TB v R

Summary of evidence adduced by the Crown

1. After the applicant was acquitted of the charges in relation to MH, a jury was empanelled to hear the charges in relation to ST and AM. ST gave evidence that she was in frequent contact with her cousin MH, probably three or four times a week and also on the weekend. She said that they would just "hang out, watch TV, DVDs, just hang out really." This was sometimes done in MH's bedroom or in the lounge room. She gave evidence that on one occasion MH, the applicant, and she were in the applicant's room and: "... we were picking the DVD and for some reason [MH] went out of the room and I was sitting against the wall facing [the applicant's] bed and I was sitting with my legs flat forward but with them crossed and then for some reason I moved them, a few moments later as it crossed, one leg over another, sitting up my back against the wall and [the applicant] moved his hands down my skirt into my underwear, moved my underwear to the side and his fingers were in my, inside my vagina moving them around for a few minutes."
2. She provided a description of the applicant's bedroom. She said that she did not tell anyone what happened because she was terrified and thought no-one would believe her anyway. She said that in 2001 (that is, three or four years later) she told MH that the applicant had done something to her.
3. MH gave evidence that in 1997 and 1998 she and ST had quite a good relationship, that they used to see each other, and that ST used to come to visit her more than she would go to ST's house. MH gave evidence that at the end of 2001, ST said to her that the applicant had done something to her. MH also said that in February 2016 she received a call from the police notifying her that there was an investigation into the applicant. MH said that she had a conversation with ST to the following effect: "Q. Did you have a conversation with [ST] about that? A. I did, the next time I seen her was in March and I said to her did she remember a conversation that we had when I lived in [X] Street. Q. Did she say anything to you? A. She just looked very shocked and said, 'Yes, of course I remember, why? Q. What did you say to her? A. I said that I'd been contacted by the police and that [AM] had made some claims that some things had been done to her when she was younger and that I had to make a statement in regards to the situation. To which she replied that, 'Well, he did things to me too so I want to say something in support of myself and [AM]"
4. MH was not cross-examined.
5. AM's evidence-in-chief was her JIRT interview, the critical parts of which have been summarised above. The Crown also adduced evidence from a maternal aunt of AM that in early 2016 AM said to her: "'... I need to tell you something and I don't want you to be angry at me' and then she proceeded to tell me that [the applicant] had touched her when she was a young girl. She told me of the first incident which happened when her mum was not in the house, she was at a disco. She told me that she had only told me that because she felt safe to tell me, that was the extent of the conversation because it was such a shock."
6. AM's aunt was not cross-examined.

Summary of evidence adduced by the applicant

1. The applicant gave evidence. He denied ever having sexually assaulted ST or having committed any of the acts of which AM complained. He also said that in 1998 his bedroom had been relocated to a garage which had been converted into a liveable bedroom, that he had no DVDs in 1997 or 1998 and that DVDs were not released in Australia until 1999. He said that there was no occasion on which he was at home alone with AM and a disco was being conducted at the school, that in 2011 there was no mattress on the lounge room floor and carpets had not been removed. He said that carpets were removed in 2009. He had never had long fingernails, but was an habitual severe nail biter.
2. The complaints were such that the only people who could give evidence as to whether the alleged assaults occurred were the complainants and the applicant. But the complainants' accounts contained details about which not only the applicant, but others, could give evidence. Thus, ST said that she and MH were picking DVDs to watch that were in the applicant's room. The applicant said that he had no DVDs in 1997 or 1998, and added that no DVDs were available in Australia until 1999.
3. I would not expect there to be any dispute between the Crown and the accused as to when DVDs were first available in Australia, but there was evidently no agreement on that question at the trial, nor on appeal. The applicant's brother, JB, gave evidence that the applicant did not have any DVDs in the period from 1997 to 1998. He said that the applicant owned VHS movies.
4. AM said that the reason she did not go to the school disco on the night the subject of the complaint in count 2 (see [7] above) was because she was in trouble and was not allowed to go.
5. In the JIRT interview, AM said that on the occasion of the first assault (count 2), what made the applicant stop was that her mother came home. AM said that her mother had a pram with her younger sister in it and that she could hear her coming. She heard her mother taking off her shoes and unlocking the door and the applicant told her not to tell her mother anything or she would be in big trouble. She confirmed this evidence in cross-examination. In cross-examination she said that everyone took their shoes off before they walked into the house.
6. AM's mother, AB, said that she never stopped AM from attending a disco. She also said that in 2011 she never left AM at home alone when she was sick. She said that AM was not often sick. In cross-examination AB said that she did not have a pram in 2011 because the pram had broken in 2010 at an athletics carnival. The youngest sister had been born in 2007 so that she would have been four in 2011. AB said that the youngest sister, whom she called "Little Miss Independent", wanted to walk everywhere with her brothers and sisters. AB also said that she always wore her shoes in the house because her shoes had previously been stolen from the veranda.
7. In relation to the third and fourth counts, AM said that the applicant had shown her the pornographic video and had placed her hand on his erect penis when they were on a mattress in the lounge room because that was when the carpet was getting ripped off out of the room. The applicant said that carpets were not removed from the floor in 2011 but they were removed in 2009. AB also said that the carpets were removed from the house in November or December 2009. She produced photos of some rooms in which carpets had been removed. She said that that was the only time when carpets had been removed.
8. The photos tendered through AB were dated 11 November 2009. In cross-examination she said that in addition to the photographs that had been tendered she had taken other photographs including one of the lounge room. When asked whether she had brought those photos to Court she said that they were on her phone because they were accessible from Apple iCloud. She agreed that there was no problem for her to produce the photos, but the Crown did not ask her to do so. She rejected the suggestion that there was a time in 2011 when a mattress was set up in the lounge room.
9. In relation to the fifth count AB gave evidence that she had never seen AM tickle the applicant's back. She corroborated the applicant's evidence that he never had long nails.
10. As noted above, in relation to the second count on the indictment, AM said that the assault occurred when her mother was at a disco and she thought that that was on a Wednesday or Thursday. In her examination-in-chief AB said that discos were "mainly on a Tuesday". When asked in chief how she remembered that she said "I've been a parent at that school since the early 2000s. My son started, my oldest son started year 1 there and they have always been on a Tuesday."
11. In cross-examination the trial advocate for the Crown closed the gates on that evidence. In evidence-in-chief AB had initially said that discos were "mainly on a Tuesday", but then said that they had "always been on a Tuesday". In closing the gates the trial advocate adduced the following evidence: "Q. Talking about 2011? A. Yep. Q. I think you said there were three discos during that year? A. Yep. Q. You certain about that? A. Yeah, yep. Q. You're absolutely certain [they] were Tuesdays? A. Yep because they - yeah, most definitely, yep, for as long as I can remember they have always been on a Tuesday. Q. Was there ever a disco on a Thursday, to your memory? A. No. Q. Couldn't possibly have been? A. No. Q. You're absolutely certain it could only be a Tuesday? A. Yeah."
12. At the conclusion of AB's cross-examination, she gave the following evidence: "Q. I just need to show you one document, just one moment. Just going to show you a document, one page of a document, recognise the format of that document? A. I do, it looks like a cake order form which you can order birthday cakes. Q. It's a page out of a school newsletter, isn't it? A. Well, there we go, the disco was on a Thursday, I can't dispute that, it's in plain black and white, isn't it ..(not transcribable).. June 2011. Q. You don't stand by your evidence that all of the discos were on Tuesdays? A. I still do, but unfortunately it's in front of me, black and white, isn't it, I may get one day mixed up. Q. Just to be clear, that is a school newsletter advertising a disco on a Thursday? A. Yep. Q. 26th of what month is it, what's the date there? A. Disco fundraising, Thursday 16 June and you [are] 100% that disco went ahead, it wasn't cancelled? Q. 16 June 2011 it says, doesn't it? A. It does but most discos didn't always go ahead on plan, I'm - I'm just stating. Q. You'd agree you could be mistaken about all discos being on a Tuesday? A. No I recall Tuesdays being mainly a disco. Q. It's the case, isn't it, that your evidence today is an attempt to help the accused, isn't it? A. Most definitely not, why would I do that, why would - I'm sorry, but I'm just - I'm going to stop and say that-- HIS HONOUR: Just listen to the question and answer the question. TRIAL ADVOCATE Q. Yes or no will be fine. A. What was the question again? Q. Some of [your] evidence today is designed to help the accused, isn't it? A. No. Q. You're not telling the truth about taking sick days from work every time the children were home, sick? A. Yes, I am about that, most definitely am about that, but I wouldn't lie, I wouldn't come here and lie to you about that, about-- Q. There were days when [AM] was home, sick from school and left with the accused, wasn't there while you went to work? A. No. Q. There are other days when you went to work and [AM] was left with the accused, weren't there? A. No, never, I'm sorry but none of my children were. Q. There was certainly a time in 2011 when [AM] was left home while you took the other children, her younger brother in particular to a school disco? A. No. Q. It's the case, isn't it? A. No. Q. What you've said that's contrary to [AM's] evidence is to help the accused, isn't it? A. That's - no, never."
13. In his address to the jury the trial advocate said: "You might think ladies and gentlemen that the witnesses called in the defence case were trying to assist the accused by giving evidence of as many contradictions with the complainants as they could find. The Crown says you would reject the evidence of these witnesses and accept the evidence of the complainants and of the Crown witnesses where they are at odds ..."

