Roos v R

Outline of the Crown case

1. The two victims are brothers. They were born in May 2006 (Victim 1) and March 2008 (Victim 2). As babies, they were placed in the care of their maternal grandparents, together with their other siblings. The appellant is the cousin of their mother. The boys were referred to at trial as the appellant's "nephews", although in fact they are children of the appellant's cousin.
2. From around late-2011 or early 2012, the appellant lived in an upstairs part of his mother's home, which contained an internal staircase. Commencing in 2012, when Victim 1 was around six years and Victim 2 was four years, the boys regularly visited the appellant's upstairs home, referring to him as "Uncle Andrew". The two boys started staying overnight with the appellant.
3. On 27 April 2015, the victims' grandmother overheard a conversation between the two boys. She confronted them and for the first time they disclosed the appellant's alleged sexual offending to an adult. The police were contacted.
4. The older boy was first interviewed by police on 1 May 2015 when he was eight, almost nine, years old. He described the conduct that gave rise to counts 6, 7, 8 and alternative count 9. He was interviewed by police for a second time on 1 December 2015 when he described the conduct that gave rise to counts 5, 10 and 11.
5. The younger boy was first interviewed by police on 4 May 2015 when he was seven years old. He described the conduct which gave rise to counts 12 and 13, and conduct involving Victim 1 that formed the basis of counts 14 and 15. He was interviewed for a second time on 1 December 2015, when he described the conduct giving rise to counts 1, 2, 3 and 4.
6. The Crown case was that the charged conduct occurred during various time periods between 10 March 2012 and 27 April 2015.
7. Given their age, both boys gave unsworn evidence at the trial. Their evidence-in-chief comprised their recorded interviews with police. The DVDs of these interviews were played in court. The cross-examination of each boy by counsel for the accused followed the standard procedure in the case of children giving evidence, with the child in a separate room with a support person, and the use of an audio-visual link to the courtroom.

Evidence of Victim 1

1. At his first police interview in May 2015, Victim 1 said that the appellant made him run around naked, but that he made "[Victim 2] do stuff worse". Victim 1 said that the appellant made both boys run around naked, but "Aunty Jill" (the appellant's mother) did not know, because the appellant had said that if they told anyone, "I'll kill youse", but then (in 2015) they did tell "Nan". Victim 1 said that the appellant had "jumped" on Victim 2 on the lounge, and also jumped on him. He was naked, as was the appellant.
2. Victim 1 said that the appellant had touched his bottom with his (the appellant's) penis once or twice on the lounge. He described one occasion on a Saturday when the appellant first put his penis on Victim 2's bottom in the course of "jumping" on Victim 2's back on the lounge. Victim 2 was crying and the appellant was going "up and down". This conduct gave rise to count 7 (aggravated indecent assault: guilty).
3. After this incident involving Victim 2, Victim 1 said that the appellant put his penis on Victim 1's bottom. The appellant's penis "wouldn't go [in]". It "never went in. But he just kept it there" and the appellant started going "up and down". This conduct gave rise to count 8 (assault with intent to have sexual intercourse with child under 10: not guilty) and the alternative count 9 (aggravated indecent assault: guilty).
4. As indicated, Victim 1 said that this happened twice; the second occasion was a week later. With respect to the second time, he was asked "did something different happen?" and he answered "No … it just stayed on there". This conduct was relied upon for count 6 (sexual intercourse with child under 10: not guilty). There was no alternative count for count 6.
5. In his second police interview, Victim 1 said that the appellant had touched him on or in his mouth with his "willy". He described the appellant's penis going "up and down" in Victim 1's mouth. He said that this happened on many occasions, and particularised two incidents: once when he was young, either four or five years old and once two days before his birthday. This conduct gave rise to counts 10 and 11 (aggravated indecent assault: guilty).
6. Victim 1 also described the applicant having anal intercourse with him. He said this occurred many times. He said that the appellant forced it in "as hard as he can" and it really hurt, but it didn't bleed. This took place on the lounge at the appellant's home. This conduct gave rise to count 5 (sexual intercourse with child under 10: not guilty).
7. In cross-examination, Victim 1 said that at the beginning, he liked going to the appellant's home. He referred to the backyard, dogs to play with, a scooter and a PlayStation. He said there were times when nothing bad happened when he went to the appellant's home, but most of the time it did. He said Victim 2 cried a lot when the two boys were at the appellant's home, but they kept going over and did not come up with an excuse not to go. He knew they had lots of people to protect them, and when asked if he knew that the appellant could not do anything bad to him if he disclosed the abuse, he replied, "I don't know. He was a bit psycho".
8. Victim 1 said he only spoke to his grandmother about the abuse. He could only recall telling her one morning before school that the appellant had touched him.
9. Victim 1 denied that anyone had suggested the allegations to him to make trouble for the appellant. He denied that his grandmother told him what to say to the police in his interviews. He denied speaking with his grandmother about the allegations between the first and second police interviews. He said he did not know why he was taken to the police station for a second interview. He denied that his grandmother told him that he was going back to say more bad things about the appellant.
10. He agreed that he did not tell police in the first interview about the act of penetration, as opposed to an act of attempted penetration, and that during the first interview he told the police that nothing else had happened. He also agreed that he did not tell police in his first interview that the appellant touched his mouth with his penis.
11. He did not recall ever walking in on the appellant masturbating himself in the lounge room. He agreed that the boys sometimes engaged in "pretend wrestling" with the appellant, but denied it was pretend wrestling when the appellant "jumped" on them.

