Sherry v R

Medium Neutral Citation: Sherry v R [2026] NSWCCA 28

Hearing dates: 23 February 2026

Date of orders: 27 March 2026

Decision date: 27 March 2026

Before: Hamill J at [1]
McNaughton J at [121]
Emmett J at [122]

Decision: (1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL APPEAL – ground that guilty verdict unreasonable – application of authorities – where jury acquitted on two counts relating to different complainant – no inconsistency – independent examination of evidence adduced at trial – consideration of attack on credibility of complainant – myths and preconceptions – consideration of jury’s advantage – emotionally charged trial court – where complainant calls defence counsel a [expletive deleted] – impact on credibility – evaluation better made by jury familiar with atmosphere of courtroom and tone of cross-examination – eight matters of concern raised by appellant – whether matters amount to inadequacies raising reasonable doubt of appellant’s guilt
CRIMINAL PROCEDURE – where complainant identifies as male – respectful use of preferred pronouns – counsel’s use of term “young lady” – unfortunate cross-examination and address – complainant’s crude response to counsel appeared to be understandable

Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 18, 28A(3)
Criminal Procedure Act 1986 (NSW), s 292B

Cases Cited: AS v R [2022] NSWCCA 291
Cawthray v R [2013] NSWCCA 105
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Hodgson v R [2022] NSWCCA 72
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
R v Teasdale [2004] NSWCCA 91; (2004) 145 A Crim R 345
R v Westerman (1991) 55 A Crim R 353
R v ZT (2025) 281 CLR 137; [2025] HCA 9
Sita v R [2022] NSWCCA 90
Woolmington v Director of Public Prosecutions [1935] AC 462

Texts Cited: Collins Dictionary, online ed, accessed 15 March 2026
Practice Note SC Gen 22

Category: Principal judgment

Parties: Harley Thomas Sherry (Applicant)
Rex (Respondent)

Representation: Counsel:
T Hickie (Applicant)
A Bonnor (Respondent)
Solicitors:
Barron Law (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2022/00212430

Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), there is to be no publication of the name of the complainants or any material that tends to identify them.

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant stood trial before the District Court sitting in Wagga Wagga in December 2024 in relation to three counts of sexually touching a child between the age of 10 and 16 years. The first count related to AZ, the child of the applicant’s former partner. The second and third counts related to IZ, the twin sister of AZ. At the time of the trial, AZ identified as a male.

The jury returned a verdict of guilty in relation to the single count concerning AZ and verdicts of not guilty on the two counts concerning IZ. The verdicts on counts 1 and 2 were by majority (11:1). The applicant was sentenced to a term of imprisonment of 2 years and 3 months with a non-parole period of 18 months. There was no appeal against the sentence.

The offence charged in count 1 allegedly took place in Junee between 1 December 2018 and 31 January 2020 when AZ was 10 or 11 years old. The applicant and complainant were in a car together one evening around Christmas 2018 or Christmas 2019 to run an errand at a petrol station and to look at Christmas lights. The applicant lent over, traced his left hand up the complainant’s right thigh, put his hand up the complainant’s shorts, put his fingers under the complainant’s underpants and touched him on the outside of the vagina for some minutes.

The applicant sought leave to appeal against his conviction on the ground that the verdict was unreasonable or could not be supported having regard to the evidence. The applicant raised eight “concerning” aspects of the prosecution case which were said to reflect adversely on the reliability of the complainant’s allegation and relied on those matters individually and collectively in support of the single ground of appeal.

The Court held, granting leave to appeal and dismissing the appeal (Hamill J, McNaughton and Emmett JJ agreeing):

1. Having reviewed the whole of the record and the evidence at trial, it was open to the jury to be satisfied of the applicant’s guilt beyond reasonable doubt. An appellate court must give full allowance to the advantages enjoyed by the jury in seeing and hearing the evidence when assessing whether that advantage is capable of resolving any doubt experienced by the court as to an accused person’s guilt and in this case the advantage was readily capable of doing so: [8], [94]-[98] per Hamill J (McNaughton J agreeing at [121] and Emmett J agreeing at [122]).

M v The Queen (1994) 181 CLR 487; [1994] HCA 63 and R v ZT (2025) 281 CLR 137; [2025] HCA 9 applied.

2. The concern raised about the evidence of the complainant’s sustained contact with the applicant after the sexual touching incident is at odds with a modern understanding of how victims (or perpetrators) of sexual assault ordinarily behave or are expected to behave, especially children in complex family settings. So was the suggestion that it was implausible for the applicant to offend against the complainant knowing the complainant’s mother would question her children about being sexually touched. While these were legitimate arguments to make before the jury, those arguments were rejected: [66]-[69], [77]-[79], [101] per Hamill J (McNaughton J agreeing at [121] and Emmett J agreeing at [122]).

Sita v R [2022] NSWCCA 90 considered and applied.

3. The complainant’s hostile and crude response to trial counsel’s cross-examination about his text messages with the applicant, and the suggestion that this somehow adversely reflected on his credibility, was a matter which the jury, familiar with the atmosphere of an emotionally charged trial and the tone of the cross-examination, was in a better position than the members of this Court to evaluate: [71], [95], [98] per Hamill J (McNaughton J agreeing at [121] and Emmett J agreeing at [122]).

M v The Queen (1994) 181 CLR 487; [1994] HCA 63 and R v ZT (2025) 281 CLR 137; [2025] HCA 9 applied.

4. While there was objective evidence capable of disproving the complainant’s assertion that he avoided being in the front seat of a car with the applicant after the sexual touching occurred, this issue and its impact on AZ’s reliability was patently before the jury. It was entitled to reject that aspect of his evidence as mistaken, untruthful or exaggerated while accepting those aspects which were central to establishing the allegation beyond reasonable doubt: [103] per Hamill J (McNaughton J agreeing at [121] and Emmett J agreeing at [122]).
5. As to the imprecision of the complainant’s evidence regarding the timing of the offence and the period over which he was inappropriately touched by the applicant, it is well-established that child witnesses can be uncertain as to such matters of detail. This was not a case where the timing of events was made “of the essence” because of the way in which the trial was conducted: [105]-[107] per Hamill J (McNaughton J agreeing at [121] and Emmett J agreeing at [122]).

R v Westerman (1991) 55 A Crim R 353 and Hilton John Cawthray v R [2013] NSWCCA 105 distinguished. AS v R [2022] NSWCCA 291 cited.

6. It was conceded by the prosecution at trial that the complainant was mistaken either about the car in which the offence occurred or the home in which his family were living at the relevant time. However, the prosecution was required to establish the elements of the offence, not those surrounding details. The jury was entitled to find that the complainant was honest and reliable as to the central issues in the case, but was mistaken about one or other of these matters of detail: [108]-[117] per Hamill J (McNaughton J agreeing at [121] and Emmett J agreeing at [122]).

Woolmington v Director of Public Prosecutions [1935] AC 462 considered. R v Teasdale [2004] NSWCCA 91; (2004) 145 A Crim R 345, Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334, Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 and Hodgson v R [2022] NSWCCA 72 distinguished.

JUDGMENT

1. HAMILL J: The identity of the complainants and various witnesses are protected by statutory prohibitions against publication of information that may lead to their identification. Criminal sanctions including sentences of imprisonment apply to any breach of those prohibitions. In conformity with those prohibitions, pseudonyms have been used in this judgment.

2. Harley Sherry seeks leave to appeal against his conviction in relation to a single count (count 1) involving the sexual touching of a child between the age of 10 and 16 years. The conviction was entered after the applicant’s trial on three counts in the District Court at Wagga Wagga in December 2024. The trial was conducted before Judge Lerve and a jury. Count 1 related to an allegation made by a complainant I will call “AZ”, while counts 2 and 3 related to AZ’s twin sister “IZ”. [1]

3. The jury retired to consider its verdicts at 3:28pm on Tuesday 17 December 2024. Following a note indicating unanimity on count 3 but difficulties with counts 1 and 2, the jury was given a majority verdict direction at around 2:15pm on Thursday 19 December 2024. At 2:34pm on that date, the jury returned the verdict of guilty on count 1 and not guilty on counts 2 and 3. The verdicts on counts 1 and 2 were by majority (11:1).

4. When the allegations first emerged, AZ identified as female but by the time of the trial he identified as male. [2] It is unfortunate that the parties at trial did not respect AZ’s preferred pronouns or gender identity. He/him/his pronouns are used in these reasons where reference is made to AZ. This conforms with this Court’s practice and its objective to foster “mutual respect to which all participants in judicial proceedings are entitled”. [3]

5. The applicant relies on a single ground of appeal asserting that the verdict is unreasonable and unable to be supported having regard to the evidence. He relies on the “golden thread” which is “always seen” running through “the web” of our criminal justice system. [4] More pertinently, given Mr Sherry’s current legal predicament, the applicant refers to High Court decisions such as M v The Queen (1994) 181 CLR 487; [1994] HCA 63, Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 and Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25. He invites the Court to undertake an independent review of the evidence and identifies several inconsistencies, discrepancies and inadequacies which he submits would leave the Court with a reasonable doubt about his guilt and establish that there is a significant possibility that an innocent man may have been convicted.

6. The applicant submits that a thorough review of the evidence will leave the Court with the kind of feelings of “anxiety and discomfort” experienced by Sully J when the case of M v The Queen was before this Court*.* He submits the Court will conclude there is a reasonable doubt about his guilt which cannot be resolved by reference to the constitutional role of the jury or by the jury’s advantage in being present in the courtroom when the witnesses gave their evidence. He places somewhat muted reliance on the acquittals in respect of counts 2 and 3.

No inconsistency or unreasonableness arises from the acquittals on counts 2 and 3

9. As part of his broader argument on the asserted unreasonableness of the verdict on count 1, Dr Hickie relied on “the acquittal of the appellant in respect of almost identical allegations levelled against the appellant by [his] sister [IZ]”. Reference was made to “the close similarity of the allegations” and the “opportunities for concoction, fabrication, and contamination of the evidence”. The respondent replied to those submissions in writing and, apart from the suggestion of “collusion”, no further arguments were made on the subject either in Dr Hickie’s written reply or in his oral submissions.

