Smith v R

Judgment

1. BEECH-JONES CJ at CL: For the reasons given by Chen J, I joined in the orders made by the Court on 24 August 2022
2. PRICE J: For the reasons enunciated by Chen J, I joined in the orders made by the Court on 24 August 2022.
3. CHEN J: Zac Anthony Smith ('the appellant') was arraigned on ten counts that, between 1 January 2011 and 31 December 2013, he committed offences - alleged to involve indecent assault, attempted sexual intercourse, sexual intercourse and common assault - on his nieces, CB and SB. In this time period, CB was aged 8-10, and SB was aged 7-9.
4. On 15 September 2020, following a trial in the District Court, the appellant was convicted on eight of the counts charged. He appeals to this Court, relying upon a single ground of appeal: that a miscarriage of justice "resulted from the absence at trial of evidence relating to the appellant's cognitive abilities". The appellant relies upon further evidence to establish this ground - including expert psychological and psychiatric evidence to demonstrate the severity of those intellectual disabilities.
5. In my view, that ground should be upheld. Shortly stated, and as explained later in these reasons, I consider that conclusion to follow because: (a) the further evidence is "fresh evidence"; (b) that evidence establishes that the appellant has intellectual disabilities that place the appellant "in the lowest 5% of the population in relation to his intellectual function, or thereabouts" and that the appellant has "severe impairment" in his communication skills, with his receptive and expressive language skills at an age equivalent of slightly over 4 years; (c) the omission of that evidence from the trial - where the Crown relied upon "admissions" made by the appellant in a pre-text call with an undercover police officer and "admissions" when interviewed by police - deprived the trial of its fairness that has resulted in a miscarriage of justice; and (d) there is a significant possibility that, had that evidence been adduced at trial, the jury, acting reasonably, would have acquitted the appellant of more than counts 3 and 7.
6. The Crown (properly) accepted that it was open for this Court to conclude that a miscarriage of justice had occurred from the omission of evidence at trial establishing the appellant's intellectual disabilities, and the extent of them.
7. In those circumstances, I joined in the orders made by the Court on 24 August 2022 - being: 1. Grant leave to appeal. 2. Appeal allowed. 3. Set aside the appellant's convictions on counts 1, 2, 4 to 6 and 8 to 10. 4. Order that there be a new trial on counts 1, 2, 4 to 6 and 8 to 10. 5. List the matter for arraignment on 2 September 2022 in the District Court at Sydney at 9:30 am.
8. These are my reasons for joining in the orders, and concluding that a miscarriage of justice arose.

Background

1. From around June or July 2009, CB and SB began living with their maternal grandmother in Auburn, NSW. Before that time, they lived with their father, NB. The change in the living arrangements arose because the Department of Community Services ('DOCS') removed CB and SB from their father's care. The girls and their brother, JH, were placed in their grandmother's care by DOCS. Their father was permitted access to his children, as arranged by DOCS.
2. At the Auburn property, CB, SB and JH lived with CM (the older half-sister of the complainants), their grandfather, their aunt (the sister of the appellant) and the appellant.
3. The offences were alleged to have been committed whilst the appellant also resided at the Auburn property. Each offence was alleged to have been committed in the bedroom of the appellant. The appellant moved out of the Auburn property on 12 January 2013, and it was accepted that all offences occurred before that time.
4. The offences against CB were: two counts of aggravated indecent assault (child under the age of 16 years), contrary to s 61M(2) of the Crimes Act 1900 (NSW) (counts 1 and 3); two counts of sexual intercourse with a child under 14 years, contrary to s 66C of the Crimes Act (counts 2 and 4); and two counts of attempted sexual intercourse with a child under 16 years, contrary to s 66D of the Crimes Act (counts 5 and 6).
5. The offences against SB were: one count of incite a child aged under 16 years to perform an act of indecency, contrary to s 61N of the Crimes Act (count 7); one count of aggravated indecent assault (child under the age of 16 years), contrary to s 61M(2) of the Crimes Act (count 8); and two counts of common assault, contrary to s 61 of the Crimes Act (counts 9 and 10).
6. The appellant denied the allegations, and entered pleas of not guilty. He stood trial in the District Court before Adams QC A-DCJ and a jury between 24 August and 15 September 2020. On 15 September 2020, the jury returned verdicts of guilty of eight offences, and not guilty of two of them (counts 3 and 7).
7. Following the jury's verdict, the appellant was remanded in custody. After the trial, but prior to being sentenced by Adams QC A-DCJ, the appellant's legal representatives became aware that the appellant had restricted intellectual functioning and diagnosable intellectual difficulties. On 15 December 2020 the appellant was sentenced by Adams QC A-DCJ to imprisonment for one year and three months, commencing on 12 September 2020, with a non-parole period of ten months, commencing on that date and ending on 11 July 2021.
8. On 15 December 2020, the appellant (having filed a Notice of Intention to appeal by this time raising the current appeal ground) was also granted conditional bail, and he has remained on conditional bail pending the outcome of this appeal. His conditional bail was continued by orders made by this Court.
9. The discovery of the evidence that the appellant had restricted intellectual functioning and diagnosable intellectual difficulties forms the basis for the appellant's contention that a miscarriage of justice occurred, justifying the quashing of his convictions and an order that he be retried.

