SB v R

Alleged facts giving rise to the charges

1. The complainant, CB, was born in 2007 and is the appellant's daughter. The appellant has separated from the complainant's mother (TT). The Crown alleged that the appellant sexually assaulted the complainant between 2013 and 2015, each assault occurring during an access visit by the complainant to the appellant.
2. The complainant gave pre-recorded evidence before Girdham SC DCJ, which recording was played for the purpose of the trial over which King SC DCJ presided. In the pre-recorded evidence, CB acknowledged that she participated in a recorded interview on 15 March 2016. During that interview, CB said that the appellant, on every special occasion, or every second weekend, whenever he was drunk, would crawl into her bed and start touching her, putting his hands down her pants, touching her privates and pushing and pulling.
3. In an Electronically Recorded Interview of a Suspected Person (ERISP) and in his evidence in the trial, the appellant denied having abused CB. The appellant's mother gave evidence concerning the impossibility of CB having been abused, as she alleged, with respect to Count 3 and Count 4. The timing of Counts 3 and 4 was alleged to have been around Christmas 2014, as earlier indicated, and the appellant's mother was staying at the appellant's residence and slept in the bedroom with the complainant on the only weekend in December that the complainant stayed with the appellant.
4. The jury had before them evidence as to how CB came to make a complaint and evidence of the lack of any injuries she suffered, as well as evidence that went to the nature of how children complain of child sexual abuse. Because CB complained of the abuse occurring when the appellant was intoxicated, or at least after he had consumed alcohol, his alcohol consumption became an issue in the trial. The appellant called his stepfather and his employer in relation to that issue. The appellant also relied upon his good character.
5. Count 1 was alleged to have occurred, as already stated, between 16 May 2013 and 10 September 2013, at Newport, while, according to CB, her mother was away at a conference. [1] The appellant was alleged to have got into bed with CB and digitally penetrated her vagina. The appellant agreed that CB's mother had gone away for a conference on a weekend in May 2013. [2] He denied that offence and that he had offended against his daughter.
6. Count 3 was alleged to have occurred between 1 December 2014 and 26 December 2014, at Quakers Hill, on an access visit by CB to the appellant's home, after he and CB's mother had separated in January 2014. [3] CB alleged that, on an occasion about a week before Christmas, the appellant collected her from after-school care and took her to his home. After she had gone to bed, he came to her bed and put his hand inside her underwear. From the description she gave, the Crown alleged that he had digitally penetrated her vagina.
7. The appellant denied this incident. He relied upon CB's access visits and contended that this sleepover must have occurred on the weekend commencing Friday, 12 December 2014. [4] Both the appellant and his mother gave evidence that the mother had visited the appellant on the weekend commencing Friday, 12 December 2014. The appellant's mother slept, together with CB, in her bed. [5] It was thus impossible for the offence to have occurred at all, or in the manner suggested by the complainant.
8. Count 5 was alleged to have occurred between 30 October 2015 and 2 November 2015 at Quakers Hill, on another access visit by CB. Halloween fell on the weekend of this visit. After dressing up and going out with her father, CB had gone home and gone to bed. The appellant got into her bed and was alleged by the Crown to have again digitally penetrated the complainant's vagina. [6] The appellant denied anything untoward had occurred between him and his daughter that weekend.
9. The complaint occurred in the following manner. On 3 March 2016, the complainant's mother picked up the complainant from after-school care. The after-school care provider had just run a program about age appropriateness, which entailed an education program about stranger danger; private parts; where babies come from; as well as other sex education. On being picked up from the after-school care, CB said to her mother: "'Mum, I've got to tell you something but I don't want you getting upset. It's about Dad.'… 'You know how my private parts are private, private to me?... No one can touch them, my mouth or down there [pointing to her groin]… Sometimes, when I was at my Dad's, I'd wake up in the middle of the night, because my bed was by the window and I'd get scared and I couldn't call you and so I'd climb into bed with dad.'" [7]
10. To the foregoing complaint, the complainant's mother said: "That's okay baby; he's your Dad." The complainant then said: "No, no, it's not okay." The complainant then said "He puts his hands down my pants." [8] The mother then queried: "Down the front?" to which the complainant said: "Front and back."
11. When asked if he did anything else, the complainant said: "No, he just pressed. He pushed and pulled." The complainant then said it made her sore when she thought about it. The complainant then said: "I thought he thought I was Maria [the appellant's then partner] because of sex." The complainant's mother asked whether Maria was there, to which the complainant said she was not. The complainant then said: "I know; I know it's wrong and he shouldn't have done it." And continued: "I don't want him as my Dad anymore" and started crying. [9]
12. The complainant's mother asked if she could tell her partner, MH, to which the complainant agreed. That night, the complainant asked her mother if she had told MH and the mother replied that she had. On hearing that information, the complainant turned to MH and repeated the same information which she had earlier informed her mother. At that time, the complainant said that it had happened at Easter at the house with spiders at Oxford Falls. The complainant also said that the last time was Halloween.
13. The next day, the complainant's mother reported the complaint after which police made contact with her and the complainant participated in an interview.
14. The written submissions, filed on behalf of the appellant, recite examples of inconsistencies between the complainant's evidence at trial and previous interviews with police, including further complaints about uncharged acts.
15. A consultant paediatrician, Dr Tzioumi, gave evidence regarding her Report in relation to the complainant. The complainant had told Dr Tzioumi that she had some pain going to the toilet to urinate for a few days after each of the incidents. Dr Tzioumi found that the complainant was a prepubescent child, with normal prepubescent genital layers, the normal crescent shaped hymen, and no evidence of any abnormality or evidence of scarring.
16. Dr Tzioumi gave evidence that where a child has made an allegation of digital vaginal penetration, it is "not unexpected" that there is a normal genital examination and that "it's usual that the examination is normal". [10] When asked for the reasons why there might be a "normal examination", Dr Tzioumi said: "There are multiple reasons for that normal finding. One is that no injury occurred to the genitalia at the time of the alleged incident, or if a superficial injury occurred, with the passage of time and especially the passage of time between the alleged incidents and the examination of [the complainant], any superficial injury, superficial or otherwise, would be expected to heal and heal completely. And superficial injuries heal without any scarring or other abnormality, so it's not uncommon." [11]
17. The paediatrician was then asked to provide an opinion based on the information that she had received, including that the complainant was experiencing pain while urinating for a number of days after the incident, as to whether that would evidence some sort of "superficial injury", to which Dr Tzioumi said: "I expect that it would have been a specific injury to cause her to complain of pain when passing urine." [12] Dr Tzioumi later suggested that a superficial injury could be a cut on the skin or the mucosa on the genital. Such a scratch, she testified, would be a superficial injury and can heal within a day or two. [13]
18. It became evident that that the complainant suffered from Giardia in October 2014 and a urinary tract infection on numerous occasions in 2014 and 2015. During cross-examination, Dr Tzioumi confirmed that urinary tract infections can cause pain when passing urine. Dr Tzioumi said that Giardia can cause abdominal pain, diarrhoea, nausea and, uncommonly, vomiting.
19. A psychologist, Dr Pulman, was called to give evidence. Dr Pulman had expertise in dealing with child sexual abuse victims and gave evidence that it is quite common for children to delay, before disclosing sexual abuse. Dr Pulman gave evidence relating to a range of features that were "usual" or "normative" and how children, generally, would remember them and detail them. She also gave evidence, both in cross-examination and in re-examination, as to the different matters a child might remember compared with an adult and the manner in which a child, generally, might remember events, including remembering the first and last time something occurred, but not recalling that which occurred in between in any detail or at all.
20. The appellant gave evidence and, in detail, denied the allegations made against him. The evidence provided in court was consistent with the statements that he made in his ERISP, except in relation to the destination to which the complainant's mother went for a weekend away.
21. There was, as earlier indicated, evidence in relation to the effect of alcohol on the appellant and other evidence relating to the appellant's good behaviour. As has been made clear, apart from the pre-recorded evidence before Girdham SC DCJ, which was shown during the course of the trial; the complainant's statements to the police; her complaints to her mother; and her complaints to the doctor were each adduced in evidence during the trial.
22. Apart from the foregoing evidence, which, generally, forms the background to the grounds of appeal, it is necessary to examine the trial Judge's Summing-up. Essentially, it is the Summing-up that is the subject of complaint.