10. The issue of joint concoction will be considered below but there is no legal, logical or factual inconsistency between the conviction on count 1 and the acquittals on counts 2 and 3: MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 and MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53. The jury was required to give separate consideration to each allegation and different issues arose with respect to its evaluation of the credibility of the two complainants.

11. The mixed verdicts demonstrated the jury performed its function and followed the directions provided by the trial Judge. The reasonable doubt the jury experienced in relation to IZ’s allegations in counts 2 and 3 did not impact on an assessment of AZ’s credibility and whether the allegation in count 1 was established beyond reasonable doubt: cf, for example, Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56.

An overview of AZ’s allegations and a brief summary of the prosecution case at trial

12. Given the acquittals on counts 2 and 3, and the absence of any sustained contention that those verdicts had the capacity to undermine the efficacy of the conviction on count 1, it is not necessary to refer to those parts of the evidence which relate specifically to IZ’s allegations. In the submissions on the appeal, neither party placed much emphasis on IZ’s evidence or her complaints and allegations.

13. AZ’s evidence in chief was elicited by playing two interviews he made with police officers attached to the Joint Investigation Response Team (“JIRT”). He was cross-examined robustly by Mr Radojev who, along with another barrister (Mr Keller), appeared for the applicant at the trial.

14. AZ and IZ are twins born in late November 2008. Their mother is “DH” and their father is “MM”. They have a sister born in April 2011 who I will call “MH”. Their parents separated in 2014-2015 and DH subsequently commenced a relationship with the applicant. The applicant moved in with DH and her three children in November 2015 and moved out in 2020. He moved into a rental unit on 14 October 2020. Before moving to the unit, he stayed with DH’s mother at another address. There was an agreed statement of facts (Ex N) which set out some of these details but not all of the dates – including the date when the applicant moved out of the family home – were precise.

AZ’s evidence

15. AZ gave evidence of a history of conduct on the part of the applicant that made him (AZ) feel uncomfortable. This conduct was not charged in the indictment and was not said to amount to criminal offending. It was tendered to establish the nature of the relationship between the applicant and AZ and to place the event charged in count 1 in a realistic context. The conduct included touching AZ on his thighs, his stomach and the upper part of his chest up or near his sports bras. AZ estimated that such things happened “probably, like, twenty, thirty times”. AZ could not remember how old he was when the first instance of such touching occurred, although he believed he was “quite young”. AZ said he didn’t remember a lot of his childhood explaining that “I don’t have quite a good memory of it because blocking things out.”

16. AZ referred to a number of homes in which the family lived with the applicant, but his evidence was not precise when it came to the timing of movements between these various premises. The timing of the family’s movements took on some prominence at the trial and acquired more significance in the arguments on appeal. It will be necessary to discuss this, as well as the cars owned by various family members, in addressing the ground of appeal. It will also be necessary to return to some seemingly peripheral evidence relating to AZ making a chicken sandwich because it has some significance to the timing and sequence of events which is crucial to some of the applicant’s arguments on appeal.

17. The incident charged in the indictment was described by AZ in the following exchange in his first JIRT interview:

“Q. Where were you? Let’s start there. A. I was in the car with him. It was, I was probably about 10, maybe 11. Um, we were in the car. It was around Christmas. It was, like, it was in December, ‘cause it was the six week holidays so it was really close to Christmas. Um, he was going down to the, um, fuel station to get Mum some, um, something for her throat ‘cause she was sick at the time, and he offered for me to come, and me being oblivious, I was like, ‘Hell yeah, can we go Christmas light looking as well?’

Q. Is this before or after? A. After the incident.

Q. So this is after the one where he pulled you onto his lap? A. Yes.

Q. O.K. A. Me being oblivious, and it was like 10 o’clock at night, so I was really tired and wanting to go down to the station, the fuel station to get something, ‘cause every time we went we’d get something. Um, I went with him. We, he didn’t do anything at first.

Q. Was there anyone else in the car? A. No, it was just me and him. Um, we went down. He didn’t do anything when we went down to the station. I mean, I guess he did. He just had his hand on my thigh.

Q. So where - - - A. And he was kind of tracing it up and down my leg.

Q. Where are you guys? A. We were, um, we were - - -

Q. What town were you in? Like, where are we? A. Junee.

Q. O.K. So you’re in Junee. A. Yeah.

Q. What house were you living in at the time? A. Um, 14 George Street.

Q. 14 George. A. Mm-hmm.

Q. So which servo or which fuel station did you go to? A. Um, it was Pie Face.

Q. Oh, you went to Pie Face? A. Mm-hmm. You know the one that’s, like, near Broadway and stuff. There’s one there. It’s, like, it’s at the Broadway place.

Q. Okay. A. Mum, like, Mum and Dad will know what, what I’m - - - Q. That’s O.K. Yeah. A. Mum and Dad will know what I’m talking about.

Q. Pie Face near Broadway. A. Yeah.

Q. Youse went there? A. Yeah.

Q. What did you get there? A. Um, we got Mum some, like, throat soothers and a hot chocolate, and I got a pack of chewy ‘cause that’s what I wanted, because Mum said that I could grab something.

Q. And what kind of chewy did you get? A. Um, peppermint ‘cause every other one tastes like shit.

Q. O.K. So you went to the service station or the fuel station and you got the throat soothers, the hot chocy and some chewy. A. Mm-hmm.

Q. What happened next? A. And as we were driving down he did, he was rubbing his hand up and down my thigh, as I said, but, um - - -

Q. What were you wearing? A. I was in, um, this blue top. Like, sorry, it was like a grey bluish top that, and it kind of, it was a little baggy, like it was made to be, like, kind, it had, it was like circled so it was like big and stuff. And I was wearing blue shorts with feathers on them ‘cause obviously it’s near Christmas and it’s hella hot then.

Q. So is this pyjamas or is this just shorts and a T-shirt? A. It’s pyjamas.

Q. O.K. So grey bluish top. So then it’s PJs? A. Yeah.

Q. O.K. And did you have under your top? A. Yeah. I, I had a sports bra underneath my top.

Q. Do you know what colour it was? A. Um, no.

Q. That’s O.K. And blue shorts with feathers. A. Yes.

Q. Um, feather pattern I’m assuming. A. Yes.

Q. Yep. A. They had like a gold-ish pattern of feathers on them.

Q. O.K. So you said, um, as he was driving he was rubbing your thigh. A. Yeah.

Q. Tell me more about that. A. He was, he was kind of just, like, rubbing his hand up and down my thigh.

Q. Um, which thigh? A. Um, my right one.

Q. Why was he doing that? A. I don’t know.

Q. How did it start? A. We were just driving and I was just looking out the window ‘cause it was really pretty, ‘cause like Junee’s really beautiful at night so I was looking out the window and he just started doing it .....

Q. What time of night did you say it was? A. It was probably around 10 o’clock.

Q. Why do you think it was that? A. 9.30, 10 o’clock. What do you mean by why did I think? Q. Why do you think it was around that time? A. The - - -

Q. What made you think it was that time? A. Because, um, usually that’s when we went roughly down to the station.

Q. How often did youse go down? A. Every, maybe once a week, but I usually didn’t go but that’s usually the time Mum would ask him to go down, roughly once a week to get her a hot chocolate, ‘cause she, at that time she was obsessed with them, and really liked the hot chocolates there. Like, I remember she, in winter when it first opened she would take us to get it because the, she would take us to get a small hot, double hot chocolate from there before school at it was really good.

Q. O.K. A. So, yeah, she really liked the hot chocolates there and, and even if we didn’t get one ourselves, we’d always go down and get her one - - -

Q. Yeah, O.K. A. - - - before school because she really liked them and it was hard for her to, um, make one, drink it every morning ‘cause [CHILD’S NAME] was so young.

Q. Yeah. O.K. So you’re driving and he just, you’re looking out the window and he just started doing it. A. Mm-hmm. Q. What did he start doing? A. Just rubbing his hand up and down my thigh.

Q. Yep. What do you mean? Explain exactly where on your thigh and what his hand was doing. A. I don’t quite understand.

Q. Well, whereabouts on your leg are we talking about? You can show me if it’s easier. A. This part.

Q. Can, O.K. A. Like here, up and down my thigh, which made me .....

Q. So his hand, how was his hand positioned? Can you show me that. A. Just flat.

Q. Flat like that? A. Mm-hmm.

Q. But he’s sitting beside you, yeah? A. Yeah, driving.

Q. O.K. All right. So it rubbed up and down your thigh? A. Yeah, and I got quite uncomfortable and after we got out of the station I asked him if we could just go home, and he was like, ‘I thought you wanted to see the lights,’ and I was like, ‘I changed my mind.’ He was like, ‘Nah, we’ll just go with the lights.’

Q. O.K. A. And then he slowly started tracing, as we were looking at the lights he slowly started tracing his hand, um, down, like, up my shorts.

Q. O.K. I’ll, I’ll get to that. A. Mmm.

Q. So hang on that for one second. I just want to finish, when we’re talking about the thigh, is that O.K. A. Mm-hmm.

Q. Yep. O.K. So he’s rubbing your thigh was his hand. A. Mm-hmm.

Q. Um, how far up or down did it go? A. Probably just to where my shorts ended, which was about here.

Q. O.K. So you’re showing me on your leg. Is that about halfway down your leg, or a bit closer to the top or bottom or something else? A. Yeah. My shorts, ‘cause I was sitting they, probably were about here.

Q. O.K. A. ‘Cause they’re - - -

Q. So how would you describe that? A. Um, he was probably just rubbing his hand like this?

Q. O.K. A. .....

Q. Up to the shorts and back. A. Yes.

Q. O.K. How long do you think it lasted for? A. Well, the drive’s like a minute or two from the house to, um, Pie Face, so roughly around that.

Q. What made it stop? A. When we got out of the car to get the stuff.

Q. Did you say anything to him or did he say anything to you when he was doing it? A. No. No. Q. O.K. Um, and it went to the, went to the bottom of your shorts. A. Yeah.

Q. And, and back down to your knee. A. Mm-hmm.

Q. O.K. No conversation? A. No.

Q. O.K. Thanks for that. And you were wearing your grey bluish top with your PJ, with your PJs and blue shorts with a golden pattern of feathers. A. Mm-hmm. Mm-hmm.