Directions to the jury

1. The jury sent a note to the trial judge relating to counts three and four as follows: "If on certain counts there is uncertainty as to whether the act or assault took place within the timeframe specified by the Crown, can we as the jurors use 'tendency evidence' to override the date discrepancy?"
2. The jury was directed that: "The specification of the dates by the Crown in the indictment is not a technicality. It is part of an allegation that is made by the Crown in a criminal case that the defence then has to meet. If the allegation had been made in this case that the offence or offences occurred at some different point in time, then the defence case could or would have been conducted differently. The defence could or would have called quite different evidence to meet an allegation made against it which is in different terms to that contained in this indictment. That is why I say that the specification of a date range or particular dates in an indictment is not a technicality. The short answer to your question, ladies and gentlemen, is that you cannot under any circumstances override a date range specified in an indictment. What that means is that because the date range specified is part of the essential element or elements of the charge which the Crown has to prove, if the Crown cannot prove that element beyond reasonable doubt then the appropriate verdict is not guilty."
3. The jury was given both written and oral directions from the trial judge in relation to tendency evidence. The written direction was in the following terms: "TENDENCY EVIDENCE The Crown says that if you are satisfied beyond reasonable doubt of count 1 on the indictment in relation to [ST], then you can use that evidence in a particular way in considering the counts 2, 3, 4 and 5 in relation to [AM]. Alternatively, the Crown says to you that if you are satisfied beyond reasonable doubt of one or more of the counts relating to [AM], then you can use that evidence in a particular way in considering count 1 relating to [ST]. The Crown case is that you can use the evidence you have found established beyond reasonable doubt in relation to one complainant in considering the case in relation to the other complainant because the Crown says there is a pattern of behaviour that reveals that [TB] has a tendency to act in a particular way and to have a particular state of mind, namely that he had a sexual interest in female children in the age range of 10 to 13 and that he acted on that sexual interest by indecent touching (including digital penetration) and other sexual conduct towards females in that age range and to whom he had access by virtue of those females being members of his immediate or extended family and their residing or being present in his family homes. The evidence suggesting that the accused had that tendency can only be used by you, in the way the Crown asks you to use it, if you make two findings beyond reasonable doubt. The first finding is you conclude beyond reasonable doubt that one or more of the acts alleged occurred. In making that finding you do not consider each of the acts in isolation but consider all the evidence in relation to the particular complainant whose case you are considering and ask yourself whether you find you are satisfied that a particular act or acts relied upon actually took place. If you find that none of the acts alleged is proved by the Crown beyond reasonable doubt, then you must put aside any suggestion that [TB] had the tendency advanced by the Crown. If you are satisfied beyond reasonable doubt that one or more of those acts occurred, then you go on to consider the second finding. You ask yourself whether, from the act or acts that you have found proved, you can conclude beyond reasonable doubt that [TB] had the tendency that the Crown alleges. If you cannot draw that conclusion beyond reasonable doubt, then again you must put aside any suggestion that [TB] had the tendency to act in the particular way and to have a particular state of mind that the Crown alleges, you may use the fact of that tendency or state of mind in considering whether [TB] committed the remaining offence(s) charged. You should bear in mind that this is just one part of the evidence relied upon by the Crown and give it what weight you think it deserves in the context of the evidence before you."
4. The primary judge gave oral direction in relation to the use of tendency evidence as follows: "... can I just deal, as I have done on p 2, with what has been referred to as tendency evidence. There are some important directions that I need to give you about what has been described as tendency evidence. It is important to understand that, as I have set out in the first paragraph, the Crown says that if you are satisfied beyond reasonable doubt of Count 1, that is the count that relates to [ST], then you can, if you see fit, use that evidence in a particular way in considering counts 2, 3, 4 and 5 in relation to [AM]. Alternatively, the Crown says to you that if you are satisfied beyond reasonable doubt of one or more of the counts relating to [AM], then you can use that evidence in a particular way in considering Count 1, that is in considering the count that relates to [ST]. As I have set out in para 3 the Crown case is that you can use the evidence you have found established beyond reasonable doubt in relation to one complainant in considering the case in relation to the other complainant for a particular reason, and the particular reason is that the Crown says that there is a pattern of behaviour that reveals that [TB] has a tendency to act in a particular way, and to have a particular state of mind, namely that he had a sexual interest in female children in the age range of ten to 13, that he acted on that sexual interest by indecent touching, including digital penetration and other sexual conduct towards females in that age range, and to whom he had access by virtue of those females being members of his immediate or extended family, and their residing or being present in his family homes. It is important to understand, ladies and gentlemen, that the evidence suggesting that the accused had that tendency that is alleged by the Crown can only be used by you in the way that the Crown asks you to use it, if you make two findings, and you make those two findings beyond reasonable doubt. As I have set out on the bottom of p 2 in that last paragraph, the first finding is you conclude beyond reasonable doubt that one or more of the acts alleged occurred. In making that finding you do not consider each act in isolation, but you consider all the evidence in relation to the particular complainant whose case you are considering, that is either [ST] or [AM], and you ask yourselves whether you find you are satisfied that a particular act or acts relied upon actually took place. If you find that none of the acts alleged is proved by the Crown beyond reasonable doubt, then you just put aside any suggestion that [TB] had the tendency advanced by the Crown. If you are satisfied beyond reasonable doubt that one or more of those acts occurred, then you have to go on to consider the second finding. You go on to ask yourselves whether from the act or acts that you have found proved beyond reasonable doubt you can conclude beyond reasonable doubt that [TB] had the tendency that the Crown alleges. If you cannot draw that conclusion beyond reasonable doubt, then again you put aside any suggestion that [TB] had the tendency alleged. The defence says that you would not find, and you could not find in this case this alleged tendency because what you have here is, the defence says, two alleged isolated incidents some 14 or 15 years apart. As I have set out in that last paragraph, if having found one or more of the acts attributed to [TB] have been proved by the Crown beyond reasonable doubt, and you can find from that as proved act or acts, and you can conclude beyond reasonable doubt that [TB] had the tendency to act in a particular way and to have a particular state of mind, you may if you see fit use the fact of that tendency or state of mind in considering whether [TB] committed the remaining offence or offences charged. You should bear in mind that this is just one part of the evidence that is relied upon by the Crown. The Crown asks you to use this tendency evidence, but you ultimately give it what weight you think it deserves in the context of the evidence before you."
5. No challenge is made to the directions given to the jury on the use of tendency evidence.
6. The trial judge gave a Markuleski direction (R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290) as follows: "... counts 2, 3, 4 and 5 relate to [AM]. In relation to the counts 2, 3, 4 and 5 relating to [AM] you will be required to consider each of those counts separately, and to consider the evidence as it relates to that individual count that you are considering. Because you are required to give separate consideration to each individual count on the indictment in relation to [AM], that means that you are entitled to bring in a verdict of guilty on some and not guilty on some other counts if there is some logical reason for that outcome. But if you were to find the accused, [TB], not guilty on any count relating to [AM], particularly if you reach that verdict because of doubts you had about the honesty or reliability of [AM's] evidence, then you will have to consider how that conclusion affects your consideration of the remaining counts relating to [AM]."
7. As noted above, the applicant was convicted on count 1 (relating to the sexual assault of ST) and counts 2 and 5 (relating to his step-daughter AM). He was acquitted on counts 3 and 4. The trial judge imposed an aggregate sentence. For the offence in count 1 of the indictment relating to ST, the trial judge said that he bore in mind sentencing patterns and principles at the time the offence was committed. The indicative sentence for that offence was two years' imprisonment. In relation to count 2 concerning AM, the trial judge specified an indicative sentence of six years and an indicative non-parole period of three years and nine months. In relation to count 5, his Honour specified an indicative sentence of six years. He imposed an aggregate sentence of eight years' imprisonment with a non-parole period of five years.
8. To the extent required the applicant seeks leave to appeal against his convictions and he seeks leave to appeal against sentence.