The Court's Function on Appeal

1. Before dealing with the Summing-up, it is necessary to summarise, briefly, the role of the Court. The provisions of s 5 of the Criminal Appeal Act 1912 (NSW) provide to the appellant, being a person convicted on indictment, avenues of appeal. Those avenues include a right of appeal against the appellant's conviction on any ground which involves a question of law alone.
2. Further, with the leave of the Court, an appeal lies against a conviction that involves a question of fact alone or a question of mixed law and fact or any other ground which appears to the Court to be a sufficient ground of appeal. There is also, subject to the grant of leave, a capacity to appeal against a sentence imposed. There is no appeal against the sentence imposed on the appellant.
3. Where an appeal has been lodged under s 5 of the Criminal Appeal Act against conviction, the Court is required to allow the appeal, if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or if the judgment of the court of trial should be set aside on the ground of a wrong decision on any question of law or on any other ground whatsoever, if there were a miscarriage of justice. In any other case, the appeal must be dismissed. [14]
4. The grounds raised by the appellant do not involve a question of law alone. Nor is it suggested that there has been a wrong decision of any question of law by the trial Judge. As a consequence, the only basis upon which the Court is required to grant the appeal is if a ground establishes that "there was a miscarriage of justice". Essentially, the appellant alleges that each of the grounds of appeal amount to a miscarriage of justice.
5. It is not suggested, in this appeal, that the verdicts in relation to Counts 1 and 5 were unreasonable or cannot be supported having regard to the evidence. In other words, this is not a case in which the Court is required to determine whether it has a reasonable doubt as to the verdicts that have been reached, taking into account the whole of the evidence in the proceeding, not explained by the jury's advantage in hearing and seeing the evidence adduced. Thus, subject to the exercise of a discretion based upon quite different issues, if the grounds of appeal, or one of them, is successful, ordinarily the result would not be an acquittal of the appellant, but the ordering of a re-trial on the charges for which he has, thus far, been found guilty, including any alternative count.
6. Where the Court is dealing with a ground of appeal that raises a miscarriage of justice, the Court should quash the guilty verdict, if the Court is satisfied that the appellant is innocent or if the material presented raises sufficient doubt about the guilt of the appellant that the verdict should not be allowed to stand. The Court, in determining whether there is or has been a miscarriage of justice, is not engaged in an abstract investigation of truth. It is an investigation into that which was alleged to have been error in the context of the adversarial and accusatorial nature of a criminal trial and includes taking account of deliberate tactical decisions that may be made by an appellant at trial. [15]
7. In a jury trial, the most important function of a trial Judge is to ensure that the trial is fair. All other issues are subsidiary to that most fundamental function. Even the function of the Judge in minimising the inconvenience to a jury is part of the fundamental function of ensuring that a trial is fair. In that regard, when a judge sums up to a jury, that Summing-up must be fair and balanced. If it is not, it may cause a miscarriage of justice, requiring the Court to quash any guilty verdict arising therefrom. [16]

The Complainant's Evidence

1. Before dealing with the grounds of appeal and the principles to be applied in more detail than the foregoing general statement, it is necessary to deal with a particular aspect of the evidence of the complainant. In the course of the Appellant's Written Submissions (hereinafter "AWS"), the appellant deals at length with the cross-examination of the complainant, essentially for the purpose of demonstrating that there were a number of inconsistencies between the complainant's evidence at trial and the previous interviews with police, including further complaints about uncharged acts.
2. Before dealing with that summary, it is necessary to summarise some of the evidence given by the complainant in chief, which forms part of the Crown's case, if not its entirety. The AWS summarised the case for the Crown between [11] and [41] by reference to the order in which the complainant gave evidence of the various counts. That summary is largely uncontroversial and has been further summarised below.
3. The complainant was interviewed by the Joint Investigation Response Team (hereinafter "JIRT"), a division of the Department of Health or, more accurately, part of the Joint Child Protection Response Program, attached to NSW Health. JIRT carries out certain responsibilities under the Children and Young Persons (Care and Protection) Act 1998 (NSW).
4. In the pre-recorded evidence, the complainant acknowledged that she had participated in a recorded interview with the JIRT on 15 March 2016. This pre-recorded interview was marked for identification ("MFI"), as MFI 2. During that interview, the complainant said that the appellant, on every special occasion, or every second weekend, whenever he was drunk, would crawl into bed, and start touching her, putting his hands down her pants, touching her privates and pushing and pulling.
5. In the course of the pre-recorded evidence given before Girdham SC DCJ, the complainant dealt first with Counts 5 and 6 (reiterating that Counts 6 was an alternative to Count 5). This was an allegation of sexual assault on Halloween 2015 that occurred, allegedly, at Quakers Hill.
6. The complainant maintained that the last time the appellant conducted himself in the way described as happening on every special occasion was on Halloween 2015. The complainant wet her pants, which, she admitted, occurred when she got scared. The appellant asked her why she kept doing it and the complainant did not want to respond to upset his feelings. According to the complainant, she then got dressed for Halloween and texted her mother with a photograph of her in costume. There was also a photograph of the complainant wearing "pull-ups", a type of nappy. She alleges that the appellant told her not to take photographs.
7. The complainant went to bed and the appellant, according to the complainant, touched her privates, pushing and pulling, touching and flicking. The next morning, the complainant went to her mother's place. The complainant alleges that the sexual assault occurred at Quakers Hill. It was on a Saturday. The complainant says that she got there on the Friday around 9 PM; woke up on Saturday morning around 6 AM.
8. The complainant said that she was scared of the appellant because of all of the bad things that he had done to her and complained that the appellant thought that the complainant wet her pants because she liked doing it.
9. The complainant said that they left to go trick-or-treating around 7 PM; returned around 7:30 PM; and went to bed at 7:34 PM. She knew it was 7:34 PM because she had an iPhone.
10. The complainant described her bed and her pillows; that she was wearing a nightie that said "I eat crystals for breakfast" and had a photograph of a unicorn; and was wearing underwear with fluffy flowers.
11. The appellant, according to the complainant, came into her bed, fell asleep, and then started talking about being with other girls, including getting naked with his then partner and used the word "sex".
12. After the appellant touched her, according to the complainant, the complainant went to the spare room and played a game. It was midnight and she played Dr Seuss with the teddies; had a "cuddle party" with them; and played hide and seek with them. She fell asleep on the floor and woke up around 7 AM.
13. The complainant said that when the appellant touched her, he pushed and pulled her bottom and her "VJ". She also alleged that he used his hands to squeeze, which caused her pain and she felt "dust".
14. The complainant said that she felt the dust because the appellant works as a builder, so there was a lot of dust, which came off his hands. The complainant maintains that the appellant said: "You're the sexiest girl ever" and repeated it a number of times. She says that the appellant put his hands down her pants to which she responded: "get off" and "stop it". She also said "what are you doing" but the appellant said nothing. The appellant, according to the complainant, was flicking her privates, inside, and it felt sore. The complainant alleges that she pushed the appellant off the bed.
15. The complainant says that this happened a lot of times and the first time was Easter 2014.
16. In addition to the JIRT interview (MFI 2), the complainant participated in a recorded interview on 14 April 2016 (MFI 3). During the interview, the complainant said that there was another time near Christmas, about a month before Christmas, in 2014 or 2015. On that occasion, the appellant started pushing her privates really hard; pulling it; squishing it; swiping it. She was in her bed at the appellant's place in Quakers Hill.
17. According to the complainant, it was a Friday and the complainant said that she had come home from school. She was at a public school in the Northern Beaches and attended an after-school care provider. She finished school at 3:30 PM.
18. According to the complainant, the appellant picked her up at about 4:30 PM; they went shopping; bought dinner; and went home. The complainant had a shower and then ate dinner and went to bed around 9 PM.
19. The complainant said that she was in her bed; she fell asleep; and the appellant started pushing, pulling and stretching her privates. The complainant said the appellant was "squigging" her bottom as well. The complainant said she was wearing her nightie that said "I eat sparkles for breakfast" and her fluffy underwear.
20. According to the complainant, the appellant put his hand "inside her privates" and it hurt a lot. The appellant said several things which included the word "sex". His hand went inside her underwear and he used his fingers. This went on for about 10 minutes after which the complainant went into the spare room.