Q. Yeah. Um, O.K. And then you just said something about the next one, was something about going up your shorts. A. Yeah.

Q. O.K. So tell me about that. A. Well, he started rubbing his hand more up my shorts and I got quite uncomfortable and I asked to go home and he said, ‘No, we’ll just look at the lights.’

Q. Is this after the fuel station? A. Yes.

Q. O.K. A. Because, as I said, I really wanted to look at the lights because we couldn’t go, we couldn’t go on Christmas Eve ‘cause, um, [CHILD’S NAME] was unwell.

Q. O.K. A. Mum and [CHILD’S NAME] were both unwell so we, so she said that we can go light looking this year so I thought I’d take the chance to go light looking.

Q. Yeah, O.K. And you said something before about how you got uncomfortable and you said you wanted to go home. A. Yeah. I didn’t - - -

Q. This was before you went, like, after the servo but before you went light looking? A. Yeah.

Q. And what did he say? You said he said something. A. He said, ‘Nah, we can just look at the lights.’ He really wanted to. And I was, I was just like, ‘Yeah, O.K.’

Q. O.K. A. I didn’t really know what to say at the time so I just said, ‘Yeah, O.K. Let’s go light looking then.’

Q. O.K. So what happened next? Youse got back in the car? A. Yeah.

Q. Tell me what happened next? A. Um, we started driving around. We went up to John Potts Drive because that’s where, like, everyone celebrates the holidays, like, nature, like, if it’s Halloween that’s where you go to get the stuff because everybody always decorates.

Q. O.K. Yeah. A. And, like, there’s probably only one or two houses that don’t do it so - -

Q. Yeah, right. A. You can always go up that area and it’s really pretty. And, like, they all, they go all out every year for Christmas and it’s absolutely amazing. Like, on Christmas Eve they have people dressed up as Santa.

Q. O.K. A. It’s really pretty so we went up there.

Q. Yeah. A. And I just kind of wanted the night to, to end but he insisted on, we continue, and his, his hand started tracing up and he started touching me.

Q. O.K. What made that start? A. I don’t know.

Q. O.K. So which hand was he using and where was he touching you? A. I don’t know, his left hand, I assume, and he was touching me on my shorts.

Q. O.K. So you’re still, whereabouts in the car are you sitting? A. I’m in the passenger seat.

Q. In the front passenger seat? A. Yeah.

Q. And he’s touching - - - A. His car was trashed in the back so I go in the front. Q. O.K. So you’re saying it was his left hand on - - - A. Yes .....

Q. - - - which leg? A. My right leg.

Q. Right leg, yep. Tell me what happened then. You said his hand was tracing something. Tracing where? A. He was touching, he was tracing up and down my leg and then he started touching me in my shorts, then after about five minutes he asked if I was uncomfortable and I said yes and he stopped.

Q. So tracing up and down your leg. And what was the next bit about your shorts? A. Started touching me in my shorts. Q. Touching you in your shorts? A. Yes.

Q. What do you mean by that? A. What do you, um - - -

Q. What do you mean by in your shorts? Like, tell me more about what that means. A. Um, I, um - - -

Q. What part of your body was he touching? A. Um - - -

Q. Take your time. Is there a specific word that you don’t, that you can use? A. (NO AUDIBLE REPLY)

Q. No? Well, I wasn’t there, [AZ], so I’m not really sure of what part of the body you’re going to talk about so I have to ask you to tell me, unfortunately. A. Mmm, um - - -

Q. Is there anything I can say or do to make it easier for you to tell me? What is it that’s worrying you about saying something? A. I just don’t want to say it.

Q. Yeah. Why not? What is it about saying it that worries you? A. I don’t know.

Q. That’s O.K. You said something about it happening for four or five minutes or something. Is whatever happened next happen for that amount of time? A. (NO AUDIBLE REPLY)

Q. O.K. And then he said he asked if you were uncomfortable and you said yes and he stopped. A. Mm-hmm.

Q. O.K. So we’ve got all the information around it. I just need to know what it is. What was happening when he was touching you? What were you doing? A. Nothing. I couldn’t do anything.

Q. Yep. Was there any conversation? A. (NO AUDIBLE REPLY)

Q. Did, did he say anything to you? A. No, not until he asked if I was uncomfortable.

Q. O.K. So there was no, no talking then. A. (NO AUDIBLE REPLY)

Q. He was just stroking your leg initially. A. Mm-hmm.

Q. And then something, you said touched you ‘in my shorts’. A. Mm-hmm.

Q. Whereabouts in your shorts? Did you have anything on under your shorts? A. Mm-hmm.

Q. Pardon? A. Mm-hmm.

Q. Yeah? What did you have on under your shorts? A. Underwear. Q. Underwear? A. Mm-hmm.

Q. Do you know what colour or what kind of underwear? A. No.

Q. O.K. You just remember you had underwear on. A. Mm-hmm.

Q. O.K. So what happened then? A. Um, he just touched me inappropriately. Um - - - Q. Yep. Touched you inappropriately where? A. Um - - -

Q. And you said you were about 10 or 11 at the time? A. Mm-hmm.

Q. O.K. So he’s touching you on the thigh. A. Mm-hmm.

Q. Tell me where the hand went after that? How did it get, as your words were, in your shorts? A. He just puts his hand up sort of - - - Q. So up. A. Mm-hmm.

Q. O.K. So up from what, the leg of your shorts or the waistband of your shorts or something else? A. The leg of my shorts.

Q. Up the leg of your shorts. O.K. What did it do? Did it touch some of your thigh or something else? A. Something else.

Q. O.K. What’s the something else? A. I don’t want to say.

Q. Why not? A. ‘Cause I don’t want to.

Q. Mmm. If I don’t hear, hear where it is, though, I, I can’t, I wasn’t there, like I said, so - - - A. Yeah.

Q. I know it’s hard stuff to talk about but, um, you were the only other person there. A. Mm-hmm.

Q. Without you telling me what you, what you mean, you know, people, or anyone could, there’s a lot of places people can be touched. A. Mm-hmm.

Q. So, um, that’s why I need to know specifically what you mean, ‘cause this is something that only you can tell me. A. Mm-hmm.

Q. Yeah. What do you use whatever was touched for? A. He touched the outside of my vagina.

Q. The outside of your vagina? A. Mm-hmm.

Q. O.K. Well, you told me you had underwear on. A. Mm-hmm.

Q. Was that on the inside or the outside of your underwear? A. Inside.

Q. Pardon? A. Inside.

Q. Inside. How did he get his hand inside your underwear? A. He traced, he feel up and touching my thigh, and traced it up my shorts.

Q. Yep. So whereabouts on your underwear did his hand go in? A. The side.

Q. Yeah. A. Mm-hmm. Q. And what was his hand doing? A. Just going up and down.

Q. Going up and down? What do you mean? A. Like what he was doing on my thigh but there.

Q. So going up and down on the outside of your vagina - - - A. Mm-hmm.

Q. - - - underneath your underwear? A. Mm-hmm.

Q. Is that yes? A. Mm-hmm.

Q. Mm-hmm. Does mm-hmm mean yes? A. Yes.

Q. O.K. And how long did that last for? A. I don’t know, five minutes.

Q. And what made it stop? A. He asked if I was uncomfortable and I said yes. Q. O.K. So he asked, ‘Are you uncomfortable?’ A. Mm-hmm.

Q. And what did you say? A. Yes.

Q. O.K. What happened then? A. He stopped and we went home. He stopped and I asked to go home.

Q. He stopped as in stopped the car, stopped touching you or something else? A. Stopped touching me.

Q. O.K. A. And I asked to go home.

Q. And what did, what happened then? A. Uh, we went home and I pretended like nothing happened.”

The cross-examination of AZ

18. Mr Radojev cross-examined AZ over three days from the afternoon of 9 December 2024 until 11 December 2024. A lot of the questioning focused on what was said to be the contradiction between the complainant’s professed dislike of Mr Sherry and fear of being alone in the car with him after the incident occurred, and the evidence of interactions between AZ and Mr Sherry both in person and via text messaging.

19. AZ was questioned at length about an incident at the family home in George Street, Junee when AZ made the applicant a chicken sandwich. This occurred sometime around “when COVID like first happened”. Mr Radojev suggested to AZ that the summary he gave in Court of his response to Mr Sherry’s request for the sandwich was missing the original “rudeness” contained in the version AZ gave to police in the first JIRT interview. Mr Radojev questioned why AZ would make Mr Sherry a sandwich and then go near him to give it to him, rather than just leave it in the kitchen, when AZ claimed that he wanted nothing to do with Mr Sherry. AZ responded “Well, what was I meant to do? He asked me to bring it to him.”

20. It was suggested to AZ – and he accepted – that he did not like Mr Sherry very much at all. Mr Radojev put to him that he told police he never cared for Mr Sherry “basically from the moment [he] met him” but AZ denied this. He explained that he did not specify the time period when he started to hate Mr Sherry.

21. In relation to the incident charged as count 1 in the indictment, Mr Radojev put to AZ that his description of Mr Sherry leaning over the console of the car while driving, using his left hand to touch AZ’s right thigh and then reach under his shorts and inside his “knickers” to touch his vagina, when AZ was far lower in the passenger seat than Mr Sherry in the driver’s seat, involved “a lot of contortion”. Mr Radojev suggested that what AZ described could not have happened “[b]ecause, what you’ve described is somebody who has joints where joints don’t exist.”

22. Under cross-examination, AZ confirmed his statement to the police that this incident was the last time he was in the car with Mr Sherry by himself. He clarified this by saying he was still required to be in the car with Mr Sherry but was always with other people, and he would never sit in the front seat with Mr Sherry, or at least “tried [his] best to stay in the back seat”. Mr Radojev then showed AZ a text message exchange from 15 August 2021 where AZ asked Mr Sherry to pick him up from a friend’s house, and AZ agreed that Mr Sherry picked him up on that occasion and that he sat in the front seat of a ute next to Mr Sherry for the “two minute” journey home.