Grounds of Appeal

1. The proposed grounds of appeal, if leave is given, are as follows: "In relation to counts 1, 2 and 5 Ground 1. The verdicts are unreasonable. Ground 2. The Learned Trial Judge erred in permitting tendency evidence. In relation to counts 2 and 5 Ground 3. The verdicts of guilty in counts 2 and 5 are inconsistent with verdicts of not guilty in counts 3 and 4. Ground 4. The Learned Trial Judge gave an inadequate 'Markuleski' direction. Ground 5. The trial miscarried by reason of [AB] being cross examined contrary to s.44 Evidence Act 1995. In relation to all counts Ground 6. The penalty is too severe."
2. Some of the applicant's grounds of appeal involve questions of law alone. Some involve questions of mixed fact and law for which leave is required. Leave is required for the appeal against sentence. The grounds upon which the applicant relies are not without substance. To the extent leave is required it should be given.

First ground of appeal: unreasonable verdicts

1. For his first ground of appeal the applicant relies upon s 6(1) of the Criminal Appeal Act 1912 (NSW) which provides: "6 Determination of appeals in ordinary cases (1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."
2. In M v The Queen (1994) 181 CLR 487; [1994] HCA 63 the plurality (Mason CJ, Deane, Dawson and Toohey JJ) said (at 492) that s 6(1) allows a verdict to be set aside if the verdict is unsafe or unsatisfactory, even though there is evidence sufficient to sustain a verdict. Where a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the court must ask itself whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (at 493). The plurality said: "But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations [Chamberlain v The Queen [No. 2] (1984) 153 CLR at 621]. It was with those considerations in mind that some members of this Court [See Whitehorn v The Queen (1983) 152 CLR at 660, 687; Chamberlain v The Queen [No. 2] (1984) 153 CLR at 532-534] have thought it necessary to qualify the statement by Barwick CJ in Ratten v The Queen [(1974) 131 CLR at 516] that: 'It is the reasonable doubt in the mind of the court which is the operative factor'. Barwick CJ went on to say: 'It is of no practical consequence whether this is expressed as a doubt entertained by the court itself, or as a doubt which the court decides that any reasonable jury ought to entertain. If the court has a doubt, a reasonable jury should be of a like mind. But I see no need for any circumlocution; as I have said it is the doubt in the court's mind upon its review and assessment of the evidence which is the operative consideration.'" (at 493-494)
3. The plurality added (at 494-495): "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury[']s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence [Chamberlain v The Queen [No. 2] (1984) 153 CLR at 618-619; Chidiac v The Queen (1991) 171 CLR 432 at 443-444]. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty [Chidiac v The Queen (1991) 171 CLR at 443, 451, 458, 461-462]. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above."
4. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 French CJ, Gummow and Kiefel JJ said: "11 It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v R by Mason CJ, Deane, Dawson and Toohey JJ: Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. 12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v R McHugh, Gummow and Kirby JJ stated that the reference to 'unsafe or unsatisfactory' in M is to be taken as 'equivalent to the statutory formula referring to the impugned verdict as "unreasonable" or such as 'cannot be supported, having regard to the evidence".' 13 The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. ... 14 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the court is to make 'an independent assessment of the evidence, both as to its sufficiency and its quality'. In M, Mason CJ, Deane, Dawson and Toohey JJ stated: In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'."
5. In The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 the High Court did not depart from the "authoritative guidance" given to courts of criminal appeal in M v The Queen in the passage quoted above, but did emphasise that the jury is "the constitutional tribunal for deciding issues of fact", the "abiding importance of the role of the jury as representative of the community in that respect", that the setting aside of a jury's verdict "... is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial", and that "... a court of criminal appeal is not to substitute trial by an appeal court for trial by a jury" (at [65], [66]). Citing M v The Queen at 494-5, the High Court repeated that: "... the ultimate question for the appeal court 'must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.'" (at [66])
6. In relation to the first count, ST's evidence is summarised at [4] and [22]-[23] above.
7. The only persons present when the sexual assault alleged by ST occurred were her and the applicant. The jury had the advantage over this Court of seeing ST and the applicant give evidence.
8. The events that ST described took place 19 or 20 years before the trial. The jury was directed of the need to appreciate fully the effects of that delay on the applicant's ability to defend himself by testing the prosecution's evidence or bringing forward evidence in his own case to establish a reasonable doubt about his guilt. The jury was directed as to specific respects in which that prejudice arose and was directed that the delay meant that evidence in the Crown case could not be tested as fully as it otherwise might have been. The jury was directed to take the delay in the complaint into account in deciding whether it was satisfied beyond reasonable doubt of the charge. It must be assumed that the jury did so.
9. Apart from denying ST's allegations, the applicant gave evidence and adduced evidence from witnesses called in his defence that challenged the peripheral detail of ST's description of events.
10. Thus, as noted above (at [23]), ST described the applicant's bedroom in which the sexual assault was said to have taken place. The applicant gave evidence that in 1997 his bedroom was located within the house but in 1998 the garage was converted into a liveable bedroom and he moved to the converted bedroom in the garage in February or March 1998. This evidence was corroborated by his mother and brother. The fact that there was unchallenged evidence that the applicant changed his bedroom in 1998 to the garage did not contradict the ST's evidence that the assault occurred within the timeframe of 1997 or 1998.
11. The applicant described his bedroom when it was located in the house as follows: "Q. Going from the door entry? A. From the door? Q. Yes. A. To the right hand side you would have my bed, single bed, wooden then you would have on the next wall across, next to the bed would be a chest of drawers and then on the next wall across, underneath the length of the window was a TV unit with a TV on top and a built in wardrobe which protruded from the wall. Q. Where was that looking from the door in? A. On the left hand side. Q. Was there any spaces thinking carefully where you could sit against a wall? A. No." (WB 464)
12. ST's evidence was that the applicant's bedroom where the offence occurred was down the hallway in the house. She provided a diagram of his bedroom that showed that there was space adjacent to a wall where she said that she and the applicant sat when the offence occurred.
13. Neither the applicant's brother (JB) nor mother (DB) gave evidence corroborating the applicant's evidence that the layout of his bedroom in 1997 was such that it would not have been possible for ST to have been sitting on the floor against a wall of the bedroom with the applicant sitting beside her.
14. ST gave evidence that she was a regular visitor to the house in which the applicant lived because she was in close contact with the applicant's sister, MH. She gave the following evidence: "Q. How often would you see her? A. Probably may be three or four times a week, also on the weekend, we were quite close back then. Q. You mentioned [XXX] Bourke Road how often would you go there? A. Mainly probably on the weekends, nearly every - probably every weekend during that time we were quite close. Q. What sort of things would you do with [MH] when you were there? A. Just hang out, watch TV, DVDs, just hang out really."
15. The applicant said that he only saw ST rarely at family events.
16. The applicant's brother, JB, denied that ST regularly visited his sister at the house. He said that during 1997 and 1998 he could say that she would have visited on no more than three occasions. In cross-examination he was asked when was the first time he was asked to recall back to 1997 and 1998 and said that it was that morning when he was giving evidence. The applicant's mother said that ST only came around for special occasions with her mother and her sister and that there was a rule in the house that on a weekend no-one was allowed to come in before 10 o'clock and only family members were allowed down to the back section of the house unless they needed to use the bathroom. She said that ST did not regularly come to the house and did not visit MH unless she came with her mother and sister.
17. However, MH gave evidence, on which she was not cross-examined, that ST was a regular visitor.
18. The only detail of ST's complaint about which the jury should have had a reasonable doubt was her evidence that she and the applicant were picking DVDs to watch in his room. The applicant said that DVDs were not introduced into Australia at the time of the alleged offence in 1997 or 1998. That evidence was not contradicted by the Crown.