The course of the trial

1. As the appellant's challenge is based upon the absence of evidence of his intellectual disabilities, it is necessary to examine that evidence - addressed in [68]-[71], below - in the context of the evidence given, and the issues that arose, at trial: Mickelberg v The Queen (1989) 167 CLR 259, 301; [1989] HCA 35 ('Mickelberg'). I will start with a short overview of the issues at trial, before outlining the evidence given.
2. The appellant did not give evidence at trial, but he participated in an electronically recorded interview with police (or 'ERISP') on 3 May 2019 (that was tendered during the trial) in which he denied having done anything to the complainants. Evidence was also adduced from JH, the brother of the complainants, that he overheard a conversation, on 26 April 2019, that involved CB, SB, NB and NB's then partner, KL. That conversation was to the effect of wanting to bring the whole family down, and in particular that they were making a false allegation against the appellant. JH gave evidence that he heard NB say: "… we could go for Zac 'cause he's easier", and he heard SB agree, as well as NB say: "…'cause we already have a case against Zac". During final submissions to the jury, the Crown described this part of the defence case as involving a "conspiracy to bring down members" of the family.
3. In circumstance where the appellant denied the offences occurred and, further, that there was evidence that suggested that the allegations might have been false, the credibility and reliability of each complainant was squarely in issue. It was in that forensic setting that the Crown relied upon "admissions" made by the appellant - during a pre-text call with an undercover police officer, and when interviewed by the police (each of which is discussed below) - as providing independent corroboration of CB and SB's evidence.

The evidence of the complainants

1. It suffices to describe the account of each complainant in broad terms. Each gave evidence that was pre-recorded (on 25 and 26 May and 21 and 31 August 2020), and they were cross-examined. That evidence was played during the trial.
2. In relation to CB, she described two incidents which gave rise to the alleged offences involving her (counts 1-7). CB's evidence was that she did not tell anybody what had happened because she was "scared" that she was going to get into trouble or that something would happen to her. In relation to SB, she described three incidents which gave rise to the alleged offences involving her (counts 8-10). SB's evidence was that she did not disclose what the appellant had done to her because she was "afraid" that the appellant would do something - that he would hurt her physically as he had done in the past.
3. CB disclosed to NB what the appellant had done to her on or around 7 May 2018 - at a time at which she had returned, with SB, to live with him. On that occasion she had become emotional and "ended up telling [NB] what had happened", and after she had calmed down, she "told him everything that happened, pretty much" - meaning "everything" she had described in her evidence. Later, during this conversation, CB told NB that the appellant had "sexually assaulted" her, but she did not go into full details about what had happened, because she felt "uncomfortable", and she did not want her father knowing all the details. She did, however, tell him that the appellant "used to make me do things" and that he "used to make me touch him on his private parts".
4. Following this conversation, NB and CB spoke with SB about the allegations against the appellant. CB's evidence was that SB said that she could "only remember a little bit, but didn't think it was real", and that she was not sure whether it was "a memory or … just my imagination". SB gave evidence that when asked by NB, about whether anything had happened between her and the appellant whilst they lived at the Auburn property, she said "I think so" because "it was just vaguely there. I always thought that it was just-like it wasn't real … when I spoke to [CB] about it, it was when I started to remember and like, things started to come back". At that time, SB told NB about the incident with the football cards (count 10), the incident involving CM (count 7) and the "other incident with [JH's] game came up" (counts 8 and 9).

Counts 1 and 2

1. On an occasion between 1 January 2011 and 12 January 2013, the appellant called CB into his bedroom, where he was playing a computer game. The appellant allowed CB to play a game, before he called to her. CB turned around, where she saw the appellant lying on his bed with his erect penis out of his pants, and the appellant holding it. The appellant called CB to come over to the bed. CB indicated she did not want to, and the appellant told her that if she did not do so he would tell her grandmother that she had been misbehaving. CB, although scared, went over to the bed. The appellant took CB's hand, placed it on his erect penis and moved it up and down on his erect penis for a minute or two. These events constituted count 1 (aggravated indecent assault), and the appellant was found guilty. Thereafter, the appellant told CB to suck his penis. CB refused, and the appellant told her again that he would tell her grandmother that she had been misbehaving. The appellant grabbed CB's head and put his penis in her mouth, moving her head up and down, which occurred for one to two minutes. These events constituted count 2 (sexual intercourse with a child under 14), of which the appellant was found guilty.