Evidence of Victim 2

1. At his first interview in May 2015, Victim 2 described one incident involving both victims when Victim 2 was seven years old. The appellant had picked both boys up from a bus stop. At his home, the appellant touched Victim 2's penis on the outside of his clothes, and his bottom. This conduct gave rise to counts 12 and 13 (aggravated indecent assaults: guilty). Victim 2 saw the appellant do the same thing to Victim 1. This conduct gave rise to counts 14 and 15 (aggravated indecent assaults: guilty). Victim 2 also described the appellant taking photographs of the boys
2. In his second interview in December 2015, when still aged seven years, Victim 2 said that Uncle Andrew "sticked his doody up my bum", "laid on me", and he "sucked my doody", and "walked around with no pants on". He said that these events happened "every time I went there". He described an incident when he was four years old, in the lounge room of the appellant's home watching cartoons. The appellant entered the lounge room from the kitchen and lay on top of him on the lounge. The appellant grabbed Victim 2's penis and put it against his (the appellant's) bottom. This conduct gave rise to count 1 (aggravated indecent assault: guilty).
3. The appellant then stopped, put Victim 2 onto his stomach and "sticked his doody was in my bum" and was "going up and down". The appellant told him to keep it a secret and not tell his grandmother. This conduct gave rise to count 2 (sexual intercourse with child under 10: not guilty).
4. Victim 2 also described an incident involving the appellant performing fellatio on him when he was four years old. Victim 2 said this occurred on an occasion when he got an ice cream from the kitchen and went to the lounge room to watch cartoons. This conduct gave rise to count 3 (sexual intercourse with child under 10: not guilty). Victim 2 said that after this the appellant "put his doody up my bum". This conduct gave rise to count 4 (sexual intercourse with child under 10: not guilty).
5. In cross-examination, Victim 2 agreed that his grandmother had told him that she did not like the appellant before he disclosed the allegations to her. He said he was telling the truth to the police in both interviews, although on the first interview, he did not tell police about any anal penetration. He agreed that his grandmother said that she wanted the appellant to get into trouble, but she said this was because of the things the appellant had done to him and his brother. He said he could not recall talking to his brother about the allegations between the police interviews and he denied his grandmother, or anyone else, told him what to tell police. He denied ever surprising the appellant while he was watching a movie.

The grandmother's evidence

1. The grandmother gave evidence that the boys visited "Aunty Jill", but once the appellant moved in upstairs, they visited him. She said the appellant would pick them up from school sometimes and they also stayed overnight.
2. On 27 April 2015, the grandmother heard a conversation in which Victim 1 said to Victim 2, "I've never seen a bigger penis than Uncle Andrew. I don't know that (sic) fit in your little hole and it was all that white, sticky, gooey stuff". She asked Victim 2, "… Is this true?" and he said, "Yes". She then contacted the police.
3. The grandmother gave evidence of another conversation before the two boys were interviewed by police in which Victim 1 said he watched the appellant have intercourse with Victim 2 who screamed. At some point, Victim 1 told his grandmother that the appellant stuck his penis in Victim 1's ear, licked his ear and sucked Victim 1's penis. The grandmother gave evidence that she confronted the appellant and he denied the offending conduct.
4. In cross-examination, it was put to the grandmother that there was animosity between herself and the appellant. She agreed that there had been a confrontation concerning her daughter and the appellant, but denied that she asked if her daughter could live with the appellant or his mother after her daughter had been arrested. The grandmother denied that she owed the appellant money, but said that he owed her money. She also denied telling the boys to make the allegations so that the appellant would get into trouble.

The police investigation

1. Following the complaint made to the police on 27 April 2015, Detective Senior Constable Rodney Jones became involved in the investigation on 30 April 2015. He gave evidence that the reason the victims were re-interviewed in December 2015 was to see if they could clarify matters or provide additional information. He also said that steps were taken for the victims to be medically examined but they did not want to be examined.
2. In cross-examination, Detective Senior Constable Jones denied telling the grandmother that her account of the victims' disclosure differed from what they said in the first interview. He also denied showing the grandmother the interviews of each victim.

The appellant's mother

1. The appellant's mother was called by the Crown. She gave evidence that the boys always wanted to go to the appellant's house. She was present when the grandmother confronted the appellant and he said, "It's not true, Aunty". She also gave evidence that the appellant told her that the victims had walked in on him watching a pornographic movie.

The appellant's evidence

1. The appellant gave evidence at trial. He said he started looking after the boys to help his aunt. He described his activities with the boys as watching television or playing games on the PlayStation or on the iPhone that he said he lost around October 2014. He gave evidence of arguments with his aunty, the victims' grandmother, over money they loaned one another, and his reporting the behaviour of his cousin, who was the grandmother's daughter, to police. According to the appellant, the grandmother had threatened to have the appellant locked up, or in trouble with the police.
2. The appellant denied all of the allegations of misconduct towards Victims 1 and 2. He said there was an occasion when the boys walked in on him when he was naked and masturbating to a pornographic movie he had streamed onto the television. He said he did not tell anyone about it at the time and he told the boys not to tell their Nan. The appellant denied running around naked with the victims. He agreed that sometimes he would tickle or wrestle with them, but said he never deliberately touched their genitals or bottoms, or sexually assaulted them. He denied threatening them. He denied taking nude photographs of them.

