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[2025] NSWCCA 153
Court of Criminal Appeal (NSW)
2025-10-03
Harrison CJ at CL at [1], Lonergan J at [49], Dhanji J at [50]
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: SS v R [2025] NSWCCA 153
Hearing dates: 18 August 2025
Date of orders: 03 October 2025
Decision date: 03 October 2025
Before: Harrison CJ at CL at [1];
Lonergan J at [49];
Dhanji J at [50]
Decision: (1) Grant the applicant leave to appeal against conviction.
(2) Dismiss the appeal.
Catchwords: CRIME – appeal – appeal against conviction – aggravated indecent assault – aggravated incite act of indecency – where complainant is the biological daughter of the applicant – where the applicant was convicted of three sexual offences – where the jury could not reach a verdict on remaining nine counts – where the applicant was acquitted of the nine counts at a second trial – unreasonable verdicts – whether it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty – where the complainant was mistaken as to sequence of events
CRIME – appeal – appeal against conviction – inconsistent verdicts – whether the verdicts of guilty are inconsistent with the jury’s failure to reach a verdict with respect to the remaining counts in the first trial, and with the applicant’s acquittals at the second trial – obligation of the jury to treat all counts separately – where evidence of the applicant in his electronically recorded interview was not significantly dissimilar to the complainant’s description of incidents
CRIME – appeal – appeal against conviction – fresh evidence – whether the evidence of a witness was ‘fresh’ – where it cannot be said that the evidence was not available to the applicant in preparation of his case
Legislation Cited: Crimes Act 1900 (NSW), ss 61M (repealed), 61O (repealed), 61J
Criminal Appeal Act 1912 (NSW), ss 5, 6
Cases Cited: Bridger v R [2022] NSWCCA 125
Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191
Ferguson v R [2024] NSWCCA 81
Fisher v R; R v Fisher [2021] NSWCCA 91
Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26
HO v R [2023] NSWCCA 245
JL v R [2023] NSWCCA 99
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35
Omigie v R [2024] NSWCCA 205
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
R v Andrews Weatherfoil Ltd (1971) 56 Cr App R 31
SM v R [2022] NSWCCA 13
Category: Principal judgment
Parties: SS (Applicant)
Rex (Respondent)
Representation: Counsel:
H Maarraoui (Applicant)
S Lind (Respondent)
Solicitors:
Kalpaxis Legal (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)
File Number(s): 2017/304825
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings)
Act 1987 (NSW), publication of the name of the complainant or of any matter that could identify
her is prohibited.
Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the names of KP, JM and BB or of any matter that could identify them is prohibited.
[This headnote is not to be read as part of the judgment]
On 3 March 2021, SS (the applicant) was found guilty by a jury of two counts of aggravated indecent assault, contrary to s 61M(2) of the Crimes Act 1900, and one count of aggravated incite act of indecency, contrary to s 61O(1) of the Crimes Act.
The applicant first stood trial before his Honour Arnott SC DCJ on 10 February 2021 on an indictment charging twelve sexual offences. The jury found him guilty with respect to the first three counts but, were unable to reach a verdict in respect of the remaining nine counts. The applicant stood trial for a second time before his Honour Colefax SC DCJ on 25 July 2022 in respect of the nine counts. On 10 August 2022, the jury returned verdicts of not guilty on all counts.
The complainant in this matter is the applicant’s biological daughter, who was aged 12 years old when the offences were committed. The offences were alleged to have occurred in three separate incidents over a four-month period, taking place in the complainant’s home where she resided alone with the applicant. The issue at trial in respect of all counts was whether the sexual acts occurred. The applicant in an electronically recorded interview with police admitted that on one occasion, he directed his daughter to remove her clothing and demonstrate what she did while watching pornography. He described this as a form of punishment and denied he had sexually assaulted her in any way.
On 30 September 2022, his Honour Arnott SC DCJ sentenced the applicant in respect of counts 1 to 3 to an aggregate term of imprisonment of five years, with a non-parole period of three years, commencing on 2 February 2021. The applicant was first eligible for parole on 1 February 2024, and the balance of the term is due to expire on 1 February 2026.
The applicant sought leave to appeal against his convictions on three grounds:
Ground 1: The verdicts of guilty on counts 1, 2 and 3 were unreasonable.
Ground 2: The verdicts of guilty on counts 1, 2 and 3 in the first trial are inconsistent and cannot be supported by the evidence given that the jury were unable to deliver verdicts on counts 4 to 12 in the first trial and having regard to the verdicts of not guilty on counts 1 to 9 in the second trial.
Ground 3: A miscarriage of justice occurred in relation to the verdicts of guilty on counts 1, 2 and 3 in the first trial having regard to the fresh evidence being the evidence and the verdicts of not guilty in the second trial.
The Court held (per Harrison CJ at CL, Lonergan and Dhanji JJ agreeing), granting leave to appeal, and dismissing the appeal:
As to Ground 1:
JL v R [2023] NSWCCA 99; HO v R [2023] NSWCCA 245, cited.