Counts 4, 5 and 6: guilty verdicts and count 3: not guilty

1. On a further occasion between 1 January 2011 and 12 January 2013, CB was in the appellant's room on his bed. He put his erect penis in her mouth, and moved her head up and down on his erect penis, as he had on the earlier occasion. These events constituted count 4 (sexual intercourse with a child under 14), and the appellant was found guilty. (Count 3 involved an allegation that, in the course of the same incident as count 4, the appellant forced CB to masturbate his penis: the appellant was found not guilty of count 3).
2. Thereafter, again during the course of this incident, the appellant told CB to get off his bed, and put her hands on the lounge in his bedroom - which CB did. The appellant then pulled down her pants and underwear, and attempted (unsuccessfully) to insert his erect penis into her vagina. This attempt was count 5 (attempted sexual intercourse with a child under 14 years), and the appellant was found guilty. The appellant then attempted to insert his penis into CB's anus. He persisted despite CB's protestations, and the incident stopped because the appellant's penis could not enter CB's anus - at which point CB pulled up her pants, and ran out of the appellant's bedroom.

Count 7: not guilty

1. SB gave evidence of an occasion when their older half-sister (CM) took SB and CB into the appellant's bedroom. When they entered, the appellant was lying on the bed. CM "began to play" with the appellant's penis underneath his clothes. The appellant told SB to stroke his penis ("[SB] your turn"), which she did for a couple of minutes. CB was not asked any questions during her evidence about this incident that was described by SB, but gave evidence that she did not think that they went into the appellant's bedroom together. The older half-sister, CM, did not give evidence at the trial. This event constituted count 7 (incite act of indecency - child under 14 years), and the appellant was found not guilty.

Counts 8, 9 and 10: guilty verdicts

1. SB gave evidence of three incidents - each of which occurred in the appellant's bedroom. SB could not remember which of the incidents occurred first in time.
2. The first incident occurred between 1 January 2011 and 12 January 2013. SB had gone into his bedroom to play a video game with her brother, JH. The appellant told JH to "get out" of his room. Once her brother left the room, the appellant grabbed SB by the hair and dragged her to the bed and told her to lie down on the bed. Having done so, the appellant lay next to SB, pulled down his pants and boxer shorts, and told SB to play with his penis. SB was frightened, and did as the appellant told her - she "stroked" his penis for a couple of minutes, which was described as becoming erect. This event constituted count 8 (aggravated indecent assault), and the appellant was found guilty.
3. In the course of this incident, SB attempted to leave the room, but the appellant grabbed her by the wrist and dragged her back. This event constituted count 9 (common assault), and the appellant was found guilty.
4. Approximately three weeks after the above incident, SB went looking for her football cards. She went to the appellant's bedroom to ask him whether he had seen them, and he told her to close the door. The appellant told SB that he would not return the cards to her unless she played with his penis. SB told the appellant to keep the cards, and the appellant grabbed SB by the wrist as she attempted to walk out of the room. SB left the room, and the appellant later returned the cards to her. This was count 10 (common assault), and the appellant was found guilty.

The telephone call with the undercover police officer posing as CB

1. On 2 May 2019 an undercover police officer (or 'UPO'), posing as CB, telephoned and spoke with the appellant. The telephone call was recorded. The recording of that telephone conversation was played to the Court and tendered without objection. The jury also received a transcript of the telephone call as an aid.
2. During the course of that telephone call, although the appellant denied some allegations that CB made, the appellant also made a number of statements that were relied upon by the Crown as amounting to admissions in relation "to the allegations of sexual assault against him". Specifically, it was argued that he made admissions because: (a) "the accused didn't react as you might expect him to if everything that was being put to him was false"; and (b) because, in the course of that telephone call, the appellant was "apologising" - and it was said that this demonstrated "that he knew what he'd done, and he was apologising to her" and that he "thought he was talking to someone who he knew, that he had committed sexual offences against when she was younger".
3. The Crown, during final address to the jury, drew attention to and relied upon the following exchanges as constituting admissions made by the appellant during the course of this pre-text call between the appellant and the UPO: 1. Appellant: "I'll just call nan now okay and I'll, I'll tell her what I did". 2. UPO: "It's just not what you've said, it's what you've done". Appellant: "Yeah, I know. (SIGHING) I can't go back and change what I've done now. Oh, I'm sorry". 3. Appellant: "…that I admit that, yeah, may be, I, I did give you a hard time, like, I yelled at you or maybe (?) slapped you around, you know, I never raped you". 4. UPO: "You made me touch you". Appellant: "(SIGHING) [CB], all right, I, I dunno what to say. OK?" UPO: "You told me that if I didn't that you would tell Nan and I would get in trouble". Appellant: "(SIGHING) If I'm (sic) did, oh, I'm sorry, [CB], I can't remember what I was doing…I'd come home and, I don't remember how old I was when I did it, but I'm pretty sure, you know…" before saying that he could not admit it because he "dunno who's around the phone…". 5. UPO: "Well what about [SB]?" Appellant: "If you know what happened, given, you know … do you want me to, to, just to tell Nan and I'll just tell Nan what happened or what?". And, later: "If you want, I'll just go to the police station now and I'll, I'll dob myself in". 6. Appellant: "If I, I, and I've said to you at the start of the conversation before, if I've done anything wrong to you I'm sa (sic), I, I'm sorry. I all, all, all, I want to make that mends" and "… I done bad, terrible things and I'm sorry, [CB]…". 7. UPO: "How many times?" Appellant: "It wasn't many … if I did anything bad … it wasn't many". When asked why he did it, the appellant said: "I dunno, yeah adolescence, me growing up, I, I, I don't know". 8. Appellant: "You touched me. What about the times you used to pull my pants down and kick my balls in? You, you, you did all those things too. You know? It wasn't just me". UPO: "But you made me touch you". Appellant: "Yeah, yeah, but I never touched you, and you know that. That's truthful words. I never touched you, I'd never". 9. UPO: "… you bent me over the couch". Appellant: "… I had no, I did, I, I, no intentions of, of, of, of raping you at all… I never tried to". UPO: "Then why did you do that?" Appellant: "…I dunno. I dunno if it's an uncle thing with, with, with what I, I OK, there's a lot of sick uncles out there, I don't want to be one of them … I'll just call Nan now okay, and I'll tell her what I did".