Ground 1: Inconsistent verdicts

1. As framed in the notice of appeal, ground 1 has two aspects: 1. that the guilty verdicts were unreasonable having regard to the nature and quality of the evidence; and 2. that the guilty verdicts for counts 1, 7, 9, 10, 11, 12, 13, 14 and 15 are inconsistent with the not guilty verdicts on counts 2, 3, 4, 5, 6 and 8.
2. Counsel for the appellant did not submit that the guilty verdicts are unreasonable having regard to the nature and quality of the evidence. The appellant's argument was confined to the submission that the guilty verdicts are unreasonable for the reason of their inconsistency with the not guilty verdicts.
3. The legal test to be applied to the appellant's contention is one of logic and reasonableness: MacKenzie v The Queen (1996) 190 CLR 348 at 366; [1996] HCA 35 (MacKenzie). In MacKenzie at 366, Gaudron, Gummow and Kirby JJ approved the test as stated by Devlin J in R v Stone (unreported, 13 December 1954). In order to succeed on this ground, the appellant: … must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.
4. Nevertheless, if there is a proper way by which the verdicts may be reconciled, allowing the appellate court to conclude that the jury properly performed its functions, that conclusion is generally to be preferred: MacKenzie at 367 (Gaudron, Gummow and Kirby JJ). It is also to be kept in mind that a verdict of "not guilty" does not necessarily imply any "want of confidence" in the complainant but "may simply reflect the cautious approach to the discharge of a heavy responsibility": MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] (Gleeson CJ, Hayne and Callinan JJ). As Spigelman CJ had earlier remarked in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [34]: In the common case of multiple sexual assaults against a single complainant, often over a period of time, juries frequently acquit on some charges and convict on others. The issue raised by Jones is to determine when an acquittal so affects the credibility of the complainant that, in combination with other factors, a conviction was not open to the jury. A court of criminal appeal must perform this task whilst acknowledging the role of the jury as emphasised in M vThe Queen, MacKenzie and Jones quoted above.
5. There is a further important consideration to a challenge to the verdicts based on inconsistency. As stated by Simpson J (McClellan CJ at CL and Latham J agreeing) in TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [128]: In determining whether convictions are unreasonable, ... the focus of the enquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant's credibility, the verdicts of guilty may not be unreasonable, at least on that basis.
6. Simpson J continued at [130]: Before … an appellate court, faced with adverse verdicts on multiple counts, must intervene to set aside the convictions, the Court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant's credibility. … The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant's credibility. See also: Jafary v R [2018] NSWCCA 243 at [37] (Leeming JA and Walton and Wilson JJ); Walker v R [2019] NSWCCA 4 at [10] (Hoeben CJ at CL, Rothman and Price JJ agreeing).

Consideration

1. An understanding of ground 1 is assisted by the following table summarising the counts, dates, underlying conduct and jury verdicts: Count Date Offence/Conduct Crimes Act 1900 (NSW) Verdict 1 10/3/12-9/3/13 Aggravated indecent assault on person under 16 years (Indecent assault) Section 61M(2) Guilty Appellant touched Victim 2's penis against appellant's bottom 2 10/3/12-9/3/13 Sexual intercourse with child under 10 years (Sexual intercourse) Section 66A Not guilty Appellant inserted his penis into Victim 2's anus 3 10/3/12-9/3/13 Sexual intercourse Section 66A Not guilty Appellant sucking penis of Victim 2 4 10/3/12-9/3/13 Sexual intercourse Section 66A Not guilty Appellant inserted penis into Victim 2's anus 5 10/3/12-9/3/13 Sexual intercourse Section 66A Not guilty Appellant inserted penis into Victim 1's anus 6 10/3/12-9/3/13 Sexual intercourse Section 66A Not guilty Appellant partly inserted penis into Victim 1's anus 7 10/3/12-9/3/14 Indecent assault Section 61M(2) Guilty Victim 1 saw appellant put penis against Victim 2's bottom 8 10/3/12-9/3/14 Assault child under 10 years with intent to have sexual intercourse Section 66B Not guilty Appellant attempted to insert penis into Victim 1's anus 9 (Alternative to count 8) 10/3/12-9/3/14 Indecent assault Section 61M(2) Guilty Alternative to count 8, same conduct/incident 10 10/3/12 - 27/4/15 Indecent assault Section 61M(2) Guilty Appellant's penis on Victim 1's mouth in appellant's bedroom 11 1/1/14-27/4/15 Indecent assault Section 61M(2) Guilty Appellant touched Victim 1's mouth with his penis 12 10/3/15-27/4/15 Indecent assault Section 61M(2) Guilty Last incident upon Victim 2, appellant touched his penis 13 10/3/15-27/4/15 Indecent assault Section 61M(2) Guilty During same incident, appellant touched Victim 2's bottom 14 10/3/15-27/4/15 Indecent assault Section 61M(2) Guilty Victim 2 saw appellant touch Victim 1's penis 15 10/3/15-27/4/15 Indecent assault Section 61M(2) Guilty Victim 2 saw appellant touch Victim 1's bottom

1. In challenging the verdicts based on inconsistency, the appellant argued that it was illogical for the jury to return verdicts of guilty for all nine counts alleging indecent assault, while returning not guilty verdicts in relation to the six counts alleging sexual assault (including one count of assault with intent to have sexual intercourse), given that some of the sexual assault counts were alleged to have occurred during the same course of conduct as the indecent assault counts.
2. The appellant further submitted that the jury appears to have engaged in some "big picture" compromise whereby it simply convicted on all charges of indecent assault and acquitted the appellant, upon no logical basis, on all other counts.
3. The Crown correctly submitted that the correct starting point for considering whether verdicts can be reconciled is not the convictions, but rather the acquittals. This is the approach stated by Simpson J in TK v R. The appellant did not argue that this approach is not the correct one to adopt in this appeal.
4. It is convenient to consider the acquittals in the order in which they were addressed in the appellant's oral argument.

