Sita v R

Court of Criminal Appeal (NSW)|2022-03-21|Before: Beech-Jones CJ, Price J, Adams J, Jones CJ

Solicitors: Powerhouse Law Australia (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2017/158687 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 29 January 2021 and 12 February 2021 Before: S Harris DCJ File Number(s): 2017/158687; 2019/28889

The Crown and Defence Cases

In September 2019, the applicant stood trial on an indictment that charged him with 21 child sexual offences relating to the two complainants JU and KK (the "first trial"). The first trial resulted in a directed verdict of not guilty for seven counts and verdicts of not guilty on four counts. The jury was unable to reach a verdict on the remaining 10 counts.
On 20 October 2020, the applicant was arraigned for the second trial on an indictment containing the remaining 10 counts. Eight of the counts concerned JU and two of the counts concerned KK. As explained below, KK gave evidence that supported counts 7 and 8 concerning JU. Of the eight counts concerning JU, three were offences under (former) s 61M(2) of the Crimes Act, two were offences under s 66A, one count was an offence under s 61M(1), count 7 charged an offence under s 66C(2) and the alternative count 8, of which he was convicted, charged an offence under s 66C(1). The two counts concerning KK alleged offences under s 61M(2).
JU was born in May 1996. At the time of the events the subject of counts 7 and 8 she was 10 years old. She was 23 years old when she gave evidence at the trial. A recording of her evidence at the first trial was replayed at the second trial.
JU said that when she was seven years old, she lived at an address in Ingleburn with her extended family and the applicant. The applicant was the best friend of one of her uncles, although she referred to him as an uncle as well.
JU said that when she was seven years old, she was with her aunt and her grandmother in the loungeroom. They were asleep and she was pretending to sleep. She said the applicant returned home late and laid down next to her. He started to touch her on her breast. He then slid his hands down her shirt and inside her shorts and rubbed her clitoris and vagina. The rubbing of JU's breast constituted count 1 and the rubbing of her vagina constituted count 2. Both counts alleged offences under s 61M(2) of the Crimes Act of assault being the commission of an act of indecency on a child under the age of 10 years. The offences were charged as having been committed between 6 March 2004 and 16 May 2004 at Ingleburn.
JU was asked whether she told anyone what had happened, and she said, "[n]o. I didn't tell anyone what happened because I was scared I would get in trouble" and "also because - because I saw [the applicant] as an uncle."
JU said that around the time after she turned eight years old, she was at home with the applicant alone as her family had gone to work. She recalled him putting his hand on her chest, laying her down and that he "started to rub all over my body and also on my vagina". She said that he "started to move his head towards in between my legs" and "lick my vagina and clitoris". She said that he started to take his pants off "and then … I started to go down on him, we were lying in a 69 position" and that she "started to suck his penis".
JU's evidence that the applicant rubbed her vagina was the basis for count 3 on the indictment which charged him with another offence under s 61M(2) of the Crimes Act and was said to have been committed between May 2004 and May 2005 at Ingleburn. JU's evidence that the applicant performed cunnilingus on her was the basis for count 4 on the indictment which charged the applicant with an offence of having sexual intercourse with a person under the age of 10 years contrary to s 66A of the Crimes Act during the same period. Her evidence that she performed oral sex on the applicant was the basis for count 5 on the indictment which also charged him with another offence under s 66A.
In her evidence, JU said that at the end of 2005 when she was nine years old, she and her family moved to an address in Leumeah, although her mother commenced living separately with her new partner. She said that around Christmas 2006 during the school holiday period, she was in the applicant's room asking him to get her fast food "and he started playing with my clitoris and then [her uncle, "F"] came in … that's what I remember". In particular, she said she recalled hearing a car door close and the applicant telling her to get out of the room.
JU's evidence about the applicant rubbing her clitoris was the basis for count 6 of the indictment which charged the applicant with an offence under s 61M(1) of the Crimes Act being an assault with an act of indecency in circumstances of aggravation, namely that the victim was under the age of 16.
In light of the grounds of appeal, it is necessary to set out JU's evidence in relation to counts 7 and 8 in some detail. KK was three years younger than JU. JU said that KK would come to stay at her house during the school holidays when they were school age and that she would "stay over for the week and go to school from my house". JU said that one day when she and KK were in her uncle's room, the applicant came into the room. JU said that she and KK were sitting on a mattress and that they were "just hanging out and talking and laughing". Her evidence continued: "Q. So what happened once the [applicant] entered into the room? A. All I remember is seeing his penis. Q. So how did you come to see his penis? Did he remove his clothes? A. I don't remember. Q. After you saw his penis, did anything happen? A. Yes. So when I - when me and [KK] saw his penis he was staring at us and he started staring at [KK]. Q. What happened next? A. [KK] was - I knew that the [applicant] - well I knew what [the applicant] was trying to do because he does it to me so I started sucking [the applicant's] penis so [KK] wouldn't have to do it. Q. Did you see the [applicant] removing his clothing? A. I can't remember. Q. Do you know for how long you sucked on the [applicant's] penis? A. No, I don't remember. Q. Do you know what [KK] was doing whilst you were doing fellatio on the [applicant]? A Yes, [KK's] head was down and she was looking into her hands head up."