The ERISP

1. The appellant was interviewed by police on 3 May 2019 - that is, the day after the telephone call with the undercover police officer. That interview was electronically recorded. The recording of that interview was played to the Court and tendered, and the jury also received a transcript of that interview as an aid.
2. The Crown, during final submissions to the jury, relied upon the appellant's response to a particular question - question 180 - during the course of that interview, as an admission of wrongdoing by the appellant.
3. The question and answer were as follows: Q Did, was there any ever, ever any sexual activity between you and [CB] or you and [SB] in any way? I know it's difficult, it might (sic) difficult to discuss for obvious reasons but obviously we have these statements here that we've tried to talk to you about. And both [CB] and [SB] have told us a number of things that happened between you and, and those two girls. Is there anything you want to tell us now, anything that happened between you and, you and [CB] or you and [SB]? A I can't remember. It's a long time ago, I can't even remember what I did yesterday let alone 10 years.
4. During the course of closing submissions, the Crown drew the jury's attention to this question and answer and made the following submission: You might look at that answer given by the accused in conjunction with some of the other things that he said, and yes he did deny the allegations at the start of the interview, as he maintained that throughout. But that answer might be something that you look at and wonder whether that is how you'd expect him to answer if these things, this contact that [CB] and [SB] gave evidence about, hadn't occurred...

The findings of the jury: a summary

1. By way of summary, the offending conduct was found to be as follows: Count Charge Particular 1 Indecent assault of child under 16 The appellant held CB's hand and used her hand to masturbate his own penis - an event that lasted a minute or two s 61M(2) Crimes Act 1900 2 Sexual intercourse with child under 14 After the events that comprise count 1, the appellant grabbed CB's head, put his penis in CB's mouth and moved her head up and down - an event that lasted a minute or two s 66C(l) Crimes Act 1900 4 Sexual intercourse with child under 14 The appellant put his penis in CB's mouth and moved her head up and down s 66(1) Crimes Act 1900 5 Attempted sexual intercourse with child under 16 After the events that comprise count 4, the appellant attempted to put his penis in CB's vagina s 66D Crimes Act 1900 6 Attempted sexual intercourse with child under 16 After the event that comprise count 5, the appellant attempted to put his penis in CB's anus s 66D Crimes Act 1900 8 Indecent assault of child under 16 The appellant grabbed SB by the hair dragged her to a bed and told her to masturbate his penis - which she did for a couple of minutes s 61M(2) Crimes Act 1900 9 Common assault After the event that comprise count 8, SB attempted to leave the room, but the appellant grabbed SB by the wrist and dragged her back s 61 Crimes Act 1900 10 Common assault Approximately one month after the events that comprise counts 8 and 9, the appellant grabbed SB by the wrist as she attempted to leave the appellant's bedroom s 61 Crimes Act 1900

1. The appellant was acquitted of the following charges: Count Charge Particular 3 Indecent assault of child under 16 The allegation was that, during the same incident as count 4, the appellant forced CB to masturbate his penis s 61M(2) Crimes Act 1900 7 Incite act of indecency - child under 14 years The allegation was that the appellant told SB to stroke his penis, which she did for a couple of minutes s 61N(1) Crimes Act 1900

The events following the trial

1. Following the appellant's conviction on 15 September 2020, the Crown made a detention application. At that time, the appellant tendered a report from Dr Anthony Pignataro dated 27 October 2019. That report indicated that the appellant suffered from an intellectual disability which, as expanded upon by other evidence tendered at the appellant's sentencing hearing, likely placed him in the lowest 5% of the population in relation to intellectual functioning: see [69], below.
2. Prior to sentencing, the appellant secured a report from Dr Richard Furst, consultant psychiatrist, dated 6 November 2020. In that report Dr Furst expressed a similar opinion to the one expressed by Dr Pignataro: see [68], below.
3. On 15 December 2020 the appellant was sentenced. After sentencing, the appellant's legal representatives secured further evidence from a forensic psychologist, Ms Ivanka Manoski, to assess whether the appellant's level of intellectual functioning warranted an appeal against conviction. Ms Manoski prepared reports dated 2 November 2021 and 7 January 2022: see [70], below. In those reports, Ms Manoski assessed the appellant's intellectual functioning consistently with the assessments, and opinions, expressed by Dr Pignataro and Dr Furst.
4. The appellant relies upon these expert opinions as fresh evidence to establish the nature and extent of the appellant's intellectual disabilities - which go towards demonstrating that a miscarriage of justice has occurred by reason of the trial being conducted in the absence of such evidence.