23. Counsel played and tendered as Ex 6 a video which recorded AZ and Mr Sherry at a service station on the evening of 16 October 2020 and suggested to AZ that they travelled there together by car. AZ said that he did not know and did not remember how they got there, but said they would both drive and walk to the service station because there were periods when Mr Sherry did not have a car. Mr Radojev suggested to AZ that he was not telling the truth, asserting if they did go in the car, it would be “the opposite” of what AZ had previously told the police. This assertion was based on AZ’s evidence that he avoided being alone with Mr Sherry in a car. I have watched the video and it comprises a nine second recording of AZ in front of a drinks fridge, presumably in the shop attached to the petrol station. The interaction is a friendly and playful one.

“Q. And you were asked this question at question 76, by the police officer, ‘Okay, and you said that - I don’t remember your exact words, but you said nothing sexual had happened before this time?’ Answer, ‘Not that I can remember. Not like - it had happened prior to this, but not at that moment. Nothing was happening when he said it.’ Now that’s a reference to evidence you gave in your second interview about him saying words to the effect of, ‘If you were older, I would marry you’. Do you remember that? A. Yes, but this wasn’t at a fuel station.

Q. I beg your pardon? A. This wasn’t at a fuel station.

Q. Yes, I know. It was outside where you were living? A. Yes.

Q. And it was outside what address? A. George Street.

Q. And you say, ‘Not like - it had happened prior to this, but not at that moment.’ What you’re saying there is that he had - and this is a reference to sex isn’t it? A. To what?

Q. Sex, sexual touching? A. Yes.

Q. And you’re saying that nothing had happened in the car on that occasion, but it had happened prior, that’s what you’re saying isn’t it? A. Yes.

Q. And the time you were referring to there was the time when you say he put his hands under your underpants? A. Sorry, what? This time? This occasion? No.

Q. No, that’s - you were referring to in that, in what you’re telling the police‑‑ A. I was referring to every occasion.

Q. --when you say, ‘Not, like, it had happened prior to this, but not at that moment’‑‑ A. Yes.

Q. --that was a reference to the time he’d touched you on the vagina? A. Yes.

Q. But, nothing had happened that night? A. No.

Q. You go on and say in answer to question 77, ‘So, he and pre - and I said in my previous statement he was, had, was already doing’, and that was a reference to the putting his hand‑‑ A. That was a reference to every time he touched me.

Q. So, not specifically the one where he touched you on the vagina? A. No.”

29. However, even that exchange was confusing, as was the part of the JIRT interview upon which it was based. The result was that the adamantine and persistent interrogation – “[i]t’s not what you told the cops, is it?”; “[y]ou’ve made that up as well” – was bordering on unfair. A very short time afterwards (seven questions later) when counsel moved to a different topic, AZ said:

“A. Yes. I’m sorry, you’re confusing me. You’re asking – you’re not asking questions, then you’re asking questions and when you’re asking questions it doesn’t sound like a question.

HIS HONOUR: There’s some substance in that, Mr Radojev, with respect.

RADOJEV: I shall clarify it for the young lady so she’s not in any doubt as to what I’m saying. [5]

WITNESS: Not doubt, confusion, because your questions don’t sound like questions and I don’t know when I’m meant to answer you.”

30. As to the “I would marry you” conversation, Mr Radojev put to AZ that the applicant never said anything like that to him and that AZ got that idea from his sister. AZ denied this. IZ told police that the applicant said something similar to her but she denied that she and AZ “made those stories up” together.

Complaint evidence and how AZ’s allegations emerged

31. There were inconsistencies in the evidence about how AZ’s allegations first emerged. The evidence suggested that AZ was reluctant to speak about the matter with family and friends and did not initially want to be involved in the court case at all.

32. IZ gave evidence that she told AZ in late 2020 or early 2021 that the applicant had been sexually assaulting her. She said that AZ responded by saying it “might” have happened to him as well and that the applicant might have “tried something” with AZ. According to IZ, AZ told her that the applicant was “rubbing [AZ’s] leg and stuff and [AZ] told him to stop and he stopped.”

33. AZ said he did not speak to IZ about the incidents until the applicant and DH broke up in early 2020. His evidence was that IZ said “[h]e touched me. Did he touch you?” to which AZ replied “[y]es”. However, he told IZ that he did not want to talk about it. AZ walked away and the twins did not speak about the matter again. AZ said he did not really remember this conversation with IZ.

34. DH (the twins’ mother) also gave evidence of what AZ told her. She said that on 2 October 2021 IZ made certain disclosures to her and that this prompted her to speak to AZ the next day. Her evidence of that conversation was as follows:

“Q. Can you tell us about that conversation? A. [He] was sitting on the bench eating out of the Milo tin and I just asked [him] if [he] was touched too. Q. Say that again sorry? A. [He] was sitting on the kitchen bench eating out of the Milo tin and I asked [him] if Harley touched [him] too. Q. Why did you ask [him] that? A. No-one had asked [him] yet.

Q. How did [AZ] respond to that question? A. [He] started to cry and [he] didn’t really want to answer it and then [he] told me that he had touched [him].

Q. What did [he] say? A. [He] said ‘I was sick’ and [he] went to get, they went to get me lemonade from the servo and--

Q. Sorry when you say, ‘I was sick’ are you talking about [he] was sick, or you were sick? A. Sorry, I was unwell and [AZ] and Mr Sherry went to the servo to get me lemonade and [he] told me that he put his hand between [his] legs. Q. Did [he] tell you anything about where it was, what location it was when he put her (as said) hand between [his] legs? A. Heading to the service station in Junee, Junee Jewels(?).

Q. Did [he] tell you about what time of year it was? A. I don’t remember.

Q. Did [he] tell you anything else about what he did on that occasion? A. He asked [him] if [he] was uncomfortable and [he] said, ‘Yes.’ And he said, ‘I’m sorry [AZ]’, and took his hand off [his] vagina.

Q. Did you asked [him] about - did [he] tell you anything else about that incident? A. Just the clothes that [he] was wearing, [he] could – [he] went into incredible detail about absolutely everything.

Q. Do you remember some of that detail? A. (No verbal reply)

Q. Okay, you said that [he] mentioned the clothes that [he] was wearing, do you remember what [he] said about [his] clothes? A. Said [he] was wearing shorts and they had these little baubles that hang off all around them.

Q. Did you ask [him] about any other time that [he] said that Harley might have touched [him]? A. I did.

Q. How did [he] respond? A. [He] wouldn’t answer, [he] just - wanted to leave it alone and move on.

Q. Did you notice anything about [his] demeanour at that stage? A. [He] was bawling and then [he] ended up having a panic attack.”

35. MM (the twins’ father) gave evidence of a conversation he had with AZ after IZ made a complaint to him. He decided to take the twins to the police station although he was not clear as to precisely when that was. (Other evidence suggested it was on 2 October 2021.) In his evidence in chief, MM said he broached the subject with AZ in the car on the way to the police station, at which point AZ said “yes, that something had happened, but [he] didn’t want to talk”. MM noticed that AZ looked “sort of withdrawn, upset”. AZ was generally a “quiet kid, but [he] was quieter than normal, like, just, yeah, didn’t want to really talk about it.” In cross-examination, MM was shown his police statement and agreed he told police that AZ said “no” when asked if anything had happened. In re-examination, MM said his “best memory” was that AZ said “no”. Over objection, MM volunteered the inadmissible opinion that he did not believe AZ and the follow up question by the Prosecutor (“[w]hat are the actual words … not your opinion about them?”) made it clear that MM’s opinions were not relevant.

36. The police officer in charge of the investigation was Detective Senior Constable (DSC) Brodie Hughes. They took on that role in about April 2022 and had access to earlier police statements. DSC Hughes said that on 2 October 2021, IZ, AZ and MM attended the Wagga Wagga Police Sation and spoke to an officer, Plain Clothes Constable (PCC) Jelena Djuric. IZ disclosed an incident that occurred between her and the applicant. PCC Djuric approached AZ and asked if they could talk privately together. AZ was asked “[i]s there anything you would like to tell me?” AZ replied “[n]o”. When pressed, AZ confirmed that he was “sure” he did not want to talk to police.

37. On 7 October 2021, AZ attended the “child abuse unit” in Wagga Wagga and reiterated that he did not want to speak to police or to be formally interviewed about the matter. However, on 14 April 2022, DSC Hughes learned that AZ wished to be interviewed and the first formal JIRT interview was conducted on 20 April 2022.

Agreed facts and other evidence in the prosecution case

38. There was evidence adduced in various forms which the parties at trial submitted either supported or undermined the version of events provided by AZ. This included evidence of “opportunity”, the ownership of particular cars, the timing of the family’s movement between houses, text messages and other contact between AZ, DH and the applicant. Where necessary I will say more about this evidence in addressing the ground of appeal.

The applicant’s case at trial

39. The applicant did not give evidence at the trial. However, he made an electronically recorded interview with police (“ERISP”) on 20 July 2022 in which he denied any wrongdoing against either IZ or AZ. His case at trial can be discerned from his answers to the police and from counsel’s closing address.

The ERISP

40. Early in the interview, the applicant was asked about AZ’s allegation which formed the basis of count 1. He raised a few issues about whether he was in Junee (rather than Leeton) at the relevant time and the uncertainty as to the year of the alleged offence became clear with the officers confirming “this is alleged to have happened in either 2018 or 2019.” In either case, the applicant said, “I don’t believe this is true”. He explained that he owned a Rodeo ute and Ford Courier ute at relevant times, but acknowledged that DH owned the “blue VE Commodore, 2015” referred to in AZ’s allegation. However, while that remained registered to DH until 2019, her brother was using it from 2018. Mr Sherry said he knew the “Pie Face” service station but denied going there alone with AZ in the blue VE Commodore at 10 o’clock at night around Christmas in 2018 or 2019. When the thrust of AZ’s allegation was put to him for a third time, Mr Sherry said:

“This hasn’t happened. Like, like I said, 2019, I was in Leeton. I was out, I was actually out in Yanco camping for Christmas, 2019.”

41. Mr Sherry was asked about his relationship with DH and where they lived from time to time. He said they got together in 2015 when he was still only 20 years old, moved to Junee and they lived together in Short Street before moving to a house in Arnold Street. He described the layout of the houses and where everybody slept. They moved to DH’s mother’s house for a time but he said that “[DH] had a very hard time living with her mother”. His evidence on these topics, while imprecise, generally reflected the objective evidence and the evidence given by other witnesses.

