VP v R

Court of Criminal Appeal (NSW)|2020-09-07|Before: McCallum JA, Campbell J, Adams J

Judgment

MCCALLUM JA: This appeal involves allegations of sexual assault by the applicant against a child to whom he is related. In order to protect her anonymity, he is not identified in this judgment.
The applicant was arraigned on an indictment alleging sixteen sexual offences against his adopted daughter, his wife's niece. The complainant and her two sisters were adopted by the applicant and his wife from Samoa and brought to Australia in 2013, when the complainant was 9 years old. The offences were alleged to have been committed over a period of time from late 2013 until September 2015, when all three girls were removed from the care of their aunt and uncle following a violent physical (non-sexual) assault on the complainant. She did not make any complaint of sexual abuse at that time. The first such complaint was made considerably later, to her new foster mother, after the complainant and her sisters had been placed in permanent foster care.
The indictment included ten counts of aggravated indecent assault, two counts of stalking or intimidation, one count of common assault, one count of aggravated sexual intercourse with a child under 14, one count of attempted aggravated sexual intercourse with a child under 14 and one count of inciting sexual intercourse with a child aged between 10 and 14. The circumstance of aggravation in each case was the fact that the applicant stood in the role of a parent to the complainant.
The applicant pleaded not guilty to all counts. He was granted a trial by judge alone because the Crown case was to include obviously prejudicial evidence concerning the assaults that prompted the Minister for Family and Community Services to assume care of the complainant and her sisters. Those assaults had resulted in criminal charges against the applicant, his wife and their biological daughter to which they had all pleaded guilty and for which they had all been sentenced by the time of the sexual assault trial.
The trial proceeded before Harris DCJ in the District Court over eight days concluding on 18 July 2019 (a Thursday). With commendable diligence, the trial judge gave her verdict together with careful reasons the following Monday. Her Honour found the applicant guilty on all but three counts. The trial judge sentenced the applicant on 14 November 2019 to a term of imprisonment for 9 years and 9 months commencing on 23 July 2019 and expiring on 22 April 2029 with a non-parole period of 6 years and 6 months expiring on 22 January 2026.
The applicant seeks leave to appeal against his conviction on the following grounds: "1. By failing to call material witnesses to give evidence during the trial, the Crown prosecuted a trial that was unfair to the Applicant and his resulting convictions are a miscarriage of justice. 2. The guilty verdicts were unreasonable or cannot be supported having regard to the evidence. 3. The learned trial judge failed to give proper reasons as to the application of the Mahmood direction and failed to give proper consideration to the application of the Mahmood direction."
There is no appeal against sentence.

Circumstances in which the charges were brought

The applicant and his wife adopted the complainant and her sisters in circumstances where there was no suitable adult to care for the girls in Samoa. They also adopted another relative (a male aged 17) from Samoa and have three children of their own who were all still living at home at that time. Following the adoption of the four from Samoa, there were nine people living in their three-bedroom Housing Commission home. As to sleeping arrangements, the applicant's three biological children each had a bedroom, one of which was shared with the male child adopted from Samoa. The applicant and his wife each slept on separate couches in the lounge room. The complainant and her two sisters shared a single mattress on the floor of the lounge room next to the couch on which the applicant slept.
The applicant worked night shifts as a security guard at that time. His wife worked night shifts in a nursing home, finishing at 6 am. Depending on the times of the applicant's shifts he would sometimes return home in the middle of the night before his wife; other times he would wait and collect her from work on his way home.
As already noted, the complainant and her sisters were removed from the care of their aunt and uncle on 2 September 2015 after injuries were noticed on the complainant's body at school. She was interviewed by police and described the physical assaults. In due course charges were brought against the applicant, his wife and their daughter to which they pleaded guilty. It appears the most serious of the assaults was that committed by the applicant's wife, the complainant's aunt, who smacked the complainant repeatedly on the back of the legs with an implement described in the evidence as a knife or a machete. The reason the complainant was in trouble at that time was that she had used their biological daughter's iPad without permission and had made a recording of herself dancing. The infliction of corporal punishment on that occasion was not an isolated incident. The evidence was that all three adopted girls were regularly smacked with "a knife or a hammer" by the mother or with a belt by the applicant for "disobedience" such as not doing their chores or not pronouncing words properly (they did not speak English when they arrived in Australia). Following their removal from the family by the Department of Family and Community Services, the girls never returned to the care of their aunt and uncle.
Some time after their removal from that home, and following many temporary placements, the girls were placed in permanent foster care together. After they had been with their new foster parents for several months, the complainant went to her foster mother's bedroom one night and said that there was something she wanted to tell her, but she couldn't. After some hesitation she told her foster mother that when she was at "Uncle's house" she used to sleep on the floor closest to the door and that "Uncle would lay next to [her]" and would "touch" her. When asked where she was touched she said "Oh, everywhere". The foster mother was concerned not to take the conversation any further at that stage because she was not trained as a counsellor and she did not want to "say something wrong" and "trigger something" for the complainant, who she said had been self-harming at around that time. In due course the foster mother contacted police and the process of interviewing the complainant began.

