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Decision Date: 16 December 2015

Before: Penfold, Burns and North JJ

Decision: Leave is refused under r 5531 of the Court Procedures Rules 2006 (ACT) with respect to Grounds of appeal 1 and 2. The appeal is dismissed.

Category: Principal Judgment

Catchwords: CRIMINAL LAW – Particular Offences – offences committed against children – sexual offences – incest – act of indecency on a young person – convicted at trial by jury. APPEAL – Court of Appeal – whether a miscarriage of justice resulted from the absence of any warning by the trial judge to the jury regarding the complainant’s evidence – whether a miscarriage of justice resulted from the absence of any direction by the trial judge regarding opinion evidence – whether the verdicts are unreasonable and cannot be supported having regard to the evidence – whether leave should be granted to argue grounds pursuant to r 5531 Court Procedures Rules 2006 (ACT) – leave not granted – appeal dismissed.

Legislation Cited: Court Procedures Rules 2006 (ACT) r 5531 Evidence Act 2011 (ACT) s 165 Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 40F Supreme Court Act 1933 (ACT) s 37O

Cases Cited: BCM v The Queen (2013) 303 ALR 387 Bromley v The Queen (1986) 161 CLR 315 Dhanhoa v The Queen (2003) 217 CLR 1 Douglass v The Queen (2012) 86 ALJR 1086 Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) [2008] FCA 810 Korres v The Queen [2013] ACTCA 53 Libke v The Queen (2007) 230 CLR 559 Lithgow City Council v Jackson (2011) 244 CLR 352 Longman v The Queen (1989) 168 CLR 79 M v The Queen (1994) 181 CLR 487 Munro v The Queen [2014] ACTCA 11 Papakosmas v The Queen (1999) 196 CLR 297 R v Keenan (2009) 236 CLR 397 Shepherd v The Queen (1990) 170 CLR 573 SKA v The Queen (2011) 243 CLR 400 TKWJ v The Queen (2002) 212 CLR 124 W v R [2014] NSWCCA 110 Watson v Foxman (1995) 49 NSWLR 315 Texts Cited: Ainat Panksy et al, ‘Eyewitness Recall and Testimony’ in Neil Brewer and Kipling D Williams (eds), Psychology and Law – An Empirical Perspective (Guilford Press, 2005) 93. Judicial College of Victoria, Victorian Criminal Charge Book (29 June 2015), Part 4.13.1. Peter McClellan, ‘Who is telling the truth? Psychology, common sense and the law’ (2006) 80 Australian Law Journal 655.

Parties: TI (Appellant) The Queen (Respondent)

Representation: Counsel Mr S Odgers SC (Appellant) Mr J White SC (Respondent)

Solicitors Bevan & Co Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent)

File Number: ACTCA 58 of 2014

Decision under appeal: Court: ACT Supreme Court Before: Ross J Date of Decision: 29 August 2014 Case Title: R v [TI] Court File Number: SCC 59 of 2013

Penfold J:

1. I have had the opportunity to read the judgment of Burns and North JJ. I agree with their Honours’ conclusion that, for the reasons they give:

(a) the appellant should be refused leave under r 5531 of the Court Procedures Rules 2006 (ACT) to argue grounds 1 and 2 of the appeal;

(b) none of the appeal grounds has been made out; and

(c) the appeal should be dismissed.

I certify that the preceding one [1] numbered paragraph is a true copy of the Reasons for Judgment of her Honour Justice Penfold.

Associate: Kate Harris

Date: 16 December 2015 Burns and North JJ:

2. The appellant was tried before a jury on one count of incest with a person under 16 years, and two counts of committing an act of indecency on a person under 16 years. The complainant in each case was the appellant’s stepdaughter, who was 11 years old at the relevant time. The appellant was found guilty of each count and sentenced to terms of imprisonment.

3. The appellant has appealed from the verdicts of guilty on the following grounds:

(a) Ground 1: that a miscarriage of justice resulted from the absence of any warning by the trial judge to the jury regarding the complainant’s evidence as to the words spoken by the appellant;

(b) Ground 2: that a miscarriage of justice resulted from the absence of any direction by the trial judge regarding evidence of the complainant’s opinion; and

(c) Ground 3: that the verdicts are unreasonable and cannot be supported having regard to the evidence.

4. The appellant accepts that the leave of this Court is required to argue Grounds 1 and 2, because neither direction that the appellant now argues should have been given to the jury by the trial judge was sought by counsel for the appellant at trial: r 5531 Court Procedures Rules 2006 (ACT).

5. In our opinion, leave under r 5531 should be refused and the appeal dismissed for the reasons that follow.

The evidence at trial

6. Briefly stated, the Crown case was that the accused engaged in an act of cunnilingus with the complainant and subsequently touched her on various parts of her body underneath her clothing. The appellant did not challenge the fact that he had engaged in this conduct, but asserted that he had been asleep at the time and, as such, his conduct was not voluntary.

The complainant’s evidence

7. On 17 February 2013, the complainant participated in an audio and visual taped interview with police concerning these events. The audiovisual recording of this interview was tendered as the complainant’s evidence in chief, in accordance with s 40F of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). The complainant also gave evidence at a pre-trial hearing on 23 December 2013. All evidence was played at the appellant’s trial.

8. On the night when the events subject of the charges occurred, she was alone at home with the appellant, as her mother was attending university in Wagga Wagga. She watched a “scary movie” named “Silent Hill” before going to bed. The complainant stated that the appellant was aware that scary movies frightened her, but nevertheless set up the computer with “Silent Hill” loaded on it so she was able to watch the movie. She recalled that the appellant was speaking to her about the movie and, following that conversation, she may have asked to watch the movie, although she was unsure.

9. While watching the movie, the complainant became scared and went into her mother’s bedroom to sleep in their bed. She often slept in her mother’s bed or on the floor in her mother’s room when she was scared at night. She told the appellant that she was having trouble sleeping because of the movie, and he responded, “You can just stay in the bed”. She then went back to her bedroom to retrieve her pillow and her toy dog and returned to get inside her mother’s side of the bed.

10. At some point later in the night, she woke up to find her underwear had been removed and the appellant was performing cunnilingus on her. She recalled that the appellant was prodding her vagina with his finger and she felt his hand on one of her legs. She told police that she said to the appellant something along the lines of, “Lick it later... stop or can you stop...” In response, the appellant said, “Do you want me to smack you?” She told police that he had smacked her as punishment when she had misbehaved in the past, and, as such, she was not sure whether she could leave the room. She told police that she instantly knew it was the appellant when she woke up, although was unsure whether there was enough light to see his face. The complainant was also unsure of the length of time the appellant continued to perform cunnilingus after she told him to stop, however, she recalled that, when he did stop, she moved to the edge of the bed clutching her toy dog and was frightened to leave. The appellant then moved closer to her and put his left arm over her and touched her chest, stomach and backside underneath her clothing. She did not recall saying anything to the appellant while this was occurring and told police that it continued until she fell asleep.

11. The complainant woke up a number of times during the night. On the first occasion, she told police that she attempted to push the appellant away from her and he then rolled to the other side of the bed. The complainant commented that she thought the appellant may have been asleep when she pushed him, because his arm was not as firm as it was previously and he was not moving it. On the next occasion, she was facing the appellant and he was touching her back and bottom underneath her clothing. She described forcing herself to roll over, so as to not face the appellant. She told police that he then continued to touch her front, being her chest and stomach, underneath her clothing. She recalled waking up on one more occasion, at which point the appellant was no longer touching her. She said that, when she woke up and it was light outside, she returned to her room and did not speak with the appellant about the incident.

12. The complainant said she first attempted to disclose the incident to her friends, B and K, when she was in year seven, approximately one year after the incident. She began to tell them that someone had “gone down on her”, although, as she continued, she became scared and instead told them it was one of her brother’s friends.

13. The complainant also wrote a letter to her boyfriend detailing the incident in August 2012, which was five years after the event. This was following a question that she posted on the website “yahoo answers”, where she sought online advice as to whether she should disclose the incident:

Should i tell my boyfriend this? i have a really big problem and really need some help. When i was 11 my stepdad forcibly went down on me and since then ive kept it to myself because i couldn’t deal with it. But now im 17 and in a serious relationship and me and my boy tell each other everything and he wanted to know my past so i said that when i was 13 some guy went down on me but now some months later he wants to know more about it. i told him i didn’t want to lie to him, but said i couldn’t tell him, i wasn’t ready to. him talking about it reminded me of the experience so i cried and now he is worried about me. I still live with my stepdad and i just don’t know what to do, do i tell him or not? ...