The ground of appeal

1. The sole ground of appeal raised by the appellant is that a miscarriage of justice was occasioned by the absence at the trial of evidence relating to his intellectual disabilities. The ground thus relies on the third limb of s 6(1) of the Criminal Appeal Act 1912 (NSW) ('the CA Act') - viz., that "on any other ground whatsoever there was a miscarriage of justice". As this ground of appeal does not involve a question of law alone, a grant of leave to appeal is necessary to raise it: ss 5(1)(b) and 6(1) of the CA Act. In light of the fact that I consider a miscarriage of justice has occurred, it is appropriate for the appellant to be granted that leave.
2. There are essentially two parts to the appellant's argument that a miscarriage of justice occurred. First, the appellant argues that, in light of his intellectual disabilities, there was a significant possibility that the evidence of the "admissions" would not have been admitted. The consequence being that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant of more than counts 3 and 7. In relation to the pre-text call, the appellant relied upon s 90 of the Evidence Act 1995 (NSW), and in relation to the ERISP, the appellant relied upon s 85(2) of the Evidence Act. Secondly, even if the evidence of the admissions was admitted, the appellant argues that there is a significant possibility, in light of the fresh evidence relating to the appellant's intellectual disability, that the jury, acting reasonably, would have given little or no weight to the alleged admissions (or would have rejected the Crown's submission relying on how the jury "would expect" the appellant to answer if he was not guilty of the offences). The consequence, as identified by the appellant, being a significant possibility that the jury, acting reasonably, would have acquitted the appellant of more than counts 3 and 7.
3. The admissibility issue is of some complexity, as the Crown noted in its submissions. Ultimately, in light of the position taken by the Crown in relation to the appellant's second argument, the appellant accepted that resolution of the admissibility of the pre-text call and the "admissions" in the ERISP, should not be resolved by this Court, but left for determination by the trial judge. In those circumstances, these reasons address the appellant's second argument raised to support a conclusion that a miscarriage of justice has occurred.

Miscarriage of justice: some principles

1. A miscarriage of justice within s 6(1) of the CA Act includes any departure from a trial according to law to the prejudice of the accused: Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [18]; Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 93 at [41] and [47] ('Hofer'); or "any irregularity or failure to strictly comply with the rules of procedure and evidence is a miscarriage of justice": GBF v The Queen (2020) 271 CLR 537; [2020] HCA 40 at [24]; or, absent demonstration of error, "something occurred or did not occur" in the trial that deprives the trial of its fairness: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [30]; Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [54] ('Baini').
2. The categories are, however, neither fixed, nor closed: the fundamental question is whether a miscarriage of justice has occurred: Gallagher v The Queen (1986) 160 CLR 392, 395; [1986] HCA 26 ('Gallagher'); R v Bikic [2002] NSWCA 227 at [280]. Further, in relation to any fair trial miscarriage leading to a new trial, the miscarriage must be prejudicial to the accused: that is, the accused is able to demonstrate that "but for the irregularity, the result might have been different and the appellant might have been acquitted": Baini at [54]; Hofer at [41], [47] and [118]; Caleo v R [2021] NSWCCA 179 at [167].
3. In this appeal, the appellant seeks to quash his conviction based not on any trial irregularity, but upon the "perceived injustice or unfairness in allowing the conviction to stand when it is viewed against the totality of the evidence including the newly adduced evidence": Lawless v The Queen (1979) 142 CLR 659, 675 (Mason J); [1979] HCA 49 ('Lawless'). It is thus necessary to turn to the further evidence, and a consideration of the principles that permit this Court to receive that evidence.