JL v R [2023] NSWCCA 99; HO v R [2023] NSWCCA 245, cited.
As to Ground 2:
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35; R v Andrews Weatherfoil Ltd (1971) 56 Cr App R 31; Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75; Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA; Omigie v R [2024] NSWCCA 205; Ferguson v R [2024] NSWCCA 81; SM v R [2022] NSWCCA 13; Bridger v R [2022] NSWCCA 125; Fisher v R; R v Fisher [2021] NSWCCA 91, cited.
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied.
As to Ground 3:
Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35; Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, cited.
HARRISON CJ at CL: The applicant seeks leave to appeal, pursuant to s 5(1) of the Criminal Appeal Act 1912, against two convictions of aggravated indecent assault contrary to s 61M(2) Crimes Act 1900 (counts 1 and 3) and one conviction of aggravated incite act of indecency contrary to s 61O(1) Crimes Act (count 2), following a trial before his Honour Arnott SC DCJ in the District Court at Parramatta.
The applicant first stood trial on 10 February 2021 on an indictment charging twelve sexual offences alleged to have been committed against his biological daughter, then aged 12 years. The offences were alleged to have occurred in three separate incidents over a four-month period, shortly after the complainant began residing alone with the applicant. Counts 1 to 9 related to the first incident, counts 10 and 11 to the second, and count 12 to the third.
The issue at trial in respect of all counts was whether the sexual acts occurred. The defence case was that the complainant had fabricated the allegations, either independently or in collusion with her mother and grandmother, in order to be removed from her father’s custody.
The allegation in respect of the first incident was that, while seated at the dining table with the complainant and when home alone with her, the applicant placed his foot on her vaginal area (count 1), told her to remove her clothes, resulting in her removing her top but leaving on her underwear (count 2), and then touched her exposed breasts (count 3). Following this, he inserted his finger into the complainant’s vagina (count 4, alternative count 5), rubbed the inside of her vagina (count 6, alternative count 7), rubbed his penis on the outside of her vagina (count 8), asked her to expose her breasts and ejaculated on her leg (count 9).
With respect to the second incident, it was alleged that the applicant again placed his toe on the outside of the complainant’s vagina (count 10), after which he squeezed her breasts (count 11). The third incident was comprised of a single allegation that the applicant placed his toe on the outside of the complainant’s vagina (count 12).
In an electronically recorded interview with police, the applicant admitted that there was an occasion when, while he was at home alone with his daughter, he had directed her to remove her clothing and demonstrate what she did while watching pornography, as a form of punishment for catching her doing so. He admitted that in compliance with his direction, his daughter removed all of her clothing except her underwear. He denied that he touched his daughter on the top of her vagina or that he inserted his fingers in her vagina. He described asking her to show him what she did when she watched pornographic material: "All I did, I get a, she demon- she feel herself. I show, show me what you do. What do you do when you feel, you feel content. So she started playing with herself, ‘Oh, this is what I do’. I said, ‘When you do that how do you, what do you feel?’’’. He said that she demonstrated touching herself at the top of her vagina, playing with herself, just outside of her pants, and that this occurred in the kitchen. The applicant said that his daughter was “nervous taking her clothes off in front of me” and was crying as she lay on the couch “feeling herself”. He denied that he had made these requests because he had a sexual interest in his daughter. He denied that he had sexually assaulted her in any way.
| Count | Offence | Particulars | Verdict | | 1 | Aggravated indecent assault contrary to s 61M(2) Crimes Act 1900 | The applicant touching complainant on the vagina on the outside of her clothes with his foot. | Guilty | | 2 | Aggravated incite act of indecency contrary to s 61O(1) Crimes Act 1900 | Instructing the complainant to remove her clothes and stand in the lounge-room (wearing only her underpants and bloomers). | Guilty | | 3 | Aggravated indecent assault contrary to s 61M(2) Crimes Act 1900 | The applicant touching the complainant on the chest. | Guilty |
| Count | Offence | Particulars | | 4 | Aggravated sexual intercourse without consent contrary to s 61J(1) Crimes Act 1900 | The applicant attempting to insert his finger into the complainant’s vagina. | | 5 | Alternative to Count 4 Aggravated indecent assault contrary to 61M(2) Crimes Act 1900 | | | 6 | Aggravated sexual intercourse without consent contrary to s 61J(1) Crimes Act 1900 | The applicant rubbing the inside of the complainant’s vagina. | | 7 | Alternative to Count 6 Aggravated indecent assault contrary to 61M(2) Crimes Act 1900 | | | 8 | Aggravated indecent assault contrary to 61M(2) Crimes Act 1900 | The applicant rubbing his penis against the complainant’s vagina. | | 9 | Aggravated incite act of indecency contrary to 61O(1) Crimes Act 1900 | The applicant asking the complainant to uncross her arms to expose her chest after which the applicant ejaculated on her leg. | | 10 | Aggravated indecent assault contrary to 61M(2) Crimes Act 1900 | The applicant touching complainant on the vagina on the outside of her clothes with his toe. | | 11 | Aggravated indecent assault contrary to 61M(2) Crimes Act 1900 | The applicant squeezing the complainant’s breasts on the outside of her clothes. | | 12 | Aggravated indecent assault contrary to 61M(2) Crimes Act 1900 | The applicant touching complainant on the vagina on the outside of her clothes with his toe. |
On 25 July 2022, the applicant was arraigned on an indictment before his Honour Colefax SC DCJ and a jury of twelve in respect of the nine remaining counts upon which the jury in the first trial had been unable to reach a verdict. On 10 August 2022, the jury returned verdicts of not guilty on all counts.