21. In relation to Counts 1 and 2 (again reiterating that Count 2 is an alternative count to Count 1), the complainant said that the first time was when her mother went on holidays, just for one night. The complainant said it was before the complainant's birthday in mid-September, after Easter and after her mother's birthday in June. The complainant said it was night-time and it was really hot. The complainant was 5 years old. It happened in the unit on the Northern Beaches and the complainant remembered that it was a Friday, because it was her last day at school. On the timing provided, this must have been winter.
22. It was the complainant's bedtime, after she had dinner and she was asleep, when the appellant came into her room. The appellant had picked her up from kindergarten and taken her home. She had played for a bit; had a shower; had dinner and went to bed. The appellant, according to the complainant, did "the exact same stuff", meaning pushing and pulling her privates with his hands.
23. On that day, the complainant was wearing a dress with the exact same patterns except it was pink on the inside and yellow on the side. At night she was wearing her Dora nightie and her Dora underwear.
24. The complainant said she could feel pain on the outside and the inside of her "VJ", like a needle stabbing her. According to the complainant, she then went into her mother's bed, because the appellant was in her bed. She said it went on for about 30 minutes, which she knew because she used to have a clock on her bedside table. The complainant said that she pretended to fall asleep, because the appellant got angry when she was not. The appellant came in at 6:02 PM and it was dark. The bed was white, with cute animals on the covers, which were pink. The appellant climbed the ladder to get into her bed; he lay down; pushed, pulled and flicked and slid and swiped her privates. The appellant, according to the complainant, was wearing a green shirt with black shorts.
25. The complainant had not told anyone about the first time. After she went to her mother's bed, she fell asleep. The next day, her mother returned. It was a Saturday.
26. According to the complainant, when the appellant was in her bed, she could smell beer on him. According to the complainant, the appellant has a lot of beer, every weekend and every day. He started drinking at around 11 AM and drank VB. According to the complainant, he had about 20 beers every day after which he got silly, in the sense that he was "wobbly" and "cuckoo".
27. The complainant said that she did not like to talk about the issues to the appellant, because the appellant thought she was a liar, because he thought it didn't really happen. According to the complainant, the appellant doesn't realise that he's doing it. The complainant had once tried to talk to the appellant after the first time it happened when she was 5. She could not remember what she said to the appellant.
28. The complainant had marked four diagrams: the front of a girl; the back of a girl; the house where the appellant was living; the inside of the house where the appellant was living. The complainant marked the drawings of a girl by identifying areas where it was said by the complainant that she was assaulted.
29. Part of the cross-examination of the complainant went to her age at different times; where she was living; and the timing of the alleged events. The complainant was taken to the records of her interview and she remembered saying that the first time (Count 1) occurred in Easter 2014, notwithstanding her evidence-in-chief. At the time, she was in Year 1 and living on the Northern Beaches. The complainant was then referred to her interview on 14 April 2016, where she said that the first time occurred in a car when she was 5, to which the complainant responded that she was getting confused.
30. The complainant was cross-examined about the alleged events on Halloween 2015. In the interview of 10 April 2016, the complainant said that the last time anything happened with the appellant was Halloween 2015. However, in that interview, the complainant also referred to Christmas. The complainant said that she could not recall whether she was referring to Christmas 2014 or Christmas 2015 and then gave evidence that it did not happen with the appellant in December 2015.
31. The complainant gave evidence that, in Easter 2014, the appellant was living in rental accommodation in Quakers Hill and she gave evidence that the first time it happened, the appellant was living on the Northern Beaches. The complainant agreed that the appellant left the Northern Beaches in January 2014.
32. The complainant then said she could remember the Friday before Halloween 2015 and the appellant picking her up from school and taking her to his house. The complainant could remember that it was Halloween on Saturday. The appellant did not work on Saturday. The appellant's girlfriend was not present while the complainant was there and the complainant could remember sending a photograph of herself, in a vampire costume, to her mother. This was the time, according to the complainant, that she wet her pants.
33. The complainant said, as earlier indicated in these reasons, that they started trick-or-treating around 7:30 PM and returned home about 8 PM (although the times were slightly different when earlier recounted in chief). According to the complainant, they went to four houses. The complainant agreed that her evidence was different to what she had said during the JIRT interview. In the JIRT interview she said that she left the house "around 7 o'clock" and returned home about 7:30 PM. The complainant said that this was because she had forgotten and she was incorrect in the interview. The passage bears repeating: "Q. [CB], you were asked what time you got back from trick or treating, and you answered, 'About 7.30, because we left at 7 o'clock,' and then you were asked, 'So about 7.30 you got home,' and you answered, 'Yeah, and then he sent me to bed at 7.34.' You were then asked, 'Bed at - how do you know it was 7.34?' and you answered, 'Because I have a phone there.' Do you agree that they're the answers that you gave to the police-- A. Yes. Q. --in your first interview? You agree that you now don't recall what the time-- CROWN PROSECUTOR: I object to that question. Q. Is the answers that you just gave me today different to what you told the police? A. Yes. Q. [CB], is what you told me today correct? A. No. Q. Is what you told me today not correct? A. Yes." [17]
34. The complainant said that on the night of Halloween 2015, she went to bed in her bed and she remembered saying in the JIRT interview that the appellant went to her bed and fell asleep. The complainant gave evidence that she knew the appellant fell asleep because he started snoring. Further, the appellant, according to the complainant, started talking in his sleep. The complainant gave evidence that she woke up when it was daylight. She had moved into the spare room when the appellant started talking in his sleep. While she had her phone with her, the battery was dead and she could not tell the time. The complainant could remember saying in the JIRT interview that she was going to kick the appellant out, but instead decided to go into the spare room.
35. She was cross-examined about her interview, where she had said the appellant came into her bedroom around midnight. When giving evidence, the complainant could not recall when the appellant came into her bedroom. The complainant was also cross-examined as to what she had said during the JIRT interview about the appellant "flicking her privates" and that she had pushed him off the bed. The complainant could not remember giving those answers. The only thing she could remember was that he was talking in his sleep. The complainant gave evidence that the appellant touched her private parts, just after he came into her bed.
36. The next day, the complainant told her mother that she had gone "trick-or-treating". She told her mother that the appellant spent all Saturday night on the phone and did not give her dinner. The complainant, in her evidence, maintains the truth of that statement. The complainant gave evidence that the first time she told her mother about the appellant touching her was a few weeks after Christmas 2015.
37. The complainant disagreed with the proposition put to her that the appellant did not come into her bedroom the night of Halloween 2015; she disagreed that the appellant did not touch her; the complainant did agree that she did not kick the appellant out of her bed. The complainant also agreed that she did not tell her mother the next day.
38. Further, the complainant agreed that she went into the spare room and had a party with her teddies. Further again, the complainant agreed that the day after Halloween night, when the foregoing was said to have occurred, she attended a waterpark in Blacktown with the appellant and did not talk to the appellant about what happened the night before. The complainant agreed she could not remember what time the appellant went to bed and agreed that she woke up in the morning.
39. The complainant maintained that the appellant did touch her in Christmas 2015, when he was living at Quakers Hill. However, the complainant agreed that since 4 December 2015, the appellant was not allowed to see her. Nevertheless, she maintained that the last time she saw the appellant was at the end of December 2015. The timeline became MFI 9. [18]
40. Notwithstanding earlier statements in various interviews, the complainant gave evidence that the first time anything happened was Easter 2014, when the appellant was living in Frenchs Forest. The complainant was asked whether it was Frenchs Forest or Newport and insisted it was Frenchs Forest.
41. The complainant disagreed that the appellant never touched her at Newport. She also disagreed that he never touched her at Frenchs Forest. The complainant disagreed that he never touched her at Quakers Hill and disagreed that he never touched her at Easter 2014; Christmas 2014; December 2014; or December 2015.
42. The complainant agreed that her parents separated in 2014 and that after the split she did not like the appellant. She disagreed that one of the reasons was because he left her mother; disagreed that she felt like she had to take sides; and denied that her mother told her to say, during the JIRT interview, that the appellant had touched her.
43. During re-examination, the complainant said she did not know why she waited before telling her mother that the appellant had touched her but confirmed that he did touch her.