42. The applicant also told police that DH would ask the “girls” lots of questions like “why are you tired?”, “[w]hy are you sad?”, “[w]ho’s touched you?” and “has X-Y-Z touched your vagina?”. He said this occurred many times and it was something DH “was putting in their heads … from a very young age”. He also said that after he and DH split up, “she got very nasty, very vindictive very quickly” and ventured, “I feel like it’s a lot of spite that’s been filled into the [twins’] heads by [DH].”

43. Mr Sherry presented to police with “a lot of printed material” which was also on his telephone. He agreed the police could download that information from his mobile telephone which was relatively new but which had the older communications transferred to it.

Counsel’s address

44. Mr Radojev’s closing address essentially amounted to an attack, or a series of attacks, on AZ’s credibility and truthfulness. It was not subtle. The arguments put to the jury included:

45. AZ’s account to police that he was frightened of Mr Sherry did not “marry up” with his enthusiasm to join Mr Sherry on a drive. It was “very difficult for [AZ] to get around” the evidence which clearly established that he had been alone in a ute with Mr Sherry after the incident charged on the indictment.

46. AZ’s sustained contact with Mr Sherry via text messages was “not reconcilable” and “completely inconsistent” with AZ’s version of events.

47. Of the 20 or 30 occasions when the touching made AZ (and IZ) feel uncomfortable, “they can only ever come up with two examples” and there was an absence of detail of those incidents.

48. AZ’s delay in complaint undermined his credibility.

49. There was a delay of six months between IZ’s JIRT interview and AZ’s first JIRT interview. This gave rise to the suggestion of collusion between the sisters:

“And if you think about it, these two sisters had six months before the second one goes to the police to get [his] story straight. Six months is a long time.”

“… if you don’t know what’s going to be said isn’t it better to wait a little while till your sister tells you what the game is and what the story is? Matter for you. It is and has been put to these girls that they have been effectively ‘cooking the books’. We don’t know why. There are any number of reasons why people – and his Honour will probably tell you – any number why people lie but have a think about it.”

1. The jury should wonder whether the “chicken sandwich episode ever happened” and counsel relied on the absence of evidence from MH (who would have been about seven or eight at the time) confirming that she heard AZ “screaming” or “yelling” as AZ said he did.

2. The incident charged in the indictment was physically unlikely or impossible because of the “angles” and “how many joints does one human being have in an arm?”

3. There were some unfortunate and unnecessary aspects of the address which ran a high risk of backfiring, but which were calculated to portray AZ as dishonest and manipulative. For example, counsel submitted:

“There’s a young person that gets in the witness box, takes an affirmation to tell the truth and [he’s] carrying a large green, stuffed frog because [he] needs support and [he] needs comfort because [he’s] a delicate little flower.”

46. Mr Radojev returned to this theme when he told the jury “[r]emember the green frog, delicate little thing that [he] is” and “I don’t know if the frog was there to protect me or why it was there”. Insofar as counsel’s strategy can be discerned at this distance, the import of this attack on AZ was that he was being deceptive or feigning the need for a “comfort” toy in the witness box.

47. All of these submissions, and many more, led to the assertion that the 20 or 30 occasions of which AZ spoke in his JIRT interview were bereft of detail and that:

“… you don’t know what they were because they didn’t happen”.

The eight matters of concern raised on the appeal

48. In arguing that the verdict of guilty on count 1 was unreasonable or unable to be supported, Dr Hickie raised “eight concerning aspects of the [prosecution] case” in his written submissions. At the hearing of the appeal, he maintained his reliance on those eight matters both individually and collectively, but submitted that the third matter related to a “central issue” and went to “the heart of the case”. It was this “third concerning aspect” of the case that was the focus of Dr Hickie’s written submissions in reply and his oral submissions. Because of its prominence in the arguments on appeal, I will set out the background and evidence relevant to that third concerning aspect first, before identifying the other seven matters in a little less detail, and then return to consider the overall impact of the matters raised by the applicant.

The third concerning aspect of the complainant’s evidence: the complainant was mistaken either as to the vehicle in which the offence was allegedly committed or the house he was living in at the time

49. The third concerning aspect relied on by Dr Hickie presents quite starkly. It highlights the lack of precision in the dates on the indictment and the particulars of the charge and became the focus of most of the oral arguments on appeal. This aspect of the case can be summarised as follows:

50. At the trial, the prosecution could not identify with certainty the date of the offence and the indictment alleged the offence was committed “between 1 December 2018 and 31 January 2020”.

51. The prosecution alleged that the offence occurred around Christmas of 2018 or around Christmas of 2019.

52. AZ gave evidence that the offence occurred in the blue VT (at times referred to as “VE”) Commodore, photographs of which were tendered by both parties at the trial.

53. AZ also gave evidence (in the first JIRT interview) that he was living in a house in George Street, Junee at the time of the incident.

54. It was an agreed fact that the family (including AZ and the applicant) did not move into the George Street house until 21 June 2019. This meant, on the applicant’s case on appeal, that the offence could not have occurred around Christmas of 2018.

55. DSC Hughes gave evidence that the blue Commodore was acquired by DH on 17 July 2018 and “disposed of on 12 November 2019” to a non-family member. The applicant submits that this established that the offence could not have been committed in that car in the weeks around Christmas of 2019.

56. The Prosecutor at trial submitted that AZ was “either mistaken about the house they were living in at the time, or … mistaken about the type of car they were in” and that, either way, the “mistake is inconsequential.”

57. There is no force in Dr Hickie’s complaint that it was unfair to put this submission when the Prosecutor did not put to AZ that he was possibly mistaken when he gave evidence. The circumstances are not analogous to a situation where a prosecutor is obliged to challenge their own witness as a matter of fairness both to the witness and to the accused person: see, for example and by way of contrast, R v Teasdale [2004] NSWCCA 91; (2004) 145 A Crim R 345 and Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334.

58. In Livermore v R, to quote Mr Parker the Public Defender who appeared at the trial, the Prosecutor, “clothed in the authority of the office of the Crown, presenting himself as representing the community and presenting his case fairly, repeatedly [expressed] disparaging personal views of [the] prosecution witness.” The Prosecutor told the jury that he (the Prosecutor) had come to the view that his own witness was “an idiot” and essentially invited the jury to reject his evidence altogether. In R v Teasdale, the Prosecutor implicitly accused a group of witnesses who, like the appellant, were off duty police officers, of a “conspiracy of silence” to protect the appellant. In the circumstances of each of those cases, it was incumbent on the Prosecutor to challenge the witnesses before making such submissions.

(i) Inconsistency concerning the years of abuse

56. The first matter advanced by the applicant is somewhat related to the third, most significant, “concerning aspect” because it also relates to the inability of the prosecution to particularise its case precisely in terms of the timing of the offence. The complainant gave inconsistent answers in the first JIRT interview as to the period over which the inappropriate touching occurred. Early in the interview (Q 39) he spoke about “the sexual abuse that my stepfather put me through for about four, five years”. Then (Q 52) he said “it happened for quite some time, probably three years”. Three questions later he said it may have started when he was “10 till, actually, probably from like 9” years of age until he was 11. Trial counsel raised these inconsistencies with the jury and submitted, “[t]hey can’t all be the truth – but [he] says they’re all the truth. That’s what you’re dealing with.”

57. Counsel on the appeal drew the Court’s attention to problems in AZ’s evidence as to sequences of the few specific incidents of which he could give evidence. This included an incident when the applicant allegedly held AZ around the waist which was said to have been “when COVID like first happened” (January 2020) but before the incident in count 1. That was “incompatible” with the prosecution case that count 1 occurred around Christmas of 2018 or Christmas of 2019.

58. The respondent relied on several authorities which make it clear that it is not uncommon for children to be imprecise about time. While it was accepted that the jury may have considered the imprecision as to the timing and sequence of events to be “indicative of unreliability”, it was equally open to reason that such imprecision was “of little significance to the overall assessment of the reliability of the complainant’s account of an alleged assault.” Counsel for the respondent also submitted that the language used by AZ made it clear that he was only ever able to give approximate dates and sequences and that mistakes as to the order of events or when COVID occurred were mistakes that could be attributed to AZ’s youth.

(ii) “Implausibility of the contortion required to perform the alleged act of sexual touching”

59. As was submitted at the trial, the applicant suggested that there was some implausibility in the physical action described by AZ as constituting the offence. He relied on the photographs of the inside of the car and the description AZ gave of the way in which the applicant touched his leg(s) and then moved his hand up the leg, under his shorts, to touch his vagina. It was submitted that the act would involve some “contortion” on the applicant’s part. I have referred at [21] to the cross-examination on this subject and at [44] (last dot point) to trial counsel’s submission to the jury.

60. In addition to considering the photographs and cross-examination, I have watched the JIRT interview (MFI 2) where AZ demonstrated where the applicant allegedly touched his leg. At the hearing, the parties identified those parts of the JIRT interview which should be watched by the Court to obtain an understanding of the evidence. Between time stamps 23.15 minutes and 24.30 minutes, AZ twice indicated that the applicant touched him approximately halfway between his knee and groin. The first time AZ placed his palm flat on the top of his right thigh and the second time he drew a line with his finger at a slightly higher point on his thigh.

61. I discern no implausibility in AZ’s description of the physical events. It would have been quite straightforward for a person in the driver’s seat to reach across and rub the complainant’s leg, and then reach under the loose fitting (pyjama) shorts and touch his vagina. It was open to the jury to reject these arguments just as I have rejected them.

(iv) The complainant’s messages expressing love for the applicant and remaining in contact with him after the family separated

62. Both at the trial and in this Court, the applicant relied on several text messages between the applicant and AZ in which AZ said things like “[l]ove you too” and “[l]ove you, Dad”. Counsel at trial interrogated AZ at some length about these messages. That part of the cross-examination ended with AZ saying to counsel:

“You fucking cunt.”