14. The complainant describes the incident in detail in the letter to her boyfriend. She writes that she watched part of the film “Silent Hill” and “freaked”, and was then unable to go to sleep in her room. She then went to her mother’s room and the appellant told her that she could sleep on her mother’s side of the bed. She recalls going back to her room to retrieve her pillow and her toy dog before returning to her mother’s side of the bed. She then describes how she woke up later in the night to find him pulling off her underwear. She asked him what he was doing and he said, “something like showing me something, I don’t remember now”. He subsequently performed oral sex on her. She recalls that, at some point, she said, “can you stop” and he responded, “Do you want me to smack you?” She then describes being frightened and telling the appellant that she was really tired, and that was when he left her alone. She writes that:

The rest of the night was the worst of my life. He felt my body while I was sleeping and I felt so trapped. It was all so confusing and I couldn’t speak. In the morning I think I acted normal, I have no idea.

15. She also writes that she feels as if she cannot say anything to her mother about the incident because she seems happy with the appellant and is concerned about what would happen to her siblings. She further writes that she feels her relationship with the appellant has never been the same:

Things between me and him (at least on my side) have never been the same. I’m always more reserved and do not like at all physical contact. However almost all the time its (sic) as if it never happened and its only every now and again I’ll get a surge of hate towards him, only for a couple of seconds though and then its (sic) gone.

16. The complainant also discloses the conversation that she had with her friends, B and K, where she told them that someone had gone down on her. She describes how she felt unable to tell them the full story.

17. The complainant wrote a letter to her mother shortly after she disclosed the incident to her boyfriend and also to her friend K, which we will refer to in more detail in the evidence of K. This letter contains essentially the same account of the incident that she wrote to her boyfriend. She also describes not wanting to bring sadness on her mother and to break up her family.

18. The complainant described her mother as being calm after reading the letter, although the complainant speculated that she may have been in shock. She recalled that, about a week later, she went away with her boyfriend and his family, and her siblings stayed at their grandparents’ house so her mother could speak with the appellant about the incident. When she returned, her mother explained that she thought the appellant was asleep during the incident and would not remember the incident, and that she was surprised that he did remember the incident.

19. The complainant also told police that she had disclosed the incident to her friend, C, at the same time she disclosed the incident to B. She did not provide any further details of how that disclosure came about.

20. At the pre-trial hearing on 23 December 2013, the Crown asked the complainant whether she had been able to remember further details surrounding the incident with the appellant since the recorded interview with police on 17 February 2013 had taken place. The complainant gave the following further details: I remember that [TI] had brought up a conversation with me. ... What do you remember [TI] telling you? - - - I remember him bringing up – he said something like, “Do you remember when I picked you up from horse riding and you cancelled it because it had been raining?” or something and then I said, “No” because I went horse riding every week and have been on and off for most of my life so it wasn’t a very specific thing to say. I said “No” and he said, “Let me show you why.” Then what happened? - - - That’s when he moved on the bed and took off my undies and did that thing. Do you remember what the lighting was like in the room at this time? - - - It was dark but I could still see things because the window – I don’t think we had curtains but the moonlight goes through that window pretty well so it was a bit lit up I suppose. When [TI] was saying this to you were you looking at him? - - - I don’t remember. Do you remember anything else [TI] said? ... He definitely said, “Don’t tell.” I don’t know if he said, “Don’t tell mum or anyone” but he said, “Don’t tell” because he would get in trouble with like the police. What point in time did he say this? - - - After he had done it. When you say done it, do you mean licked your vaginal area? - - - Yes. When he said that were you looking at him? - - - I think I was. Do you remember what his facial expression was like? - - - I don’t think he was looking at me so I don’t know. Did you see his eyes? - - - Yes, but they weren’t looking at me. Where were they looking? - - - I think at the mirror which is just across the bed so straight ahead.

21. The complainant was then cross-examined by counsel for the appellant. He put to the complainant that she had given a “brand new” statement to police in November of 2013, which essentially contained the further information that she testified to above. Counsel for the appellant alleged that, in this new statement, she had attempted to address the possibility that the appellant was asleep during the incident; effectively, that she was attempting to bolster her story. The complainant agreed that she had not previously made such claims in complaints to her friends, boyfriend or mother, nor had she made those claims in her recorded police interview, but she rejected the assertion that those claims were false. The complainant conceded that she was aware that the appellant claimed he was asleep during the incident.

22. During cross-examination, the complainant accepted she may have watched a movie on the computer in her brother’s room on the night of the incident, and was adamant that “Silent Hill” was the movie she watched and that she was alone. She also denied having seen the movie since the incident. Counsel suggested to her that her memory of the event was bad, to which she responded, “I guess you could say that but some things are very strong”.

23. The complainant also denied that the appellant said to her during the incident words to the effect of, “Oh my God, you will never trust me again”. K’s evidence

24. The complainant’s friend, K, testified that the complainant had told her sometime in the period of year seven to year nine that one of her brother’s friends had “gone down on her”, and that the complainant did not offer any further information when she questioned her about it.

25. Some time later, she was exchanging secrets with the complainant. The complainant told K that her secret had to do with sexual assault. They later exchanged text messages, and the complainant disclosed the incident with the appellant:

When I was in year 6 [TI] forcibly went down on me and then proceeded to touch me all night, one weekend that mum was away.

26. K gave evidence that she and the complainant had a conversation the next day about the incident, where the complainant elaborated:

What did she tell you? - - - She said that she had asked him to stop and that he had threatened to slap her if – otherwise. Sorry? - - - If she didn’t shoosh – or shut up – she would be slapped.

27. At a later date, the complainant also described her mother’s reaction to K in a text message:

I told her and she believed me. She is going to arrange for me to speak to [TI] about it sometime soon but she isn’t sure when. She isn’t sure how to act with this information because she thinks he may have been asleep and unaware of what he was doing. I told her I believe he was awake. She seemed mostly worried about me. I think that if he tells her he doesn’t remember or he was sleeping or whatever she will believe him and forgive him.

28. K testified that she recalled discussing the complainant’s mother’s reaction at school. At some point during the conversation, B walked over to where they were sitting. K recalled that, later that day, she told B about the incident.

B’s evidence

29. B also testified that the complainant had told her and K about one of her brother’s friends “going down on her”. She recalled asking a lot of questions about that incident, however, the complainant was quite closed off and did not provide further details.

30. B gave evidence that K had told her about the incident with the appellant after she had interrupted a conversation between K and the complainant. She testified that the complainant was unaware that K had told her. Later that same day, B, the complainant and their friend, C, caught a bus to Tuggeranong and the complainant said she had something to tell them. B described the interaction during evidence in chief:

“The person that went down on me was not [my brother’s] friend, it was my dad, [TI]” Did she say where her mum was at the time? - - - Yes. She said that [her mum] was away, so she was watching a scary movie – [she] was watching a scary movie and had gotten a bit frightened, so she just went into her parents’ room and went into their bed to sleep. What happened? Did she tell you what happened when she went into the bed? - - - She said that she was just in bed as normal and woke up to [TI] pulling her pants down. Yes. What else? - - - She said that he was pulling her pants down. She felt very, like, violated, and asked him to stop, and he said, “Do you want a smack?”

31. C did not give evidence at the trial. The complainant’s boyfriend’s evidence

32. The complainant’s boyfriend gave evidence that, when he and the complainant started dating, he was aware that she had told some of her friends that one of her brother’s friends had gone down on her at some point in the past. He confirmed that he raised this with her and she told him that she did not want to talk about it. He testified that, at some point afterwards, she told him that she was ready to talk about it and she handed him some notes that she had written. She remained by his side as he read the letter and was crying. He was aware that she had written a post on “yahoo answers” seeking advice on whether to disclose the incident. He testified that the complainant told him that her mother had said it was an accident. He also gave evidence as to whether the complainant had made any comments about the incident being an “accident”:

She was sure it wasn’t an accident. Did she say why she was sure? - - - She said she was sure because he had spoken to her when it happened.

33. In cross-examination, counsel sought to confirm the witness’ recollection about what she had told him about her mother’s response:

Did [the complainant] tell you that her mum had said that [TI] had said that he must have done these things to [the complainant] in his sleep? - - - Yes.

The complainant’s mother’s evidence

34. The complainant’s mother gave evidence that, on occasions during the night when the complainant was scared, she would come to her room and sleep in the bed with herself and the appellant. She said that there was not always an obvious cause for the complainant to be scared. The complainant’s mother also gave evidence about her university commitments at the time of the incident and was unable to recall the specific care arrangements that were put in place for the complainant and her siblings on those occasions.

35. She recalled that the complainant first told her about the incident in November 2012 by handing her a letter and saying words to the effect of, “I’m sorry, it’s bad news”. After they spoke about the incident, she told the complainant that she would speak to the appellant. The complainant’s mother recalled how the conversation between herself and the appellant unfolded:

So when you spoke to [TI] a week later who where (sic) was it? - - - That was at home. And who was there? - - - Just [TI] and I. And tell us how this conversation unfolded? - - - I said to him that [the complainant] had come to me and told me about something that had happened while I was – one of the times that I was away at uni. [TI] said something along the lines of, “I know what that is” and he sort of collapsed or sunk into the chair a bit, and then I asked him to tell me about it or tell me his version or – I don’t remember my exact words. What did he tell you? - - - He told me that he woke up to find himself performing oral sex on [the complainant] and that she was in our bed that – I don’t remember now if he said that he didn’t recall her coming in that he didn’t know that she was there until he woke up and found her there and that as soon as he realised what was happening, that he stopped. [TI] told me that he something to [the complainant] about her not trusting him again, that - - - Sorry I don’t understand that. Can you say that again? - - - He told me that he said something to her along the lines of that she would never trust him again. Yes continue you on (indistinct) please? - - - That she said, “It’s okay, dad” or something to that effect and that then he went back to sleep.