19. The applicant gave evidence in cross-examination that his father bought a DVD player in what he thought was the year 2000 and that was the first DVD player in the house. He gave the following evidence: "Q. How does that lead you to come to the conclusion that DVDs were released in 1999? A. What do you mean, how have I come to that conclusion? Q. You've given evidence that DVDs weren't released in Australia until 1999, how do you have that date? A. Well, once you get accused of these, I looked it up. Q. You've looked it up? A. Yeah. Q. Do you have a more precise date than just 1999? A. No. Q. You're looking that up you certainly would have seen that DVDs were available overseas prior to that? A. I didn't buy from overseas, I don't know. Q. You say you didn't start keeping, collecting DVDs until 2002? A. Roughly, yeah. Q. What is it that you leads you to come to that date? A. Because I bought my DVD player and so I started buying DVDs. Q. Were there other movies in the house in 1997 and 1998? A. Yeah, my father had a VHS collection."
20. The applicant's brother when asked to recall the events of 1997 and 1998 (which he had been first asked to recall on the morning on which he gave evidence) said that in 1997 to 1998 the applicant had no DVDs, but also said that at that time he owned VHS movies.
21. Although the jury could, and in my view, should, have had doubt as to the accuracy of ST's evidence that at the time of the alleged assault she and the applicant were picking DVDs to watch, that does not mean that the jury should have had a reasonable doubt about the essential details of her evidence. Whether they were selecting a movie on VHS or DVD would make no difference to the substance of the complaint.
22. Without any regard to the tendency evidence of AM, the jury could be satisfied beyond reasonable doubt of the applicant's guilt on count 1.
23. AM's JIRT interview took place on 5 February 2016. A video recording of the interview was played to the jury as AM's evidence-in-chief. At the time of the interview AM was 16 years old. She said that she had come to talk to the police about her step-father and what had happened at her house when she was younger. The interviewing officer said: "Q49 ... so I want you to think back and I want you to tell me everything from the beginning to the end, OK. Just take your time, um, about what's happened with your stepfather when you were younger, at your house. A OK. Q50 OK. All right. A I've, um, only just, like, started to remember a lot of things. Q51 Uh-huh. A Um, like, I always used to block out a lot. Q52 Yep. A Um, and it wasn't until last year, um, no 2014, sorry. Q53 Yep. A Um, Christmas was when my aunty, um, ... my stepfather's, um, sister. They were all really drunk, and we, like, went over there and, um, by the end of the night Q54 Yeah. A And it sort of clicked in my brain, because she turned around and questioned me and she was like, Has he ever touched you, and stuff. And, like, I just said, No. I was like, No, no. Q55 Yeah. A And it was when after that we went home and [the applicant] pulled me aside when Mum went inside and was like, Please don't say anything. Q56 OK. A And I was like, Yeah, OK, I won't. But, um, I always used to think it was, like, a dream or, like, it wasn't real. Q57 Uh-huh. A And I sort of just, I don't know, and, but from that day I knew that it wasn't, and all the memories started coming back - - -"
24. Counsel for the applicant submitted that evidence of a memory that the complainant said she had recovered was not reliable and that the Crown did not adduce any expert evidence to suggest that such an asserted recovered memory of something the complainant said she had "... always used to block out a lot" could be reliable. Counsel submitted that in the absence of some expert evidence as to the reliability of such a recovered memory, the "soundness of that evidence is on shaky ground".
25. AM's evidence that her memory started coming back was not affected by any suggestion that her memory was recovered as a result of therapy involving hypnosis or any analogous procedure where there was a risk that her memory might have been tainted by a suggestion from the therapist (R v Tillott (1995) 38 NSWLR 1; Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222). The reliability of AM's evidence was quintessentially a matter for the jury.
26. When asked at Christmas 2014 by the applicant's sister, AM denied that the applicant had ever touched her. In October 2015 AM left the house of her mother and stepfather to go to live with her maternal aunt. In early 2016 she made the complaint to her maternal aunt referred to at [26] above.
27. As described above at [31]-[39] the peripheral details of AM's description of the assaults she alleged were challenged and contradicted by her mother. In one important respect, namely the year in which the applicant was said to have committed an act of indecency towards AM and indecently assaulted her on a mattress in the loungeroom, there was objective evidence indicating that the carpet in the loungeroom had been taken up not in 2011, but in 2009. The jury's question quoted at [41] above and the jury's acquittal of the applicant on counts 3 and 4 suggest that at least some members of the jury may not have been satisfied that the events AM said took place on a mattress in the loungeroom in 2011 occurred in that year, as distinct from not having occurred at all.
28. The conduct the subject of the second and fifth counts on the indictment was also charged as having taken place in 2011. In her JIRT interview AM said that the very first thing that she could remember was: "... when Mum had taken the, my youngest, not my youngest, my younger brother, ..., out to a disco, a school disco, and I was in the bath and [the applicant] had come in and ... that's, like, when everything started."
29. She was asked when that occurred and she said "I think I was in Year 6, maybe." She was asked: "Q66 And what makes you think you were in Year 6? A Because I remember everything started happening when I, um, I questioned them about puberty --- Q67 Uh-huh. A --- and stuff. Q68 Yep. A And that's when [the applicant] had started. That's just, like, the earliest I can remember."
30. In AM's JIRT interview, the interviewer returned to the year in which the first complaint occurred and AM reaffirmed that it took place when she was in year 6 which was in 2011. The interviewer then switched to asking AM when was "the last time that it happened?". AM recounted the assault the subject of count 5 (para [14] above). She said she thought it was at the end of Year 6 in 2011.
31. AM's evidence in the JIRT interview in relation to the conduct the subject of counts 3 and 4 was introduced by the following question: "Q271 [AM], so you told me the first and the last, OK. Has anything else happened in between that? A. Um he used to show me videos."
32. After AM described the alleged assault as set out at [6]-[10], the interviewer sought to put a timeframe on the conduct as follows: "Q280 ... I know you've told me the last incident happened, um, in, when you were at the end of Year 6, and the first one was, we're not sure, but it was obviously before that one. A Yep. Q281 Did this video thing happen in between those two --- A Yeah. Q282 OK. A I'm pretty sure. Q283 So, um, what year are we talking about? A Still Year 6. Q284 Still year 6? A Yep Q285 And still 2011? A (NO AUDIBLE REPLY)"
33. In cross-examination AM accepted that the first time she said something had happened was on a school disco night in 2011. When asked about the conduct the subject of counts 3 and 4 in the indictment AM asserted that in 2011 there was a mattress on the loungeroom floor and asserted that the carpets had been ripped out of the house in 2011. This evidence was apparently doubted by one or more jurors. It was put to AM that "the incident around the mattress ... didn't happen at all". AM said that it did happen. It is a possible inference from the note the jury addressed to the judge that at least some members of the jury were satisfied that the incident did happen, but not in 2011.
34. Having regard to the way in which the evidence as to the third and fourth counts on the indictment was elicited in the JIRT interview, I do not consider that because the jury evidently had a doubt as to whether the conduct the subject of counts 3 and 4 on the indictment occurred, or if it did, that it occurred in 2011, that the jury should have had a doubt as to whether the conduct the subject of counts 2 and 5 on the indictment occurred in that year. It is true that in cross-examination AM said that she was "... sure about 2011 and a mattress being on the floor", but when earlier asked in cross-examination she showed hesitancy as to whether the carpets had been ripped out of the house in 2011. AM's evidence that the conduct the subject of counts 2 and 5 occurred when she was in year 6 and commencing or approaching puberty could be accepted even if her evidence that the other conduct she described that was the subject of counts 3 and 4 as having occurred in 2011 was rejected.
35. The contradictions between the evidence of AM and her mother as to the peripheral details of the alleged offending are not such as that the jury should have had a reasonable doubt about the essential details of AM's complaints. The jury had the advantage of seeing AM and her mother give evidence that is denied to this Court. The record of AM's evidence does not itself contain discrepancies or inadequacies or otherwise lack probative force (R v M at 494 quoted at [53] above). The fact that it is contradicted by AM's mother in respects in which AM's mother is able to give evidence does not mean that the jury's advantage in seeing and hearing the evidence can be put aside. Nor can it be said that the jury should have had a reasonable doubt because the applicant denied the conduct alleged by AM and it was word against word.
36. For these reasons I would reject the first ground of appeal.