JU said that she stopped performing fellatio on the applicant when she heard her grandmother call out to her. JU said that she was 10 years old when this happened. This evidence was the basis for counts 7 and 8. Count 7 charged the applicant with having committed an offence between 21 February 2007 and 16 May 2007 under s 66C(2) of the Crimes Act of having sexual intercourse with a child between the age of 10 and 14 in circumstances of aggravation, namely that JU was under his authority. Count 8 charged the applicant, in the alternative, with an offence under s 66C(1) of having sexual intercourse with a child between the age of 10 and under 14, that is, the offence did not include the element of a child being under the offender's authority.
JU said that she first spoke about the applicant abusing her to her cousins, T and E. She said that she did not remember how old she was when she spoke to T, but that she spoke to her cousin E "around the time at the end, I think, of 2015". She recalled telling T that the applicant had "started to touch me inappropriately, but that was all". Around the same time she recalled telling her mother that the applicant "had molested me". She and her mother first attended a police station in February 2016.
Three matters should be noted about the cross-examination of JU. First, it was put to her that, as at 2004, the applicant and her uncle were not living with JU and her family in Ingleburn but were living in Queensland. JU said, "I believe that it's not true but at the same time I don't remember". It was also suggested that the applicant was not living with them in 2005 but living in premises in Condell Park and was only doing renovations at her grandmother's house in Leumeah. JU said "no, I remember he stayed with us in Leumeah".
Second, JU was cross-examined about the events surrounding counts 7 and 8. It was clear that she could not remember various matters she had recounted in her statement from three years earlier. In particular JU said that she did not remember what happened between the applicant walking into the room and his penis being out of his trousers ("all I can remember is him standing there with his penis out").
Third, in relation to her telling her cousin T about being molested by the applicant, JU denied that she had told T that he made her watch him have sex with his girlfriend or that she ever demonstrated to T how to perform oral sex.
In her evidence, KK said that she was born in April 1999 and she was 20 years old by the time she gave evidence in September 2019. KK said that she witnessed an incident in JU's uncle's room between JU and the applicant. By reference to some sketches of that room that KK prepared shortly after she was interviewed by police, she was asked as follows: "Q. Can you tell us what you say happened in relation to this sketch in this bedroom, Uncle [B's]'s room. A. From what I remember, me and [JU] were in [B's]s room playing and [the applicant] had came into the room and - so [the applicant] had came into the room and he had started touching [JU's] breast and [JU] gave him head and I had closed my eyes and tried to block it out and the last thing I remember was opening my eyes, [the applicant] zipping up his pants and walking out the door. Q. When you said that before you closed your eyes you said you saw [JU] giving him head. A. I didn't see it. I closed my eyes. Q. All right, but was that your evidence that you said that [JU] gave him head. A. Yes. … [HER] HONOUR: Q. Well, first of all, before you answer the prosecutor's question, did you actually see it or did you only see him doing his pants up? A. Yes, I only saw him doing his pants up. Q. So you assumed that certain things happened. Is that right? A. Yes. … CROWN PROSECUTOR Q. Why did you say that [JU] gave him head? A. I don't know. … Q. Do you remember any conversation with [JU] during that incident? A. Wasn't much said during that incident, only that [JU] told [the applicant] not to touch me. … A. [JU] turned to me and she said, 'It's all right, it's normal. He does that to me all the time."
KK said that on another occasion at the Leumeah house she was told by her aunty to sleep in the same bed as the applicant. While she did, the applicant put his hand down her pants and was touching her vagina and clitoris and put her hand onto his penis. KK's evidence that the applicant touched her clitoris was the basis for count 9 of the indictment which charged him with assault with an act of indecency on a person under the age of 10 years contrary to s 61M(2) of the Crimes Act between 23 April 2007 and 23 April 2008. Her evidence that the applicant put her hand on his penis was the basis for count 10 which also charged another offence under s 61M(2) in the same period.
In light of the focussed submissions it is only necessary to briefly recount the evidence of the balance of the witnesses. JU's cousin, T, provided a statement to the police which was read to the jury and marked for identification. The statement recounted JU telling her and KK that the applicant used to make JU watch the applicant and his girlfriend have sex. The statement recounted JU describing what T now understood to be oral sex and that she now understood that JU was describing herself having oral sex with the applicant.