36. During the course of her evidence, the witness was referred to a statement she gave to police. She was specifically referred to what the appellant had told her about the complainant coming in to his bed:

...he told me during the night [the complainant] came and asked him if she could sleep in the bed because she was scared. He was asleep at that time and mumbled that she could, and then went back to sleep.”

37. She also gave evidence that the appellant had told her he asked the complainant to return to her room after the incident. He also told her that he went back to sleep after the incident and when he woke up the next morning she was no longer in the bed with him. He told her that he then went looking for the complainant in the house and, when he found her, deduced that she seemed to be ”okay”. She also recalled asking the appellant the reason he had not told her about the incident:

He hadn’t told me because he was concerned about me leaving him and taking the kids. .... He didn’t want me to know about it because he was embarrassed and ashamed that it had happened.

38. She also gave evidence that she had questioned the appellant about inconsistencies between his version of events and the complainant’s. She recalled asking the appellant about whether he had threatened the complainant with a smack and whether he had rubbed his hands over the complainant’s body during the night. The appellant told her that he could not remember.

39. The complainant’s mother testified that, following her conversation with the appellant, she spoke with the complainant. She recalled mentioning to the complainant that she thought the appellant was asleep during the incident. She recalled the complainant saying in response words to the effect of, “I don’t know. I just think that he was awake” and that they did not discuss it any further after that. In cross-examination, she noted that the complainant was not willing to consider any alternative to the events that occurred, other than the version of events she believed had happened.

40. The complainant’s mother gave evidence that she thought the appellant must have been asleep during the incident because he had done “similar things” to her during their relationship. She elaborated that she had been woken during the night to find her underwear and pyjama pants removed and the appellant performing oral sex on her and “fingering” her vagina. She further testified that, if the appellant was asleep on these occasions, she would “pretty much have to fight him off or - - - so hit his shoulder or something to attempt to wake him”. If he was awake on these occasions, the appellant would stop when she asked him to. She then gave evidence that, during those occasions, she was not able to see the appellant. She said that this was a result of the heavy curtains in her bedroom, lack of other sources of light and her poor vision.

41. She testified that, during the start of their relationship, she spoke with the appellant regarding these incidents, although she said they did not discuss it many times. On the occasions where the appellant did not wake up during the night, he would not remember performing or attempting to perform oral sex; if he had woken up, “he wouldn’t remember what he’d actually done just that he’d woken up”. It was put to her in examination in chief that he could have been “pretending” to not remember, however, she rejected this possibility. She thought that the incidents usually lasted a “matter of minutes” and that, when she had asked him to stop, he would roll over and go back to sleep. She also gave evidence that, on occasions when he had woken up to find himself performing sexual activity on her, he did not appear to be shocked at what he was doing. She was also asked whether the appellant would speak during the instances of sleep sex, to which she responded, “Perhaps he did, I don’t know”. She gave evidence that, in instances unrelated to sleep sex, she had had conversations with the appellant while he was asleep, only to discover afterwards that he was asleep during the conversation.

42. Evidence was also led about an incident that occurred while the complainant, her mother and the appellant were all sleeping in the same bed, prior to the present incident:

I woke up. [The complainant] was in our bed, I guess because she’d been scared for some reason. I woke up because she was sort of wriggling about making noises like [noises] something like that and I found that she was sleeping in the middle of [the appellant] and I, and I found that [the appellant] was trying to remove her underwear. He was asleep. I tried to wake him and I moved [the complainant] at the same time. Again, how is it that you believed that he was sleep? - - - Well, I struggled to get – you know would have said his name or tried to get his attention. I struggled to get a response from him. I may have turned the light on because [the complainant] was making noise. I don’t recall if I did or did not turn the light on.

43. She then gave evidence that, as a result of the incident, on the occasions where the complainant slept in their bed, she would position herself between the complainant and the appellant or would sit with the complainant in her own bedroom until she went to sleep.

Senior Constable Driessen’s evidence

44. Senior Constable Driessen was the lead investigator of this case. He gave evidence about the complainant’s statement of 15 November 2013. He recalled speaking to her on the phone, although was unable to remember who had contacted who. He testified that the complainant had told him that she remembered further details about the incident. Senior Constable Driessen said that, in circumstances such as these, it is standard police procedure to take a further statement, which is what occurred.

The appellant’s evidence

45. The appellant gave evidence at the trial. He went into specific detail about the events leading up to the incident, including the care arrangements that were in place for his other children, his activities after dinner and the approximate time he went to bed. He was adamant that the complainant did not watch “Silent Hill” that night and that he had watched the movie alone in his son’s bedroom on a computer, while the complainant watched what he described as a “teenage kids TV show” in the family room. He described the light in his bedroom as miniscule, as he would have turned off the lights in his room and thought that he would have closed the curtains prior to undressing for bed. He gave evidence that he did not recall the complainant entering his room.

46. The appellant testified as to what he remembered after falling asleep:

What is the next thing that you actually recall from that night? - - - Gradually waking and realising I was engaged in oral sex with someone. Now, at that point just describe physically where you were and where that other person was? ... Well it’s a bit vague, but my recollection is that I was on my chest/stomach and my head was between the legs of somebody. And that I had been in contact with them, but I had no memory of any – like I didn’t even know who – when it was, like what year. I didn’t – I came out of complete blackness if you like. What did you do? - - - Well I kind of puzzled together who I was – not who I was, but when it was and came to the realisation that the only person that could be in the bed was [the complainant] and I was very, very shocked. And what did you say or what did you do? - - - Well, my recollection is I said my God and then I said, you’ll never trust me again for complex reasons, but – and then I – well I’m not really sure. I went to sleep. I went back to my place where I sleep and I went to sleep. I was really – I felt desperately tired. I don’t know if I asked her to get out of the bed. I’m not sure what I was thinking at the time, it’s not clear to me. But I went back to my side of the bed and went to sleep. What’s the next thing you remember? - - - The next thing, I was waking up somewhere around 9.30, 10.00 the next morning.

47. The appellant later recalled that, in response to him saying, “you’ll never trust me again”, the complainant said, “I do trust you, dad, I do”, and that was the last thing he remembered before going back to sleep.

48. The appellant testified that he had no memory of touching the complainant again that night. He also testified that he had no memory of the complainant asking him to stop, nor did he recall saying to the complainant, “Do you want me to smack you?” He also gave evidence that he did not remember having a conversation with the appellant prior to engaging in sexual activity with her:

Did you say words to the effect of, “Do you remember when I picked you up from horse-riding and you cancelled it because it had been raining”? - - - No, I don’t – I’ve not said anything like that and I don’t remember saying anything like that. And she went on to say no, herself, and then you are alleged to have said, “Let me show you why”? - - - I don’t recall having any conversations with [the complainant] at all that night other than me saying, “Oh, my God,” and, yes, that’s it. That’s it. And she went on to say that you said words to the effect, “Don’t tell” – she went on to qualify that by saying, “I don’t know if he said, ’Don’t tell Mum or anyone’, but he said, ‘Don’t tell’.” And perhaps she might have suggested that you actually said this, “Because he would get into trouble with, like the police.” Did you say anything like that that you can recall? - - - I can’t recall it, nor do I think I would ever say anything like that, ever.

49. The appellant also gave evidence that the next morning he attempted to talk to her about what had happened the night before, however, when he approached her, she said, “I don’t want to talk about it”. He recalled making another attempt to speak to her about the incident, although was unsure when this would have been. He said that he had not told anyone else about the incident other than his wife when she raised it with him. He was unable to recall exactly what he had told his wife when they discussed the incident, but said it would have been substantially the same as his evidence. The appellant then gave evidence that he did not tell his wife about the incident earlier as he was scared it would result in his family falling apart and that his wife would not believe him.

50. The appellant also gave evidence about the other incident that had occurred between himself and the complainant when his wife was also in the bed:

I woke up on my knees on the floor beside my bed on my side. And when you woke up what was in front of you what did you see? - - - The light was on. [the complainant’s mother] and [the complainant] were sitting up in the bed and they were saying something with concerned voices. Or [the complainant’s mother] was saying something in a concerned voice. Did she tell you what had occurred? - - - Yes she said that I had tried to remove [the complainant’s] underwear.

51. He then testified about occasions where he had engaged in sexual activity with his wife while he had been asleep. He described it as occurring infrequently and that he was only aware of it if he had woken up while it was occurring or his wife had told him about it the following morning. He also testified that, when he was younger, he went on a vacation with a primary school friend, Timothy Hawes, where they slept in the same bed, although in separate sleeping bags. He recalled the next morning his friend had told him that he had been rubbing his leg during the course of the night, which he had no recollection of.