Second ground of appeal: admission of tendency evidence

1. Section 97 of the Evidence Act 1995 (NSW) relevantly provides: "97 The tendency rule (1) Evidence of the ... conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency ... to act in a particular way, or to have a particular state of mind unless: ... (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value."
2. As noted above at [17] the Crown alleged that the evidence of each complainant showed that the applicant had a tendency to have a particular state of mind, namely a sexual interest in female children in the age range of eight to 13 years and to act on that sexual interest by engaging in indecent touching, including digital penetration, and other sexual conduct towards female children in that age range to whom he had access by virtue of their being members of his immediate or extended family and their residing or being present in the family home.
3. The primary judge's reasons for accepting that the evidence of ST and AM could be relied upon by the Crown as tendency evidence in the charges relating to AM and ST are quoted at [19] above.
4. The applicant submitted that it was not logical to consider that the later acts involving AM occurring in 2011 showed a retrospective tendency as to behaviour alleged to have occurred in 1997 or 1998. Counsel for the applicant submitted that the only way tendency could possibly be considered was prospectively. That submission is contrary to the decision of this Court in RH v R [2014] NSWCCA 71 referred to below at [102].
5. Counsel also submitted that if the evidence of ST could show a tendency as alleged by the Crown in 1997 or 1998, the Crown must nonetheless show that that tendency still existed in 2011 after a gap of 14 years. He submitted that a tendency that existed 14 years after it were first manifested would be of very low probative value.
6. The applicant also submitted that at the time of the alleged offence concerning ST she was 12 or 13 years of age, whereas at the time of the alleged offences concerning AM she was 11 years of age. The applicant submitted there was no "automatic correlation of physical appearance or other features". However, AM's statements in her JIRT interview quoted at [79] above shows that the offences alleged in 2011 occurred when she had commenced or was approaching puberty. At age 12 or 13 ST would have commenced or been approaching puberty.
7. The applicant also pointed to differences in the alleged offending. Counsel submitted that in the case of ST the occasion was opportunistic because ST said that she and the applicant were unexpectedly alone in his room when MH left the room. In the case of the offences against AM, AM's mother had left the house and there was opportunity for planning. It was also said that there was a significant difference in the alleged offendings in that the allegation in count 2 related to external rubbing and the allegation in count 5 related to the insertion of a single finger into AM's vagina, whereas the allegation in relation to ST was that the applicant inserted more than one finger into her vagina.
8. In oral submissions counsel for the applicant raised as an additional ground, either for disputing the asserted tendency, or its probative value, that at the time of the alleged offending against ST the applicant was about 20 or 21 years of age, whereas at the time of the alleged offending against AM he was 33 or 34. Counsel also relied upon the very different domestic situation in which the applicant was placed at the time of the first alleged offending and the later alleged offending. In the first case he was a young man living at his parents' home. In the second case he was married, and the father and stepfather of children.
9. In Hughes v The Queen [2017] HCA 20; (2017) 92 ALJR 52 the majority of the High Court rejected a line of Victorian authority culminating in Velkoski v The Queen (2014) 45 VR 680 to the effect that to be admissible, tendency evidence must possess sufficient commonality or similar features with the conduct in issue so as to be capable of demonstrating a pattern that increases the likelihood of the conduct in issue (at [12]). In doing so the majority (Kiefel CJ, Bell, Keane and Edelman JJ) said (at [40]): "40 In the trial of child sexual offences, it is common for the complainant's account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded. The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case. The test posed by s 97(1)(b) is as stated in Ford: [(2009) 201 A Crim R 451 at 485 [125].] 'the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged'. The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible. ... 42 Unlike the common law which preceded s 97(1)(b), the statutory words do not permit a restrictive approach to whether probative value is significant." (Emphasis in original.)
10. In R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451, approved by the High Court in Hughes, Campbell JA said (at [125]) that: "125 ... In my view there is no need for there to be a 'striking pattern of similarity between the incidents'. All that is necessary is that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged."
11. In McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 the High Court said (at [26]): "26 As explained in Hughes, assessment of the probative value of tendency evidence requires the court to determine the extent to which the evidence is capable of proving the tendency. Assuming the evidence has the capacity to do so, the court must then assess the extent to which proof of the tendency increases the likelihood of the commission of the offence. [Hughes v R (2017) 92 ALJR 52 at 66 [41] per Kiefel CJ, Bell, Keane and Edelman JJ; 344 ALR 187 at 199.] The tendency may be to have a particular state of mind or to act in a particular way. A mature man's sexual interest in young teenage boys is a tendency to have a particular state of mind. The evidence of 'B' and 'C' was capable of establishing that the appellant had such an interest. In this Court, it was not disputed that it is an interest of a kind that is likely to be enduring."
12. In this case the Crown sought to use the evidence of ST and AM in the charges relating to AM and ST, to prove both that the applicant had a certain state of mind, namely a sexual interest in girls related by family who were approaching or commencing puberty, and to prove a tendency to act in a particular way. In this case, unlike McPhillamy, an issue is raised as to whether the Crown established that such a tendency was likely to be enduring, given the substantially different ages of the applicant at the time of the alleged offending concerning ST and that concerning AM and his different domestic situation. However, the majority judgment in Hughes warns against a need for a high degree of commonality of circumstances before evidence is admissible under s 97.
13. The relevance of the evidence of ST in relation to the charges concerning AM, and the evidence of AM in relation to the charge concerning ST, is not in dispute. The evidence of each was of conduct of the applicant evidencing a particular state of mind, namely a sexual interest in girls to which the applicant was familially related who were approaching or commencing puberty. The evidence could also establish a tendency on the part of the applicant to act in a particular way on that interest, namely by fondling or digitally penetrating them. The question for the primary judge was whether the evidence had significant probative value.
14. The present case bears similarities to R v SK [2011] NSWCCA 292, which was applied in RH v R. In R v SK three complainants alleged sexual offences against the accused when they were aged between six and 13. The offences were linked by the location at which they took place, an allegation that the children were groomed by the accused, and that the offences occurred during regular family gatherings. There was a temporal gap of eight years between the first and second of the alleged offences. Dealing with that lapse of time, Latham J, with whom Giles JA and Rothman J agreed, said (at [26]): "Contrary to the applicant's submissions, the lapse of time between the alleged assaults upon the respective complainants is, in my view, a powerful factor in reasoning towards the commission of these offences by the applicant. A significant feature of the Crown case is the applicant's reliance upon social visits to the home he occupied with his parents, by members of his extended family, in order to obtain access to young children. The complainants allege that the applicant commenced sexually assaulting them at about the age of 6 or 7, and ceased assaulting them about the age of 13. According to the Crown case, when KD reached an age when the applicant could no longer exercise influence over her, he turned his attention to the next generation of young children, DiS and WS. Similarly, at about the time that DiS and WS commenced to assert themselves, the applicant turned his attention to DaS. Far from depriving the evidence of its capacity for probative value, the temporal gaps are an integral part of the applicant's underlying pattern of behaviour."
15. In RH v R the accused was charged with sexual assault offences against two children in his foster care. The first six of the charges related to conduct alleged to have occurred against one foster child between 1989 and 1993 when the child was between nine and 12 years of age. The final count related to conduct in 2003 against a different foster child when she was 12 or 13 years of age. The alleged sexual behaviour was similar to that in the present case. Evidence was also adduced in relation to sexual conduct against another complainant that post-dated these charges, and charges in relation to which the accused pleaded guilty in different proceedings. The applicant argued that it was impermissible to use the evidence of the separate complainant retrospectively to establish a prior tendency.
16. In relation to the effect of temporal gaps between misconduct and the assertion that evidence could not establish a retrospective tendency, Ward JA said: "115 In the present case, there was a reasonable similarity in the circumstances of the respective acts in that they took place in the family home, when the complainants were in bed (either at night or in the morning) and the acts involved touching and feeling the complainants' breasts and/or genital area. Certainly, there were difference as between the particular sexual acts, to which I will refer shortly, but the conduct as a whole had greater similarity than the different acts relied upon in Watkins. 116 It was not the case, as adverted to in Watkins, that there had been a 15 year period with no asserted misconduct. Rather, it was a case where the gap in time between asserted acts of misconduct was explicable having regard to the relative ages of the complainants and their sequential placement in the appellant's care. 117 Thus the lack of misconduct in the intervening periods does not (as it did in Watkins) assist the appellant, given the absence of another foster daughter in the relevant age range during much of that 14 year period between the conduct against Jane and that against Kay. ... 129 The evidence of subsequent admitted conduct against Lisa was not something that could be dismissed as not having significant probative value. It did not suffer from the deficiencies of the evidence of subsequent sexual activity in Dann; nor was it so removed in a factual or temporal context from the earlier acts as in Watkins, particularly given that in the present case (whichever version of Kay's disclosure in 2003 were to be accepted) it could not be said that there had been no asserted acts of inappropriate sexual misconduct in the intervening period between the conduct against Jane and the conduct against Lisa. The same conclusions follow in relation to the tendency evidence of Kay. In relation to the evidence of Jane as tendency evidence in relation to the count involving Kay, the submission based on the temporal gap was, in effect, conceded to have less force, since this was prior sexual activity albeit not within a confined time period. 130 Given that the gaps between the respective assaults were explicable if the tendency was, as the Crown contended, one that related to girls of a particular age range, having regard to the sequential placement of the girls into the appellant's care, this was precisely the kind of evidence that in SK the court accepted could be relevant and of probative value."
17. There is no reason in principle that evidence of AM could not be used to establish that when the applicant was younger he had a particular state of mind as identified above and a tendency to act on that state of mind. The lapse of years between the offending alleged in relation to ST and the offending in relation to AM neither detracts from the probative value of their evidence as to the applicant's state of mind, nor as to their evidence as to his tendency to act on that state of mind.
18. The different domestic situation of the applicant at the time of the alleged offending concerning ST and the alleged offending concerning AM was raised before the primary judge as a reason for excluding the evidence of each in the trial of the other. Although the difference weakened the probative value of the evidence to some extent, that value remained significant, and consistently with Hughes, close similarity of circumstances is not required. The primary judge did not err in concluding that the evidence of both ST and AM had significant probative value in relation to the other's trial.
19. For these reasons I would reject the second ground of appeal.