Summing-up

1. While an understanding of the issues raised in Ground 1 necessitated an understanding of the evidence adduced in the trial, at least to the extent summarised above, the grounds of appeal do not require a summary of the entire Summing-up. Rather, it is necessary to look at the specific issues relating to the direction that particular evidence was "independent", which forms the basis for Ground 2 in the appeal and, for the purposes of Ground 1 of the appeal, an overall description of the structure of the Summing-up.
2. For the purposes of Ground 2, it is necessary to understand that the trial Judge explained to the jury that they had statements given by the complainant to JIRT on 15 March 2016 and on 14 April 2016. These were recorded on video and were played to the jury.
3. The jury also had the transcript of those interviews, in their possession. The trial Judge explained that this was an entirely standard procedure and that "the child's evidence is recorded as relatively soon as possible after the authorities become aware of any allegation and becomes, in effect, the evidence-in-chief of the complainant at trial." [19]
4. The trial Judge went on to say: "Please give no greater or lesser weight to what the complainant said in the interview than you would as though she were in fact physically here in front of you giving that evidence in court, and ensure that you draw absolutely no adverse inference against the accused from the fact that that process was used because it is in fact an entirely standard process." [20]
5. The trial Judge went on to deal with the pre-recorded evidence given on 10 and 12 April 2017, which was played to the jury and was on DVD and the jury had a copy of the transcript of that evidence. His Honour noted that there was a second person present as a support person during the second interview. Again, his Honour described the process as entirely standard and told the jury they should draw no adverse inferences as a consequence of the manner in which that evidence was adduced.
6. The trial Judge then referred to the fact that the Crown relied upon what the complainant's mother had said in evidence and, most particularly, that which the complainant had said to her mother on or about 3 March 2016. His Honour then repeated the evidence of the complainant's mother, as to what the complainant had said in her complaint to her mother about the appellant.
7. Having dealt with the complaints and the recording of the JIRT interview and other interviews, including the evidence-in-chief, and the complaint to the mother, the trial Judge said the following: "It is a matter for you to decide whether the complaint was made and what its contents were. Of course, you might need to take into account that of course an accused is almost never in a position to be able to challenge evidence of complaint because it would be an extremely rare circumstance that the accused would have actually been present when the complaint was made. It can perhaps occur, but since he is not present it is very difficult to challenge what is said to have been said by the child. If you find that the complaint was made substantially to the effect as I have read to you, that there was sexual misconduct towards her and particular references to occasions, then you can use evidence of what was said in the complaint as some evidence that such an assault or assaults did occur. That is you can use it as some evidence, you can use it as some evidence independent of the evidence given to you of that incident by [the complainant] either in the JIRT interviews or in the pre-recorded evidence. The law says that because of the circumstances in which the complaint was made, a jury is entitled to use what was said in that complaint as evidence of the truth of what [the complainant] alleged against a person. A jury is entitled to find the complaint was made at a time and in a manner that would indicate that the allegation was reliable, that is, the allegation is less likely to have been fabricated by [the complainant] and more likely to be accurate, and of course, you would need to take into account in considering what evidence you have as to whether she was distressed at the time of the complaint, matters of that nature, and you might also like to take into account the question of whether there was a delay or any explanation for the delay, of course because the complaint was made on 3 March 2016, being approximately five months after the last alleged specific incident, that is, the Halloween incident. It is a matter for you whether you draw that conclusion in this particular case and so treat the complaint as evidence of the alleged assaults by [the appellant] in addition to the evidence that has been given about it in this courtroom by way of pre-recorded evidence. If you do use it as some evidence of the assault that is the subject of the charge or charges, then what weight you give it is, again, a matter for you. Whether you do use the evidence of complaint in that way or not, the Crown asserts that it has another purpose; the Crown contends that the fact that [the complainant] raised the allegation against [the appellant] at the time and in the manner that she did would lead you to accept the evidence she gave in the pre-recorded evidence. In other words, it makes her evidence more believable than if she had not raised the allegation as she did. Again, it is for you to decide whether this complaint was made, but if you are satisfied that it was, then the question you should ask yourself is, did [the complainant] act in the way you would expect her to act if she had been assaulted as she said she was? Is what she did the sort of conduct you would expect of a person who has been assaulted in that way? If you think that [the complainant] has done what you would expect someone in her position to do, that may support the Crown case because you may find that there is a consistency between [the complainant's] conduct and the allegation that she makes against [the appellant]. On the other hand, if [the complainant] has not acted in the way you would have expected someone to act after being assaulted as she described, then you may find that may indicate that the allegation is false, but bear in mind, and considering this issue, there may be good reasons why [the complainant] did not raise the allegations immediately following the alleged assaults, and that a failure to do so does not mean that the allegation must be false; and you've heard some evidence, general evidence, rather than specifically commenting on this matter from Dr Pulman about the disclosure of sexual misconduct by children and how there may be delay and that many, many factors that may operate to cause that. Of course, the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasions." (Emphasis added.) [21]
8. The foregoing extract of the Summing-up was lengthier than might otherwise have been necessary, because the appellant complains about the description of the complaint as "independent" and it is necessary to see that term in the context of the direction that the trial Judge was then providing.
9. In terms of the overall structure of the trial Judge's Summing-up, the Summing-up to the jury was transcribed over 47½ pages. The trial Judge did not summarise the evidence of the complainant in the pre-recorded evidence, but summarised, at some length (around 5½ pages), the complaint made in the JIRT interview and to the complainant's mother. The trial Judge also summarised the evidence of Dr Pulman, Child Psychologist (7 pages), and Dr Tzioumi, Consultant Paediatrician (2 pages).
10. The trial Judge directed on those issues of law that were necessary, including the burden of proof and the requirement for the Crown to prove all of the elements of each of the charges. Further, the trial Judge directed the jury as to the treatment of each of the charges separately and the manner of treating allegations about sexual interference that were not the subject of charges; none of which is the subject of complaint in this appeal. The only mention of the evidence adduced in the defence case was the following paragraph: "[The appellant] has given evidence in answer to the case led by the Crown, in effect, in short, that none of the alleged sexual misconduct events the subject of the indictment occurred at all. Nor did any of what have been referred to as 'context events', on any other occasion. That is, that there was no sexual misconduct at any time by him towards his daughter, [the complainant]. You also heard evidence called in the defence case from [the appellant's parents], in particular in relation to their travel to Sydney and [the appellant's mother's] staying over particularly in December 2014, on the weekend commencing Friday 12th and 13th, and the circumstances in which she stayed there, sleeping in the same bed as her granddaughter. Now if, having considered that evidence and the submissions of both counsel in relation to it, you accept it, then of course, you must acquit the accused and bring in a verdict of not guilty because it would follow that the Crown has not established beyond reasonable doubt its case in relation to an essential matter that it must prove." [22]
11. Technically, the latter statement reverses the onus of proof. The jury did not have to accept the appellant; they only had to have a doubt about evidence of the complainant.
12. The trial Judge recited that part of the interview which referred to uncharged acts occurring "whenever he was drunk".
13. As earlier stated, the trial Judge also relied upon the complaint to the complainant's mother and recited, verbatim, the evidence of the complaint made in the car by the complainant to her mother. The recitation of that complaint and the circumstances surrounding it was the subject of significant description by the trial Judge. He also repeated the complainant's comments to her mother's partner that night, in some detail.
14. In the course of reciting the complaint, he refers to the passage, to which the Court has earlier referred, and told the jury that it is for them to decide whether the complaint was made and what its contents were. He did not say they had to be satisfied it was substantially true.
15. As earlier stated, the trial Judge summarised the evidence of Dr Tzioumi in relation to the expectation that the examination of the genital area would be normal. In summary of that evidence, the trial Judge said: "What that comes down to, ladies and gentlemen, is that the doctor was unable to provide any evidence of any digital penetration as a result of the examination of [the complainant's] genitalia, but you would need to take into account what she said about the likelihood of being able to discern injuries, particularly with the passage of time. So, there is no finding on her evidence that supports the Crown case, but, as I say, you need to take into account what she said about whether such a finding of no injury was common in relation to an examination of the young child after a passage of some time." [23]
16. Having made those comments, the trial Judge continued to tell the jury that Dr Tzioumi's qualifications were not in contest and his Honour repeated that, in the course of cross-examination, the Doctor said that there was no distinguishable difference between the results of inspection of the complainant as against the inspection of a child who had not complained of sexual assault.
17. In relation to the evidence of Dr Pulman, the trial Judge set out her qualifications as a Psychologist and her experience and that she was required, for the purposes of her work, to be familiar with the current state of research about child development and behaviour. The trial Judge made the point that it was not the function of Dr Pulman to give an opinion as to whether the complainant's allegations were truthful or accurate, but to provide information on child development and behaviour so that the jury were able to assess the complainant's evidence and the behaviour of child victims of sexual abuse so that the jury could assess the evidence for themselves.
18. The trial Judge then recited, at some length, some of the evidence of Dr Pulman and the variability of conduct that would occur in relation to the reporting of sexual abuse. The trial Judge selectively took questions asked and answered in cross-examination and recited them and then summarised issues relating to inconsistency in the following way: "Now, of course, while a child over the age of six may have sufficient intellectual development to be able to recall events as much as an adult may be able to recall events, of course, you all know that in relation to adults recalling events, we are not all perfect. So, it is not as though that evidence suggests that a six-year-old should be able to provide a precise and accurate description of a particular event, any more than you might expect an adult who is describing an event that has happened some time before. As I said to you before, Dr Pulman was not giving you evidence about the particular matters raised in this trial. She was not assessing what the complainant said to you, or why the complainant may or may not have done something. She was simply giving you general information about the development of children, and particularly in respect of children who have been sexually abused, so that you can assess the evidence in this trial for yourselves, and what you make of that evidence in relation to this trial is, therefore, accordingly, entirely a matter for you." [24]
19. The trial Judge then went on to deal with the elements of the offence; the honesty and truthfulness and reliability of some of the witnesses or all of them and general directions that one would expect, relating, generally, to the treatment of witnesses and the meaning of the elements.
20. The trial Judge explained the meaning of "assault" and explained the charges as they had been preferred. He then said: "In deciding whether the Crown has proved this essential ingredient [namely, the assault] of the charge, you should take into consideration all the surrounding circumstances, including any words by the accused and his actions, the respective ages of the accused and [the complainant], the nature of the act relied upon by the Crown, and any relationship that may have existed between them. Now, of course, ladies and gentlemen, the defence case in relation to not just the primary counts, but each of the alternative counts, is that no such act ever occurred. So, it is not in dispute that if the acts of digital penetration occurred that they constituted sexual intercourse, and it is not disputed in relation to the primary counts, and it is not disputed that if you do not find that there was digital penetration, but you do find that there was touching and manipulation of [the complainant's] genitalia in relation to any of the individual alternative counts, it is not suggested that you would not find that there was an act of indecency." [25]
21. After proceeding through that entire summary, the trial Judge turned to the cases of the Crown and the offence at p 38 of the Summing-up. The trial Judge then told the jury how the Crown put its case and did that by putting to the jury that the Crown said one thing or another and, relatively accurately, summarised the Crown case. Occasionally, the trial Judge reminded the jury of how his Honour had already addressed them on some particular issue that the Crown put to them.
22. The trial Judge made it clear to the jury that his Honour did not intend to repeat the summary that the Crown gave them about each of the interviews "because it was a summary of particular detail taken from each of the JIRT interviews as well as the pre-recorded evidence. You [a reference to the jury] have seen and heard all of that material, and you have the transcript of it and you have the Crown's submissions as to why you would accept the primary counts as having been proved by the evidence of the complainant even though there may be some inconsistencies or perhaps contradictions."
23. The trial Judge continued to summarise the Crown case from p 38 of the Summing-up until the bottom of p 42 of the Summing-up. In the course of that recitation of the Crown case, the trial Judge referred to the fact that there was no dispute that the complainant did stay with the appellant on Halloween in 2015 in the absence of any other person. His Honour then referred the jury to the fact that the Crown emphasised the evidence of Dr Pulman about the uncertainty as to dates and the expectations "in respect of children and their ability to remember dates, times, years et cetera."
24. The summary of the appellant's case commenced at p 42 of the Summing-up and the trial Judge made it clear to the jury that this is what Defence Counsel was putting. Some of that summary, understandably, went to Counsel's reliance upon the need for the Crown to prove each allegation beyond reasonable doubt. The trial Judge informed the jury that his Honour was not going to take them through the inconsistencies that were alleged by Defence Counsel in the testimony of the complainant, compared to other interviews, and commented that it seemed to the trial Judge that some of them had made notes of those references. His Honour informed the jury that Defence Counsel said there were inconsistencies and that, therefore, you would not find it possible to accept the complainant as being truthful or honest and certainly not accurate or reliable, which Defence Counsel said, was necessary in order for them to find his client guilty. The trial Judge made no comment on the accuracy or inaccuracy of that last comment.
25. The trial Judge then referred to the allegations relating to December 2014 and the evidence from the appellant's mother and father of the attendance on the only occasion on which it could have been possible for the charged acts to have occurred. His Honour then referred to the inconsistencies relating to the question of whether the complainant had pushed the appellant off the bed during the Halloween event and that Defence Counsel had said that, when questioned, the complainant had "come up with different versions" and that, in those circumstances, the jury would not accept her evidence as being of the quality that "was accurate or reliable enough that you could make a finding beyond reasonable doubt". [26]
26. The trial Judge then referred to the fact that the appellant called evidence to establish that he was a person of good character and that he had never been convicted of an offence of dishonesty, nor been charged with such an offence. The trial Judge explained that a jury is entitled to take evidence of an accused's good character into account on the question of whether the Crown has proved guilt beyond reasonable doubt, but the weight given to the evidence is a matter for the jury. In the Summing-up, the trial Judge accepted that he had not referred to all that Counsel had said to them.
27. The jury retired to consider its verdict at 12:09 PM and returned with a verdict at 2:09 PM. I assume, within that time, lunch was served.