On 30 September 2022, in respect of counts 1, 2 and 3, the applicant was sentenced to an aggregate term of imprisonment of five years, with a non-parole period of three years, commencing on 2 February 2021. The non-parole period expired on 1 February 2024, and the balance of the term is due to expire on 1 February 2026.
The applicant relies on the following grounds of appeal:
Ground 1: The verdicts of guilty on counts 1, 2 and 3 were unreasonable.
Ground 2: The verdicts of guilty on counts 1, 2 and 3 in the first trial are inconsistent and cannot be supported by the evidence given that the jury were unable to deliver verdicts on counts 4 to 12 in the first trial and having regard to the verdicts of not guilty on counts 1 to 9 in the second trial.
Ground 3: A miscarriage of justice occurred in relation to the verdicts of guilty on counts 1, 2 and 3 in the first trial having regard to the fresh evidence being the evidence and the verdicts of not guilty in the second trial.
On a Friday evening after school in either June or July, the complainant, who was then 12 years old, and the applicant, were seated at the dining table in the apartment where they lived. No one else was present. The complainant was completing schoolwork, while the applicant was “typ[ing] stuff on his laptop”.
The applicant asked the complainant to prepare and serve him alcoholic drinks, possibly scotch or vodka. Although she was unable to recall the precise number of drinks she poured, the complainant recalled that it was more than one. She stated that her father “drank alcohol a lot that night” and finished an entire bottle of spirits.
The applicant told his daughter to lower her feet from the chair on which they were resting. He then placed his foot on top of her vaginal area, over her clothing, and moved it around: Count 1. She closed her legs “so he could stop”.
The applicant told his daughter to go to the bathroom and take off her clothes. When she asked, “Why?”, he threatened to break her nose if she refused. She removed all her clothes except her underwear and bloomers, then returned to the dining room. When the applicant asked why she had not removed her underpants and bloomers, she lied and said she had her period.
The applicant told his daughter to stand with her arms and legs spread out “for like, an hour”. She said he previously made her stand on one leg as punishment, but until this occasion, had not made her stand with her arms out or naked. As she was standing, the applicant was “just like typing, and then he’d look at me and then he’d smile and laugh and then he’d start typing again”: Count 2. During this time, the applicant continued to direct his daughter to pour him drinks.
After an hour, the applicant asked his daughter, “have you leaked yet?”. When she asked what he meant by that, he said “have you [had your] period in that, that time where you were standing?”. When she said she had not, he told her to take her underpants and bloomers off and lay down on the couch. After she complied, he became angry, accused her of lying about her period, and slapped her several times across the face. At one stage, he held her nose so that she could not breathe.
The applicant told her to spread her legs and uncross her arms, which she had crossed over her chest. The applicant used one hand to rub his daughter’s chest: Count 3. With the other hand, he rubbed her vagina, while trying to “stick his like I don’t know two fingers in”. The complainant said she believed her father was doing this, because she could feel it. When he did this, she screamed because it hurt. The applicant told her to “Shut up or else someone will hear you”: Count 4.
While the applicant was doing this, he said things like, “I want to make you feel content” and “I want to make you feel satisfied”. At one stage, he told her to moan and demonstrated the noise. She responded, “Can you please stop, can you just stop? Why are you doing this to me? Don’t you hate this?”. Her father replied, “Yeah, yeah, I hate this, it’s just you’ve been a bad girl”. When she asked what she had done, he told her to “Shhh” and kept going. When the complainant pushed him away, he became angry and either threatened to break her nose or held her nose and pulled it forward.
“40. The focus in the instant case becomes the issue as to when it is counts 1-9 could have occurred. When the complainant changed the timeframe (by implication) of offending for incident 1 (counts 1-9) by nominating that her friend [KP] had called her a couple of days after the offending stating it was her birthday, determined to be on 6 July, as opposed to June 2017, the original timeframe given by the complainant, essentially puts this evidence in direct contrast with the evidence of [JM]. [JM] gave evidence, effectively unchallenged, that the accused had been attending a religious conference with her and her mother from Friday evening 30 June 2017 until Sunday 2 July 2017. Accordingly, both items of evidence cannot stand together, particularly the offending occurring on a Friday night and Saturday morning just before the 6 July 2017. The verdict for counts 1, 2 and 3 are therefore unreasonable and the accused should be acquitted.”