Third ground of appeal: inconsistency of verdicts

1. This ground has been dealt with above in addressing ground 1. The applicant's acquittal on counts 3 and 4 is not inconsistent with the jury's accepting that the conduct the subject of counts 3 and 4 occurred, albeit not in 2011. The acquittal does not indicate that the jury should have had doubt about AM's credibility generally. The reasons of Gleeson JA in Roos v R [2019] NSWCCA 67 are apposite: "42 The legal test to be applied to the appellant's contention is one of logic and reasonableness: MacKenzie v R (1996) 190 CLR 348 at 366; [1996] HCA 35 (MacKenzie). In MacKenzie at 366, Gaudron, Gummow and Kirby JJ approved the test as stated by Devlin J in R v Stone (unreported, 13 December 1954). In order to succeed on this ground, the appellant: … must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand. 43 Nevertheless, if there is a proper way by which the verdicts may be reconciled, allowing the appellate court to conclude that the jury properly performed its functions, that conclusion is generally to be preferred: MacKenzie at 367 (Gaudron, Gummow and Kirby JJ). It is also to be kept in mind that a verdict of 'not guilty' does not necessarily imply any 'want of confidence' in the complainant but 'may simply reflect the cautious approach to the discharge of a heavy responsibility': MFA v R (2002) 213 CLR 606; [2002] HCA 53 at [34] (Gleeson CJ, Hayne and Callinan JJ). As Spigelman CJ had earlier remarked in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [34]: In the common case of multiple sexual assaults against a single complainant, often over a period of time, juries frequently acquit on some charges and convict on others. The issue raised by Jones is to determine when an acquittal so affects the credibility of the complainant that, in combination with other factors, a conviction was not open to the jury. A court of criminal appeal must perform this task whilst acknowledging the role of the jury as emphasised in M v R, MacKenzie and Jones quoted above. 44 There is a further important consideration to a challenge to the verdicts based on inconsistency. As stated by Simpson J (McClellan CJ at CL and Latham J agreeing) in TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [128]: In determining whether convictions are unreasonable, … the focus of the enquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant's credibility, the verdicts of guilty may not be unreasonable, at least on that basis. 45 Simpson J continued at [130]: Before … an appellate court, faced with adverse verdicts on multiple counts, must intervene to set aside the convictions, the Court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant's credibility. … The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant's credibility. See also: Jafary v R [2018] NSWCCA 243 at [37] (Leeming JA and Walton and Wilson JJ); Walker v R [2019] NSWCCA 4 at [10] (Hoeben CJ at CL, Rothman and Price JJ agreeing)."
2. For the reasons above, there was no inconsistency in the jury's finding that the conduct the subject of counts 2 and 5 occurred in 2011, and the applicant's acquittal on counts 3 and 4.