Fresh evidence: the principles

1. In this case, the appellant did not seek an acquittal based upon the further evidence - it was not argued that the evidence demonstrated innocence or was sufficiently cogent on its own to give rise to a reasonable doubt as to guilt - but a retrial. In MRW v R [2011] NSWCCA 260 at [46] ('MRW'), Bathurst CJ identified three issues for consideration where a conviction is sought to be quashed and a new trial ordered on the basis of fresh evidence: First, is the evidence fresh evidence in the sense that it was not available to the appellant at the time of trial…; second, was it credible or capable of belief and third, was there a significant possibility that the jury acting reasonably would have acquitted the appellant.
2. In circumstances such as the present, where a party seeks to adduce evidence on appeal in aid of a ground of appeal, there is a distinction between whether the further evidence is "fresh evidence" or "new evidence". Fresh evidence is evidence that was not available at trial or could not have been available with the exercise of reasonable diligence: Ratten v The Queen (1974) 131 CLR 540 at 516-517; [1974] HCA 35 ('Ratten'); Lawless at 674-675; Rodi v Western Australia (2018) 265 CLR 254; [2018] HCA 44 at [28]. Conversely, evidence is not fresh, but new, if it was available at trial, or discoverable with reasonable diligence: Ratten at 516-517; Lawless at 675. In determining what evidence was available by reasonable diligence, great latitude is extended to an accused: Ratten at 517.
3. Where the evidence is new evidence, a trial is not unfair, nor does a miscarriage of justice arise simply because evidence is available or could, with reasonable diligence, have been discovered, but is not called. At least one reason for that is because a criminal trial is adversarial, and the parties are free to determine what evidence they will (or will not) call: Ratten at 517; Lawless at 675. Conversely, there will be a miscarriage of justice "if the appellant satisfies this Court that the new evidence is such that, taken with the evidence at the trial, the conclusion should be drawn that he was innocent or that his guilt was not established beyond reasonable doubt": Xie v R [2021] NSWCA 1 at [434], citing Ratten at 518 and 520; see also Mickelberg at 301.
4. Here, the appellant argued - and the Crown (properly) accepted - that the evidence in connection with the appellant's intellectual disabilities was fresh evidence and thus admissible on appeal. In my view, that finding should be made: the evidence was not available a trial, nor was it constructively available in the sense that it could have been available with reasonable diligence. I explain my reasons for that conclusion in what follows.

The evidence read on the appeal

1. The appellant relied upon the following evidence (which was read without objection): 1. Affidavits of Janet Witmer affirmed 12 November 2021 and 9 February 2022. (These affidavits annexed the psychiatric and psychological evidence to support a finding that the appellant has intellectual disabilities). 2. An affidavit of Paul Hogan affirmed 17 November 2021. Mr Hogan was the appellant's trial counsel. 3. An affidavit of Tayla Regan sworn 8 September 2021. Ms Regan was the solicitor for the appellant during the course of his trial.
2. The Crown relied upon the evidence contained in the affidavit of Miriam Rottenberg affirmed 10 August 2022 (which was read without objection). That affidavit annexed a report from a consultant forensic psychologist qualified by the Crown (Professor Susan Hayes) in order to assess the appellant's intellectual functioning.
3. The appellant's evidence was directed to two issues. First, to establish the lack of knowledge of the appellant's intellectual difficulties by the legal representatives (counsel and a solicitor) who conducted the appellant's trial. Second, to establish the nature and extent of the appellant's intellectual disabilities.

Issue one: the knowledge of the appellant's intellectual disabilities

1. The appellant's legal representatives - trial counsel and a solicitor - have provided affidavits that establish that whilst each suspected that the appellant may have had some intellectual limitation, neither knew that the appellant had a clinically diagnosable impairment, nor its magnitude.
2. Trial counsel deposed to becoming aware of the first report from Dr Pignataro, dated 27 October 2019, during the course of the trial, but his evidence was that he considered that report to be in the nature of a treatment report (the appellant was having counselling sessions with Dr Pignataro prior to the trial), and as the report did not mention that the appellant had a formal cognitive impairment, he did "not understand [the report] to suggest that [the appellant] had an active cognitive disability". In my view that was a not unreasonable assessment of Dr Pignataro's report dated 27 October 2019: after referring to the psychological treatment that the appellant was having, Dr Pignataro simply reported that the appellant "presented with below average range of functioning with verbal skills being lower than non-verbal skills…there is restricted intellectual functioning".
3. The appellant's solicitor did not depose to receiving a copy of this report prior to the conviction. That evidence sits a little uneasily with the evidence of counsel but ultimately, having regard to other evidence and the position of the Crown, nothing turns on this.
4. The appellant's trial counsel and his solicitor each depose to only becoming aware of the nature and extent of the appellant's cognitive disabilities upon receipt of Dr Pignataro's second report (dated 14 December 2020), and a report from a consultant psychiatrist qualified by the appellant for the purposes of assessing him (Dr Richard Furst, report dated 6 November 2020) during preparation for sentencing. Although I cover some of the detail of the opinions expressed by these experts in the next section of these reasons (for Dr Pignataro: see [688], below; for Dr Furst, see [69], below), it suffices to presently note the following: 1. Dr Pignataro (report dated 14 December 2020) concluded that the results of the testing were consistent "with someone who has an intellectual disability of mild severity", and estimated that the appellant has an estimated IQ score of 70, which was in the "mild intellectual disability range"; and, 2. Dr Furst (report dated 6 November 2020) concluded that the appellant has a "mild intellectual disability or borderline intellectual function, most likely placing [the appellant] in the lowest 5% of the population in relation to his intellectual function, or thereabouts".
5. Put simply, the opinions expressed in these reports paint a distinctly different complexion to the appellant's functioning than the more limited opinion expressed by Dr Pignataro in his report dated 27 October 2019. It can, therefore, readily be accepted that neither legal representative of the appellant had reason to suspect the nature and extent of the appellant's intellectual disabilities until they received these reports.
6. The evidence of the appellant's trial counsel and solicitor was not challenged. It should be accepted. The Crown, quite properly, did not contend to the contrary (albeit pointing out that it was "regrettable" that the matter was not investigated further). In those circumstances, the question of whether the evidence was "fresh" reduces to a question of whether the appellant himself should have brought this evidence forward. In my view, and as the appellant submitted, it would not be reasonable to expect the appellant to have appreciated the significance of his disability, and to have brought that to the attention of his legal representatives.
7. In my view the proper characterisation of the evidence relating to the appellant's intellectual disabilities is that it is "fresh" evidence - a finding that is consistent with the "great latitude" that must be extended to an accused in circumstances such as this (Ratten at 517), and the Crown's acceptance that it would be open to characterise the evidence in this way.