Count 8 - Victim 1

1. The appellant submitted that it was illogical for the jury to return a verdict of not guilty on count 8 but guilty on counts 7 and 9 since the conduct that was the subject of these counts related to the same incident. In addition, the appellant argued that the inconsistency that arises between count 8, for which he was acquitted, and counts 7 and 9 for which he was found guilty, is not explicable by the jury requiring "something more", such as medical evidence or evidence of pain experienced by Victim 1, before it could be satisfied that the appellant attempted to penetrate Victim 1's bottom with his penis.
2. According to the submission, in order to be satisfied that the appellant was guilty on counts 7 and 9, the jury had to be satisfied that Victim 1 was a reliable and credible witness but it was plain when one had regard to its not guilty verdicts on the other counts which relied upon Victim 1's evidence, the jury did not find him to be such a witness.
3. These submissions ignore that count 9 was an alternative to count 8 and there was a reason for the jury to rationally distinguish between these counts. In his closing address, the Crown Prosecutor conceded that the jury might not be satisfied of the required intention for count 8, namely, that the appellant was trying to put his penis in Victim 1's bottom. Victim 1 gave evidence in his first police interview that "he put his rude part on my bum" and "he didn't go to (sic) far in my bum", "… his rude part there but it wouldn't go it" and "it never went in. But he just kept it there".
4. The Crown Prosecutor said: "You might find that he [Victim 1] was a bit equivocal about this event in his interview and that's why there is an alternative" being a reference to count 9. The Judge drew attention to the Crown's concession in his summing up when addressing count 8.
5. The concession at trial by the Crown Prosecutor that the jury may not be satisfied that the element of intent had been proved beyond reasonable doubt provides a rational explanation for the acquittal on count 8, while the jury was clearly satisfied beyond reasonable doubt that the incident occurred, and therefore found the appellant guilty of the alternative count 9 involving indecent assault upon Victim 1. There is no illogicality or inconsistency between the jury's verdicts on count 8 on the one hand and counts 7 and 9 on the other.

Count 6 - Victim 1

1. Count 6 was a standalone count, being another allegation of anal intercourse with Victim 1, which Victim 1 said occurred a week after the conduct that formed the basis of counts 7, 8 and 9.
2. The appellant submitted that there is no reason to distinguish between the acquittal on count 6 and the guilty verdicts on the other counts which relied upon the evidence of Victim 1, based on the lack of particularisation given by Victim 1 for count 6. According to the submission, the explanation for the acquittal on count 6 must be that the jury entertained a doubt as to the reliability of Victim 1.
3. In his closing address, the Crown prosecutor referred the jury to the same parts of Victim 1's first interview with police for the evidence with respect to count 6, as for counts 8 and 9. The Crown drew attention to Victim 1 having spoken of the appellant doing it to him "twice". There was no specificity of the appellant's conduct on the second occasion beyond the evidence as to what occurred on the first occasion (which is referred to at [53] above). Victim 1 was asked whether something different happened or was it the same, to which he responded, "No, not, it just stayed there".
4. Given the absence of particularisation by Victim 1 of the conduct which the Crown relied upon for count 6 (sexual intercourse) beyond that relied upon for count 8 (assault with intent to have sexual intercourse), and the Crown's concession that Victim 1's evidence as to what occurred in respect of count 8 was somewhat equivocal, it was open to the jury rationally not to be satisfied beyond reasonable doubt that penetration occurred to support count 6. The logical explanation for the acquittal on count 6 did not rely upon a doubt about the Victim 1's credibility or reliability.

Count 5 - Victim 1

1. Count 5 involved another allegation of anal intercourse with Victim 1. This was first raised by Victim 1 in his second interview. The Crown accepted that on this occasion there was no ambiguity about the question of penetration. Victim 1 alleged that the appellant put his penis "in my bum, and it hurt", that he was "screaming", because "it really hurt". He said there was no bleeding and he never went to a doctor because "all out now. I had baths and everything". He also said that he was about four or five years old when this happened.
2. The appellant submitted that clearly the credibility of Victim 1 was an issue on count 5 and the jury rejected the evidence of Victim 1 in relation to penetrative acts. That submission should not be accepted. The not guilty verdict does not necessarily imply any "want of confidence" in the complainant, but "may simply reflect a cautious approach to the discharge of a heavy responsibility": MFA v The Queen at [34] (Gleeson CJ, Hayne and Callinan JJ); see also, R v Markuleski at [219]-[221] (Wood CJ at CL).
3. As Button J remarked in White v R [2018] NSWCCA 156 at [201] when dealing with a similar argument to that advanced by the appellant in the present case: In my opinion, the verdicts of acquittal can be explained generally as the result of a combination of the jury approaching the criminal onus and standard of proof with the utmost seriousness, and the absence of specific corroboration for many of the counts.
4. Here, there is a rational distinction, which the jury appears to have drawn, between the evidence in support of count 5, which involved penetration, and the other counts based upon Victim 1's evidence, for which the appellant was found guilty. For count 5, there was no evidence of any physical symptoms, nor was the victim medically examined. Again, the logical explanation for the acquittal on count 5 did not rely upon a doubt as to Victim 1's credibility or reliability.

