute in any meaningful way to his reasoning towards the applicant’s guilt.
The Crown notes that, in respect of Ground 1, the applicant contends that there is error that falls under both the second and third limbs of s 6(1) of the Criminal Appeal Act 1912 (NSW). In that regard, the Crown says that, even if the second limb error is relied upon, the applicant must satisfy the Court that such error of law as is established produced a miscarriage of justice in the sense of a departure from trial according to law (citing Filippou at [4], [13]).
The Crown contends that, even if it is found that the trial judge failed to give sufficient reasons in respect of the consciousness of guilt evidence, the applicant has not demonstrated that a miscarriage of justice has occurred in this case. The Crown says that it is incumbent on the applicant to demonstrate that there has been a departure from a trial according to law to the prejudice of the applicant; that is, that the irregularity that occurred had “the capacity for practical injustice” or was “capable of affecting the result of the trial” (citing Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 at [41], [47]). The Crown thus submits that the applicant has failed to demonstrate a connection between the relevant defect or irregularity and the outcome of the trial.
The Crown says that the consciousness of guilt evidence was a narrow and discrete aspect of evidence in a case which largely turned on whether the complainant’s evidence was accepted as honest and reliable, beyond reasonable doubt; and argues that the trial judge’s reasons sufficiently exposed his Honour’s reasoning process in relation to the consciousness of guilt evidence.
If, however, a miscarriage of justice is established in respect of either Ground 1 or Ground 2, the Crown submits that no substantial miscarriage of justice was occasioned for the purpose of the proviso in s 6(1) of the Criminal Appeal Act 1912 and hence the appeal should still be dismissed. The Crown submits that neither asserted error would constitute a “serious breach of the presuppositions of the trial”, or an error that denies this Court the capacity to assess the applicant’s guilt of each offence.
Relevantly, the Crown says that, with respect to Ground 1, the case would not be one involving a complete failure to give reasons with respect to the central issue in the trial and, with respect to Ground 2, the applicant’s post-offence conduct could be set aside without weakening the Crown’s case in any real sense. The Crown submits that, on an independent assessment of the entirety of the evidence, the evidence proved the applicant’s guilt of each of Counts 1-17 and 20-21 beyond reasonable doubt, giving due allowance for the “natural limitations” of an appellate court proceeding wholly on the record (noting that the trial judge’s findings as to the credibility of witnesses have not been challenged in this appeal). The Crown submits that the trial judge’s findings of guilt are justified by extensive reasons, including as to the central issue in the trial, namely whether the complainant’s account was accepted to the criminal standard; and in those circumstances no substantial miscarriage of justice has actually occurred.
In other words, whether or not the post-offence conduct was capable of distinguishing guilt as to certain of the sexual offences but not others goes nowhere, particularly in circumstances where his Honour accepted that there was no express admission of the alleged sexual misconduct (penile/anal penetration).
Ground 2 is therefore not made good.
Had Grounds 1 or 2 been made good, the need to consider whether there was a miscarriage of justice and the application of the proviso would arise. As it is, these issues do not arise. Had they arisen, I would have concluded, for the reasons submitted by the Crown, that there was no miscarriage of justice since the crucial issue (credibility of the applicant) was not affected or influenced by the consciousness of guilt reasoning; and, if I were wrong at that, that the proviso should apply.