Grounds of Appeal

1. To some extent, at least, the grounds of appeal are related. In assessing whether particular statements in a judge's summation to the jury have occasioned a miscarriage of justice, it is necessary to look at the summation in its entirety. That which may be misleading or incorrect, taken in isolation, may either have been corrected or may mean something quite different in the overall context in which it is said.

Ground 2: The direction that the evidence of the complaint was independent evidence

1. I have already extracted the passage of the trial Judge's summation which refers to the complaint being "independent". Referring to the complaint by the complainant to her mother and her mother's partner, the trial Judge said to the jury: "… you can use it as some evidence independent of the evidence given to you of that incident by [the complainant] either in the JIRT interviews or in the pre-recorded evidence."
2. It is unnecessary to set out the submissions of the appellant and the Crown on this issue in this appeal. The issue is self-evident. Either the evidence of complaint is "independent", or it is not.
3. The directions given to the jury by the trial Judge were directions that were consistent with the suggestions in the Criminal Trial Courts Bench Book published by the Judicial Commission (hereinafter the "Bench Book"). Of itself, the fact that the directions come from the Bench Book does not result in the conclusion that they were correct. [27] Further, the circumstance that the directions are found in the Bench Book does not give it any greater or special status, in terms of its correctness or otherwise. [28] As was pointed out by Hoeben CJ at CL, [29] the Court can assume that the direction is generally provided. In and of itself that would seem to me to be a reason to grant leave under Rule 4, [30] which is required on this issue because it was not a matter raised during the course of the trial.
4. It should be noted at this stage that the earlier extract of the Summing-up makes clear that the trial Judge went on to comment to the jury that the mere fact that a person says something "on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasions."
5. Nevertheless, it is necessary to deal with the suggestion that the complaint evidence is "independent". The ordinary meaning, relevant for this purpose, of the word "independent" refers to something "not connected to another; separate". A definition, which is particularly apt, provided by the Oxford Dictionary, [31] is "not depending on something else for validity, efficiency, value et cetera".
6. Complaint evidence that is admitted is evidence of the truth of the complaint, pursuant to the terms of s 60 of the Evidence Act 1995 (NSW). It is not "independent". Its validity, efficiency, value et cetera depends upon the truthfulness or accuracy of the complainant, who has otherwise given evidence or is available to give evidence.
7. It is not corroborative of the evidence given by a complainant, but it is evidence of the truth of the complaint. In R v Skuse, [32] McInerney J (with whom Hunt CJ at CL and Smart J agreed) said: "It was submitted that such a direction could lead to the evidence (accepting it) being treated as evidence of corroboration. The concept of corroboration has now been replaced by the concept of reliability under the Evidence Act. If asked, the judge could have pointed out that the complaint gave no independent support for the complainant's evidence, but he was not asked to do so." (Emphasis added.) [33]
8. The judgment in Skuse was delivered in 1996, during the early years of the application of the Evidence Act. The difficulty with the judgment of the Court in Skuse, relying on the provisions of s 60 of the Evidence Act, is that s 60 of the Evidence Act does not strictly form an exception to the admissibility of hearsay evidence.
9. The complaint is still hearsay evidence. The effect of s 60 of the Evidence Act is that the complaint, once admitted, is, subject to an order of the Court under s 136 of the Evidence Act, proof of the fact contained in the complaint.
10. The provisions of s 66 of the Evidence Act render a previous representation admissible in evidence in criminal proceedings, if the person who made the representation is available to give evidence about the asserted fact in the representation and, clearly, in the circumstances of these proceedings, where the complainant and/or maker of the representation is to give evidence, or has given evidence.
11. However, the admissibility of hearsay evidence by operation of s 66 of the Evidence Act is conditioned on the proposition that the asserted fact, in the representation or complaint, was fresh in the memory of the person who made the representation. In this context, the term "fresh" means "recent" or "immediate" and, while it may have a connotation that describes the quality of the memory, the core meaning, intended by this provision, relates to a "temporal relationship" between the occurrence of the asserted fact and the making of the representation or complaint. [34]
12. To the foregoing provisions must be added the effect of s 102 of the Evidence Act, which, with some exceptions, renders inadmissible evidence of the credibility of a witness, if that be its only purpose, and s 164 of the Evidence Act, which removes any necessity for corroboration. Moreover, if evidence of the complaint is made for the purpose of explaining delay, the provisions of s 294 of the Criminal Procedure Act 1986 (NSW) must be examined.
13. Whatever be the basis upon which complaint evidence is admitted, it does not cease to be hearsay evidence. The trial Judge ruled the complaints admissible after objection taken on the voir dire. That ruling is not the subject of appeal.
14. Complaint evidence was the subject of discussion by the High Court in Papakosmas v The Queen. [35] The High Court was there dealing with a ground of appeal that argued it was an error for evidence of complaint to be treated as some evidence that the complainant did not consent to the sexual intercourse. Further, it was argued that when evidence of complaint was admitted, its use should have been limited and directions given to the jury as to the use that may be made of such evidence. The High Court said: "[10] It is clear from the language of the Act, and from its legislative history, that it was intended to make, and that it has made, substantial changes to the law of evidence in New South Wales. Similar legislation has been enacted by the Parliament of the Commonwealth. Section 9 of the Act provides that it does not affect the operation of the common law except so far as the Act provides otherwise expressly or by necessary intendment. Even so, the sections of the Act relevant to this case undoubtedly make express provision different from the common law. It is the language of the statute which now determines the manner in which evidence of the kind presently in question is to be treated. The appellant argues that the meaning and effect of that language, properly understood, is to be determined in the light of, and in a manner that conforms to, the pre-existing common law. For reasons that will appear, that argument must be rejected. In order to explain it, however, it is necessary to refer to the position at common law." (Footnotes omitted.) [36]
15. The joint judgment of Gleeson CJ and Hayne J dealt with the admissibility of a complaint and the operation of the hearsay rule and commented that there was no better example of the undue subtlety of the distinctions drawn by the common law in the hearsay rule than the way in which the law dealt with evidence of recent complaint in sexual assault cases. [37]
16. The joint judgment of Gleeson CJ and Hayne J then referred to the history of evidence of complaint being admitted, referring, for example to R v Osborne [38] and to the judgment of Ridley J in which complaint evidence was utilised when it is made at the first opportunity after the offence and where it has not been elicited by questions of a leading, inducing or intimidating character. Even in those circumstances, according to Ridley J, the complaint was not evidence of the facts in the complaint, but only as corroborative of the complainant's credibility and, if consent is in issue, of the absence of consent. The joint judgment in Papakosmas made clear that the reference in Osborne to "corroboration" was inaccurate. The joint judgment said: "Evidence of complaint cannot constitute corroboration in the technical sense, because it is not independent of the complainant." [39]
17. The joint judgment referred to the facts of the case before the High Court and to the fact that the complainant, in those proceedings, gave evidence, as did a number of other witnesses, that almost immediately after the intercourse had occurred, the complainant was in a very distressed condition, crying uncontrollably and saying that she had been raped. The joint judgment commented: "Evidence of her condition and her distress was admissible, and in the circumstances could be considered by the jury in determining whether or not she was telling the truth when she said she had not consented to what occurred. However, when it came to the matter of her statements that she had been raped, at common law, a jury would have been directed that they could consider such evidence, not as evidence of the truth of what she was asserting, but as evidence which had a bearing upon her credibility, and in particular, upon the consistency of her behaviour and her allegations." [40]
18. The joint judgment made it clear that these issues arose only in circumstances where the evidence was otherwise relevant. If it were not relevant, there would be no need for any exception to the hearsay rule or, indeed, the hearsay rule itself. As the joint judgment in Papakosmas confirmed [41] that precondition applies under the Evidence Act.
19. The Court then referred to s 59 of the Evidence Act, the rule against hearsay and s 66 of the Evidence Act, to which earlier reference has been made in these reasons. These issues are relevant to Ground 1 of the appeal.
20. For present purposes, dealing with Ground 2 of the appeal, it is clear from the comment in the joint judgment in Papakosmas [42] , recited above, that evidence of complaint is neither corroborative nor independent of the complainant. As such, the direction, repeated from the Bench Book, is wrong and the argument in support of Ground 2 is correct. His Honour erred in directing the jury that the evidence of the complaint was independent evidence.
21. However, the establishment of that error only goes part of the way necessary for Ground 2 to be successful. As has been extracted, the trial Judge directed the jury that the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. That passage qualifies the reference to the complaint being "independent" dramatically. It provides the context within which the comment relating to the evidence being "independent" is contained and through which it must be understood.
22. There is some doubt that the jury would have understood the latter comments as to the effect on truth of the repetition of a statement as related to the description of the complaint as "independent", albeit it is difficult to relate it to anything else. Moreover, transcript does not always do justice to a judge's Summing-up, which is delivered orally.
23. It seems to me, while the use of the term "independent" was erroneous and should be avoided in the future, given the latter statements, the use of the term "independent" did not result, in and of itself, in a miscarriage of justice and the ground of appeal must fail. Nevertheless, on this ground, I would grant an extension of time; grant leave to appeal; to the extent necessary; grant leave to raise the argument, notwithstanding the provisions of Rule 4; and dismiss the appeal.