52. The appellant said that, if he had said the words, “Do you want me to smack you?”, he had been asleep when he said them. The appellant testified that he had smacked his children once or twice in the past. In cross-examination, he explained that his parenting technique was to instil an impression on his children that they would be smacked if they misbehaved, so it was necessary to smack them a few times at first to create that impression. However, he considered it was uncommon for him to say, “do it or I’ll smack you”.

53. In cross-examination, the appellant rejected the proposition that he had set up the movie “Silent Hill” for the complainant to watch, being fully aware that she would be frightened and had a habit of sleeping in her parents’ bed when scared.

54. The Crown also questioned the appellant’s “complex reasons” for saying to the complainant, “My God you’ll never trust me”. The appellant gave the following explanation:

There are things that [the complainant] does that she may regret when she’s older and so it’s part of my job to prevent her from doing things that she might regret when she’s older. And this to me was an example where something’s happened which while she probably won’t care about it now when she’s older it will be significant to her. So, it’s an odd thing to say, I agree, and I can’t say that I was fully awake, but I remember that’s the words that came out of my mouth. I’m not sure that I can explain exactly the words, but that’s the words that came out. I was shocked and then I merely thought, you know, about her thinking back on it and saying, you know, “He let that happen to me.”

55. The appellant conceded that he was partially awake when he said those words to the complainant. He went on to say, “that’s my memory of what I said. I wasn’t thinking clearly. I felt terribly tired. I pretty much went straight back to sleep”. The appellant considered that the complainant was too young at the time for the incident to have any sexual connotation for her. He also thought that the complainant did not appear to be scared at the time, given the tone of her voice when she said, “It’s all right, don’t worry”.

56. The appellant rejected the proposition that he had made no attempts to speak with the complainant about the incident the following morning or on any other occasion.

57. When cross-examined on why he had not sought treatment following the incident, the appellant said that he was unaware that it was a treatable condition and considered that the only options were preventative, that is to remove himself from a situation where he would be in a bed with a child.

58. The appellant also agreed that, when speaking with his wife about the incident, he may have told her that the complainant had come into their room and asked if she could sleep in their bed because she was very scared, and that the appellant had mumbled that she could before he went back to sleep. He thought that that “seemed very plausible”, that it was “probably true” and that “it doesn’t seem like [the complainant] would lie about something like that”.

Timothy Hawes’ evidence

59. Timothy Hawes was called by counsel for the appellant to verify the version of events the appellant had given in evidence. He recalled that he and the appellant had been camping and, at some point in the night, he woke up with the appellant embracing him. He recalled saying to the appellant: “What are you doing” and that the appellant seemed disorientated and it took a minute or two for him to become fully conscious and aware of what he was doing. He described the appellant as looking vacant and did not recall whether much conversation ensued the next morning. The Crown suggested whether it was possible that the appellant had been rubbing his leg and not hugging him. Mr Hawes considered it was possible, and conceded that he did not recall anything specific about the event.

The appellant’s father’s evidence

60. The appellant’s father gave evidence about a family history of parasomniac behaviour. He referred to behaviour in both his wife and youngest son, the younger brother of the accused, while they had been asleep. The appellant’s father could not remember any specific occasion where the appellant had exhibited parasomniac behaviour.

Dr Buchanan’s evidence

61. Dr Buchanan, a medical expert in sexsomnia, assessed the appellant on 25 June 2013 and provided a written report in August 2013. He was called to give evidence at trial on behalf of the appellant.

62. Dr Buchanan described sexsomnia, or sleep sex, as behaviour of a sexual nature which arises during or from sleep, and is associated with a number of known and recognised sleep medicine disorders. He testified that the condition can lead to a range of sexual activities where the person involved in the act of sleep sex, “the actor”, may perform varying degrees of sexual behaviour, but without full conscious awareness at the time or subsequently of having done so. Dr Buchanan gave evidence that, unless such behaviour is witnessed in a laboratory, he could not clinically verify whether the appellant was asleep at the time of the incident.

63. Dr Buchanan conducted an overnight sleep study on the appellant in July 2013. He documented a mild degree of sleep disordered breathing, otherwise known as obstructive sleep apnoea and some snoring. Otherwise, Dr Buchanan considered it to be within the normal range of results. Dr Buchanan testified that there have been a handful of instances of mostly moderate or severe sleep apnoea disorders associated with sleep sex published in the literature over the last 20 or so years. He also considered that these instances are so rare that it is not possible to draw general conclusions, except in cases that are carefully documented. Dr Buchanan considered that, even though the appellant did not fall into the category of sleep apnoea associated sleep sex, it does not necessarily follow that he could generalise that appellant did not suffer from some other underlying cause, which he just did not happen to witness in the laboratory that night.

64. Dr Buchanan developed a “checklist” of factors that could lead to a diagnosis of sleep sex:

(a) there should be reason (by history and/or formal sleep laboratory evaluation) to suspect a bona fide sleep disorder. Similar episodes with a benign or morbid outcome should have occurred previously. It must be remembered that disorders of arousal may, though much less commonly, occur for the first time in adulthood;

(b) the duration of the action is usually brief (minutes);

(c) the behaviour is usually abrupt, immediate, impulsive and senseless without apparent motivation, and although ostensibly purposeful, is completely inappropriate to the total situation and out of waking character for the individual, and without evidence of premeditation;

(d) the victim is someone who merely happened to be present and who may have been immediately proximal stimulus for the arousal;

(e) immediately after return of consciousness, there is a perplexity or a horror without attempting to escape, conceal or cover up the action. There is evidence of a lack of awareness on the part of the individual during the event;

(f) there is usually some degree of amnesia for the event, however, this amnesia need not be complete; and

(g) in the case of sleep terrors, sleep walking or sleep drunkenness, also known as “confusional arousal”, the act may conform to one of the following: it may occur on awaking, rarely immediately on falling asleep and usually at least one hour after sleep onset; it may occur upon attempts to awaken the subject; it may have been potentiated by alcohol ingestion, a controversial sedative or hypnotic administration or prior sleep deprivation.

65. We note that Dr Buchanan qualified during the course of his testimony that his report referred specifically to sleep sex related to non-REM parasomnia and the items listed above are not necessarily typical to other less common medical causes of sleep sex.

66. In relation to item (a), Dr Buchanan did not consider it to be absolute that a person have a background or family history of non-REM parasomnia, however, that it did lend support to the tendency of an individual to then be engaged in sleep sex. He also said that he would place great emphasis on the evidence of the appellant’s wife and that it provides a strong indication that the appellant may be predisposed to such behaviour.

67. In relation to item (e), Dr Buchanan considered that the appellant saying, “Oh my God, you’ll never trust me again”, could be an expression of perplexity. Although, during cross-examination, he considered that, during the act itself, a person suffering from sleep sex would not be able to reason the conduct they had engaged in was wrong.

68. Also in relation to item (e), Dr Buchanan considered that the state of consciousness a person returns to if they return to consciousness during an incident of sleep sex is dependent on the stage of sleep they were in. He commented that if the drive to sleep is still strong a person may return to sleep very readily.

69. Dr Buchanan concluded:

...I think if corroborated, as it seems to have been done to this court by his wife, the previous episodes of what sound like sleep sex behaviour, I think is strongly, but not necessarily definitively supportive aspect that would go to attributing the charged behaviour as being related to automatistic sleep sex behaviour.

70. During cross-examination, Dr Buchanan conceded that there is no single definitive test to diagnose sleep sex and that research into the phenomenon was still in its infancy. He also conceded that, if an actor is giving an account, it is difficult to discern whether he is being truthful.

71. In cross-examination, Dr Buchanan was asked whether the complainant’s account was inconsistent with a claim of sleep sex, to which he responded:

What it sounds like, from what you read to me, is recurrent activity. It remains uncertain in my mind whether the intervals between these recurrent activities – or what duration that was. And it remains uncertain at those times when he was fondling her, if I can use that term, rather than performing the oral sex, whether he was awake or not. It’s impossible for me to judge.

72. Later during cross-examination, Dr Buchanan conceded that incidents of sleep sex are usually unitary events in a single night, and that it is less common for there to be more than one incident in a single night.

Dr Allnutt’s evidence

73. Dr Allnutt is a medical doctor and a psychiatrist. Dr Allnutt also provided a report in this matter, in which he considered the report from Dr Buchanan, the police interview that was conducted with the complainant, an interview that he had conducted with the appellant and a conversation he had had with the appellant’s wife. The report addressed the question of whether the appellant’s actions during the incident were voluntary.

74. Dr Allnutt agreed that it was not possible for him to say whether the appellant was asleep at the relevant time. He also referred to sleep sex generally and accepted that it was a recognised phenomenon.