The burden of this submission is that the complainant was mistaken about the date upon which certain events occurred so that this renders the convictions on counts related to these events unreasonable. I reject that submission.
As the Crown quite correctly emphasised, the trial judge directed the jury that they could accept parts of a witness’ evidence and reject others. The jury were therefore entitled to accept the complainant’s evidence that the indecent assaults and act of incitement occurred on an evening preceding a day on which the applicant missed work around her friend KP’s birthday, while accepting that a 12-year-old may be mistaken about whether the incident occurred a few days prior to KP’s birthday, rather than the same day, or on a Thursday evening of the school holidays, rather than a Friday evening following an uneventful day at school.
The complainant’s mistake as to the sequence of events is readily explicable, given the peripheral nature of the details concerned, her young age and the delay of several months between the incident and her disclosure to the police. What remained clear was that the complainant consistently anchored the event to a time close to KP’s birthday. That was broadly consistent with the totality of the evidence. The applicant gave evidence of the same incident (see below) but was also unable to recall the precise date on which he asked his daughter to stand naked. He initially agreed it occurred in June but later suggested it took place in the July school holidays.
In the circumstances of this case, the date of the alleged offending for counts 1, 2 and 3 cannot matter. Even if there were some possible significance of the date, as observed by Adamson JA in JL v R [2023] NSWCCA 99 at [97], it is not
“uncommon for children to be imprecise about time. Apart from their immature minds, they rarely make contemporaneous notes or have resort to the type of written records which adults use to orient certain events in time.”
See also HO v R [2023] NSWCCA 245 at [109] – [112].
The applicant’s contention that the guilty verdicts on these counts are unreasonable or cannot be supported by the evidence gives rise to the question of whether this Court thinks that, upon the whole of the evidence, it was open for the jury to be satisfied beyond reasonable doubt that the applicant was guilty of indecently assaulting his daughter. Speaking for myself, having examined the trial transcript at some length, and having also considered the complainant’s account given in her interview with the police, I have no doubt that it was open to the jury to be so satisfied.
This ground of appeal is entirely without merit.
In relation to the contention that the verdicts are somehow inconsistent, the applicant’s only specifically formulated submission was to the following effect.
In the first trial, counts 1-9 describe an episode of offending that was essentially said by the complainant to have occurred over a 12-hour period at the unit where the complainant lived with her father. The prosecution case relied principally on the word of the complainant. Within that period the counts can be separated in time and place. Counts 1-5 occurred first in the loungeroom, then counts 6-7 in the complainant’s bedroom, and counts 8-9 in the applicant’s bedroom. The applicant submitted in these circumstances that his convictions on counts 1-3 “are logically inexplicable” in “that the jury would not then reach verdicts at least on counts 4-9”.
I reject this submission. Far from being logically inexplicable, there may be several reasons why the jury in the first trial convicted the applicant on the first three counts and why they were unable to reach a verdict on the remaining counts. One possibility might be because there was evidence before the jury given by the applicant in his recorded interview on 9 October 2017 that in large part aligned with his daughter’s description of what occurred. The following extract should be noted:
“Q210 O.K. So explain to me how she got on the couch.
A Then we were in the kitchen. Then, and I said to her, I’ll be like, I, I, she was saying she was feeling cold while she was standing in the kitchen. Then I say, ‘Well, move to the couch. Sit there’. And I was sitting there, I said, ‘Well, what, what do you do? Tell me. What do you do?’
Q211 Ah mmm.
A And then that’s when she start feeling herself and showing me what she was doing.
Q 212 Yep. And by showing you what she was doing what was she doing?
A She was just feeling her vagina …
Q213 Ah mmm.
A … at the top.
Q214 Yep.
A Yep.
Q215 Inside or outside of her pants?
A Outside.
Q216 Yep.
A Outside. Then from there and I said, ‘O.K. Do you like doing that’ …
Q 217 Ah mmm.
A … ‘while somebody is watching you?’ And he reply, she say no. I said, ‘Well, exactly. You shouldn’t be watching stuff like that’.
Q218 Ah mmm.
A And that’s when I said to her, I say, ‘It’s O.K. Can get up and go. Don’t watch it anymore’.
Q219 Did you not think it was appropriate to tell your 12 year daughter to put some clothes on?
A No, I think it was inappropriate, yes. Correct
Q220 Do you have anything … last one at this stage?
…
Q221 Um …
A It was but it was for me it was just a something that I think I can discipline her ‘cause I, I’ve try a lot of thing. It didn’t work. So when I say to her, ‘Well, you, you got to show me what you do. What do you do?’ … ‘I’m sitting there feeling myself.’ I, then I said, ‘Show me’.
Q222 Why did you feel it necessary for her to actually show you instead of just telling you?