Ground 1: Fairness of the summing-up

1. In the course of these reasons for judgment, I have already extracted or summarised the Summing-up by the trial Judge to an extent that would not ordinarily be warranted. However, the crux of the appeal relates to the fairness of the trial Judge's Summing-up to the jury.
2. Even the extensive extracts and summary that have already been provided are insufficient to provide a complete understanding of the Summing-up and its effect. In order to obtain such an understanding, the whole of the Summing-up is required to be read, but it is inappropriate, even in the current circumstances, to recite the whole of the Summing-up.
3. Earlier in these reasons for judgment, I set out the structure of the trial Judge's Summing-up so that a better appreciation could be obtained of the overall effect of that which the Judge directed. It should be pointed out that, notwithstanding that the trial Judge gave Counsel then appearing for the Defendant and the Crown the opportunity to raise any issue at the conclusion of the Summing-up, neither Counsel did. It would seem, in those circumstances, that leave under Rule 4 is necessary for the appellant to raise this issue on appeal.
4. I do not lose sight of the fact that where it is alleged that the Summing-up in its entirety is unbalanced or unfair, it is difficult, by correction, raised at the time immediately after the conclusion of the summing-up, to deal with the issue. Nevertheless, Rule 4 of the Criminal Appeal Rules is in the following terms: "4 Exclusion of certain matters as grounds for appeal etc 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 or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal."
5. The circumstance that it is the whole of the Summing-up that is said to be unbalanced and unfair renders the making of such an objection more difficult or, more accurately, makes its correction more difficult. It does not prevent the making of the objection. The fact, if it be the fact, that the making of the objection to the whole of a Summing-up or its entire balance is difficult is a matter, in my view, that goes to whether leave under Rule 4 will be granted. It is not a reason that Rule 4 does not apply.
6. Without unduly truncating the summary already given of the trial Judge's direction and the structure of the Summing-up, it is important to note that the trial Judge summarised, in his own words and on his own account, the evidence of Dr Tzioumi; of Dr Pulman; of the complainant in her complaint to the mother; the complaint to her mother's partner; and of the complainant in the JIRT interview. This was a summary of direct evidence adduced in the course of the proceedings.
7. The trial Judge did not summarise the evidence of the complainant in the proceedings, given directly, nor did he summarise the evidence of the appellant. Nevertheless, the trial Judge did summarise how the Crown put its case and how Defence Counsel put the appellant's case. In the latter summary of the cases, the Judge made it clear that he was telling the jury how Counsel put the case and not how he, the trial Judge, would describe the case, or the issues.
8. The absence of the summary of the complainant's evidence is not an answer to the absence of the summary of the evidence adduced by Defence Counsel. First, the Crown case and the evidence upon which the Crown relied for its case, was as well, if not better, contained in the complaint to the mother; the mother's partner; and in the JIRT interview, than it was in the direct evidence of the complainant in the proceedings.
9. Secondly, there is a subtle but important difference between summarising facts and issues as the Judge sees them and the Judge summarising that which the Judge informs the jury is not his view, but the view of Counsel. The latter lacks the authority of the Judge and his "independent" depiction of that which is important.
10. Thirdly, the manner in which the trial Judge utilised the complaint to the mother; the complaint to the mother's partner; and of the complaint and/or statements made in the JIRT interview; avoids the fundamental issue upon which Defence Counsel relied, which was the inconsistency in the evidence given in the JIRT interview and that given by the complainant directly in the proceedings. Those inconsistencies, coupled with the denial of the appellant and the independent evidence of the inaccuracy or untruthfulness of the complaint in relation to two of the six charges (or one of the three instances), were the most fundamental aspect of the defence case. Yet, it was not only barely mentioned, it was glossed over by a reference to that which Defence Counsel said were inconsistencies, which submission, it was said, supported the denial by the appellant. Added to that is the character evidence on which the appellant relied.
11. It is necessary to return to the discussion of the High Court in Papakosmas. The joint judgment [43] refers to the provisions of the Evidence Act that make it clear that there are a number of issues associated with the admission and use of a complaint. The provisions of s 59 of the Evidence Act render a prior complaint inadmissible, because it is hearsay, which is one of the exclusions to the admissibility of all material that is relevant. Even if the evidence is admitted for a particular purpose, it may be excluded as a consequence of the provisions of ss 135 or 137 of the Evidence Act, which oblige the Court, in a criminal proceeding, to refuse to admit evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant. Further, s 136 of the Evidence Act may have allowed the Court to limit the use to be made of the evidence of complaint.
12. The complaint is not independent and is not corroborative. To the extent that it discloses material that is directly relevant, for example the distress of the complainant immediately after a sexual assault, it is not only plainly relevant, but plainly admissible for a purpose other than its hearsay purpose. [44]
13. Evidence of complaint not only goes to issues of consent or distress, it may be relevant and admissible in answer to a proposition that the allegation is a recent invention. Thus, a complaint made, particularly when made immediately after the occurrence of an event, is highly probative of circumstances which render recent invention highly improbable.
14. There are a number of bases upon which the Court may ultimately rule a complaint admissible. In this case, it may well have been that the appellant, at trial, may have sought to tender the complaint in order to demonstrate the inconsistencies and confusion that the appellant says applies to the evidence, at different times, of the complainant.
15. The foregoing comments on the admissibility of complaint ought not to be taken as a criticism of the trial Judge. Nor should it be taken as a general view relating to the admissibility of complaint evidence. Objection was taken to some of the complaint evidence and it was admitted.
16. However, when the judge's Summing-up summarises the complaint evidence, and avoids the evidence of the complainant at trial, in circumstances where inconsistencies were demonstrated, it creates some significant issues. Added to those issues is the manner in which the evidence of the two expert witnesses was summarised by the trial Judge.
17. The objective fact is there was no objective or independent evidence of injury to the complainant's genitals arising from the alleged conduct of the appellant. Ordinarily, that objective fact would be a factor that the jury could take into account in determining whether there was reasonable doubt.
18. The evidence of Dr Tzioumi was to the effect that the absence of injury is not necessarily inconsistent with sexual assault and that, with minor injuries, it would be usual, after a period of time, for any injury that was caused to have healed. However, the evidence was summarised in a way that did not seem to neutralise the objective fact of the absence of injury, but, rather, as evidence that supported the occurrence of the sexual assault.
19. Further, the serious doubt engendered by the evidence of the appellant's mother as to the occurrence in December 2014 was referred to as relevant to Counts 3 and 4, but its relevance to the credibility and reliability of the complainant more generally was not mentioned. On the contrary, the evidence of Dr Pulman was used to suggest that this was not a factor that the jury should take into account in determining the credibility or reliability of the complainant in the allegations that she made.
20. The appellant in these proceedings has abandoned a ground of appeal that was originally before the Court relating to the absence of a Markuleski direction. [45] That abandonment was proper and appropriate. However, it is a very different point when the judge, as part of the Summing-up, refers to the expert evidence of Dr Pulman, in order to support the credibility and reliability of the complainant.
21. While the trial Judge spent 6 pages of his Summing-up on the evidence of Dr Pulman, part of it dealt with delay, but the extracts of the evidence which were read to the jury related to reliability as to times and dates and why children may give different accounts of the same events on different occasions. The Judge did repeat the evidence, in cross-examination, in which Dr Pulman agreed with the question that children over six years are no more suggestible than adults and are as reliable as adults in their ability to recall events in which they are involved.
22. However, his Honour qualified that evidence by repeating the extract of evidence dealing with the failings of memory of children; children generally not being as accurate as an adult, but then remarking that such is not necessarily the case.
23. In other words, the Judge went to some length to direct the jury that the mere fact that the complainant may be held wrong about Counts 3 and 4 should not be taken as a comment on the complainant's accuracy in relation to Counts 1 and 2 or Counts 5 and 6, respectively. The effect of the Judge's direction, in relation to the evidence of Dr Pulman, was the exact opposite of a Markuleski direction. The trial Judge summarised these extracts of evidence by directing the jury in the way that is extracted above at [97].
24. There are a number of aspects of that summary. First, the description by the judge, in his own words, on one view, assumes a premise that the complainant was sexually abused. Secondly, if Dr Pulman's evidence was not assessing "why the complainant may or may not have done something", one must question how it is relevant to the issues before the Court. Thirdly, while adhering to the requirement not to give a direction that suggests that the evidence of a child should be treated less favourably than the evidence of an adult, in terms of effect and in its context, the direction suggested that the child's evidence should be treated more favourably.
25. Thus, from the foregoing, the following effect follows. First, the effect of the summary of evidence, relating, as it did, only to the two experts and the "extra curial" interviews with the complainant, was to minimise dramatically the effect of any inconsistency upon which the appellant was relying. Secondly, the effect of the summary of the evidence of the experts was to render neutral, or possibly of benefit to the Crown, the fact that there was no injury objectively evidencing assault and negating the unreliability of the complainant in relation to Counts 3 and 4 insofar as that unreliability may, by operation of the jurors' common experience or common sense, affect the reliability or truthfulness of the complainant. Thirdly, there was no summary or substantial reference to the evidence of the appellant or the witnesses called in his case.
26. Against those propositions, the trial Judge summarised in a manner which, were it not for the other aspects, would not give rise to any miscarriage of justice, each of the Crown case and the case for the appellant. The difficulty in examining the overall effect of the Summing-up is that the summary of the cases was, quite properly and deliberately, put to the jury as what Counsel had said, whereas the summary of the evidence, upon which the trial Judge embarked, was his summary of the evidence and carried the authority of the Court. The ultimate question for the Court is whether, overall, the Summing-up was fair.