Count 4: inadequate Markuleski direction

1. The primary judge's Markuleski direction is quoted at [46] above.
2. The direction given was in accordance with that proposed by Spigelman CJ in R v Markuleski at [188].
3. Counsel for the applicant submitted that the direction did not specify that the jury could take into account doubts that it might hold about the honesty or reliability of the complainant that adversely affected the complainant's credibility in relation to some counts when the jury came to consider the honesty and reliability of the complainant's evidence in relation to other counts. Counsel submitted that the requirement in a Markuleski direction is to point to the effect on the credit of the complainant, not merely a general consideration of the evidence globally. The emphasis must be on credibility.
4. In his written submissions counsel for the applicant submitted that the direction might be interpreted as an exhortation that the jury should balance a harsh judgment on one or more counts against a benign judgment on others so that it would only be fair to a complainant to be even-handed in the consideration of her evidence so that if the jury rejected her evidence on one count, it should accept her evidence on the other.
5. This last submission is untenable. Nor was it suggested to the primary judge that this could be a possible interpretation of the direction his Honour proposed to give. Nor was it advanced in oral submissions.
6. In R v Markuleski, Wood CJ at CL said (at [263]): "In some cases, where it is obvious that the witness's reliability or credibility has been seriously undermined, in relation to one count, a strong comment may be appropriate. In other cases, it may be appropriate to indicate to the jury that they may have a difficulty in accepting the witness's evidence on some counts, or on particular counts, if they have a reasonable doubt about his or her reliability in relation to the other counts. In other cases a more neutral reminder of the entitlement of the jury to take such matter into account may suffice. In yet other cases, it may not be necessary to say anything."
7. A stronger comment than that made by the primary judge was not called for.
8. For these reasons I would reject this ground of appeal.

Fifth ground: cross-examination contrary to s 44 of the Evidence Act

1. The cross-examination the subject of this ground of appeal is quoted at [39] above. Counsel for the applicant submitted that the trial miscarried by reason of the applicant's mother being cross-examined contrary to s 44 of the Evidence Act 1995 (NSW). Counsel submitted that the effect of her cross-examination was to cast doubt upon the reliability of her assertion that every disco had been on a Tuesday and hence cast doubt as to the reliability of her evidence that AM had attended every disco in 2011. Counsel submitted that the effect of the cross-examination was to cast doubt on her general credibility.
2. No objection was taken to the cross-examination at trial. On appeal, counsel submitted that the admission of the evidence had deprived the applicant of a reasonable possibility of acquittal and that consequently there had been a miscarriage of justice.
3. Section 44 of the Evidence Act provides: "44 Previous representations of other persons (1) Except as provided by this section, a cross-examiner must not question a witness about a previous representation alleged to have been made by a person other than the witness. (2) A cross-examiner may question a witness about the representation and its contents if: (a) evidence of the representation has been admitted, or (b) the court is satisfied that it will be admitted. (3) If subsection (2) does not apply and the representation is contained in a document, the document may only be used to question a witness as follows: (a) the document must be produced to the witness, (b) if the document is a tape recording, or any other kind of document from which sounds are reproduced - the witness must be provided with the means (for example, headphones) to listen to the contents of the document without other persons present at the cross-examination hearing those contents, (c) the witness must be asked whether, having examined (or heard) the contents of the document, the witness stands by the evidence that he or she has given, (d) neither the cross-examiner nor the witness is to identify the document or disclose any of its contents. (4) A document that is so used may be marked for identification."
4. The newsletter on which AM's mother was cross-examined was marked for identification 2. It referred to a school disco to take place on a Thursday.
5. The newsletter was not tendered by the Crown.
6. The third question quoted at [39] above suggests that the trial advocate for the Crown may have had s 44(3) in mind. But the next question, namely "Q. Just to be clear, that is a school newsletter advertising a disco on a Thursday?" was a departure from s 44(3). If objection had been taken to that question, an issue would have arisen as to whether the Court should have been satisfied that the newsletter would be admitted into evidence. No objection was taken to the question. That did not cause a miscarriage of justice because if objection had been taken, the newsletter should have been admitted into evidence. The newsletter was a business record of the school that contained a previous representation made or recorded in the document for the purposes of the business of the school (Evidence Act, s 69(1)). It might reasonably be supposed that the author of the newsletter had personal knowledge of the asserted fact that the disco was to be held on a Thursday. Pursuant to s 69(2) of the Evidence Act, the newsletter, if tendered, would have been admissible, and the Court would easily have satisfied itself that it would have been admitted.
7. There was good reason for counsel for the applicant not to have objected to the questioning where it was likely that an objection would have led to the tender of the newsletter, and the newsletter's being before the jury as concrete evidence inconsistent with AM's evidence.
8. There was no miscarriage of justice by reason of this questioning. I would reject this ground of appeal.
9. For these reasons the grounds of appeal against conviction should be rejected.