A Because she constantly keep lying to me. She constantly keep lie, and, and I know she constantly keep watching it. All I want her to do, all I wanted was for her to stop, for her to stop completely, ‘cause she was too young to watch stuff like that.
Q223 Why did you think making her demonstrate it in front of you would make her stop?
A Because I just feel like that will make her feel uncomfortable doing that in front of me and by doing that that will actually send a message to, O.K., if, if, if I think watching this stuff I’m going to get in trouble with daddy. Daddy’s going to try and make me feel embarrassed in front of my friend or, or family and stuff like that. That was my …
…
Q224 Ah mmm. O.K.
A And she’s …
…
Q225 All right.
A - - - that was it …
Q226 …
A … then it’s, since then that was it. I’ve, I’ve never made her strip naked or take her clothes on, or get her to walk, uh, um, um, and in her bedroom or in the lounge room. I’ve never done that.
Q227 You just told us that you did take, tell her to take her clothes …
A Oh, no, no. I mean since the**, once I caught her, once the occasion, like continuously, no, I’ve never done that.** It was just a one off incident like just do when I, when I caught her I be like, ‘What do you do?’ And she explain to me like what she usually do. I’ll be like, ‘Are you, are you performing sexual act on yourself?’
Q218 So are you saying you only ever asked her to take her clothes off once and tell you what happened?
A Yeah.
Q229 Once only?
A Only.” [Emphasis added]
“Q129 Ok. All right. So he said go and, Go get naked. So you went, where did you go then?
A I went to this bathroom here.
Q218 Ok. And why did you go to that bathroom?
A Because he told me to. He said, Go into the bathroom and go get naked.
Q131 Ok, yep. So what did you do, you went in there?
A I went in there and then I took my shirt off and he was like, Why you take your shirt off? And then I came out with my bloomers on, and then he’s just, like, Why are you bloomers still on? And then I lied to him that I had my period. And then - - -
Q132 Yep.
A And then after, can I go to the next part?
Q133 So you came out with your bloomers on.
A Mmm.
Q134 What else did you have on?
A And just underwear.
Q135 Anything else?
A No.
Q136 And then you told him you had your period?
A Yeah, so I wouldn’t take, so I couldn’t, so I didn’t take, so I didn’t have to take my bloomers off.
Q137 Yeah.
A And my underwear.
Q138 And what did he say.
A And he was, like, Oh, fine.
Q139 Yep. So what happened then?
A And then he told me to go lay down on the couch, then he said to take my bloomers off. And I said, But I have my period. And then he’s just like, um, it doesn’t matter. And I’m just, like, OK. And then so I took them off, and then he’s, like, You lied. And I’m just, like, ‘cause I didn’t want to take my pants off. And then he got - - -
Q140 Yeah.
A … and then he got really mad.
Q141 Yeah. What happened then?
A Then he kept, he kept hitting my face.
Q142 Kept hitting.
A Yeah, like, he slapped my face several times.
Q143 Yeah. How did he do that?
A What, like, what do you mean, like, just slap …
Q144 How, did he physically do that?
A Like …
Q145 What was he using to slap your face.
A My, his hand.
Q146 OK. Do you know what hand he was using?
A No, he was, like, slapping both of my, like, cheeks, and, like, he would slap my, like, wou[ld], and then, at some, at one point he would, like, hold my nose so I couldn’t, like, breathe …
Q147 Mmm.
A … and then I just breathe through my mouth. Then he’d get even more mad, and then he’d keep hitting my face.
Q148 Can you just draw the picture of just the, the couch this time.
A OK.
Q149 So the shape of the couch and, and show me where your body was positioned on the couch.
A OK. So, and then, like, my head was here …
Q150 Yep.
A … and then, like, he told me, he took, tell me to take my underwear off and then my, he told me to spread my legs out. And then my hands were crossed, like, on my chest. And then he told me to, um, put them out, so then I put them out. And then, uh, OK. And then he was, like, this, say this is his head …
Q151 Uh-huh.
A … and then that’s his body. And then his legs were, like, bent, I guess.
Q152 Yep.
A And then his hand was there, here, and then, um, his other hand was here.
Q153 Ok. So when you say, his hand, which hand is this, do you know what hand it was that was there?
A I’m as, yeah, the left hand.
Q154 The left hand was here?
A Yeah, because he was, like, that, yeah.
Q155 OK.
A Yeah, so - - -
Q156 Left hand.
A Mmm.
Q157 And where was his left hand?
A On my vagina.
Q158 Ok. And when his left hand was on your vagina, tell me, tell me what it, was happening there?
A He was, like, rubbing it, and then he would, like, kind of, I guess he’d try to, like, his stick his, I don’t know, two fingers in. And then I would, like - - -
Q159 What makes you say that?
A Pardon?
Q160 What makes you say that he tried to do that?
A Because I, I could feel it, I could feel it.
Q161 Yeah.