Counts 2, 3 and 4 - Victim 2

1. The appellant acknowledged that the absence of medical evidence may explain the acquittals on counts 2 and 4 involving anal penetration, but submitted that the absence of physical or medical evidence does not provide a reasonable explanation for the acquittal on count 3. The appellant also submitted that there can be no logical basis for the acquittal on count 2 and the guilty verdict on count 1 when those two offences are alleged to have occurred during the same incident.
2. As to the acquittals on counts 2 and 4, the jury was instructed as to the elements of the offence which included that there must be penetration of the anus. For count 2, the Crown case relied upon Victim 2's evidence that the appellant "puts his doody up my bum" (Q83) and that the appellant was "going up and down" (Q121). For count 4, the Crown relied upon Victim 2's evidence that the appellant "put his doody up my bum". This conduct was first disclosed in Victim 2's second interview.
3. As the Crown submitted, the logical basis for distinguishing between counts 1 and 2, which related to the same incident, is that count 2 required proof beyond reasonable doubt of anal penetration and there was no evidence of any complaint of pain or medical evidence. It was open to the jury rationally to distinguish between the verdicts on these two counts by being satisfied beyond reasonable doubt that the incident occurred generally as described by Victim 2, involving an indecent assault (count 1), without being satisfied beyond reasonable doubt that penetration of the anus occurred (count 2). The same may be said of the acquittal on count 4 where again there was no evidence from Victim 2 of any complaint of pain or medical evidence.
4. As to count 3, the appellant submitted that it was illogical for the jury to return a verdict of not guilty on count 3, but guilty on count 1. The submission continued that the absence of specific corroboration of Victim 2's evidence, such as physical/medical evidence, would not have prevented any finding of guilt on count 3, involving oral sexual intercourse.
5. Against this, the Crown submitted that the jury may have sought "something additional" to support the account of Victim 2 in his second interview, since Victim 2 had said that his older brother was present when the events described in the second interview occurred. In his first interview, Victim 1 described the appellant "jumping" on Victim 2 whilst both the appellant and Victim 2 were naked, but he did not describe the appellant sucking Victim 2's penis. The logical explanation for the acquittal on count 3 is the absence of corroboration by Victim 1. That is not to necessarily imply any "want of confidence" by the jury in Victim 2: MFA v The Queen at [34].

Conclusion

1. Having considered the evidence at trial, I do not consider that there is an inconsistency between the jury's verdicts of not guilty in respect of counts 2, 3, 4, 5, 6 and 8 and its verdicts of guilty in respect of the other counts. Rather, the verdicts reflect the evidence available to support the guilty verdicts on counts 1, 7, 9, 10, 11, 12, 13, 14 and 15, while the not guilty verdicts can be explained as a result of a combination of the jury approaching the criminal onus and standard of proof with the utmost seriousness, and the absence of specific corroboration of the allegations of anal penetration (counts 2, 4, 5 and 6), oral intercourse (count 3) and attempted anal penetration (count 8).
2. Ground 1 has not been made out.

Rule 4 considerations

1. Rule 4 of the Criminal Appeal Rules (NSW) provides that no direction, omission to direct, or decision as to the admission or rejection of evidence, given by the judge presiding at the trial shall, without the leave of the Court, be allowed as a ground for appeal unless objection was taken at the trial to the direction, omission or decision by the party appealing.
2. Leave to rely on an error to which no objection had been taken at the trial will be granted only where the appellant can demonstrate that the error led to a miscarriage of justice. The criterion for the exercise of r 4 has been the subject of discussion in this Court. In Picken v R [2007] NSWCCA 319, Mason P (Hidden and Harrison JJ agreeing) noted at [20] that there have been varying formulations of the test for identifying a miscarriage of justice in this context, referring to Tripodina and Morabito v R (1988) 35 A Crim R 183 at 195; Papakosmas v The Queen (1999) 196 CLR 297 at 319; and R v Wilson (2005) 62 NSWLR 346 at 352 [20]. The test proposed by McHugh J in Papakosmas v The Queen, which is a negative constraint, was doubted in Greenhalgh v R [2017] NSWCCA 94 at [8] (Basten JA, Button J agreeing), where the view was expressed at [16] that this Court should be cautious in laying down principles to be applied when exercising a broad discretionary power under r 4.
3. Nonetheless, it is generally accepted that the appellant must at least establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R at [20] - [21]; ARS v R [2011] NSWCCA 266 at [147] (Bathurst CJ, James and Johnson JJ agreeing); Greenhalgh v R at [47]-[48] (N Adams J) cf [7]-[21] (Basten JA, Button J agreeing).
4. It is also to be kept in mind, as Mason P said in Picken v R at [22], that: The question of leave in accordance with rule 4 needs to be addressed in relation to the particular error identified by the appellant and its impact, in isolation and in conjunction with other errors, upon the justice of the conviction under challenge.

Ground 2(a): Failure to give a proper Markuleski direction

1. The appellant submitted that the trial miscarried because the Judge failed to direct the jury that if it entertained a reasonable doubt as to the complainant's evidence on any count, it ought to take this into account in assessing his credibility generally. Reference was made to the observations of Spigelman CJ in Markuleski at [191] and [195].
2. His Honour's direction to the jury was as follows: The fact that you have to give separate consideration to the individual counts on the indictment means that you are entitled, for example, to bring in verdicts of guilty on some counts and verdicts of not guilty on other counts if there is some logical reason for that. If on the other hand you were to find Mr Roos not guilty on any particular count, because you had doubts about the honesty or the reliability of the evidence of [Victim 1] or [Victim 2], then you will have to give some consideration to how that conclusion affects your consideration of the remaining counts.
3. Markuleski involved multiple counts relying on the evidence of one complainant and the jury returned verdicts of guilty on five counts and a verdict of not guilty on the remaining count. Spigelman CJ said at [195] that it is pertinent for a jury to have its attention expressly directed to the proposition that a reasonable doubt with respect to the complainant's evidence on any count, ought to be taken into account on the complainant's credibility generally. Nonetheless, Spigelman CJ accepted at [191] that such direction should be phrased in terms that meet the particular circumstances of the specific case.
4. Wood CJ at CL expressed a similar view at [263] as follows: In some cases, where it is obvious that the witness's reliability or credibility has been seriously undermined, in relation to one count, a strong comment may be appropriate. In other cases, it may be appropriate to indicate to the jury that they may have a difficulty in accepting the witness's evidence on some counts, or on particular counts, if they have a reasonable doubt about his or her reliability in relation to the other counts. In other cases a more neutral reminder of the entitlement of the jury to take such matter into account may suffice. In yet other cases, it may not be necessary to say anything.
5. In R v G.A.R. [2003] NSWCCA 224, Miles AJ (Spigelman CJ and Bell J agreeing) referred to Markuleski before reiterating at [26] that if such a direction is required, there is no specific formula as to its content.
6. In the present case, the credibility and reliability of the two victims was critical to the Crown case and plainly so much would have been evident to the jury. The defence case was that the jury could not be satisfied beyond reasonable doubt primarily because there was no independent evidence that the events took place as alleged and the victims were "poor storytellers". It was submitted in closing address that the evidence of the two boys contains inconsistencies, exaggeration, accounts of events that are inherently implausible, and accounts of events that are physically impossible. As the Crown submitted, there was nothing unusual nor complex about the reasoning process the jury needed to embark upon.
7. The direction given by the Judge was in the form provided by the NSW Criminal Trial Courts' Bench Book at [5-1590]. As explained by Hoeben CJ at CL in DV v R [2017] NSWCCA 276 at [139], this does not mean that the direction is correct, nor does it give it any special status, but it does indicate that this kind of direction has been given since the commencement of the Evidence Act 1995 (NSW) without challenge.
8. The appellant submitted that the direction given by the Judge was that the jury may consider that a doubt about the reliability of the complaint's evidence on one count might "in some unstated and unspecified way affect consideration of the remaining counts." That submission is a mischaracterisation of the direction given to the jury. The jury was directed that a doubt as to the credibility or reliability of the evidence of either victim on any count was relevant to the jury's assessment of the other counts. In context, that was plainly a direction that such a doubt ought to be taken into account on the complainant's credibility generally.
9. In the circumstances where counsel for the accused did not seek any additional or amended direction to that given by the Judge, the direction given was sufficient. No miscarriage of justice has been demonstrated.