75. Dr Allnutt considered objective evidence to be vital in making a diagnosis of sleep sex, especially since doctors are reliant on accurate self-reporting, which he noted is troublesome since the actor generally cannot recall the events or they wake up to find themselves in the midst of performing a sexual act. He considered that objective evidence provides weight either for or against the final conclusion of parasomniac behaviour. Dr Allnutt concluded that, if the accounts provided by the appellant and his wife were to be accepted as valid, then there would be grounds to conclude on the balance of probabilities that the appellant “has a defence of automatism”.

76. During cross-examination, Dr Allnutt agreed that a feature of sleep sex is generally having a history of sleep walking as a child and that it is less common for parasomniac activity to emerge in adulthood.

77. Dr Allnutt took the appellant’s history, during the course of which, the appellant disclosed the earlier incident that had occurred when sharing a bed with the complainant and her mother. Dr Allnutt considered it was potentially significant that only a short time later, on his own versions of events, he would then have allowed the complainant to enter his bed to sleep. He qualified this by saying that, if he was partially asleep when he responded to the complainant’s request to enter his bed, then it would also be reasonable to consider that he might not have been fully considering his response, although he considered this to be more of a “lay issue”.

78. Dr Allnutt considered the two further episodes of inappropriate touching of the complainant to be ambiguous. He opined that, generally, an episode might occur once in a night, but two further episodes either suggests strongly motivated sleep behaviour or the conscious pursuit of a young girl. He also considered the study by Dr Buchanan to be a “negative sleep study” and ambiguous as it did not shed any light on whether the appellant was suffering from any parasomniac behaviour. Dr Allnutt also labelled the appellant not disclosing the incident to his wife or anyone else as ambiguous. He considered that it was an understandably embarrassing situation that had potential connotations that the appellant would be reluctant to disclose. However, on the other hand, if he had raised it with someone, it would suggest it was sleep related sex behaviour.

79. Dr Allnutt also listed some factors of the appellant’s behaviour that were not consistent with sleep sex. One of those would be if the appellant was awake when the complainant had entered his bedroom. He also considered that the complainant’s version of events, where the appellant spoke of horse riding and then said, “Going to show you”, would be more consistent with wakefulness. He also thought that the comment, “Do you want me to smack you”, which was then followed by sexual activity, was more consistent with wakefulness, as it suggested coercion. In relation to the comment “Don’t tell”, Dr Allnutt gave evidence that he considered this to be ambiguous. He considered that it would be possible for a person to come out of a sleep sex incident and then become aware of the situation they were in.

The appellant’s submissions

80. In his oral submissions, counsel referred to the “two limbs” of the Crown case, the first being the reliance on the words the complainant alleged that the appellant spoke during the alleged offences combined with the expert evidence adduced at trial; and the second being the complainant’s opinion about whether the appellant was awake or asleep during the alleged offences. Counsel considered that these “two limbs” both required a specific warning from the trial judge, and both formed grounds of appeal. Counsel considered that the last ground of appeal, namely that the verdicts are unreasonable and cannot be supported having regard to the evidence, is informed by consideration of the other two grounds of appeal.

81. We will briefly summarise the appellant’s submissions in relation to each of the three grounds of appeal. First, we will summarise the appellant’s submissions in relation to whether leave should be granted for grounds one and two to be argued under r 5531 of the Court Procedure Rules 2006 (ACT).

Whether leave should be granted

82. The appellant submitted that the ultimate question for the Court is whether there has been a substantial miscarriage of justice. He submitted that the discretion under r 5531 of the Court Procedures Rules 2006 (ACT) to grant leave to appeal is wide. The appellant also referred to s 37O of the Supreme Court Act 1933 (ACT), which states that an appeal should be allowed if the Court is satisfied that there was a miscarriage of justice.

83. The appellant further submitted that both asserted directions were necessary in the particular circumstances of this case to prevent a risk of a miscarriage of justice. He considered that, on an objective analysis of the case, there could be no forensic advantage for the appellant to refrain from asking the trial judge to give either direction. He referred to the observations of McHugh J in TKWJ v The Queen (2002) 212 CLR 124. McHugh J, referring to where complaint is made about the summing up to the jury and no objection had been taken by defence counsel, stated: “the appellant has the onus of establishing a misdirection, that it might have affected the verdict and that, if it had not been made, the jury might have acquitted the appellant”. The appellant also highlighted the statements made by McHugh and Gummow JJ in Dhanhoa v The Queen (2003) 217 CLR 1 at 13, where their Honours referred to a miscarriage of justice in the same context as the present case:

No miscarriage of justice will have occurred in such a case unless the appellant demonstrates that the direction should have been given and it is “reasonably possible” that the failure to direct the jury “may have affected the verdict”. (Footnotes omitted)

84. The appellant noted, as observed by Brennan J in Bromley v The Queen (1986) 161 CLR 315, that a warning need not be given unless “the jury may not have fully perceived” the danger. He then submitted that it is not possible to say with confidence that the jury would have been fully aware of the need for caution in assessing the reliability of the complainant’s evidence as to what the appellant said and in assessing the reliability of her opinion that he was awake at all relevant times.

Ground 1: A miscarriage of justice resulted from the absence of any direction by the trial judge to the jury regarding the complainant’s evidence as to words spoken by the appellant

85. Counsel for the appellant submitted that much of the case turned on the precise words that were spoken by the appellant during the incident, such that it was necessary for the judge to give the jury a warning to that effect. He submitted that the reliability of the complainant’s memory was an important issue.

86. He noted that the appellant did not dispute the conduct alleged by the complainant, however, he did dispute the words he allegedly spoke during the incident. In particular, counsel highlighted the complainant’s account that the appellant said “Do you want me to smack you”, in combination with Dr Allnutt’s opinion that he considered those words to be more consistent with wakefulness, as they suggested coercion, as demonstrative of the importance of the words allegedly spoken in determining whether the appellant was awake or asleep at the time of the incident. Presumably, these words were highlighted as the appellant considered them to be most detrimental to his defence.

87. The appellant compiled a list of factors, which he submitted, were relevant to the reliability of the complainant’s memory in relation to those words:

(a) the memory involved seven spoken words;

(b) the words made her “really scared” since they were said in a context where the complainant had been “smacked” in the past;

(c) the complainant was asleep just prior to the words being said;

(d) soon after the words were said, the complainant went back to sleep;

(e) the complainant did not make any contemporaneous record of the words;

(f) the first time that the memory of the words was recounted was years after the event; (g) at the time the words were spoken and when the complainant recounted the words, the complainant believed that the appellant was awake when he spoke; and

(h) the complainant felt, on occasion over the subsequent years, hatred towards the appellant.

88. Counsel submitted that a small error of detail on the part of the complainant, or, indeed, the appellant, could be critical in determining whether the appellant was in fact asleep or awake. Counsel referred to the further details that the complainant provided in her testimony on 23 December 2013, and placed emphasis on excerpts of her evidence in which the complainant is unsure of the precise words spoken. For example, counsel noted the following excerpt: “I remember him bringing up – he said something like, “Do you remember when I picked you up from horse riding and you cancelled it because it had been raining? Or something...” Also in her testimony on 23 December, the complainant gave evidence that, following the appellant’s reference to horse riding, he then went on to say, “let me show you why”. Counsel considered this problematic, as Dr Allnutt’s evidence was that the slightly different words “going to show you” were more consistent with wakefulness, rather than the precise words that the complainant had alleged.

89. Counsel referred to the letter she wrote her boyfriend more than a year earlier, where she wrote: “I asked him what he was doing and he said something like showing me something, I don’t remember now”, again to demonstrate that the complainant was unsure as to the precise words the appellant used.

90. Counsel also pointed to discrepancies in the complainant’s evidence, in particular, whether her underwear was removed before or after she awoke. The complainant gave evidence at trial that the exchange between herself and the appellant about horse riding took place before he removed her underwear, however, in her previous accounts to her boyfriend, friends and mother, she had said, “I woke up to feel him pulling off my undies”, and in her interview with police, she had said, “I was asleep then woke up to find um, his face down there... at some point um, I woke up... But I know that my undies were off...”.

91. Counsel also drew attention to the complainant’s evidence that she recalled the appellant saying words to the effect of, “Don’t tell”, and was unsure as to whether he specifically told her not to tell her mother. He noted that she had not mentioned this in her letter to her boyfriend or mother, to any of her friends, or to police. Counsel considered this to be inconsistent with her previous accounts of why she did not tell her mother, being that she was too scared to talk about the incident and did not wish to break apart the family and bring sadness on her mother.

92. Counsel referred to the principles in Longman v The Queen (1989) 168 CLR 79 as the basis of this ground of appeal. He also referred to McHugh J’s judgment at [14] (referring to Gibbs CJ in Bromley v The Queen (1986) 161 CLR 315 at 319):

What is required, in a case where the evidence of a witness may be potentially unreliable, but which does not fall within one of the established categories in relation to which the full warning as to the necessity of corroboration must be given, is that the jury must be made aware, in words which meet the justice of the particular case, of the dangers of convicting on such evidence.