JU's mother gave evidence that as at March 2004 the applicant was living with them in Ingleburn and that later they moved to Leumeah. Her mother said that about a week before Christmas in 2015, JU told her that the applicant had molested her. In cross-examination she was asked about a family meeting in March 2016 which a number of members of the family attended and at which the applicant was accused of molesting JU. She agreed that during that meeting the applicant was assaulted but she stated that she did not see it occur.
Two of JU and KK's uncles, B and F, gave evidence about the location at which the applicant and the various families were living during the relevant period as well as concerning the family meeting in March 2016. They both accepted that during the meeting, the applicant had denied molesting JU.
JU's grandmother also attended the family meeting. She also accepted that during the meeting the applicant denied molesting JU. She also confirmed that the applicant had sometimes looked after JU and that KK would sometimes stay during the school holidays or the weekend.
KK's mother, LK, told the Court that in or around 2015 her daughter told her that the applicant had touched her around her breast area when she stayed over at JU's house. KK's sister, SK, recalled that around the same time, KK told her that "one night she was sleeping in the room with my cousin, and that [the applicant] had come in and touched her when she was sleeping", that is, "touching her in her private parts".
AS was JU's aunt but she was only eight years older. AS gave evidence that in March 2004, when she was 16 years old, she was sleeping in the lounge room on a couch and the applicant was on a mattress right beside her. She said his hand slid up and touched her genital area. (The trial judge gave a tendency direction to the jury in relation to the use of this evidence, that is, her Honour told the jury that, if they accepted this evidence, they could use it as evidence that the applicant had a sexual interest in young girls who were staying at his house and a willingness to act upon his sexual interests by committing sexual offences against them in an opportunistic way.)
The Crown led evidence from the officer in charge of the investigation of the applicant concerning various dates that the applicant travelled outside of Australia, some of which were within portions of the charge period of the offences on the indictment. The officer also gave evidence that, when the applicant was stopped for a random breath test in June 2005, he provided the police with his Ingleburn address as his residence. The officer referred to bank records showing the Leumeah address as the applicant's residence for the period 22 May 2006 to 1 May 2011. After some debate, the officer also gave evidence of each of the charges which resulted in verdicts of not guilty in the first trial and set out a part of JU's statement where she described in detail the applicant allegedly ejaculating onto her face, something she could not remember in her evidence.
The applicant gave evidence at the second trial. At the time he gave evidence he was 43 years of age. He said he met JU's uncle F in 1998 and visited JU's family from around 2000. The applicant said he went to live in Brisbane in September 2003 but that in 2004 he came to Sydney for various occasions, including for his mother's wedding in February 2004. He said that during the wedding he stayed with his mother in Shalvey. The applicant said that in March 2004 he returned to Sydney to celebrate FU's birthday, but while he was there, F's father passed away. He said he went to the address in Ingleburn and then stayed over for a few days in a garage where other males were sleeping. He said that he then returned to his mother's home and remained living in Sydney either at her home or at shared accommodation in Condell Park in September 2005.
The applicant said that he played volleyball with JU's uncle F and sometimes attended his house in Leumeah and stayed over. In his evidence‑in‑chief, the applicant said that he moved into the Leumeah house ("towards the end of 2006 I moved all my stuff in and then it was 2007 I think I completely left the Condell Park address"). The applicant said he only had rare contact with JU as she was "little at the time" and denied that during the period 2004 to 2008 he minded any of the children at JU's home. In his evidence-in-chief he said that before he married his wife in 2013, he had never had oral intercourse with a female person by putting his mouth onto her vagina or having her put his penis into her mouth. In cross-examination he denied all of the allegations of sexual misconduct made by JU or KK.
The applicant described attending the family meeting in 2016 where he was accused of molesting JU, abused by members of the family, and kicked and punched after he denied doing so.
In cross-examination the applicant accepted that he chose not to report the assault to the police but denied that he did not report it because he did not want the family to report the allegation that he had molested JU. The applicant was shown Exhibit E which recorded him providing a university with the Leumeah address as his home address. The applicant said that he intended to move there, but he had not yet moved there as at 31 March 2006.
The applicant's mother gave evidence in his case. She said that in 2003 the applicant was living with her in Brisbane. She said that the applicant, his sister and F came to Sydney to attend her wedding in February 2004. She said the applicant then lived in the house she had previously occupied with the applicant's sister and her husband until June 2004. She said that at this time, the applicant moved in with her and her new husband in Ambervale. The applicant's sister gave evidence that from September 2003 the applicant was living with her in Brisbane in 2003, that she travelled with him and F to Sydney to attend her mother's wedding in February 2004 and that the applicant returned to Brisbane with her but then travelled to Sydney a few weeks later because "he just want[ed] to move down to see my mum".