63. The submission made on appeal was that AZ’s conduct was inconsistent with his evidence that he did not want to have contact with Mr Sherry after the incident and after the separation. Counsel on the appeal adopted the address of trial counsel where it was suggested that the cross-examination had “got under [AZ’s] skin” because the text messages:

“… exposed a lie and it also exposed untrustworthiness. [He] lied to [the applicant] or [he] lied to you or [he] lied to both of you and [his] assessment of my character leaves a lot to be desired.”

64. Counsel at trial, who told the jury in his closing address that he and others in the courtroom had not heard the profanity when it was uttered, made light of this incident. He said it was “the second greatest compliment” he had received in the last 43 years and that he “laughed like train” (sic) [6] when he read the transcript. It seems that the jury, like the complainant, did not share counsel’s mirth.

65. Contrary to the import of the submissions on this topic, both at trial and in this Court, this evidence (at least in my assessment) had no negative impact on the complainant’s credibility, let alone his “trustworthiness”. It is worth setting out a longer extract of the cross-examination to attempt – even at this distance – to get an idea of its flavour and tone:

“Q. It’s the situation, isn’t it, that you remained in contact with Mr Sherry after he moved out of the house in George Street? A. I had to.

Q. You had to? A. Yes.

Q. Why did you have to? A. Because he was watching us when my mum went to work.

Q. He was watching after you when your mum went to work, all right. But even when your mum was not working and you were with her, you would, from time to time, maintain contact with him, wouldn’t you? A. Other than to text him when Mum asked me too, no.

Q. Only when your mum asked you to? A. Yes.

Q. You sure of that? A. Yes.

Q. So, what you’re saying is that you were directed by your mother to maintain phone contact with him, is that what you say? A. She would ask me to text him.

Q. For example, what sort of texts would you send? A. ‘Can you ask him what time he’s going to be here?’, things like that.

Q. And that was as friendly as it got? A. Yes.

Q. Just have a look at this for me, would you? This is a series of messages downloaded from your phone by police, you understand that, and from Mr Sherry’s phone?

HIS HONOUR: Mr Crown, is there an objection?

SOLICITOR ADVOCATE: Yes, there’s objection. It’s not the complainant’s phone.

RADOJEV: It’s not the complainant’s phone? All right.

SOLICITOR ADVOCATE: The download was off the accused’s phone.

RADOJEV: Beg your pardon?

SOLICITOR ADVOCATE: The accused’s phone.

RADOJEV: Thank you. I’ll clarify that.

Q. It’s downloads from Mr Sherry’s phone, taken by the police, and it refers to messages sent by him to you and you to him. Can you see that? A. Yes.

Q. The bundle of messages I’ve just shown you commence on 29 July 2021. You can see that on the front page? A. Yes.

Q. This, of course, is a long time after he touched you on the vagina in the car, isn’t it? A. Yes.

Q. And a long time after he moved out or shortly after he moved out of your house? A. I don’t remember when he moved out.

Q. I think he moved out in July, or thereabouts, of 2020, didn’t he? A. I was in year five, so I don’t think so.

Q. But you don’t remember when he moved out? A. No.

Q. The first message on the page, page 1, as it appears at the bottom of the page, commences, ‘Hi, it’s [AZ]’, do you see that? A. Yes.

Q. ‘I got a new phone’, you see that? A. Yes.

Q. That was a message you sent to him-- A. Yes.

Q. --announcing that you had a new phone-- A. Yes.

Q. --and providing him with your new number, is that right? A. I still had to maintain contact with him.

Q. Is that right? A. Yes.

Q. Then there are a series of messages from [AZ], which are not transcribed, but if you keep on turning to page 4 - have you got page 4 there? A. Yes.

Q. See, ‘Message received from [AZ], 29 July 2021, 9:34:21am’? A. Yes.

Q. It’s not transcribed. And there’s a response from Mr Sherry, correct? A. Yes.

Q. That’s at 9:46:02 on the same day, the 29th of the 7th, 21, correct? A. Mm-hmm.

Q. It says, ‘Love you, buddy’? A. Yes.

Q. Did you respond to that one? A. Yes.

Q. What did you say? A. ‘Love you, too’, because he was still my stepdad.

Q. I beg your pardon? A. He was still my stepdad.

Q. ‘Hope you have an amazing day’, he sends to you at 10.31, see that? A. Yes.

Q. Do you recall what you were doing that day that he may have been wishing you an amazing day for? A. No.

Q. Your response was, ‘You too’, yes? A. Yes.

Q. Question from you, ‘Where are you, Dad?’ Message, ‘Dad’, message, ‘Dad, Dad’ and then you phone him, you see that? A. Yes.

Q. Is it your evidence that all these texts and the message, ‘Love you, too’, they were directed by your mother, were they? A. No. Majority of our contact was because I had to continue to maintain contact.

Q. Who made you send a message, ‘Love you, too’? A. I never said he forced me to do shit.

Q. Beg your pardon? A. I never said that he forced me to do shit.

Q. That’s what I thought you said. Now, perhaps you could answer the question. Who made you send, ‘Love you, too’? A. He was still my dad.

Q. Do I take it from your answer-- A. So, I responded to him.

Q. --that you sent it yourself, voluntarily? Is that right? A. I said, ‘majority’.

Q. Is that right or wrong? A. I tell - I told you what I said. Majority of our contact was because Mum asked me to talk to him.

Q. ‘Love you, too’, you chose to send that? A. Majority.

Q. Answer my question? A. Do you not know what that word means?

Q. I do. Answer my question? A. I already did. I sent it because he was my dad.

Q. And you chose to send it? A. Do shit.

Q. And you chose to send it? A. Yes.

Q. All right, thank you, it was a simple question and a simple answer, thank you? A. You fucking cunt.”

66. Based on a review of the transcript, the complainant’s explanations for these messages and the ongoing contact resound with what might be described as the ring of truth. AZ said he maintained contact with the applicant and sent messages of love and affection because “he was still my dad” or “he was still my stepdad”. DH also gave evidence of the ongoing contact that Mr Sherry had with her three children (AZ, IZ and MH). She said that the children called him dad because he “stepped in to that dad role” early in their relationship. She gave evidence that after the separation, the children continued to have contact with him and sometimes went for drives with him although that happened “not very often” with AZ.

67. One problem with the kind of arguments made under this heading is that both the cross-examination and the submissions run contrary to a more modern understanding of the behaviour of child or teenage victims of these kinds of offences, especially when they are said to have occurred in complex family settings.

68. Reliance on preconceived ideas of how people behave, or how they are expected to behave, after incidents of sexual touching and inappropriate or abusive relationships are not in line with the current understanding of the diverse ways in which people react and conduct themselves in the aftermath of such trauma. The trial Judge did not direct the jury about such matters (and was not obliged to do so because provisions such as s 292B of the Criminal Procedure Act 1986 (NSW) did not strictly apply). The trial Judge simply invited the jury to consider whether:

“if the respective complainant has not acted in the way you would have expected someone to act after being sexually assaulted as [they] described, then that may indicate the allegations are false.”

69. That direction related to the delay in complaint and the way the complaint emerged. It was not directed to the cross-examination and submissions relating to the text messages. As to that latter issue, the jury was reminded of defence counsel’s arguments about the messages and ongoing contact without comment:

“You will also remember that submission made in text messages about picking up from a friend’s home, and so far as the continued contact between [AZ] and the accused, Mr Radojev took you to, and read that part of the transcript, where [AZ] used some language, I shall put it as charitably as I can. Mr Radojev put, animated he put rhetorically, that was one way of putting it. The submission was put to you it was something that [AZ] did not like being taken to. It exposed a lie; the submission was it exposed him to be untrustworthy.

…

In his address, Mr Radojev took you in some detail, so far as [AZ] not wanting to have contact with the accused. You were reminded of those videos which are in evidence before you.”

70. Finally, this fourth “concerning aspect” of the case is an instance where the jury is in a better position than the members of this Court to evaluate the effectiveness of the line of questioning and the credibility of the complainant’s response to it. The Prosecutor at trial explicitly invited the jury to consider AZ’s:

“… outpouring of emotion, that is [his] tears in [his] interview and in the witness box, and [his] visible anger during cross-examination, were genuine and compelling reactions to being questioned and then challenged on very difficult and sensitive topics.”

71. Dr Hickie referred to the complainant’s description of counsel as a “fucking cunt” no less than three times in his written submissions as though it was a matter that reflected adversely on AZ’s credit. It was for the jury to decide whether the complainant’s hostile response to the cross-examination reflected adversely on his credibility or whether the barrister “got under [his] skin” for other reasons such as the tone, persistence and, perhaps, haughtiness with which the questions were put to the 16-year-old witness. This is an evaluation made more readily in the atmosphere of the courtroom. On my reading of the transcript, the least that can be said is that AZ’s response to counsel, as crude as it may have been, was understandable.

72. I have considered this fourth “concerning aspect” identified by Dr Hickie both individually and generally in the context of the other concerns raised on the applicant’s behalf and the whole of the evidence adduced at the trial. It should be clear from what I have written in the last few paragraphs that I find the cross-examination and the arguments advanced at the trial, as well as the somewhat refined submissions made on appeal, unpersuasive.

(v) The unlikelihood that the applicant would commit the offence when AZ’s mother often quizzed her “daughters” as to whether they had been sexually touched

73. As was noted in summarising the ERISP at [42] above, the applicant raised with the investigators the possibility that the children were influenced in making the sexual allegations by their mother asking them repeatedly whether they had been touched or interfered with. The Prosecutor asked DH about this in her evidence in chief, and she agreed that she asked the twins about such matters:

“Q. Have you ever spoken to [IZ] about her flossie? A. Yes.

Q. Can you tell us about that? A. The day that you’re asking me, she said that her flossie was sore.

Q. What is her flossie? A. Her vagina.

Q. What did you say? A. I asked her if anyone had touched her.

Q. What did she say? A. ‘No.’

Q. Did you ask her anything else? A. Usually I would run through, like, ‘Has anyone touched you at school?’, or, ‘Has anyone’s, you know, particular touched her.’