93. McHugh J then went on to say at [15]:

If, however, the evidence discloses any circumstance which suggests that the evidence of the complainant may be unreliable, the trial judge had a duty to make the jury aware of the dangers concerning that person’s evidence. As in any case where the prosecution depends solely upon the evidence of one witness, the trial judge is entitled to point out that the evidence of the complainant requires careful scrutiny before acting upon it. But cases will frequently arise where the circumstances will require a stronger warning. Counsel submitted that this was such a case that required a stronger warning, and referred to the list of considerations that are relevant to the reliability of the complainant’s memory to which we have referred above at [86].

94. During the course of oral submissions, Burns J expressed some doubt as to whether this continues to be the position following the introduction of the Evidence Act 2011 (ACT), particularly s 165. This section provides that a party may request that the judge warn the jury that a witness’ evidence may be unreliable, tell the jury the matters that may cause it to be unreliable and warn the jury of the need for caution in deciding whether to accept the evidence and the weight to give to it. Counsel submitted that, if a request is not made under s 165, then the section has no further application, such that the common law then applies and a trial judge’s continuing obligation to ensure a fair trial.

95. In his written submissions, counsel also referred to a number of civil authorities, which he described as being transposable to the criminal jurisdiction. The following passage by McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-319 was advanced as having applicability in the present situation:

Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described (sic) as “misleading”) within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed.

96. This passage has been cited in a number of civil cases that have emphasised the need for caution in the context of precise words, mostly in cases of misleading and deceptive conduct. It is not necessary to refer to them all in detail here; it is enough to say that it is not a novel principle in the civil jurisdiction. We also note that Rares J in Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) [2008] FCA 810 made the following comment at [41] when referring to the above passage:

His Honour’s observations as to the frailty of human memory are, of course, not to be taken as limited simply to cases invoking claims under the Trade Practices Act or its analogues. This was made in the context of his Honour considering what oral terms of a contract were agreed in the course of negotiations.

97. Counsel referred to the academic literature on the topic of memory and psychology. Counsel submitted that the analysis of McLelland CJ in Watson v Foxman is consistent with modern research on memory in the field of psychology. He referred to the text Ainat Panksy et al, ‘Eyewitness Recall and Testimony’ in Neil Brewer and Kipling D Williams (eds), Psychology and Law – An Empirical Perspective (Guilford Press, 2005) 93, 103, which recounted a number of memory associated studies that had been completed over the last several decades. To state briefly, studies have found that prior knowledge, schemas and attitudes can often impair the accuracy of memory. The passage of time has been the most frequently cited factor regarding impairment of a person’s ability to recall events, with a person being more likely to remember the general meaning or “gist” of an event, rather than detailed information, after some time has passed since the event. Counsel also referred to an article written by McLellan CJ at CL entitled “Who is telling the truth? Psychology, common sense and the law”. In particular, counsel extracted the following insights from that article as having bearing on the present case:

(a) when a person witnesses a traumatic event, they focus on the central features of the event rather than the peripheral details;

(b) there is a poor correlation between confidence of recall and accuracy; and

(c) fact-finders are reluctant to believe in the fallibility of memory.

98. Counsel submitted that no particular “mantra” was required to be given to the jury and, indeed, acknowledged that recent High Court authority has moved away from the need to use the words “warning” or “dangers of convicting on the evidence” when giving a warning to the jury. An appropriate warning to the jury, counsel submitted, would be one modelled on the passage of McLelland CJ in Watson v Foxman, in addition to a warning that witness confidence regarding memory does not necessarily provide a good reason to regard the memory as accurate. Counsel in oral submissions conceded that this proposed warning would not go beyond what would have been required under s 165 of the Evidence Act.

Ground 2: A miscarriage of justice resulted from the absence of any direction by the trial judge to the jury regarding the evidence of the complainant’s opinion

99. The appellant submitted that a direction was required about the complainant’s opinion that the appellant was awake during the alleged incident. The opinion evidence was led in the following ways:

(a) evidence of the complainant’s boyfriend that she had told him she was sure it was not an accident, as “he had spoken to her when it happened”;

(b) the text message of the complainant to her friend K: “I told [the complainant’s mother] I believe he was awake”; and

(c) evidence of the complainant’s mother that, when she asked the complainant why she was so sure he was not asleep, she said “I don’t know. I just think that he was awake” or “He was awake”.

100. The appellant submitted that the complainant’s opinion should have been approached with caution because it was not a fully informed opinion, that is, she was unaware of the phenomenon of sexsomnia. The appellant also submitted that it was relevant that the complainant was not able to articulate the reason she believed the appellant was awake, apart from the words he spoke.

101. The appellant submitted that the complainant’s opinion that the appellant was awake during the incident was an inference that she drew from what she saw and heard. He submitted that the complainant’s opinion is more than a compendious description of what she observed and it should instead be seen as her drawing inferences from what the appellant said or did. The appellant relied on Lithgow City Council v Jackson (2011) 244 CLR 352, where French CJ, Heydon and Bell JJ observed at [10] that an “opinion” is commonly taken to mean “an inference from observed and communicable data”. They then referred to the qualification of the common law rule that non-expert witnesses may not express opinion at [45]:

The common law permitted the reception of non-expert opinion evidence where it was very difficult for witnesses to convey what they had perceived about an event or condition without using rolled-up summaries of lay opinion – impressions or inferences – either in lieu of or in addition to whatever evidence of specific matters of primary fact they could give about that event or condition... in many cases, to endeavour to describe the primary facts underlying the inference may be ineffective or misleading without stating the inference. (emphasis added)

102. The appellant noted that, while this evidence was admissible and the Crown was entitled to rely upon it, there was still a pressing need for a direction to the jury about inference drawing.

103. The appellant further submitted that, since the prosecution case relied, at least in part, on an inference drawn by the complainant, this warranted a warning analogous to one given in a circumstantial evidence case. In criminal trials where the prosecution case involves circumstantial evidence, it is common for a trial judge to direct a jury that, where they rely upon circumstantial evidence, guilt should not only be a rational conclusion but also the only rational (or reasonable) conclusion that can be drawn from the circumstances: see Shepherd v The Queen (1990) 170 CLR 573 at 578; R v Keenan (2009) 236 CLR 397 at [126]. Counsel submitted that, at the very least, there should have been a warning about the dangers of too readily drawing inferences.

104. The appellant referred to a model direction in the Victorian Charge Book prepared by the Judicial College of Victoria which should be given where a lay witness gives opinion evidence. He submitted, based on the Charge Book, that the direction to the jury at the trial should have taken the following form:

I must now give you directions about opinion evidence. There is evidence before you that the complainant believes that the accused was not asleep at the time these charged acts occurred. That is her opinion. The Crown submits to you that you could rely on her opinion to support a conclusion that he was not asleep. Ordinarily, witnesses are not allowed to give opinions in court. They must confine their evidence to their own observations. That is because it is you who are the judges of facts, and so usually it is only your opinion that is relevant. However, the law says that when a person gives evidence about something that she witnessed, she may give her opinion about that thing if it is necessary in order for you to properly understand what it was that she witnessed. That is the case here. You should keep in mind, however, that her belief is only her opinion. You are not required to accept it. You are the judges of fact in this case. Her opinion is merely a piece of evidence like any other, which you may accept or reject. When assessing her opinion, you should examine the quality of the reasons offered for her opinion, and the facts that support that opinion. The complainant told her mother that she believed the accused was awake. Her mother asked her why she was so sure and she said ‘I don’t know. I just think that he was awake’ or ‘He was just awake’. [The complainant’s boyfriend] testified that the complainant said she was sure because he (the accused) had spoken to her when it happened. In considering that evidence, you should bear in mind the evidence of Dr Buchanan and Dr Allnutt that a person may speak while asleep and that evidence of the accused’s wife that she had had conversations with him while he was asleep. You should also bear in mind that, at the time this incident occurred, the complainant may have been unaware of the phenomenon of sexsomnia and unaware of the episodes of sexsomnia which the accused’s wife testified about. Accordingly, her opinion may not have been informed by awareness of the possibility that a person may perform various acts and say various things but be asleep at the time. Once her opinion had formed, it might be difficult for her to re-assess that opinion in the light of claims that the accused was in fact asleep. Her expressed level of confidence that he was awake does not necessarily provide a good foundation for relying upon her opinion. In substance, the complainant has drawn an inference that the accused was awake from what he did and what he said. It is usual to warn a jury about the dangers of too readily drawing inferences from particular circumstances. Thus, they would be warned that the fact that a telephone call is unanswered does not necessarily mean no one is home. In this trial, the direction I give you is that you should be cautious before concluding that the inference drawn by the complainant – that the accused was awake – was correct.

105. At the trial, the jury were directed that they were not obliged to accept the whole of a witnesses’ evidence, and may “accept part and reject part of the evidence of a particular witness”. The trial judge also directed the jury that the “answer comes back to whether you accept [the complainant’s] evidence about the critical matters beyond reasonable doubt”, although counsel submitted that the trial judge never informed the jury what these “critical matters” were.