Ground 2(b): failure to give a proper Liberato direction

1. The appellant submitted that the trial miscarried because the Judge failed to direct the jury that if it rejected the accused's evidence, it does not necessarily follow that the Crown's case is made out. The jury ought to have been told, the appellant submitted, that it could not simply choose between whom it preferred, that is, between the Crown witnesses on the one hand, and the accused on the other.
2. According to the submission, in the absence of a Liberato-type direction, the summing up would have left the jury with the impermissible impression that the appellant's evidence can give rise to a reasonable doubt as to his guilt only if the jury believes that there was a reasonable possibility that it was true, and to correct this, a further direction was required.
3. His Honour's direction with respect to the standard and onus of proof was as follows: It is important to bear in mind throughout deliberations that that burden of proof, the burden of proving the case, never ever shifts off the Crown; it never, in particular, shifts to the accused. In this trial, there is no obligation on [the accused] to prove anything. Of course, it follows from that that it is not, in this trial for [the accused] to provide his innocence. It is for the Crown, in this trial, to establish his guilt. … [The accused] has given evidence in this trial but the fact that he has given evidence does not alter, in any way, the burden of proof on the Crown. [The accused] does not have to prove to you that his version of events is true. The Crown has to satisfy you that the version of events given by the accused should not be accepted as a version of events that could reasonably be true. When I say that the Crown has to prove the guilt of [the accused], they have to prove his guilt beyond reasonable doubt. That is the high standard of proof that the Crown must achieve in a criminal trial before you, as the jury, can convict him. At the end of your consideration of all the evidence that has been placed before you and after your consideration of the submissions made to you by the Crown Prosecutor and the submissions made to you by Mr Hoare, you must ask yourselves whether the Crown has established [the accused's] guilt beyond reasonable doubt. As I have said, [the accused] gave evidence. He gave evidence denying expressly that the acts alleged against him by the Crown took place. You need to consider that evidence and the submissions made to you about that. If you accept the evidence of [the accused], then, of course, you will acquit him because it would follow that the Crown has not established beyond reasonable doubt its case in relation to the essential elements that it must prove. But as I told you, there is no obligation on [the accused] to persuade you to accept his evidence. As I have said to you, the Crown must satisfy you beyond reasonable doubt that you should reject his evidence as a reasonably possible version of the facts. If the evidence of [the accused] leaves you with a reasonable doubt as to whether the Crown has made its case in respect of any of the essential elements of the offence, then you are bound in law to bring in a verdict of not guilty in respect of the charge you are considering. In other words, ladies and gentlemen, you do not have to believe that [the accused] is telling the truth before you find him not guilty. If at the end of the deliberations you find that the Crown has failed to eliminate as a reasonable possibility that the version presented by [the accused] is true, then the Crown has failed in its obligation to persuade you of his guilt beyond reasonable doubt.
4. Liberato v The Queen (1985) 159 CLR 507 involved an unsuccessful application for special leave to appeal to the High Court. In his dissenting judgment, Brennan J said at 515: When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.
5. Deane J agreed with Brennan J, and added at 519 that even in the situation where the jury is being invited to choose between the Crown witnesses and the defence witnesses as to who is to be believed, what is required is no more than clear and unequivocal directions as to the criminal onus and standard of proof.
6. Subsequently, this Court has accepted that "it would be wrong to indicate that guilt or innocence 'turned upon a mere "choice" between 'two inconsistent versions": R v Ryan (Court of Criminal Appeal (NSW), Mahoney JA, Gleeson CJ and Wood J agreeing, 15 April 1994, unrep). Similarly, in R v Li (2003) 140 A Crim R 288, Dunford J (Spigelman CJ and Hidden J agreeing) said at [72]: The issue can never be which of the cases is correct or who of the complainant and the accused is telling the truth.
7. It has also been said that the Liberato type direction may be unnecessary where the jury is given clear directions regarding the onus and standard of proof: R v Burt (2003) 140 A Crim R 555 at [63]-[64].
8. In R v Niass [2005] NSWCCA 120, Hunt AJA (Grove and Hall JJ agreeing) said at [28]-[29]: … It has now been held that a Liberato direction is not required as a matter of law in every case so that its absence demonstrates an error of law: Salmon v The Queen [2001] WASCA 270 at [99]-[103]; Regina v Chen, Siregar & Isman (2002) 130 A Crim R 300 at [79]; Regina v Burt (2003) 140 A Crim R 555 at [61]-[63]. In the present case, the jury were directed that, if they considered that the appellant's version of what happened could possibly be true, they must acquit him. Such a direction prevented any likelihood that the jury obtained the impression that it was only if they believed the appellant's evidence to be true that it could give rise to a reasonable doubt as to his guilt. There was no suggestion that they had to choose between the Crown witnesses and the appellant as to who was to be believed. The directions concerning the onus of proof given to the jury in the present case (quoted in par [10], supra) deny the possibility of any misapprehension by the jury such as that contemplated by the Liberato direction.
9. In the present case, the Judge's summing up carefully and correctly explained to the jury the requirements of the criminal onus and standard of proof. The jury were directed that if they accepted the evidence of the accused they must acquit him but there was no obligation on the accused to persuade the jury to accept his evidence. The jury were also instructed that there was no obligation on the accused to persuade the jury to accept his evidence, that the jury did not have to believe the accused before they found him not guilty, and that the Crown must satisfy the jury beyond reasonable doubt that the jury should reject the accused's evidence as a reasonably possible version of the facts.
10. Taken together with the directions on the onus and standard of proof, I do not consider that there was any likelihood that the jury obtained the impression that it was only if they believed the accused's evidence to be true that it could give rise to a reasonable doubt as to his guilt. The summing up did not suggest that the jury had to choose between the Crown witnesses and the appellant as to who was to be believed.
11. There is no merit in ground 2(b). Leave under r 4 should be refused.