Issue two: the nature and extent of the appellant's intellectual disabilities

1. On appeal, there was no serious issue about what the expert evidence established. The Crown accepted that the evidence demonstrated that the appellant has an intellectual disability, in the mild range with particular deficits in verbal communication.
2. The appellant relied upon expert evidence from Dr Pignataro, treating psychologist (report dated 14 December 2020), Dr Richard Furst, consultant forensic psychiatrist (report dated 6 November 2020) and Ms Ivanka Manoski, consultant forensic psychologist (reports dated 2 November 2021 and 7 January 2022). Having regard to the broad consensus between the opinions expressed by the respective experts (including the expert qualified by the Crown, Professor Susan Hayes), and having regard to the fact that they were not required to give evidence on appeal, the following sufficiently captures the essence of the reasoning, and the opinions, of each.
3. Dr Pignataro prepared a report dated 14 December 2020 for use in connection with the sentencing of the appellant. Dr Pignataro made the following key points in that report: 1. Dr Pignataro examined the appellant on 14 December 2020, and undertook verbal comprehension and working memory tests in order to assess the appellant's overall cognitive abilities. In relation to the verbal comprehension test, and the results obtained, Dr Pignataro considered that the appellant "struggles with vocabulary development, verbal reasoning and language skills. He also struggles with the ability to listen, comprehend, and express himself with oral communication". In relation to the working memory test, Dr Pignataro considered, based upon the results obtained, that the appellant "has difficulty maintaining and manipulating information mentally to obtain a result". Dr Pignataro concluded that the results of the testing were consistent "with someone who has an intellectual disability of mild severity", and estimated that the appellant had an estimated IQ score of 70, which was in the "mild intellectual disability range". 2. In relation to the pre-text call, Dr Pignataro considered the appellant presented as someone who had "limitations in verbal fluid reasoning, comprehension, capacity to draw inferences, personal expression and difficulty with memory recall". 3. Dr Pignataro's conclusion was that the appellant has a "diminished capacity to understand and respond because of the impairments noted in the verbal comprehension and working memory subtests".
4. Dr Richard Furst prepared a report, dated 6 November 2020, in connection with the sentencing of the appellant. In that report, Dr Furst expressed the opinion that, based upon the testing performed by Dr Pignataro, the appellant has a "mild intellectual disability or borderline intellectual function, most likely placing [the appellant] in the lowest 5% of the population in relation to his intellectual function, or thereabouts".
5. Ms Ivanka Manoski prepared reports dated 2 November 2021 and 7 January 2022 in connection with the appellant's appeal to this Court. In those reports, she expressed the following opinions: 1. Ms Manoski undertook a psychological and psychometric assessment (being the Weschler Adult Intelligence Scale-Fourth Edition) of the appellant and, based upon that testing, found that the appellant's "overall intelligence fell in the extremely low range", and that his performance across all domains demonstrated that the appellant had difficulties in all assessed skills including "verbal comprehension … solving problems, understanding abstract concepts, reasoning, visual processing, working memory, and processing speed". 2. Ms Manoski expressed the opinion that the appellant's "cognitive functioning falls within the moderately intellectually impaired range". She considered that the appellant presents adequate verbal communication skills which can lead to a perception that he understands a lot more than he is comprehending", and for that reason considered that the appellant had limited capacity "to participate in interviews such as those with police, without assistance". 3. In the further report prepared, dated 7 January 2022, Ms Manoski addressed the pre-text phone call and the record of interview with the police. It is sufficient to simply note that Ms Manoski considered that as the appellant was of low cognitive functioning and struggles with mental flexibility, verbal comprehension verbal expression as well as frustration tolerance, "his participation would present particular difficulties and challenges - perhaps requiring some modification to the manner in which, say, it would be interviewed".
6. The Crown qualified Professor Susan Hayes, consultant forensic psychologist (report dated 17 July 2022). In that report, Professor Hayes expressed the following opinions: 1. Following administration of the Kaufmann Brief Intelligence Test, Second Edition - a test administered to measure verbal and non-verbal intelligence - the appellant's results indicated that he "functions in the range of mild intellectual disability at a level lower than 99.8% of his age peers". That result was, according to Professor Hayes, consistent with the results reported by Dr Pignataro, to which reference has been made. 2. That following administration of the Vineland Adaptive Behaviour Scales, Third Edition - a test administered to measure adaptive behaviour and the assessment of offended visuals with intellectual development and other disabilities - the appellant's results indicate that the appellant "functions in the range of mild intellectual disability for adaptive behaviour skills, at a lower level than 99% of his age peers. His communication skills are the lowest area of functioning, however, in the range of severe impairment…". 3. That the appellant's "communication skills are particularly impaired, falling in the range of severe impairment. His receptive language skills are at an age equivalent of 4 years 2 months and his expressive language skills are at an age equivalent of 4 years 4 months". 4. Having regard to the appellant's intellectual disability - particularly his severe impairments in communication skills - were such that they "affected his ability to understand and respond to questions in the pre-text call and the police interview … He functions at an age equivalent of roughly 4 years in both receptive and expressive language". 5. The results of all tests indicate that the appellant has "an intellectual disability, in the mild-moderate range (although his communication skills are severely affected) and has suffered from this disability all of his life".
7. I would sum up the evidence as follows (and, for the purposes of this appeal only, make the following findings): (a) the appellant has particular difficulties with language skills, including verbal comprehension and oral communication, as well as difficulties with working memory; (b) the appellant's communication skills are particularly impaired, and his receptive and expressive language skills are at an age equivalent of roughly 4 years; (c) the testing performed suggested that the appellant had an intellectual disability of "mild severity"; (d) the appellant would, based on the testing, have an estimated IQ of 70 (which is in the mild intellectual disability range) and would place the appellant in approximately "the lowest 5% of the population in relation to his intellectual function"; and (e) those disabilities and impairments would have affected the appellant's ability to understand and respond to questions during the pre-text call and during the police interview.
8. The next issue, in relation to the admissibility of the fresh evidence, is whether it is "credible or capable of belief": MRW at [46]. In my view, the evidence is clearly of that character (and I find that it is) - a matter most simply illustrated by the fact that the psychological and psychiatric evidence, discussed above, is essentially consistent in demonstrating not only the presence of intellectual disabilities, but the nature and extent of them.
9. The final issue is whether there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant. In my view that is so. I deal with this in what follows.