A And then I, I kept, I was, like, and with my hand I was, like, pushing him, like, pushing him, trying to push him off me. And then he got mad and then he would hit me.
Q162 Ok. So his left hand, his, you said he was rubbing your vagina …
A Yeah.
Q163 … and then he tried to put fingers, finger or fingers inside you ‘cause you could feel it?
A Yeah.
Q164 Yeah. And then his other hand, where was his other hand?
A He was rubbing on my chest, like, rubbing my chest.
Q165 OK. Um, and then you pushed him away.
A Yeah.
Q166 Yeah, and he got mad.
A Mmm
Q167 Yep. Tell me what happened then?
A Then he threatened to break my nose and hit, when he, when he did that, he would, like, hold my nose and he would, like, do this, but he was only, like, pulling the skin. And then I would, like, kind of resist my head back, and then he would, like, pull, pull me from my nose forward.
Q168 Right.
A And then, yeah, he just slapped my face, and then he’d keep going.
Q169 So he would slap your face and then keep going, what do you mean by keep going?
A Like, he’d, like, slap me and then put his hand back where, where, put his hand back in, like, that position and keep going.”
Although these accounts are not identical, they are not significantly dissimilar. It is entirely likely that the jury were fortified by the fact that the conduct establishing the first three counts was in substantial alignment with the applicant’s description of what occurred. That is in my view particularly noteworthy when regard is had to the fact that both versions record what was on any view quite extraordinary conduct between a father and a daughter.
As the Crown submissions have emphasised, the applicant admitted in his electronically recorded interview with the police that he had asked his daughter to remove her clothes, standing topless in the kitchen, wearing only her underpants. Although the applicant’s reason for asking her to do so differed from his daughter’s account, his admission was strikingly consistent with what she described, both as to the nature of the request and her response to it.
In addition, there is a significant difference between the objective seriousness of the conduct making up the first three counts and the balance of the charges. The jury may well not have been able to agree in the first trial, or to accept at all in the second trial, that the accused was guilty of such serious offences against his daughter. The convictions on counts 1, 2 and 3, in contrast to either the inability to decide, or the acquittals, on the remaining counts were entirely explicable by reference to that difference.
Far from being logically inexplicable, the convictions on the first three counts are entirely explicable by reference to both the jury’s obligation to treat all counts separately as well as to their entitlement to believe some of the complainant’s evidence and not believe other parts. Moreover, for the reasons I have just given, there is nothing inconsistent with the jury choosing to convict the applicant on less serious charges but taking an entirely different approach to the remaining charges.
It is sufficient to recall the following passage from MacKenzie v The Queen (1996) 190 CLR 348 at 367; [1996] HCA 35, in which the High Court considered the principles that apply in an appeal based upon an assertion that the verdicts given by a jury were inconsistent, which informs my conclusions on this ground of appeal:
“4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a ‘merciful’ view of the facts upon one count: a function which has always been open to, and often exercised by, juries.”
Despite the apparent width of this ground of appeal and the applicant’s original submissions in support of it, it became clear following what passed between counsel for the applicant and the bench that the only evidence said to be fresh evidence was that of BB, who was called as a witness at the second trial but not at the first. BB was in a close familial relationship with the applicant and it could not be said that her evidence was not available to him through the exercise of reasonable diligence in the preparation of his case. This evidence could on no count therefore be described as “fresh” evidence.
This ground of appeal must be rejected.
I consider that the following orders should be made:
Grant the applicant leave to appeal against conviction.
Dismiss the appeal.
LONERGAN J: I have had the considerable advantage of reading the judgments of Harrison CJ at CL and Dhanji J, in draft. I agree with the reasons of Harrison CJ at CL as to why grounds 2 and 3 of this appeal must be rejected. I agree with the additional observations of Dhanji J as to why that must be the outcome. I express no concluded view regarding the authorities referred to at [57] to [59] of the judgment of Dhanji J, but agree with the conclusion of Dhanji J at [60] that applying the test of logic and reasonableness, ground 2 of this appeal must fail, for the reasons set out by Dhanji J at [60] and Harrison CJ at CL at [38] to [44]. In respect of ground 1, I have separately and independently examined the transcript of the trial and the exhibits and have no doubt that it was open to the jury to be satisfied of the applicant’s guilt on counts 1, 2 and 3. I particularly endorse the reasoning of Harrison CJ at CL at [31] to [33], and Dhanji J at [51] and [52], as to why some imprecision as to the 12-year-old complainant’s recollection as to the date on which these offences occurred is understandable, and does not undermine the cogency of the key elements of her account. I agree with the orders proposed by Harrison CJ at CL.
DHANJI J: In this matter I have had the benefit of reading the reasons for judgment of Harrison CJ at CL in draft. I agree with the orders proposed by his Honour and in general with his reasons for those orders.