Ground 2(c): Failure to give a motive to lie direction regarding the evidence of the victims

1. The appellant submitted that the trial miscarried because the Judge failed to give a motive to lie direction which, according to the submission, had been requested by the accused's trial counsel regarding the evidence of both victims.
2. This complaint needs to be considered in context. After the evidence had concluded, the Judge raised with counsel on 1 November 2016 the subject of a motive to lie direction. Counsel for the accused indicated that he was asking for a Jovanovic direction: R v Jovanovic (1997) 98 A Crim R 1. The Judge indicated without any further elaboration that such a direction would be given. Later, after the closing addresses on 2 November 2016, the Judge again raised the subject with counsel for the parties. The transcript records the following exchange with the appellant's counsel: HIS HONOUR: They get a motive to lie direction in relation to [the grandmother] and the two children? What the Crown Prosecutor said was that its implicit, in a sense, in the defence case that they're telling the lies because they've been prevailed upon. HOARE: I put that to each of them in general terms, that they were telling lies. But I'm not suggesting that the defence case is that they had a motive to fabricate the evidence, the motive was on the part of [the grandmother] and because of their youth she was able to influence them into - HIS HONOUR: I understand that. The motive to lie direction goes to her. HOARE: Yes.
3. The Judge then proceeded to give a motive to lie direction in relation to the evidence of the grandmother in these terms: The matter I wanted to deal with before we have a short adjournment is this, that you will recall the cross-examination of [the grandmother] and it was suggested to her that she had a motive to put [the accused] in prison and she therefore had a motive to lie, to lie about her involvement, to lie about what she had heard. She denied that she had that motive. She denied that she encouraged the boys to put forward a false account. Whether you accept that [the grandmother] had a motive to lie and, if so, what that motive was is a matter for you and you alone to decide. You heard her evidence and you heard her being cross-examined. In deciding whether she had the motive that was suggested to her, you should consider the strength of the motive, you should consider whether her actions were consistent with such a motive.
4. Following this direction, there was a short adjournment. When the hearing resumed, counsel for the accused did not raise any concern about the direction that had been given, nor was any redirection sought. The Crown submits that this is unsurprising given that the Judge's direction was in accordance with the earlier discussion and agreement with the parties. That may be accepted.
5. In Greenhalgh v R at [19], Basten JA remarked: … In some cases it will be possible to infer that a step was not taken which might have been taken, for tactical reasons. However, in most cases it will be difficult to know from reading the transcript of the trial whether some tactical advantage may have been perceived, whether a step was not taken based on instructions as to how the case should be run, or whether it was omitted through inadvertence.
6. In the present case, the accused's counsel had put to each victim in cross-examination that the grandmother had told them to tell lies about the accused. Nonetheless, as the Crown submitted, in his closing address the accused's counsel focused upon the motives of the grandmother, who had animosity towards the accused, whereas, with respect to the victims, the accused's counsel sought to highlight the unreliability of their accounts, rather than dishonesty. The accused was represented by experienced trial counsel. It was not suggested that there had been inadvertence by the accused's trial counsel. In any event, inadvertence will not be decisive: Greenhalgh v R at [20]. It may be inferred that counsel for the accused was content with the direction given by the Judge as it was consistent with the way in which accused's case was ultimately put to the jury in counsel's closing address.
7. The present case is one in which the remarks of Basten JA in Palmer v R [2018] NSWCCA 205 at [45] are apposite: … That further illustrates the inappropriateness, in circumstances where r 4 is engaged, of inviting this Court to second guess the judgment of trial counsel as to what direction should be given.
8. No error has been demonstrated with respect to ground 2(c) and leave under r 4 should be refused.