Ground 1: Markuleski Direction

Ground 1 of the notice of appeal contends that her Honour erred in failing to give a complete direction to the jury on the effect of having a reasonable doubt about a complainant's evidence on one count on the indictment in considering the other counts on the indictment.
In R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCA 290 at [186] to [191] Spigelman CJ observed that, in cases involving multiple counts of sexual offences concerning the one complainant, it was appropriate to supplement the usual direction to treat each count separately as follows (at [190] to [191]): "Or it may be appropriate to indicate that, if the jury has a reasonable doubt about the complainant's credibility in relation to one count, it might believe it difficult to see how the evidence of the complainant could be accepted in relation to other counts. The precise terminology must remain a matter for the trial judge in all the particular circumstances of the specific case. The crucial matter is to indicate to the jury that any doubt they may form with respect to one aspect of the complainant's evidence, ought be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant's evidence with respect to other counts."
In this case, counts 1 to 8 concerned JU and counts 9 to 10 concerned KK. KK gave evidence that supported JU on counts 7 and 8. At the second trial it was accepted before and by the trial judge that a Markuleski direction was appropriate. Her Honour directed the jury as follows: "This direction I am giving you relates to the fact that there is more than one allegation relating to each complainant. There are seven allegations relating to [JU], though there are eight charges, as you know, and there are two allegations and two charges relating to [KK]. If you were to find the accused not guilty on any one count that involved a particular complainant, and if that was because you had doubts about the reliability or credibility of that particular complainant's evidence, you would have to consider how that conclusion affected your consideration of the remaining count or remaining counts involving that complainant and that it might affect the complainant's reliability more generally. In other words, if in considering her reliability and credibility you decided that she was not reliable on one particular count, you would then have to consider whether that same finding flowed through to the other count or counts she spoke to you about. I will make this a little easier to understand by giving you an example. If you were [to] find the accused not guilty account of count 1 and that was because you held doubts about the reliability or credibility of [JU], you would then have to consider how that conclusion affected your consideration of the remaining counts involving [JU]. This applies equally across all the indictment counts relating to [JU]. So if, for example, you were to find the accused not guilty of count 7, and that was because you held doubts about [JU's] reliability or credibility, you would have to consider how that conclusion affected your consideration of the remaining counts on the indictment involving [JU]. Similarly, returning to [KK] and the two counts that she spoke to you about, if you held doubts about the reliability or credibility of [KK] in respect of either count 9 or count 10, you would have to consider how that conclusion affected your consideration of the other count, either count 9 or 10 that she spoke to you about. Obviously, a doubt about that particular complainant's evidence, if you had one, could not and would not affect your assessment of a count that involves the other different complainant, and so that finding complaint [sic] A was unreliable would not flow through to a finding that complainant B was also unreliable because there are two separate complainants, but a finding that complainant A was unreliable might flow through into another count that involved complainant A." (emphasis added)