The role of the judge in Summing-up

1. Thus far, except in passing, these reasons have not dealt with the requirement on a trial Judge in relation to Summing-up.
2. As has already been noted, the Summing-up by a trial Judge should be considered as a whole. The Court will not interfere in a verdict, or find a miscarriage of justice, simply on the basis that, taken out of context, one or more passages in the Summing-up appear either wrong or misleading or unbalanced. [46]
3. Further, as has been made clear on a number of occasions, and is now the subject of statutory prescription, a trial Judge is not required to give a summary of the facts to the jury. [47] Of course, the foregoing assumes that the trial Judge has come to the view that a summary of the evidence is not necessary. [48]
4. Otherwise, it is not the function of the trial Judge, in Summing-up, to explain to the jury principles of law beyond those that are absolutely necessary to understand and resolve the issues arising for decision by the jury. [49]
5. Fundamentally, as earlier expressed, a Summing-up must be a fair and balanced summary of the law and every other issue that is the subject of summary by the trial Judge. Thus, even where it would not be error for the trial Judge not to summarise the evidence in proceedings, once the trial Judge embarks upon the process of summarising the evidence, that summary must be fair and balanced. [50]
6. In Meher [51] , Wood CJ at CL said: "[76] It is trite law that the fundamental task of a trial judge is to ensure a fair trial. That will involve not only instructing the jury about the law. It extends to identifying the issues, relating the law to those issues, and assisting the jury to understand how it is that the accused may be guilty of the offence charged in the indictment, or of any alternative offence open upon that indictment. It also requires the judge to explain why it is that the accused asserts that his guilt has not been established beyond reasonable doubt and to give any directions which, in accordance with the Evidence Act or established case law, call for a particular explanation or caution. So far as the accused is concerned, it is the case which the defence makes that the jury must be given to understand, including any matter that is properly open upon which they might find for the accused: Pemble v The Queen (1971) 124 CLR 107. [77] There is no obligation to go beyond those matters that are of direct relevance for the trial, nor is there a need for a judge to painstakingly read all of the evidence to the jury, or even to analyse all of the conflicts in it: Domican v The Queen (1992) 173 CLR 555 at 560-561. What is required is a fair and balanced summary of the law, the issues, and the respective cases for the prosecution and the defence. [78] This does not preclude judicial comment on factual issues, even strong comment, so long as it is fair and appropriate: Tsigos v The Queen (1965) 39 ALJR 76, B v The Queen (1992) 175 CLR 599, RPS v The Queen (2000) 199 CLR 620, and R v Inamata (2003) 137 A Crim R 510 at para 38."
7. In Meher, supra, Wood CJ at CL relied upon a comment of the High Court in RPS v The Queen [52] , to the following effect: "But none of this must be permitted to obscure the division of functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel. To attempt to instruct the jury about how they may reason towards a verdict of guilt (as distinct from warning the jury about impermissible forms of reasoning) leads only to difficulties of the kind that have arisen in the present case." [53]
8. Before the foregoing extract, the plurality in RPS dealt with the appropriate recognition of the difficult task facing trial Judges and the requirements in a Summing-up. They said: "Before parting with the case, it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions. The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence." (Footnotes omitted.) [54]
9. Of course, the High Court in RPS was dealing with a very different situation. The trial Judge had given a qualified Jones v Dunkel direction to the jury of which the High Court disapproved, other than in the exceptional circumstances of a case such as Weissensteiner. [55]
10. As stated, in determining whether the Summing-up is "unbalanced" or "unfair", the Court must look at the Summing-up as a whole. It is notorious, as already stated, that a Judge is not required to summarise the facts, except to the extent necessary to explain the case put by the Crown and the accused.
11. The High Court recently had occasion to discuss these issues. [56] In McKell, the Court said: "[3] A trial judge's 'broad discretion' to comment on the facts of the case in a criminal trial is an aspect of the power by which a trial judge discharges the fundamental task of ensuring a fair trial of the accused. The discretion is to be exercised judicially as part of ensuring that the facts of the case are put "accurately and fairly" to the jury. It is not exercisable, at large, independently of the fundamental task described above. A fortiori, the trial judge's summing-up is not an occasion to address the jury in terms apt to add to the force of the case for the prosecution or the accused so as to sway the jury to either view. For that reason, as the plurality in RPS stated, judicial circumspection is required in the exercise of the discretion to comment." (Citations omitted.) [57]
12. The plurality expressed the view, as to a judge making any comments on the facts, in the following terms: "It is well settled that a trial judge's discretion to comment on the facts should be exercised with circumspection. The need for circumspection is not merely a matter of prudence or politeness. Recently, in Castle v The Queen, Kiefel, Bell, Keane and Nettle JJ, with whom Gageler J relevantly agreed, said, referring to the passages from RPS with which these reasons commenced: '[U]nless there is a need for comment - as, for example, in dealing with an extravagant submission by counsel - the wise course will often be not to do so. Where the judge chooses to comment, the following statement of Brennan J in B v The Queen is to be kept in mind: "[The comment] must exhibit a judicial balance so that the jury is not deprived 'of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence.'"' (footnotes omitted) In RPS and Castle, the discretion of the trial judge to comment on the facts was located squarely within the duty of a trial judge to assist the jury with a fair and accurate statement of the case presented by each party. That being so, little would be gained by a review of the practice of trial judges in earlier times, when the trial judge occupied a more dominant position in the conduct of criminal trials. The point made in the observations of the plurality in each of RPS and Castle is that there is a risk that comments that are unnecessary for the performance of the duty to give fair and accurate instructions to the jury may occasion a miscarriage of justice, and so a trial judge should be astute to avoid that risk by refraining from comment that is not so required. These points are most compelling in relation to expressions of opinion by a trial judge as to the determination of disputed issues of fact."
13. In this case, notwithstanding that the Judge put the case submitted by each Counsel, the overall effect of the Judge's Summing-up is both unbalanced and unfair. There are a number of fundamental reasons for this effect.
14. First, once the Judge descended into an analysis of the expert evidence of Dr Pulman, he was then required, in order to be balanced about both the Crown's and the appellant's cases, to take the jury to the inconsistencies that were so heavily relied upon by Defence Counsel and were such a fundamental aspect of the defence case. Not to do so failed to balance that evidence which the jury were asked to take into account in determining that the complainant was truthful, even if inaccurate, with the number, extent and significance of the inconsistencies in the version of events given by the complainant.
15. Secondly, once the trial Judge descended into the facts and gave the jury his own appreciation of the significant evidence in the trial, he was required to draw the jury's attention to the significant parts of the evidence upon which the appellant relied during the trial.
16. I reiterate the comments of the High Court, last extracted, that the Court should pay significant regard to the difficult task that trial Judges face in Summing-up, ex-tempore, in trials, particularly judges in the District Court, who are required to deal with a significant volume of work, without the luxury of adjourning to allow Counsel to address or to craft their Summing-up. Nevertheless, that Summing-up must be both fair and balanced.
17. It is necessary to note some other aspects of the trial that impact upon its fairness. The jury had access to the transcript of the JIRT interviews on 15 March 2016 and 14 April 2016. [58] The jury also had the transcript of the pre-recorded evidence before Girdham SC DCJ. [59] The jury did not have any other transcript of the proceedings, including the transcript of the evidence given by the appellant. This is a result of the unavailability of transcript, without significant delay. However, the transcript of the interviews, which together with exhibits of the other transcripts, were with the jury during the address by Counsel and the Judge's Summing-up, and during deliberations.
18. As a consequence, for some days the jury had the ability to read and re-read the evidence of the complainant, but not the evidence of the appellant. That circumstance is not the subject of complaint by the appellant in these proceedings, but requires noting because the entire context, including the addresses of Counsel, need to be examined before it can be concluded that the trial Judge's Summing-up was unfair or unbalanced.
19. However, with the transcript of the complainant's evidence available to the jury over some days, the trial Judge's omission to summarise the evidence of the appellant, and evidence called on his behalf, becomes more significant and is not overcome, to the same degree, as might have been the case because the trial Judge did not summarise the complainant's evidence; it being in transcript form with the jury.
20. Ultimately, this ground of appeal requires the Court to arrive at a conclusion. The overall impression of the Summing-up is that it was a reminder of those parts of the Crown case that were strong, for which purpose the trial Judge became, wittingly or otherwise, an advocate for the Crown. [60] The Summing-up was unfair and unbalanced and it caused a miscarriage of justice.
21. For the foregoing reasons, I have come to the conclusion that the summary by the trial Judge is unfair and unbalanced. I propose that the Court make the following orders: 1. Time to file the appeal be extended to allow for the filing of the appeal in these proceedings on 28 February 2020; 2. Leave be granted under Rule 4 of the Criminal Appeal Rules to argue each of Grounds 1 and 2 of the appeal; 3. Leave to appeal be granted; 4. The appeal on Ground 2 be dismissed; 5. The appeal on Ground 1 be allowed; 6. The conviction of the appellant on Counts 1 and 5, being sexual intercourse with a child under 10 years, under authority committed between 16 May 2013 and 10 September 2013 and sexual intercourse with a child under 10 years, committed between 30 October 2015 and 2 November 2015, be quashed; 7. The indictment and/or charges relating to Counts 1, 2, 5 and 6 of the indictment be remitted to the District Court for re-trial.
22. HAMILL J: I have had the advantage of reading the judgment to be delivered by Rothman J. I agree with his Honour's conclusions as to each of the grounds of appeal and with his Honour's reasons.
23. As to ground 1, the reference in the summing up to the "complaint" evidence being "independent" was wrong. It is of no moment that the direction appears to have been derived from the Criminal Trial Courts Bench Book. While the evidence was admissible in direct proof of the facts contained in the (hearsay) representations made by the complainant to other people, it was by no means evidence independent of the complainant. Even so, I agree with Rothman J that the subsequent directions meant that no miscarriage of justice was occasioned by the misdirection.
24. As to ground 2, having considered the summing up as a whole, I agree with Rothman J that the summing up was unbalanced and unfair and led to a miscarriage of justice. In particular, the lengthy summaries of the evidence of Dr Pulman and Dr Tzioumi, contrasted with the cursory summary of the not insubstantial defence case, created a lack of balance. In the context of the applicant's trial, it was not necessary to summarise at any length the experts' evidence. Having decided to embark on that undertaking, it became necessary to put the defence case more thoroughly. As Rothman J has emphasised, the failure to do so caused the trial to miscarry.
25. I agree with the orders proposed by Rothman J.