Q. Why would you do that? A. Hoping to have open-minded communication if anything like that did ever happen.

Q. Did you ever ask her if Harley touched her? A. I believe so.

Q. What did she say? A. She said, ‘Eww, no.’

Q. I think you said that you would ask her things like this? A. (No verbal reply).

Q. How often would you ask her things like this? A. Any, her, anytime they brought up anything to do with their vagina.

Q. When you say ‘their’, are you talking about-- A. Any of the children. Specifically if you’re referring to [IZ], it would be the same thing; I would always ask, ‘Has anybody touched you?’, or, ‘Has anything happened?’

Q. You would ask the same of [AZ] and [MH], are you saying? A. Correct.

Q. What would precipitate these conversations, why would you have these conversations? A. I was a nurse, I was nursing, and you see a lot of things, so I just wanted to make sure that there would open lines of communication with the kids. We spoke openly about everything reproductive.”

74. There was also cross-examination on this issue:

“Q. You were asked some questions by the Crown about a conversation you had with [IZ] when she was ten about what’s referred to in your paragraph 11 of your statement as her ‘flossie’. A. Correct.

Q. And that was a nickname for want of a better description for her vagina? A. Correct.

Q. That’s what she called it because you called it that as well? A. Yes.

Q. That was in preparation or as you said to open up lines of communication about things like being improperly touched as she grew up. A. Correct.

Q. This is the conversation that you recorded or reported to police on 23 February 2022 which of course is nearly three years earlier than today. A. Quite a time ago.

Q. Obviously your memory was much fresher then than it is now? A. Yes.

Q. This is what you told the police, ‘[IZ] just said to me, “Mum, my flossie hurts”’ do you see that? A. Yes, sir.

Q. Then you say she was referring, ‘flossie’ being a reference to her vagina and then you said to her, ‘Did something happen to it?’ And she said, ‘No.’ You then said to her, ‘Did somebody touch you?’ And [IZ] said, ‘Like who?’ Is that right? A. Yes, sir.

Q. Then you said, ‘Did Harley touch you?’ And then [IZ] laughed and said, ‘No.’ You see that? A. Yes, sir, that is correct.

Q. ‘I said, “Anyone at school?”’ And [IZ] said, ‘Why?’ And you then said ‘It doesn’t matter who it is or what they are to you, nobody should be touching your vagina.’ And [IZ] said, ‘Ooh, no mum.’ That right? A. Yes, that sounds like a conversation with a ten year old.”

75. IZ confirmed that her mother asked her about her “flossie” being sore and whether the applicant had touched her.

76. Apart from the possible contamination of, or influence on, AZ’s testimony Dr Hickie also raised the following argument:

“The main point, however, is that it highlights the inherent unlikelihood that the appellant would commit such an act as the sexual touching of the complainant, [AZ], in circumstances where the complainant’s mother continually quizzed her daughters whether anyone had touched them inappropriately.”

77. The respondent submitted that this submission is “imbued with assumptions about how and why adults commit child sexual abuse”. Reliance was placed on the following observations by Beech-Jones CJ at CL in Sita v R [2022] NSWCCA 90 at [55]:

“The difficulty with this submission is that it is replete with assumptions about how and why adults commit child sexual abuse. The premise of the Crown case was that the applicant was sexually attracted to children. If he was so attracted, then it does not necessarily follow that he would only satisfy that attraction without taking a risk of being detected. Such a person may enjoy taking the risk, be confident that they can avoid detection, or simply be unable to overcome their attraction to children. Like so many of these cases concerning settings such as families, schools and churches, the Crown case involved the applicant exploiting his position of trust to gain access to and abuse young children. Such a person who behaves that way may have developed a good sense as to the likelihood that at a particular time his abuse may be interrupted by another adult in the house or that a younger sibling who witnessed the assault would complain about it. As was noted by McCallum JA in VP v R [2021] NSWCCA 11 (at [79) ‘[e]xperience of such trials tells that stealth, opportunism and brazenness are common features of child sexual offending’. In one sense, this is all speculative. However, a submission that the alleged conduct was so brazen that it was unlikely is, in itself, speculative and speculative submissions invite speculative responses. At least in this case, the potential that the applicant may have been detected when acting as alleged by count 8 does not support the submission that the verdict was unreasonable.”

78. While the prosecution case against Mr Sherry was not premised on an assertion that Mr Sherry was sexually attracted to children in a general or “tendency” sense, the observations of Beech-Jones CJ at CL remain relevant. The case was that the applicant, over time, formed an attachment and attraction to AZ in particular (as well as his sister, IZ, in relation to whose allegations the jury had a reasonable doubt). The kind of risk taking or inability to control his affection or attraction of which Beech-Jones CJ at CL spoke in Sita v R was also relevant in the circumstances of this case.

79. Despite the assumptions and speculation that lie behind the argument, I accept that these are valid submissions and matters to be considered, but they are not matters of great moment in the overall context of this case. It was a matter raised at the trial and one that the jury was entitled to take into account, but it is not a factor that I find to be very compelling. It is not the kind of discrepancy, inadequacy or tainting that would lead the Court to harbour concerns that an innocent man was convicted.

(vi) AZ’s evidence that he did not get into the car with the applicant alone after the incident

80. I have touched upon the sixth “concerning aspect” relied on by the applicant in the context of discussing the fourth matter identified (the text messages). This sixth matter is of some substance. It arose out of AZ’s assertion in the first JIRT interview that after the charged incident he did not travel in the car alone with the applicant or, if he did so, tried to sit in the back seat. There was evidence capable of disproving that assertion.

81. The evidence emerged as follows:

“Q. Yeah. Was this the first time he’d done that to you? A. Something like that, yes.

Q. Yep. So that was the first time he’d touched you - - - A. Yes

Q. - - - on the vagina? A. And the last time I went in the car with him by myself.

Q. O.K. A. I’d always make sure if, that [IZ] or [MH] would come with me.

Q. O.K. A. And I’d always sit in the back.

Q. Yeah. A. Never sat up the front next to him.”

82. AZ went on to tell the police that the applicant later bought a “second-hand ute” (QQ 353-354).

83. AZ was confronted with a video taken on 16 February 2021 in which he is seen to be sitting in the front seat of a car and having a friendly interaction with Mr Sherry talking about an incident where AZ drove a car into a tree. This was Ex 7 at the trial and there was cross-examination in which AZ struggled to explain the video. He agreed he was depicted in the video, that he was sitting in a car and that there was nobody else around. He said he did not remember the incident.

84. The respondent submitted that the reference in the JIRT interview was a reference to “the car”, that is the car in which the sexual touching took place, and was not meant to convey that AZ had never again “even years later” been in a car with the applicant alone.

85. I accept that this evidence had some capacity to impact on an assessment of AZ’s credibility. It was also to be considered with the contents of Ex 6, another video, this one taken on 16 October 2020, where AZ and the applicant were interacting in a friendly and joking manner in front of a drink fridge in a shop, possibly the shop attached to the “Pie Face” service station. While the friendliness of the interactions is not of great significance, the video in Ex 7 undermined AZ’s assertion that he avoided being in the front seat of a car with the applicant. This issue was emphasised at the trial and no doubt considered by the jury which assessed it to be “credible and reliable”: Pell v The Queen at [39]. As I have said, the contradictory evidence is a matter of substance and I have taken it into account in considering the ultimate question of whether the combination of factors identified by the applicant lead to a conclusion that the jury ought to have entertained a reasonable doubt as to his guilt. I should emphasise that it is the undermining of AZ’s factual assertions that is significant to my mind, rather than the fact that the alleged victim continued to spend time with his stepfather after the incident of sexual touching.

(vii) The allegation that the applicant told AZ that, if AZ was older, he would have married him

86. The seventh aspect of the case said to raise concerns about the conviction was the allegation that the applicant told AZ that he would have married him if he was a couple of years older. This part of AZ’s evidence did not emerge until the second JIRT interview which was recorded on 20 March 2024.

87. It was submitted that the failure to mention this “important and perverted conversation” in the first JIRT interview “stretches credibility”. Counsel also emphasised inconsistencies about whether the conversation occurred before or after the charged incident and the suggestion of collusion between IZ and AZ.

88. I am unable to accept the applicant’s arguments on this aspect of the case. I agree with the respondent’s submission that it is “unremarkable” that AZ did not refer to this conversation in the first JIRT interview. The question of collusion was a matter for the jury to consider. The evidence of the conversation was not a central aspect of AZ’s evidence and his account of it was not undermined to any significant degree in cross-examination. The jury was entitled to reason that this conversation was a peculiar one to fabricate and may have reasonably taken the view that it was consistent with the general nature of the relationship between Mr Sherry and AZ. The fact (if the jury accepted it to be) that the applicant said similar things to both of the complainants did not establish collusion between the witnesses.

(viii) Collusion: the “worrying coincidences” between the evidence of AZ and IZ

89. The applicant pointed to the sequence of events around the complainants’ recorded interviews and to some similarities in their respective accounts. This was the eighth concerning factor advanced on behalf of the applicant because it was submitted that it supported an inference of collusion between the witnesses.

90. The similarities in the evidence of the two witnesses included the age they thought they were when the abuse happened (9 years old in each case), the number of times the inappropriate conduct occurred (IZ said “50 times”, AZ said “twenty, thirty times”) and the fact that both witnesses said that some of the touching took place when they went on drives. AZ and IZ also gave similar reasons for failing to complain to their mother earlier. IZ said “[i]t’s really hard to tell your parent that someone they trusted for years has decided to do that to you” while AZ said “[h]ow do you tell your Mum that a man she loved for six years was doing that to you”. Both complainants gave evidence that Mr Sherry had said words to the effect that he may have married them if they were older.

91. The respondent submitted that the “defence theory at trial that there had been collusion” was a matter for the jury to consider and resolve. It was submitted that the coincidence between the timing and nature of the allegations was not surprising given that the children were twins. It was also submitted that even if the jury accepted the pair had spoken, that did not of itself mean the account given by AZ lacked credibility or reliability in its essential details.