In his written submissions, Senior Counsel for the applicant, Mr Stratton SC, submitted that this direction did not go far enough. He submitted that the effect of the direction was that the jury were not directed to take into account any doubts they held about KK's evidence arising from counts 9 and 10 in considering whether or not to accept her evidence supporting the evidence of JU in relation to counts 7 and 8. It was contended that the failure of the trial judge to direct the jury that they should take into account any doubts that they had about the evidence of KK when assessing the applicant's guilt on counts 7 and 8 occasioned a miscarriage of justice. The Crown submitted that the jury would not have understood the direction to be so constrained. Instead, it was submitted that the jury would have understood this to extend to the situation where if the jury had a doubt about KK's credibility or reliability on counts 9 and 10 then they could take that into account when assessing KK's evidence in relation to counts 7 and 8.
These submissions are directed to the incompleteness of the direction and whether it needed to go further. However, with respect to the trial judge, the direction that was given was, in the context of the trial, incorrect. The emphasised part of the last paragraph of the direction told the jury they "could not" use a doubt about one complainant's evidence in their "assessment of a count that involves another different complainant". In the context of this trial, the jury was directed that they could not use any doubt that they had about KK's evidence in their assessment of counts 7 and 8 which involved another complainant, namely JU. Regardless of any debate about how far a Markuleski direction had to extend in such cases, that direction was erroneous. It improperly limited the reasoning the jury were entitled to employ when addressing those counts.
The Crown submitted that there was no risk the jury would understand the direction that way "because in the opening part of the direction they were told that they had to consider how their doubts about a complainant's evidence on one count "might affect the complainant's reliability more generally". I do not agree. At best, it means that a general direction to the jury about how they should use any doubts that they had about a complaint's evidence on a particular count was contradicted by a very specific direction that precluded using any such doubt in the assessment of so much of that complainant's evidence that related to a count concerning the other victim.
No complaint was made about this direction at the trial and no application for a further direction was made. As the Crown submitted, r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 applied. Thus to rely on this ground, the applicant has to show that he lost a real chance of acquittal (Obeid v R (2017) 96 NSWLR 155 at [24] to [25]).
It is understandable that immediately prior to and during the summing up each of the trial judge, the Crown Prosecutor and counsel for the applicant at the trial missed the difficulty with the last part of the above direction. They were no doubt focussed on the evidence of each complainant supporting the counts that related to that complainant. It seems that they did not anticipate the jury taking a path of reasoning that led to acquittals on all counts other than counts 7 and 8. However an assessment of whether a miscarriage of justice has actually occurred and whether r 4.15 applies is necessarily retrospective. In this case it is known that the applicant was acquitted on all counts other than count 8. That outcome is potentially explicable on the basis that the jury may have had doubts about the evidence of each complainant on the counts that related to them, but those doubts were effectively eliminated regarding count 8 given that their evidence supported each other, although, as explained below, other forms of reasoning might also explain the jury's verdict. In those circumstances, a direction that precluded the jury from using any doubts they held concerning the evidence of KK on counts 9 and 10 when considering counts 7 and 8 clearly had a "real chance" of affecting the jury's verdict (Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36 at [41] and [47] per Kiefel CJ, Keane and Gleeson J at [118] per Gageler J) or "realistically [could] have affected the verdict of guilt" (at [123] per Gageler J). There was no forensic advantage that the applicant gained from not seeking to correct or supplement the above direction.
I would not apply r 4.15. I would grant leave to raise ground 1 and uphold the ground.

Ground 2: Unreasonable Verdict

Ground 2 of the appeal contends that the jury's verdict on count 8 is unreasonable and cannot be supported having regard to the evidence and, in particular, the jury's verdict on counts 1 to 6, 9 and 10.