Ground 3: The findings of guilt are unsafe and unsatisfactory having regard to all the evidence

106. This ground of appeal relies on the evidence of the above grounds of appeal.

107. The appellant submitted that the leading authority relating to this ground of appeal is M v The Queen (1994) 181 CLR 487. The majority in that case outlined the function of the appellate court when determining whether a verdict is unsafe and unsatisfactory, and the principles distilled from this decision have been cited with approval on a number of occasions: SKA v The Queen (2011) 243 CLR 400, at [11] – [14]; Douglass v The Queen (2012) 86 ALJR 1086 at [42]; BCM v The Queen (2013) 303 ALR 387 at [31]. An appeal court must first ask itself whether it considers that a reasonable doubt as to guilt exists. In most cases, a doubt experienced by the 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 the doubt experienced by the appeal court that the court may conclude that no miscarriage of justice occurred.

108. The appellant submitted that the possibility that the appellant was asleep during the alleged offence cannot be reasonably excluded. He submitted that the defence evidence established that it was at least possible that the appellant committed the alleged acts while asleep. The appellant submits that this case is one where there is a significant possibility that an innocent man has been wrongly convicted. The respondent’s submissions

Whether leave should be granted

109. In his written submissions, the respondent describes the appeal in relation to grounds one and two as an “arm chair” appeal. He highlighted that this Court has recently warned about such appeals in Munro v The Queen [2014] ACTCA 11. Referring to r 5531 of the Court Procedure Rules 2006, Burns J, with whom Refshauge and Penfold JJ agreed, stated at [128]:

Some aspects of the appeal against the appellant’s conviction bear the hallmarks of what has been referred to as an “armchair appeal” in the Court of Criminal Appeal in New South Wales, that is, where counsel not involved in the trial “has sat down and gone through the whole of the transcript and the summing up looking for error, without reference to the manner in which the trial was conducted”… (citations omitted)

110. They then went on to say at [130]:

In the present proceeding, there was no application made under r 5531 with respect to those grounds the appellant now seeks to agitate, which were not the subject of an objection at the trial. Appellants should not consider the provisions of r 5531 to be a formality which may be neglected. It is at the heart of the adversarial system that an accused chooses the manner in which his or her defence to criminal charges is conducted. Almost inevitably, this means that forensic decisions must be made on issues that arise in the course of the trial, such as objections to evidence or an objection to a direction given by the trial judge. The person best placed to make such an objection, by reason of familiarity with the basis on which the defence is being conducted and the atmosphere of the trial, is counsel for the accused. Where no such objection is taken, this Court is entitled to infer that counsel saw no unfairness or injustice in what was done.

111. The respondent stressed that this Court should be cautious about granting leave too freely. He referred to the observations of Nield AJ in Korres v The Queen [2013] ACTCA 53 at [58]:

The last point to be made is that the appellant’s trial counsel did not raise any objection to, or seek a direction in relation to that part of the trial judge’s charge to the jury of which the appellant now complains. Who better, I ask rhetorically, than the appellant’s trial counsel to consider whether part of the trial judge’s charge to the jury is inaccurate or inappropriate? I respectfully agree with the comment by Latham J in Richardson v R [2013] NSWCCA 218 at [97] that: A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakin v R [2007] NSWCCA 373; (2007) 70 NSWLR 476 at [10] – [13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58] – [61]. An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130]. He also considered that this observation mirrored McHugh J in Papakosmas v The Queen (1999) 196 CLR 297 at [72].

112. The respondent submits that the appellant has not established that the failure to give directions not asked for at trial resulted in a miscarriage of justice. He submitted that r 5531 should therefore be applied. Ground 1: A miscarriage of justice resulted from the absence of any direction by the trial judge to the jury regarding the complainant’s evidence as to words spoken by the appellant

113. The respondent focused on the phrase “Do you want me to smack you”. He emphasised that at no point during cross-examination was it suggested to the complainant that those words were not said; rather, the appellant said that, if he had spoken those words, then he was asleep when he said them. The respondent submitted that it was then for the jury to carefully consider the evidence as a whole, as they were directed to do. He further submitted that the jury was properly instructed and could be satisfied of the complainant’s reliability.

114. In relation to the reliability of the complainant’s memory regarding the words “Do you want me to smack you”, the respondent submits that the jury was entitled to take into account the context provided by the complainant in assessing her memory, being that she was smacked when she misbehaved in the past and it was because of those words she was unsure whether she could leave the bedroom, and it was in that context that the complainant would be more likely to accurately remember those words. He also submitted that the jury was entitled to consider the consistent explanation that the complainant provided in her letters to her boyfriend and mother, her accounts to her friends and her evidence in chief in this regard.

115. The respondent then addressed the appellant’s submission that “some kind of warning was needed” in relation to the complainant’s evidence about the words spoken by the appellant. He submits that the use of civil authorities is irrelevant to the present case. The respondent submitted that, in those civil cases, the precise words and nuances used in the representation in question were critical to whether the representations were misleading or deceptive in nature, such that the litigation rose and fell on what was said or done, or in some instances, an omission. The respondent submitted that this can be contrasted with the present situation, as the precise words spoken at the relevant time are one of a range of factors that were presented to the jury as evidence to consider, and that the jury was required to consider the evidence as a whole.

Ground 2: A miscarriage of justice resulted from the absence of any direction by the trial judge to the jury regarding the complainant’s opinion evidence

116. The respondent submitted that the matter was aptly dealt with by the trial judge’s direction. He further highlighted that experienced counsel appeared for the appellant at the trial and raised no issue with the directions, nor did he seek further directions.

117. The respondent also submitted that there was evidence before the jury to support the complainant’s belief that the appellant had been awake at the relevant time; namely, the complainant’s conversations with her mother, boyfriend, friends and police. He also highlighted that the appellant’s wife was unclear during her evidence as to whether the appellant was responsive when she found him performing acts of a sexual nature on her and believed that he was asleep.

118. The respondent noted that the trial judge directed the jury to the evidence presented by Dr Buchanan, the appellant’s wife, and Mr Hawes, which suggested the appellant was predisposed to sleep sex behaviour. The respondent then submitted that the trial judge appropriately noted to the jury that what was relevant in this case was whether on the particular occasion in question the appellant was suffering from sleep sex rather than whether he was predisposed to it. He noted that the trial judge directed the jury that, unless they were satisfied beyond reasonable doubt that the appellant was not asleep at the relevant time and that his actions were voluntary, they must find him not guilty.

119. The trial judge’s directions to the jury which the respondent seeks to rely upon as providing clarity to the jury as to their role are as follows:

[T]his is very important, if you believe [the appellant’s] evidence of what happened in his bedroom with [the complainant], then you must find [the appellant] not guilty of all charges. If you do not believe [the appellant] but think that what he said about being asleep then coming to wakefulness might be true, then you would also find him not guilty, because if you think what he said might be true then you would not be able to be satisfied beyond reasonable doubt that he is guilty of any of the charges. If you do not believe [the appellant’s] version of events, then what you must do is put that evidence to one side and then turn to simply consider whether the evidence you do accept satisfied you beyond reasonable doubt that [the appellant] is guilty of one or all of the charges … It is not for [the appellant] to prove his innocence.

120. In relation to the appellant’s contention that the trial judge had failed to inform the jury what the ‘critical matters’ were, the respondent submitted that his Honour had earlier informed the jury that the central issue in the trial was whether or not the appellant’s acts “were voluntary or whether he was asleep at the time acts were committed”.

Ground 3: The findings of guilt are unsafe and unsatisfactory having regard to all the evidence

121. The respondent submitted that the appellant has continually referred to “possibilities” in his submissions. For example, the appellant submitted that the possibility that the appellant was asleep during the incident cannot be reasonably excluded, and also submits that there is a possibility that an innocent man has been wrongly convicted. The respondent submitted that this is not consistent with the approach taken by the courts and referred to the decision W v R [2014] NSWCCA 110. In that case, Bathurst CJ (with whom Hoeben CJ at CL and Bellew J agreed) remarked at [151] that: “it is not enough for the verdict to be unreasonable that a review of the evidence shows only that it was possible for the jury (or in this case the trial judge) to reach a different conclusion”. His Honour went on to cite with approval the following remarks by Hayne J in Libke v The Queen (2007) 230 CLR 559, with whom Gleeson CJ and Heydon J agreed at [113]:

It is clear that the evidence that was adduced at the trial did not all point to the appellant’s guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant’s guilt. (Emphasis as in the original)

122. The respondent submitted that the central question for the appellate court is not whether it is of the view that the appellant should have been convicted; rather, whether it was open to the jury, after having the advantage of hearing and seeing the witnesses, including that of the complainant and, in this case, also the appellant, on the whole of the evidence, to find the offences proved beyond reasonable doubt.

123. The respondent submitted that the complainant’s evidence was not classically of the kind referred to in M v The Queen and referred to this passage at [494]:

If the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court 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, it is bound to act and to set aside the verdict.