Ground 2(d): failure to give any hearsay warning regarding the evidence claimed to be heard by the grandmother

1. The appellant submitted that the trial miscarried because the Judge failed to give a hearsay warning regarding the grandmother's evidence about the conversation she heard between the two boys on 27 April 2015, the terms of which are referred to at [32] above. The appellant emphasised that at no stage did either victim refer to "sticky, "gooey stuff" in their police interviews.
2. In oral argument, counsel for the appellant acknowledged that this ground was of limited scope in the overall context of the appeal. That concession was properly made.
3. First, the Crown did not rely upon the evidence of the grandmother concerning the victims' conversation which she overheard as support for any allegation made against the appellant, nor as complaint evidence. Indeed, the Crown's position was, and the accused's counsel did not suggest otherwise, that the boys did not make a complaint; rather they kept the accused's conduct a secret which only came out when their grandmother overheard their conversation in April 2015.
4. Second, no application for a hearsay warning was made at trial by the accused's counsel.
5. Third, the appellant has not identified in this Court the direction said to have been required. It has been said that in cases where no direction was sought, it will usually be a precondition to the grant of leave under r 4 that the omitted direction should be expressly formulated. This is because an appeal court is confronted with the difficulty of assessing the significance of the omission, being far removed from the context provided by the trial, and "it will be almost impossible if the terms of the proposed direction are not formulated": Greenhalgh v R at [21] (Basten JA).
6. No error has been demonstrated with respect of ground 2(d) and leave under r 4 should be refused.

Ground 2(e): failure to adequately summarise the submissions made on behalf of the appellant

1. The appellant submitted that the trial miscarried because the Judge failed to adequately summarise the closing submissions made on his behalf. The appellant contended that the Judge's summing up of the defence case was so brief and general in its terms as to be almost purposeless.
2. Immediately prior to closing addresses, the accused's counsel told the Judge that the defence case was "very clear" and counsel was not asking for a "lengthy explanation of that case" to be included in the summing up.
3. Early in his summing up, the Judge remarked that the trial had been relatively short, the evidence would be fresh in the jury's memory and they had heard detailed references to the evidence in the submissions from the Crown Prosecutor and defence counsel. The Judge directed the jury that while he did not propose to refer in any great detail to the evidence, the jury, in considering its verdicts, was nonetheless required to consider all the evidence.
4. Later in the summing up, after having outlined the charges and the elements of the charges, and given various directions, the Judge summarised the respective cases of the Crown and the appellant as follows: The Crown case, in essence, is that you can accept the evidence of [Victim 1] and the evidence of [Victim 2] as evidence that is honest and evidence that is reliable. The Crown says to you, you certainly have to examine their evidence. The Crown case rests significantly on their evidence. But the Crown says, bearing in mind their age and making allowances for that, when you examine their evidence, you can accept it as being honest and reliable; that it does not, upon examination, have the appearance, have the character of evidence that is fabricated. It does not, the Crown says to you, bear a construction of evidence that has been the subject of coaching by a third party. When you examine their evidence and analyse their evidence, the Crown says to you, at the end of the day, what you will find, in each case of [Victim 2] and [Victim 1], evidence of two boys that is honest and reliable and which you can rely on. That being the case, if you find it is honest, if you find it is reliable, it is not fabricated, you can, the Crown says, convict [the accused] of the charges. The defence case is that you do have to subject the evidence of [Victim 1] and the evidence of [Victim 2] to considerable scrutiny. But the defence says to you, when you do that, what you find is evidence of the two boys that contains inconsistencies, contains exaggeration, contains accounts of events that are inherently implausible, contains accounts of events that are physically impossible. The defence says to you, when you draw all that together, what you have is uncertainty and doubt that is magnified when you draw it together with the involvement of [the grandmother] and her animosity towards the accused and her desire to see him locked up. The defence case is that when you put all that together, you simply cannot be satisfied beyond reasonable doubt of the charges against [the accused].
5. A judge presiding over a criminal trial with a jury is not required to summarise the evidence in every case: Criminal Procedure Act 1986 (NSW), s 161. In Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46, Kiefel CJ, Bell, Nettle and Keane JJ said at [59]: … How the judge structures the summing-up and the extent to which the judge reminds the jury of the evidence is a matter for individual judgment and will reflect the complexity of the issues, and the length and conduct of the case …
6. This was a case in which it was not necessary to summarise the evidence for the reasons the Judge gave: see [111] above.
7. There remains the question, however, whether the Judge failed to fairly put before the jury the case that the accused makes, an obligation which extends to explaining any basis for which the jury might properly return a verdict in the accused's favour: RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 at [41]-[43] (Gaudron ACJ, Gummow, Kirby and Hayne JJ). The reference to the accused making a case should be understood to encompass any challenge to the prosecution evidence and submissions: Dixon v R at [14] (Basten JA). To this end, it is necessary to identify how counsel for the accused left the defence case to the jury.
8. The Crown correctly emphasised that the focus of the accused's closing address at trial was not the details of the accused's account, which was in substance a denial, but the improbability of the Crown case, the unreliability of the complainants and that the grandmother had a motive to suggest to the boys that they make up the allegations, given her animosity towards the accused. The brief, but concise, summary by the Judge of those submissions reflected the way in which the accused's case was presented at trial.
9. That the summing up was perceived by accused's counsel as sufficient and appropriate can be seen from the absence of any request for a redirection: Dixon v R at [13]-[28]. Indeed, when asked whether either party wanted the Judge to raise anything with the jury, counsel for the accused said that there was not a word he would ask the Judge to change.
10. Again, no error has been demonstrated and leave under r 4 should be refused.

Orders

1. I propose the following orders: 1. Grant leave to appeal against conviction with respect to ground 1 and ground 2(a). 2. Refuse leave to appeal under r 4 of the Criminal Appeal Rules (NSW) with respect of grounds 2(b), (c), (d) and (e). 3. Dismiss the appeal.
2. HARRISON J: I agree with Gleeson JA.
3. DAVIES J: I agree with Gleeson JA for the reasons he gives.

Amendments 02 April 2019 - Typographical errors amended in [44], [61], [89] and [101] 08 April 2019 - R v Roos replaced with Roos v R DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 April 2019