Inconsistent Verdicts

One part of this ground contends that the verdict of guilty on count 8 was inconsistent with the acquittals on the other counts. In Martin v R [2020] NSWCCA 192 at [67] to [68], I summarised the principles applicable to that contention as follows: 67 The applicant bears the burden of establishing inconsistency of verdicts (Mackenzie v The Queen (1996) 190 CLR 348 at 368; [1996] HCA 35; "Mackenzie"). In a case such as this, where it is not said that the verdicts are "legal[ly] or technical[ly]" inconsistent, the relevant test is "one of logic and reasonableness" (Mackenzie at 366); that is, to establish this ground the applicant "must satisfy the court that the verdicts cannot stand together" in the sense that "no reasonable jury who applied their mind properly to the facts in the case could have arrived at that conclusion" (R v Stone, unreported, 13 December 1954, Devlin J; cited in Mackenzie id). If there is a proper way by which the appellate court may reconcile the verdicts then the Court may conclude that the jury properly performed its function (Mackenzie at 367). However, there is also "a residue of cases … where the different verdicts returned by the jury represent … an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty" or "confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law". Where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice then the relevant conviction will be set aside (Mackenzie at 368). 68 There is no general rule that in cases where several offences depend upon the evidence of a single complainant, an acquittal on some counts compels the conclusion that the jury must necessarily have regarded the complainant generally as an untruthful witness or that the complainant's credibility was undermined in respect of the counts upon which it has returned guilty verdicts (MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [35] and [89]; "MFA"). This is so because where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count and that the evidence of each witness may be accepted in whole or in part. Further, the directions to the jury will emphasise the heavy onus of proof which lies on the prosecution and that in the case of sexual assault offences, one, or all, of the members of the jury may require "some supporting evidence before they are satisfied beyond reasonable doubt on the word of the complainant" (MFA at [34]). Hence in MFA, Gleeson CJ, Hayne and Callinan JJ observed (at [34]): "… [a verdict of not guilty] does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. "
Mr Stratton SC's submissions noted that there was an alibi defence in relation to counts 1 to 5 but contended that an acceptance of the alibi did not account for the acquittal of the applicant on count 6 (which concerned JU). It was submitted, rhetorically, that if the "jury found that they could not accept [JU] as an honest and reliable witness in relation to counts 1 to 5" because of the alibi evidence then "how could the jury be satisfied beyond reasonable doubt that he committed count 8?" The principal submission was that (at [140]): "A second and more likely explanation for the differences in the jury's verdicts was that the jury reasoned, that because [JU's] evidence in relation to count 8 was supported by the evidence of [KK], they could accept [JU's] evidence. However, it is submitted that, given that the jury had a reasonable doubt about the honesty or reliability of [JU's] evidence in relation to counts 1 to 6, and the honesty or reliability of [KK] in relation to counts 9 and 10, how could the jury logically or reasonably conclude that an allegation supported only by the evidence of those two witnesses had been proved beyond reasonable doubt?"
There are two difficulties with this submission. First, as the above passage from MFA makes clear, the jury may have reasoned to a verdict of guilty on count 8 by not necessarily having doubts about the honesty or reliability of either JU or KK but instead requiring "something additional" to the evidence of one of them before convicting.
Second, there is nothing illogical or unreasonable in a jury that merely has doubts about the honesty or reliability of two witness nevertheless being satisfied beyond reasonable doubt of some matter on which their evidence supports each other. It is true that a Markuleski direction should have been given in relation to the doubts experienced about their evidence, but that direction would not preclude such reasoning being accepted. Subject to considering the points raised next, there is nothing illogical or unreasonable in either of these paths of reasoning and both rationally explain the jury's verdict.