As Harrison CJ at CL has explained, the applicant’s argument in relation to ground 1 was that the verdicts were unreasonable based on inconsistencies in the evidence as to when the relevant events occurred. It can be accepted that the offences did not, contrary to the complainant’s evidence, occur a couple of days prior to the birthday of the complainant’s friend. Given this, it is apparent from the verdicts that the jury regarded this part of the complainant’s evidence as mistaken while not doubting her account of the commission of counts 1 to 3. It was open to the jury to do so. The jury was, as is usual, instructed that they were entitled to accept some part of a witness’ evidence but not others. Of course, they could not do so capriciously. Here, there was a sound basis for differentiation. Firstly, there was some uncertainty in the complainant’s evidence as to whether the offences occurred prior to or simply near her friend’s birthday. While her evidence settled on the offences being prior to the birthday, the jury were entitled to view her mistake in the context of the uncertainty expressed, her age and the length of time that had elapsed by the time she came to give evidence of the events.
The above explanation would, to my mind, be enough to explain the jury’s approach. In addition, however, any mistake arises in a context in which the applicant admitted to an incident involving sexually inappropriate conduct with the complainant. The complainant did not suggest that the incident admitted to by the applicant occurred on some other occasion. Given this, the real dispute was not as to when inappropriate sexual conduct between the applicant and complainant took place, but rather the nature and extent of that conduct. The applicant’s argument on this ground must therefore fail.
“… whilst ordinarily a jury is as inscrutable as the Sphynx, sometimes, by a series of verdicts or, where permitted, answers to questions posed by the judge, there is placed on the public record an insight into the jury's thinking. This does not arise unlawfully or irregularly. If the result of this insight is to cast doubt upon the verdict under consideration, because logically it cannot stand together with another verdict, the court is then confronted by a problem of justice. The high respect paid to jury verdicts is reinforced by a general appreciation of their usual correctness. However, where, in a particular case, doubt is cast upon the verdict, an appellate court, invited to do so, must determine whether it should intervene. In a criminal appeal, it must decide whether the conviction based upon the verdict which is impugned is unsafe or unsatisfactory.” (footnotes omitted)
“Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest 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. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside.” (footnotes omitted)
Consistent with the above, the problem of inconsistent verdicts ordinarily centres around what the alleged inconsistency reveals about the processes of the particular jury. In the context of an acknowledgement that it was “impossible to state hard and fast rules”, the possibility of inconsistency based on verdicts returned by different juries was at least contemplated in MacKenzie at 366. It was, however, pointed out that the difference in results may be “no more than the result of … ‘the different views which the juries separately take of the witnesses’”: MacKenzie at 366, quoting from R v Andrews Weatherfoil Ltd (1971) 56 Cr App R 31 at 40. (Alternatively, the difference in verdicts between different trials may be the result of the different evidence presented in which case the question on appeal will be resolved based on the fresh or new evidence as opposed to any asserted inconsistency.) See also Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75. In the present matter it was open to the two separate juries to take different views of the evidence. The applicant’s complaint that the verdicts of guilty reached by the first jury are inconsistent with the acquittals by the second jury must fail.
The applicant’s complaint that the first jury’s convictions are inconsistent with that jury’s failure to reach verdicts with respect to the remaining counts, as a basis on which to impugn a jury verdict, perhaps has a stronger, or at least more orthodox, foundation. Even here, however, there has been some debate as to the nature and availability of a complaint of inconsistent verdicts in the context of a mixture of convictions and failures to reach a verdict: see Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191, noting the different views taken by Bathurst CJ and Bell P on the one hand, and Hamill J on the other. (The issue has been considered in this Court in a number of cases since: see Omigie v R [2024] NSWCCA 205; Ferguson v R [2024] NSWCCA 81; SM v R [2022] NSWCCA 13; Bridger v R [2022] NSWCCA 125; and Fisher v R; R v Fisher [2021] NSWCCA 91.)
For my part, I prefer the view expressed by Hamill J in Daaboul. That is, I do not share the reservations of the majority in applying the principles with respect to inconsistent verdicts where a conviction or convictions are questioned based on the jury’s inability to agree on another count or counts. It seems to me that, where a jury convicts on some counts, and is unable to agree with respect to others, at least one juror (or more if unanimity was not required) while willing to convict on one count, was not willing to convict on some other count. The result may raise concerns with respect to the willingness of a juror or jurors to join in the verdict or verdicts of guilty while at the same time being unwilling to convict on some other count or counts. That the number of jurors so affected is not known is, to my mind, not to the point. For all the appellate court knows, the inability to agree may be because a single juror refused to acquit.
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SS
R [2025] NSWCCA 153
(2019) 100 NSWLR 682
(1986) 160 CLR 392
(1996) 190 CLR 348
(1989) 167 CLR 259
(1998) 197 CLR 316
On 3 March 2021, the jury returned the following verdicts:
Eventually, the complainant told her father she was tired and wanted to go to bed. After he allowed her to leave, she took a shower because she felt “gross,” got changed, and went to bed crying.