92. The applicant’s suggestion that the twins spoke about their evidence and put their heads together was a prominent issue before the jury. Defence counsel directly accused the two complainants of “colluding” and invited the jury to accept they had “ample opportunity, ample opportunity” and gave several examples of what he described as “worrying coincidences” between their evidence. In summarising the case for each side, the trial Judge reminded the jury:

“It was put to you there was ample opportunity for the two girls to collude with each other, and indeed, towards the end of his address, Mr Radojev put to you that both complainants in almost identical terms, said something to the effect of ‘It’s hard to tell a parent that someone that they’ve trusted or loved for years has done that to you’. Mr Radojev put to you that you would simply reject the constant denials of collusion and concoction between the two complainants.”

93. While it must be accepted that there was “ample opportunity” for collusion or, to put it in less pejorative terms, for the twins to have spoken about each other’s allegations, this was not conclusive as to the credibility of AZ’s allegations and whether the count on the indictment was established beyond reasonable doubt. Again, it is a matter I have considered in the context of the whole of the evidence in the case, but I do not find it to be the most compelling argument advanced by the applicant.

Analysis and conclusion

94. The approach to a ground of appeal asserting that a jury verdict is unreasonable was explained authoritatively in M v The Queen in 1994. It has been confirmed and applied in many cases since. Even so, in R v ZT (2025) 281 CLR 137; [2025] HCA 9, Gageler CJ, Gleeson, Jagot and Beech-Jones JJ “noted” at [9]-[12] three aspects of the Court’s earlier judgment.

95. First, the advantage enjoyed by the jury encompasses more than seeing and hearing the witnesses give evidence. It extends to the “application of the jurors’ collective wisdom and experience of ordinary affairs, from seeing and hearing the evidence as it unfolds when evaluating factual matters, especially witness credibility”. The extent of the advantage will vary from case to case. Secondly, an appellate court is required to give “full allowance” to the advantages of the jury including an assessment of a witness’s tone or “emotional state” and how they interact with others including family members or people in positions of authority. Thirdly, while the appellate court is required to consider the whole of the evidence, that assessment takes place in the context of an adversarial process on appeal and where:

“ … it is for the parties to place all evidentiary material and submissions before the appellate court which they consider relevant to the discharge of the court’s function and it is for the parties to identify and address the aspects of the evidence adduced at the trial that warrant the conclusion that the verdict was either unreasonable or not.”

96. The present reasons focus on the eight “concerning aspects” of the evidence identified by Mr Sherry’s counsel on the appeal which were in turn addressed by counsel for the respondent. In watching and listening to specific parts of the evidence (including the exhibits) I have been guided by counsel.

97. While I have paid particular attention to those aspects of the case identified by counsel arguing the appeal, I have not lost sight of the fact that the role of an intermediate appellate court in an appeal of this kind is to guard against miscarriages of justice by reference to a consideration of the entire record of the trial court. I have kept firmly in mind the observation of the High Court in M v The Queen at 494 that “[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced” and that “[i]t is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.”

98. Contrary to the import of some of the applicant’s submissions, this is a case where the jury’s advantage was considerable. As I implied earlier, it is difficult to discern the tone of parts of the cross-examination which, in turn, makes it hard to evaluate AZ’s reaction to it. Based on AZ’s forthright appraisal of defence counsel’s qualities and the Prosecutor’s closing address to the jury, the trial was permeated by a significant amount of emotion. The interactions between the barrister and the witness are difficult to evaluate by reading the transcript.

99. Even so, Dr Hickie submitted that there was objective evidence which had the capacity to establish that AZ’s evidence was unreliable as to particular aspects of his accusation. That was the situation, for example, in Pell v The Queen and Hodgson v R [2022] NSWCCA 72.

100. The applicant also relied on matters that might be thought to diminish AZ’s credibility more generally in that they suggest that he either lied, exaggerated or had false memories of important matters of detail.

101. I will put to one side aspects of the argument which were apt to perpetuate certain “myths” and preconceptions about how genuine victims (or perpetrators) of sexual assault ordinarily behave or are expected to behave. I have addressed these earlier, but they include AZ maintaining contact with his step-father after the alleged sexual touching by messaging the applicant, expressing love to him, and the personal contact and affection after the incident which was established by the evidence in the videos in Ex 6 and Ex 7. It also includes the applicant’s apparent risk taking in allegedly touching the children inappropriately or sexually when their mother was in the habit of asking them if anybody had interfered with them. While these were legitimate arguments for the jury to consider at the trial, they were clearly rejected and, on my independent assessment, appropriately so. I do not include in this list of matters to which I have given very little (if any) weight, the objective evidence of the videos which contradicted AZ’s assertion that he did not travel in the car with Mr Sherry after a certain time.

“The experience of courts is also that it is not uncommon for children to be imprecise about time. Apart from their immature minds, they often lack the markers, such as diaries, and dated written records to assemble a chronology in their minds as to events.”

107. In the same case I said at [179]-[180]:

“I have considered the evidence relating to the timing of count 5 and the objective ‘markers’ in time that placed those events in context. Those markers included R’s father’s illness and death, the dates that various people lived in the house, and the evidence of when the applicant stopped staying over at the premises.

Even taking those matters into account, I am not persuaded that they were of such significance that the jury ought to have entertained a reasonable doubt about the applicant having the opportunity to commit the offence and, therefore, a doubt about the applicant’s guilt. Inconsistencies of this nature are not uncommon in cases where witnesses, especially children, are providing evidence of things that occurred some years earlier.”

108. However, the uncertainty as to dates gave rise to another issue, which I have explained above at [49]-[50] and [54]. To recapitulate and put the matter in the simplest of terms:

109. If the allegation was said to occur around Christmas 2018, it could not have been correct to say – as the complainant said – that the family was living in the George Street house because they did not move to that address until many months later.

110. Similarly, if the allegations related to Christmas 2019, it could not have taken place in the blue Commodore.

111. This problem led the Prosecutor at trial to make the important concession that AZ must have been mistaken about one or other of those details. That concession was inevitable in view of the objective evidence and agreed facts.

112. However, it must be remembered that the prosecution was required to establish the elements of the offence and not the surrounding details. This was made clear in the great case of Woolmington v Director of Public Prosecutions [1935] AC 462 where Viscount Sankey LC, after his famous observations about the “golden thread” upon which Dr Hickie quite properly relied, emphasised (at 482) that the prosecution was required to prove beyond reasonable doubt the elements of murder.

113. That is not to deprive Dr Hickie’s argument of all of its force. Decisions in cases such as Pell v The Queen in the High Court, and Hodgson v R in this Court, show that problems in the evidence on such issues, which do not go directly to the elements of the offence, can lead an appellate court to intervene. The cases are fact specific, and each case must be considered in light of the true issues at the trial and the evidence in the case.

114. In Pell v The Queen, the facts of which are well known, the overwhelming and uncontested evidence was that the appellant could never have been alone with the complainant at times after Sunday mass, and thus could not have committed the offence as it was described by the complainant. This was sufficient to cause the High Court to intervene.

115. In Hodgson v R, two complainants – who were brothers – both asserted that the sexual offending occurred when the applicant (a neighbour) had a pool. The complainants’ evidence was specific and apparently certain on that issue. Yet, the objective evidence established that the pool in question had not been installed for some time after the alleged sexual assaults and after the applicant’s parents sold the property and moved away. As Leeming JA explained at [82]:

“The error by S as to the swimming pool was not a merely peripheral detail (as it was in the case of J). It was the reason that he first came into contact with the man whom he said had assaulted him. If that man were Mr Hodgson, then this aspect of S’s account is a false reconstruction, perhaps assisted by having been shown by police the aerial photograph showing the house and the swimming pool.”

114. Hodgson v R was a trial by judge sitting without a jury, and the trial Judge placed some weight on her assessment of the witnesses’ demeanour. Whether a verdict is returned by a jury or judge sitting alone, the approach on appeal to a ground asserting the verdict is unreasonable is more or less the same: see, for example, Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [82]-[83].

115. There were other difficulties in the prosecution case in Hodgson v R but it is unnecessary to go into all of the evidence. The point is merely that a matter of detail may be of such significance that the appellate court may determine that the conviction cannot be permitted to stand.

116. Dr Hickie argued that the issues concerning the uncertainty of the dates and the impossibility that the offence occurred in the particular car and when the family was living at the particular property, amount to the kind of error that so diminishes AZ’s credibility that the Court must intervene. However, that was not the approach to the case taken at the trial. Trial counsel put to the jury that AZ was not to be accepted as an honest witness. His address, which I have summarised briefly at [44]-[47], was designed to convince the jury that AZ’s credibility was so diminished that it would be left with a reasonable doubt that the applicant ever touched AZ in a sexual way at all. The problem concerning the place of residence or type of car was before the jury for consideration and referred to in counsel’s address, but it did not play a significant role in counsel’s forceful attack on AZ’s credibility. The applicant’s ERISP also demonstrates that his case was that AZ’s accusations were untrue and that he did not touch AZ inappropriately or sexually at any stage or in any circumstance.

117. The jury rejected that case and was satisfied that the elements of the single offence were established beyond reasonable doubt. That is to say, the jury was satisfied to that very high standard that the applicant touched the complainant on the vagina as AZ said that he did. The prosecution was not required to establish that, at the time of the offence, the family was living in the George Street house or that the sexual touching took place in a particular car.

118. After considering the whole of the evidence very closely, taking into account the way the case was conducted at trial and the submissions made on the appeal, I am not persuaded that the verdict is unreasonable or unable to be supported having regard to the evidence. Based on a careful review of the transcript and the exhibits, and considering the advantages of the jury discussed in cases like M v The Queen and R v ZT, I am not left with a reasonable doubt concerning the truthfulness or reliability of AZ’s evidence. Once accepted, AZ’s evidence established the elements of the offence in count 1 beyond reasonable doubt.

**********

Endnotes

These are not the siblings’ actual initials.

See fn 1 to the respondent’s written submissions and MFI 3 at the trial (the transcript of AZ’s second interview with police).

Cf Practice Note SC Gen 22, pars 2, 3 and 5.

Woolmington v Director of Public Prosecutions [1935] AC 462 at 481-482.

I note in passing that the “young lady” identified as male, a matter made clear in the very interview upon which counsel was examining the witness.

This phrase is as recorded in the transcript. Mr Radojev may have used the more traditional formulation that he “laughed like a drain”: see, for example, Collins Dictionary, online ed, accessed 15 March 2026.