Aspects of the Evidence

The balance of the submissions under this ground pointed to particular aspects of the evidence which it was contended "should have led the jury to have a reasonable doubt" in relation to count 8. The authoritative decisions concerning such a complaint are M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA; and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. The relevant principles were summarised by McCallum JA in SM v R [2022] NSWCCA 13 at [4] which I gratefully adopt. I have considered those principles in the context of the various paths of reasoning by which the verdict of guilty on count 8 could be reconciled with the acquittals on the other counts noted above.
The applicant's submissions raised four matters concerning the evidence of JU and KK that it is said meant that the jury should have had a doubt.
First, the submissions point to the delay between the events the subject of the charges in 2007 and the first complaint in 2015. This is of little moment. At the time of the subject events JU and KK were aged between 10 and 7 respectively. The perpetrator was a person trusted by their family. The subject events were traumatic and well beyond the ordinary experience of children of their age. The time period between the subject events and the evidence of their first complaints was consistent with the Court's experience in other similar cases.
Second, the submissions point to the inconsistency between KK's evidence that the incident started with the applicant touching JU's breast, a matter that JU did not mention in her evidence-in-chief or cross examination. I also regard this of little moment. Generally, JU's and KK's evidence of these events were very consistent. Both JU and KK described in their own words a scene whereby JU performed oral sex and sought to protect KK and in which KK tried to avoid seeing what was occurring. Bearing in mind that, if it occurred, this incident would have been a traumatic incident for both of them, a discrepancy about whether the applicant touched JU's breast does not raise a doubt about the applicant's conviction on count 8.
Third, both the written submissions and Mr Stratton's oral submissions referred to the evidence of KK described above, which on one reading was either inconsistent as to whether she in fact observed JU perform oral sex on the applicant or suggests that she could not have seen that occur. However, her evidence should be considered with JU's description of what KK was doing during the assault. I read that evidence as both of them attempting to relate that KK saw enough of what was occurring but managed to avoid watching all of it. At most, KK's evidence is unclear whether she stopped watching in the instant before the oral sex commenced or immediately after. That is the sort of detail which, given the age she was at the time the events occurred, the nature of the event, and the passage of time, would be hard to remember and explain. This aspect of KK's evidence does not raise a doubt about the applicant's conviction on count 8.
Fourth, it was submitted that it was inherently unlikely that, with count 8, the applicant would take the risks of sexually assaulting JU in the presence of another child, KK, and also assume the risk of detection from the presence of JU and KK's grandmother in the house at the time of the offending.
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.
Further, in his oral submissions, Mr Stratton SC took the Court to the evidence of the "complaint" given by JU's cousin T which is summarised above. As noted, although T said that JU told her that the applicant forced her to watch him and his girlfriend have sex and JU demonstrated performing oral sex to T, JU denied telling T the former or demonstrating to T the latter. The inconsistencies can be accepted but overall I consider T's statement was supportive of the Crown case. T's evidence was that JU described having performed oral sex on the applicant. That JU's tone in describing what had happened to her may have changed over time or that she has forgotten how she described it are not implausible. In light of the general consistency between JU's and KK's evidence, these inconsistences do not cause me to have a doubt about the conviction on count 8.
None of these points considered individually or collectively demonstrate that the verdict of guilty on count 8 was unreasonable. Having reviewed the record of the trial I am not satisfied that it was.
I would grant leave to raise ground 2 of the appeal but dismiss the ground.

Orders

As I consider that the applicant should succeed on ground 1 but fail on ground 2, a question arises as to the appropriate order. The applicant has already faced two trials on multiple charges that resulted in one conviction. He has already served almost half of the non-parole period for that conviction. These factors point in favour of not ordering a retrial. However, against that is the seriousness of the outstanding charge and what appears to be, on its face, a reasonably cogent Crown case, albeit one that will be difficult to prosecute given the acquittals that have already been entered. Bearing in mind the nature of the error that resulted in the verdict being set aside, I propose that this Court order a new trial and leave the question of what will occur to the respondent (see WX v R [2020] NSWCCA 142 at [91] to [96]).
Accordingly, I propose the following orders: (1) The Appellant be granted leave to raise grounds 1 and 2 of his Notice of Appeal. (2) The appeal be allowed. (3) The Appellant's conviction be quashed. (4) A new trial be ordered. (5) List the matter in the Arraignments List in the District Court at Parramatta on 20 May 2022.
PRICE J: I agree with the reasons and orders proposed by Beech-Jones CJ at CL. I also agree with the additional remarks of N Adams J.
N ADAMS J: I have had the advantage of reading the judgment of Beech-Jones CJ at CL in draft. I agree with the orders proposed by his Honour for the reasons provided.
In relation to ground 1, it seems to me that the significance of the impugned direction might not have been apprehended by the trial judge and counsel until the verdicts were taken. It was not until that point when it became apparent that the jury acquitted on all counts save for one of the two counts of which both complainants gave evidence. The fact remains that the jury was directed that it was precluded from using any doubts they held concerning KK's evidence on counts 9 and 10 (which they may well have held given the acquittals on those counts) when considering counts 7 and 8. I am satisfied that this gave rise to a miscarriage in the sense described by Beech-Jones CJ at CL at [42].
As for ground 2, I too am not persuaded that the verdict on count 8 was unreasonable, on the basis of inconsistency with the acquittals or otherwise. Beech-Jones CJ at CL has identified the discretionary factors relevant to the question of whether a new trial ought be ordered at [59]. It is to be accepted that it will be difficult to prosecute count 8 alone given the acquittals on all other charges. Despite this, as I observed in WX v R [2020] NSWCCA 142 at [100], it is in the public interest that this Court not be seen to usurp the role of the DPP with whom the discretion to prosecute rests.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 May 2022

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