A short time later, the applicant entered his daughter’s bedroom with some baby oil. She knew it was baby oil because it was a clear container with blue writing on it. When shown a photograph of baby oil found in her father’s beside drawer, she identified it as the bottle of baby oil he brought into the bedroom. The applicant said, “I’m not finished with you”. The complainant said, “What did I ever do to you? Why? Why?... Do you hate me or something?”. The applicant told her to shut up, slapped her across the face again, and put his hands inside her underpants and rubbed the inside of her vagina “in like a circle”: Count 6 - Count 7. When he asked the complainant “Do you like that?”, she said “No, please get off me”. She told him to stop and was crying. At some stage, he told her, “I just want to make you feel content”.
The applicant eventually fell asleep, with his hands still inside the complainant’s pants. She got out of her bed, put the baby oil “in like, the far back of his drawer so, like, he hopefully couldn't find it again” and had another shower to remove the baby oil. She slept in her half-brother’s bedroom.
The following morning, the complainant heard her father’s alarm going off, but went back to sleep and did not wake him. When he woke up, he became angry at her, and as punishment for not waking him to go to work, told her to come into his bedroom and remove her pants. When she asked him, “Why are you doing this to me?”, he screamed at her to “Shut the fuck up”. He put his penis on her vagina and rubbed it on the outside: Count 8. When she tried to push him off her, he became very angry and threatened to break her nose and her pinkie fingers. She started crying. The applicant told her to uncross her arms “because he wanted to see my chest, like, this area” and then masturbated and ejaculated on her legs: Count 9.
Later that day, the applicant and the complainant went to Coles Express, where he purchased some food and went through a drive-through car wash. When they got home, the complainant went back to sleep. She said there were bruises on her face.
In relation to ground 2, the applicant contended that the verdicts of guilty on counts 1 to 3 were inconsistent with the jury’s failure to reach a verdict with respect to counts 4 to 12 at the first trial, and with his acquittals at the second trial. It is convenient to deal with the second alleged inconsistency first – the complaint of inconsistency of verdicts between trials.
Section 6 of the Criminal Appeal Act 1912 (NSW) does not provide a separate limb by which a verdict may be quashed on the ground that it is inconsistent with some other verdict. Rather, a complaint of inconsistent verdicts is a basis on which it is contended that a verdict or verdicts of guilty are unreasonable within the first limb of s 6. The reasoning underpinning this was explained in MacKenzie v The Queen (1996) 190 CLR 348 at 365; [1996] HCA 35 where Gaudron, Gummow and Kirby JJ said:
It seems to me that the reasonableness of the guilty verdicts can as a result become the subject of legitimate scrutiny in the manner discussed in MacKenzie. The different results may “represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise” of the performance of a juror or jurors’ duty, to adapt what was said in MacKenzie (at 368). I would, in this regard, qualify my agreement in Omigie, and apply a test of logic and reasonableness based on MacKenzie without reservation. That said, there may be circumstances where a jury’s failure to agree rather than acquit is significant. One possibility is where the failure to agree may be the result of a failure to agree as between alternatives such as murder or manslaughter, rather than as to guilt or outright acquittal: see Osland at [232] per Callinan J.
It is not necessary, however, to consider any controversy as to the proper approach in any detail in the present matter. Here, applying a test of logic and reasonableness, the ground must fail. While the applicant’s admissions in the record of interview did not amount to admissions of guilt to counts 1 to 3 in terms, he did, as discussed above, admit that an incident of a sexual nature had taken place with the complainant. That incident bore some similarity to at least the first part of what the complainant said had occurred. In these circumstances, it was open to the jury to accept the complainant’s narrative as to the commencement of the sexual interaction, encompassing counts 1 to 3, while they (or at least some members of the jury) harboured a doubt as to the remaining charges. The applicant’s complaint must fail.
The complaint in ground 3 was based on the absence of evidence in the first trial (which produced the convictions) which was adduced at the second trial (which resulted in the acquittals). As Harrison CJ at CL has explained, the evidence is not, within the meaning given by the authorities, fresh evidence. Indeed, no evidence was called on the appeal in an attempt to explain why the evidence was not adduced at the first trial. The evidence itself was of a witness who saw the complainant in August and September 2017, in the order of a month after the occurrence of the counts of which the applicant was convicted. The witness gave evidence that she did not see any bruising on the complainant who otherwise appeared happy. The Crown Prosecutor did not consider it necessary to cross-examine the witness, presumably on the basis that the evidence could be reconciled with the Crown case. The Crown Prosecutor’s judgment in this regard was not the subject of any adverse comment by the applicant’s trial counsel. Indeed, an explanation for the evidence not having been led at the first trial that readily springs to mind is that it was of no real consequence. It was not evidence which cast any doubt on the complainant’s account of counts 1 to 3. Certainly, it does not meet the test for such evidence to be admitted on appeal: see Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35 and Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26. I would reject the evidence and dismiss the ground.