Endnotes

1. Tcpt, 24 April 2018, p 58(15-40).
2. Tcpt, 3 May 2018, pp 249(25) - 250(2).
3. Tcpt, 24 April 2018, pp 58(42) - 59(25).
4. Tcpt, 3 May 2018, pp 263(10) - 264(29).
5. Tcpt, 3 May 2018, p 265(3-9), 4 May 2018, pp 353(38) - 354(20).
6. Tcpt, 24 April 2018, pp 59(27) - 60(4).
7. Tcpt, 30 April 2018, p 138(5-16).
8. Tcpt, 30 April 2018, p 140(23-24).
9. Tcpt, 30 April 2018, p 140(27-34).
10. Tcpt, 1 May 2018, pp 160 - 161.
11. Tcpt, 1 May 2018, pp 160(47) - 161(3).
12. Tcpt, 1 May 2018, p 161(5-10).
13. Tcpt, 1 May 2018, pp 162.
14. Criminal Appeal Act 1912 (NSW), s 6.
15. Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35.
16. R v Meher [2004] NSWCCA 355.
17. Tcpt, 12 April 2017, pp 72(39-49) - 73(4-12).
18. Appeal Book, p 306-309, which is in simplified diagrammatic style.
19. Summing-up, p 10.
20. Ibid.
21. Summing-up, pp 18-20.
22. Summing-up, p 8.
23. Summing-up, p 22.
24. Summing-up, p 30.
25. Summing-up, pp 36-37.
26. Summing-up, p 45.
27. Roos v R [2019] NSWCCA 67 at [81], per Gleeson JA, with whom Harrison and Davies JJ agreed.
28. DV v R [2017] NSWCCA 276 at [139], per Hoeben CJ at CL, with whom, relevantly, Latham and N Adams JJ agreed.
29. Ibid.
30. Criminal Appeal Rules (NSW), Rule 4.
31. H Moore, Australian Concise Oxford Dictionary, (4th ed, 2003, Oxford University Press Australia).
32. Court of Criminal Appeal (NSW), 24 October 1996, unrep.
33. R v Skuse (Court of Criminal Appeal (NSW), 24 October 1996, unrep), per McInerney J, with whom Hunt CJ at CL and Smart J agreed, at p 12-13.
34. Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61.
35. (1999) 196 CLR 297; [1999] HCA 37.
36. Ibid, per Gleeson CJ and Hayne J.
37. Ibid, at [11].
38. [1905] 1 KB 551 at 561.
39. Papakosmas, supra at [17].
40. Papakosmas, supra, at [20].
41. Papakosmas, supra, at [23].
42. Papakosmas, supra, being the joint judgment of Gleeson CJ and Hayne J.
43. Papakosmas, supra, per Gleeson CJ and Hayne J.
44. Papakosmas, supra, at [26] and following.
45. R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290.
46. R v Holden (1917) 34 WN (NSW) 78; R v Courtney-Smith (No 2) (1990) 48 A Crim R 49.
47. Criminal Procedure Act 1986 (NSW), s 161.
48. Ibid.
49. R v Chai (2002) 76 ALJR 628; [2002] HCA 12.
50. R v Meher [2004] NSWCCA 355, per Wood CJ at CL, with whom Buddin and Shaw JJ agreed.
51. R v Meher [2004] NSWCCA 355 at [76].
52. (2000) 199 CLR 620; [2000] HCA 3.
53. RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 at CLR 637 [42]-[43], per Gaudron ACJ, Gummow, Kirby and Hayne JJ.
54. RPS, supra, at [41].
55. Weissensteiner v R (1993) 178 CLR 217; [1993] HCA 65.
56. McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5.
57. Ibid, at [30], per Bell, Keane, Gordon and Edelman JJ.
58. Exhibits 13 and 14.
59. Exhibit 12.
60. McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5.

Amendments 21 August 2020 - paragraph [69] - anonymised name 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: 21 August 2020