124. The respondent submitted that the suggested doubts which the appellant submits should have led to an acquittal were capable of being resolved by the jury given their advantage of seeing and hearing the evidence. Therefore, it was open to the jury, in the sense discussed by the High Court in M v the Queen, to be satisfied beyond reasonable doubt on the whole of the evidence that the appellant was guilty of the offences charged.

Consideration

125. In our opinion, this appeal should be dismissed, and leave should be refused under r 5531 with respect to Grounds 1 and 2.

126. It was very clear from the way in which the trial was conducted what the issues were between the parties, and it must have been equally clear to the jury. The evidence of the complainant about the physical actions of the appellant during the events in question was never challenged. The significant issue for the jury was whether they were satisfied beyond reasonable doubt that the actions of the appellant were voluntary.

127. The circumstances that the appellant now says rendered the evidence of the complainant concerning the words said to have been spoken by the appellant unreliable were all before the jury in the evidence they heard. They were all circumstances that a jury would readily identify and understand as relevant to the reliability of the complainant’s evidence concerning the words said to have been spoken by the appellant. In his directions to the jury, the trial judge correctly identified the issue for the jury to determine as whether the acts of the appellant were voluntary. His Honour then went on to tell the jury, concerning the evidence of the complainant:

In this case, as in most cases where sexual activity is alleged, there is only one prosecution witness who is capable of giving direct evidence of what occurred, the complainant. Therefore, you must examine her evidence very carefully before deciding whether you are prepared to accept it beyond reasonable doubt in relation to critical matters.

128. The reference to “critical matters” in his Honour’s direction can only been seen, in the context of the narrow issue at the trial, as a reference to those matters relevant to determining whether the appellant was acting voluntarily at the time he did the acts complained of. In our opinion, in the context of the way in which the case was conducted at trial, the jury would have readily understood the trial judge’s directions in this way. It was very clear that, amongst those matters about which the complainant gave evidence, and which was relevant to determining the critical matter of voluntariness, was the evidence of what the appellant was alleged to have said to the complainant at the time of, or shortly after, the relevant events. As such, the trial judge’s direction would have been understood by the jury to be a direction that they must examine the evidence of the complainant concerning, inter alia, the statements said to have been made by the appellant at the time of, or shortly after, the relevant events very carefully before they decided whether they were prepared to accept that evidence beyond reasonable doubt.

129. We observe in passing that the direction given to the jury on this issue was, if anything, generous to the appellant insofar as it suggested that the jury needed to be satisfied to the standard of beyond reasonable doubt of the reliability of the complainant’s evidence on this issue. The state of the expert evidence was such that it was not open to the jury to engage in a chain of reasoning that the appellant’s acts were voluntary because he said those things alleged by the complainant. The complainant’s evidence about what was said by the appellant at the relevant times was one of a number of circumstances from which, considered as a whole, the jury was invited to infer that the appellant was conscious at the time he did the acts complained of, and that his acts were voluntary. Proof of an intermediate fact which forms part of a pool of asserted facts from which, taken as a whole, an element of an offence may be inferred is not normally required to the standard of beyond reasonable doubt: Shepherd v The Queen.

130. In his submissions on appeal, the appellant contended that the trial judge should have given the jury a specific direction that, when considering a circumstantial evidence case, guilt should be the only rational conclusion that could be drawn from the evidence. There are two answers to this submission. First, there is no ground of appeal directed towards the failure of the trial judge to give such a direction (and none was sought by trial counsel). Secondly, such a direction was unnecessary in the light of the issue at trial and the direction given to the jury as set out at [126] above. The object of the traditional direction concerning circumstantial evidence is to impress upon juries that they may only infer guilt from circumstantial evidence where that is the only reasonable or rational inference available from the evidence. The jury will also inevitably be directed that, before they may convict an accused, they must be satisfied of guilt beyond a reasonable doubt. In the present case, there were only two alternatives available to the jury on the crucial issue in the trial: either the appellant was conscious and acting voluntarily when he did the acts complained of, or he was not. By directing the jury that, in order to convict the appellant, they had to be satisfied beyond reasonable doubt that he acted voluntarily, the trial judge effectively directed them that they had to be satisfied beyond reasonable doubt that one of only two available inferences (the appellant was conscious and acting voluntarily) had been established. In the circumstances of the way in which the matter was conducted at trial, the jury could not have been satisfied of both inferences, as they were complete opposites; the jury could not have been satisfied beyond reasonable doubt that the appellant was both conscious and acting voluntarily, and unconscious and acting involuntarily at the same time. There was, therefore, no choice of inferences of the type to which the standard circumstantial evidence direction is directed. It was sufficient in the circumstances for the trial judge to direct the jury as he did.

131. There can be no doubt that the evidence of the complainant concerning what the appellant said to her at the time of, or shortly after, the relevant events was important evidence in the Crown case, although on the basis of the expert testimony it was probably not critical. The purpose of an unreliability direction such as that which the appellant now says should have been given to the jury by the trial judge is to ensure that the jury is aware of those facts or circumstances that may make particular evidence unreliable: Bromley v The Queen. In the present case, the jury would have been well aware of those circumstances which the appellant says may have made the complainant’s evidence unreliable, and particularly the potential fallibility of the complainant’s memory.

132. For present purposes, we will accept that, in an appropriate case, a trial judge has a duty to give a direction such as that which the appellant now says should have been given, even where trial counsel does not seek a direction under s 165 of the Evidence Act. In the present case, of course, no direction under s 165 was sought and no complaint is made that such a direction was not given. As those circumstances which could potentially make the complainant’s evidence unreliable were clear to the jury, this is not a case were the trial judge was obliged to give a specific direction to the jury on the potential unreliability of her evidence. For this reason, the appellant fails with respect to Ground 1.

133. Ground 2 also alleges a miscarriage of justice by reason of the failure of the trial judge to direct the jury in a way not sought by trial counsel; namely that the trial judge should have directed the jury that the complainant’s evidence that she believed the appellant was awake at the time he did the relevant acts was evidence of opinion formed by the complainant based on inferences she made. The appellant submits that the trial judge should have given the jury a direction in the terms set out at [103] above.

134. It may be accepted that, in the context of the expert evidence led at trial, the evidence given by the complainant that she believed that the appellant was awake at the time of the relevant events was evidence of an opinion held by her. In the context of the appellant’s trial, the jury would have been well aware of this fact. It was inherent in the evidence of the experts that a person engaging in parasomniac behaviour may engage in apparently directed conduct, and may speak, such that it may appear that they are conscious and acting voluntarily. The jury would have been well aware of this possibility, which was an important aspect of the expert evidence and the appellant’s case. As such, the jury must have been aware of the possibility, based on the expert evidence and the evidence of the appellant, that the complainant was mistaken in her belief that the appellant was awake at the time of the relevant events. What weight, if any, the jury gave to the complainant’s evidence of her belief cannot now be known, but in our opinion, in the context of the evidence at trial, the jury must have been aware that the evidence given by the complainant was evidence of a belief or opinion held by her, and that the weight to be given to that evidence was to be assessed in the light of the expert and other testimony. Ground 2 of the appeal must be dismissed.

135. The failure of trial counsel to seek directions from the trial judge in the terms of those suggested in Grounds 1 and 2 of the appeal is explicable, and entirely understandable, based on the context of the trial, the issues involved and the evidence. The failure of the trial judge to give such directions, without a request from trial counsel, is explicable and understandable for the same reasons. The appellant has not established that a miscarriage of justice occurred as a result of the trial judge not giving the directions now suggested by the appellant. Leave under r 5531 should, for these reasons, be refused regarding these grounds.

136. The final ground of appeal alleges that the jury verdicts are unreasonable and cannot be supported having regard to the evidence. We accept and apply the principles enunciated in Libke v The Queen and M v The Queen and quoted at [120] and [122] above. In our opinion, there was ample evidence before the jury which entitled them to convict the appellant.

137. There was no real dispute that the acts alleged by the Crown as the basis of the charges occurred, and that he was the person who did those acts. The expert testimony raised the theoretical possibility that the acts of the appellant were involuntary, occurring without his conscious will while in a sleep state. The expert witnesses, of course, could not say that this is what actually occurred, as they were not present at the time of the acts. Much depended on the jury’s assessment of the credibility of the complainant and the appellant, and, in that sense, this was a classic jury case. The jury had the advantage of seeing and hearing the witnesses as they gave their evidence, a circumstance that must not be underestimated. There were, as one might expect, discrepancies in the evidence of the complainant, which have been identified by the appellant in this appeal. The jury would also have been aware of those discrepancies and, in any event, they are not such as to lead us to conclude that there is a significant possibility that the appellant is innocent of the charges.

Order

138. Leave under r 5531 is refused regarding Grounds 1 and 2.

139. The appeal is dismissed.

I certify that the preceding one hundred and thirty-eight [138] paragraphs numbered [2] to [139] are a true copy of the Reasons for Judgment of their Honours Justice Burns and Justice North.

Associate: A Smith

Date: 16 December 2015