Appeal against sentence

1. The first count on which the applicant was convicted, namely the offence concerning ST against s 66C(1) of the Crimes Act at the relevant time carried a maximum penalty of imprisonment for eight years. The count on the second charge of the indictment concerning AM contrary to s 61M(2) of the Crimes Act carried a maximum penalty of imprisonment for 10 years. The offence the subject of count 5 of the indictment concerning AM against s 66C(2) of the Crimes Act carried a maximum penalty of 20 years' imprisonment.
2. At the relevant time the offence against s 61M(2) attracted a standard non-parole period of eight years.
3. As noted above the primary judge imposed an aggregate sentence of eight years' imprisonment with a non-parole period of five years. His Honour's indicative sentences are set out at [47] above.
4. In his Remarks on Sentence, after reciting the facts alleged by each complainant that were established by the jury's verdicts, the primary judge found for the purposes of sentencing that he was satisfied that the applicant had the tendency alleged by the Crown to have a sexual interest in female children in the age range of nine to 12 and to act on that sexual interest by engaging in indecent touching, including digital penetration and other sexual conduct towards female children in that age range to whom he had access by virtue of their being members of his immediate or extended family and residing in or being present in his family home. This finding on the sentencing hearing was relevant to the prospects of the applicant's reoffending. However, the primary judge found that he was unpersuaded that the applicant was likely to reoffend.
5. The primary judge referred to the applicant's subjective circumstances. On appeal counsel for the applicant accepted that the primary judge properly took into account the applicant's subjective circumstances and submitted that the applicant would properly have been seen as a person with good prospects of rehabilitation. The primary judge found that he was satisfied that the applicant had reasonable prospects of rehabilitation.
6. The applicant's subjective circumstances were fully described by the primary judge. His Honour referred to the difficulties that the applicant suffered following his arrest and incarceration before trial, the effect of his arrest and the charges on his relations with his family, including his sons, the evidence of a psychologist that the applicant had become suspicious, defensive, fearful and vigilant to deception, criticism or physical attack, and felt extremely vulnerable with serious problems with self-esteem. The psychologist concluded that the applicant was suffering symptoms of post-traumatic stress disorder, social anxiety and a major depressive order in response to his current circumstances. The primary judge referred to references provided on sentencing for the applicant. He observed that the applicant was: "... universally described as a person who is honest, loving, a person devoted to his family, a hard worker and someone who has been involved in community activities and who puts other people's needs before his own. He is described by some who look up to him, and continue to look up to him, as a role model."
7. The applicant was for many years a volunteer fire-fighter and received medals, including the National Service Medal in that work. The primary judge said that: "Some of those in his immediate family find the charges brought against him impossible to reconcile with the person they know and the verdicts of the jury difficult, or in the case of some referees, impossible to accept."
8. The primary judge concluded that the applicant was entitled to "... some leniency on account of the fact that he does not have a criminal record and is a person of prior good character."
9. The primary judge described, in a way not criticised on appeal, the hardship that the applicant and his family were suffering as a result of his incarceration.
10. The primary judge referred to ST's and AM's victim's impact statement and found that the offences had had a significant impact upon each victim. ST said that when the assault occurred she felt shocked, uncomfortable, scared, violated and that afterwards she felt lost and confused and kept asking herself whether what had happened was normal or whether it was something that "females were for". She felt unable to talk about what had happened with anyone. She did not want to go back to the house because she did not feel safe. She felt obliged to put on a smiling face at family gatherings. She said that the offence had had a lasting impact on her, and on her feelings about herself and her body. She felt sad that she had not disclosed her experiences earlier because she believed that had she done so she might have prevented subsequent harm to others. She had feelings of stress, anxiety, depression, flashbacks and disturbed sleep resulting in her admission to hospital in 2016 for two weeks.
11. The primary judge summarised AM's victim impact statement as follows: "She says she lost bodily choices, her ability to trust people, she constantly questions the motives of those around her, she was unable to maintain normal social event works, and she lost friendships due to her extremely high anxiety levels and inability to leave her room and to accept invitations to go out. She said that she felt much shame around what had happened to her and that she has had to live with that shame. She says that she feels that she will carry the worry for the rest of her life, even though on one level she understands that is not right because she did not do anything wrong. She said that after she finally spoke out to her family about what had occurred she had to leave her local school. She was finally transferred to distance education which meant the loss of social support and her peer group. She also says that she lost her family unit. She feels that her biological parent did not support her, instead believing the offender. She feels effectively written out of her mother's life and the lives of her older brother and younger siblings. She says that she was ejected from home against her choice and although she acknowledges that at the time she was out of control, she says that her actions in constant self-harming and making stupid decisions stem from these offences and her subsequent loss of self-worth. She says she is still trying to come to terms with the loss of her family which fell apart when she did speak up ultimately about what had happened and that loss has compounded her own feelings of loss and helplessness. She has battled anger, she spent periods of time with intensive psychiatric help and periods of time on psychiatric medications including a serious attempt at suicide in which she overdosed. She says that her self-esteem is low[,] she feels valueless and the trauma of what has happened has left many deep emotional scars."
12. The primary judge said that: "The significant impact that these offences have had upon each of the victims is clear and the harm suffered by each victim is a matter to be taken into account as harm of the kind, which courts now understand, flows from offences of this type. I do not take it into account as an aggravating factor."
13. On appeal, the applicant challenged the primary judge's assessment of the objective seriousness of the offences. In relation to the offence against ST the primary judge found that: "In relation to the offence involving ST of sexual intercourse with a person over ten and under 16, ST was 12 or 13, the offender was 20 or 21. The age difference was in the order of seven to nine years. The sexual intercourse involved digital penetration for three or four minutes, there was no coercion, threats or violence. This is an objectively serious offence, though not as serious as some offences under s 66C(1). Nevertheless it is certainly not an offence at the bottom of the range of objective seriousness."
14. In relation to count 2 concerning AM the primary judge found that the offence was at the upper end of the mid-range of objective seriousness. In relation to count 5 the primary judge concluded that although of relatively short duration the offence was very serious.
15. After referring to the high maximum penalties and the high standard non-parole period for the offence the subject of count 2 as an indication of the seriousness with which the community viewed such offences, his Honour said that general deterrence, denunciation and punishment were matters of particular importance. He also said that "specific deterrence is also important in this case, given my findings regarding the tendency evidence at the trial", although his Honour had also said that the applicant had reasonable prospects of rehabilitation and was ultimately unpersuaded that he was likely to reoffend.
16. The primary judge also referred to the need for the sentence to vindicate the dignity of both victims and express the community's disapproval of the offending.
17. The primary judge found that special circumstances existed as the applicant would require a lengthy period on parole. He said that a high degree of concurrency between sentences would not be appropriate because it would fail to recognise that the offences were discrete in nature and concerned two victims. The primary judge referred to the need for a sentencing court to give proper attention to the standard non-parole period, particularly when the term of that period approaches the maximum term provided for the offence. In the case of count 2, the maximum penalty for the offence was imprisonment for 10 years and the standard non-parole period was eight years. The primary judge said that in relation to ST it was necessary that he bear in mind sentencing patterns and principles at the time that the offence against ST was committed. He did not make the same statement in relation to the offences that occurred in 2011 concerning AM.
18. The indicative sentence for the offence concerning ST was two years. The indicative sentence for count 2 in which the victim was AM was six years with an indicative non-parole period of three years and nine months, in relation to count 5 concerning AM the indicative sentence was six years. As noted above the primary judge imposed an aggregate sentence of eight years with a non-parole period of five years.
19. Counsel for the applicant submitted that the primary judge's view of the seriousness of the three offences was "to some degree exaggerated". In relation to the first offence concerning ST counsel submitted that in saying that the offence was not at the bottom of the range of objective seriousness, the offence could notionally be at some indeterminate higher point. In relation to count 2, it was submitted that the judge was wrong to say that it was "objectively a very serious offence". In fact, those words were used to describe the offence the subject of count 5. In relation to the offence the subject of count 2 the primary judge found that the offence was at the "upper end of the mid-range of objective seriousness".
20. The judge was clearly right in saying that the offence against ST was serious and not at the bottom of the range of objective seriousness. He was not required to be more specific.
21. Counsel submitted that because the duration of the assault the subject of count 2 was short, opportunistic, and ceased without any apparent protest on the part of the complainant, it should not have been assessed as rising to the upper end of the middle range of seriousness. In fact the complainant's evidence was that the assault stopped when AM's mother could be heard returning to the house. It was that that brought the conduct to an end.
22. The judge was entitled to consider the offence the subject of count 5 to be very serious.
23. The assessment of the objective seriousness of the offences was quintessentially a matter for the judge involving as it does a broadly based evaluation (Mulato v R [2006] NSWCCA 282 at [37] and [46]; R v JJ [2019] NSWCCA 148 at [40]). The primary judge's assessment of the objective seriousness of the offences was well open to him.
24. In the applicant's written submissions, counsel contended that the sentencing judge did not take into account patterns of sentencing applicable to the offences against AM, being the sentencing pattern in 2011.
25. Counsel did not provide any material to show that sentencing patterns for the offences in question in 2011 were materially different from those in 2017 when the applicant was sentenced. The Crown correctly submits that this contention was not advanced at the sentencing hearing before the primary judge where submissions on sentencing patterns focused on count 1 rather than counts 2 and 5.
26. The applicant also submitted that the "commonality and proximity in time of the conduct [the subject of counts 2 and 5] calls for a high degree of concurrency in the sentences." As the Crown submits, each offence relating to AM was a discrete episode, such that some accumulation was necessary. Questions of accumulation and concurrency involve "a significant measure of discretionary moderation" where, up to a point, sentencing judges may take different views of which neither can be said to be wrong (Nguyen v R (2016) 256 CLR 656; [2016] HCA 17 at [64]).
27. The sentence imposed was not so severe as to lie outside the proper bounds of the exercise of the sentencing discretion. That is, it was not manifestly excessive. No error of principle has been identified. The sentence was one open to the primary judge and should not be disturbed.

Conclusion and orders

1. For these reasons I propose the following orders: 1. Grant the applicant leave to appeal against conviction and sentence. 2. Appeal dismissed.
2. HARRISON J: I agree with White JA.
3. R A HULME J: On my assessment of the whole of the evidence relevant to Counts 1, 2 and 5 it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt. The acquittal of the applicant in respect of Counts 3 and 4 did not warrant a different conclusion in respect of Counts 2 and 5.
4. I agree with the reasons provided by White JA and with the orders he has proposed.

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