Consideration: significant possibility of acquittal

1. It is well-established "that a miscarriage of justice will be established where fresh evidence, when viewed in combination with the evidence given at trial, shows that there is a 'significant possibility that the jury, acting reasonably, would have acquitted the appellant'" had the fresh evidence been before the jury: Gallagher at 399, 402, 414, 421; Mickelberg at 273, 301; Rodi at [28].
2. Here, unknown to the appellant's legal representatives, the appellant was afflicted with intellectual disabilities. In my view it is, for the purposes of determining whether there has been a miscarriage of justice, unnecessary to determine whether the appellant's intellectual is mild (the opinions of Dr Pignataro, Dr Furst and Professor Hayes) or moderate (the opinion expressed by Ms Manoski). That is because even on the lower assessment, the appellant's intellectual difficulties are sufficiently profound to conclude that a miscarriage of justice has occurred in the context of how the trial was conducted. What is of considerable importance, in my view, is that the appellant's communication skills are accepted to be "severely" impaired. Professor Hayes, for example, described them as such, and noted that the appellant's receptive and expressive language skills were at an age equivalent of slightly over 4 years.
3. The evidence of the appellant's intellectual disabilities, and the severity of his impairments in his communication skills, was relevant to the conduct of the trial in a range of ways. It raised a question about the admissibility of the ERISP and the pre-text call. It also raised questions about the manner of the appellant's interactions - and his responses - on those occasions. At least some of those admissions might be seen by the jury as potentially ambiguous, and with the fresh evidence, they may have given the evidence of the admissions little or no weight, or not accepted them at all. The Crown accepted that "there is a significant possibility that the fresh evidence may have affected the weight to be afforded to the admissions by the jury", and that the appellant may in consequence have been acquitted of one or more of the offences for which he was convicted.
4. In circumstances where: (a) considerable reliance was placed by the Crown upon the "admissions" made by the appellant (I emphasise: the submissions were orthodox and proper), during the pre-text call and when interviewed by police the following day; and, (b) where the jury were invited by the Crown to rely upon their "own knowledge of people" and their "common sense" in assessing whether, in fact, what was said by the appellant amounted to an admission, the absence of the evidence establishing the nature and degree of the appellant's intellectual disability deprived the trial of fairness. Furthermore, had that evidence been adduced at trial, in my view, the proper conclusion is that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant of more than counts 3 and 7.
5. For these reasons, I consider that the jury verdicts in relation to counts 1, 2, 4 to 6 and 8 to 10 should be set aside on the basis of the fresh evidence relating to the appellant's intellectual disabilities because that evidence was not before the jury. A miscarriage of justice has resulted from the unfairness that arose from that omission. 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: 27 May 2024