The course of the trial

The complainant's evidence-in-chief at trial consisted of six recorded interviews with police which were played to the court. The first two concerned the physical assaults committed by the applicant, his wife and their biological daughter. Those interviews were conducted in 2015, shortly after the complainant and her siblings were removed from the family. The remaining four interviews were conducted after the complainant made the allegations of sexual abuse to her permanent foster mother in January 2017. Unusually, the tapes of the interviews played during the trial did not become exhibits. However, each was accompanied by a transcript that was marked for identification. Only the transcripts are before this Court. The complainant gave limited additional oral evidence-in-chief at the trial and was cross examined by trial defence counsel.
The Crown also called evidence from: 1. the complainant's two biological sisters; 2. a community paediatrician who examined the three sisters on 2 September 2015 following the physical assaults on the complainant; 3. the principal of the complainant's school who reported the physical assaults on 2 September 2015; 4. the permanent foster carer of the complainant and her sisters (to whom the complainant made the first complaint of sexual abuse in early 2017); 5. the two police officers involved in the various records of interview with the complainant; 6. the officer from Family and Community Services who oversaw the removal of the three girls from the care of their aunt and uncle.
Apart from the three girls from Samoa, the Crown did not call any other resident of the crowded family home in which the offences were alleged to have been committed. The decision not to call any of those persons as witnesses is the basis for the first ground of appeal. The circumstances surrounding the Crown's decision on that issue are addressed below in the discussion of that ground. For present purposes, it is enough to note that no statements were taken from any family members other than the three sisters from Samoa.
The applicant gave evidence at the trial in which he denied any sexual misconduct. He more or less accepted that he may have touched the complainant's thigh as alleged in count 7 but sought to explain that it would have been an innocent touch. The defence case was that the complainant had made the false allegations of sexual abuse in effect as a species of revenge against the applicant for the admitted physical abuse she had suffered at his hands.
The applicant also called evidence from one of his biological sons who, according to the complainant's evidence, had come out of his bedroom during the incident relied upon to support count 8. He was 26 at the time of the trial. He gave evidence that he had never seen his father act inappropriately in a sexual way towards the complainant. His evidence otherwise took the case no further one way or the other. The trial judge found the applicant not guilty of count 8.

The course of the appeal

For the purpose of explaining the course of the appeal, it is convenient to identify the witnesses the applicant says should have been called by the Crown. As already noted, the applicant and his wife have three biological children (two sons and a daughter) and an adopted son. Although ground 1 was originally based on the failure to call all five family members (including the applicant's wife), the applicant's counsel conceded at the hearing of the appeal that one of the biological sons could be excluded from that complaint as there was no suggestion that he had ever walked in on or been in the immediate vicinity of any alleged sexual misconduct. Consideration of the Crown's conduct of the trial may accordingly be confined to the remaining four, to whom I will refer (without disrespect and only to preserve the complainant's anonymity) as the wife, the son who gave evidence at the trial, the adopted son and the daughter.
As already noted, the police who investigated the matter did not take statements from any of those witnesses. Accordingly, with the exception of the son who gave evidence at the trial, the evidence those witnesses would have been able to give was not known. Self-evidently, the position was different in the case of the son who gave evidence at the trial; the applicant's point in respect of him is that, as he was called as a witness in the defence case rather than by the Crown, the applicant was denied the opportunity of cross-examining him. The applicant sought leave to call evidence in the appeal from the adopted son and the daughter. There was no application to call evidence from the wife.
The Crown did not oppose the application to adduce evidence in the appeal but reserved the right to address its admissibility following cross-examination of the two witnesses. The evidence-in-chief of the daughter and the adopted son was provided by affidavit. In each case, the relevant evidence was extremely brief. The daughter said in her affidavit "I have never witnessed my father engaged in any sexual or indecent acts with [the complainant]". The adopted son said the same, adding only that, often during the night, he would leave his bedroom to use the toilet or get a drink and that at no time did he see the applicant on the floor or the mattress with the complainant. The affidavits were silent as to whether the witnesses were aware of any attempt by police to speak to them or to obtain statements from them.
In cross-examination, both witnesses confirmed that they had been interviewed by the applicant's lawyers before the trial. They said they had told those lawyers that they had never seen the applicant sexually assault the complainant; that they had been told by the lawyers that they may be required to give evidence and that they were available at court on the first day of the trial and able to give evidence if required. They also confirmed that the wife was present at court on the first day of the trial.
At the conclusion of the oral evidence, the Crown prosecutor renewed her objection to the admission of the evidence in the appeal on the basis that the cross-examination had established it was neither fresh nor new. So much may be accepted. However, we ruled that the evidence should be admitted for the purpose of assessing the impact the failure to call the witnesses may have had on the trial, which has been considered relevant to the question whether any such failure has resulted in a miscarriage of justice: Geitonia Pty Ltd v Inner West Council; Gertos v Inner West Council [2016] NSWCCA 186 at [90] (Price J); at [163] (N Adams J).
In joining in the ruling admitting the evidence for that reason, I would not wish to be taken to have held that an appeal based on an alleged failure by the Crown to call an available material witness cannot succeed without such evidence. The point made by N Adams J in Geitonia at [163] was the difficulty of assessing the question of miscarriage of justice on the basis of failure to call an allegedly material witness in circumstances where no proof of evidence has been obtained and it is not otherwise known what evidence the witness could have given. Her Honour observed that there did not appear to be any determinative authority as to how the question of miscarriage of justice is to be assessed in that circumstance.
The difficulty encountered in Geitonia does not commonly arise. Ordinarily, in the case of an alleged failure by the Crown to call a material witness, the witness in question is a person who has given a statement to police or from whom at least a proof of evidence has been obtained by the DPP during the trial (Geitonia was not a police matter).
In Richardson v R (1974) 131 CLR 116; [1974] HCA 19, the missing witness (a girl who was present in a car in the car park when the assaults charged took place) had been called as a witness by the Crown in the committal proceedings at the invitation of the magistrate. In Whitehorn v R (1983) 152 CLR 657; [1983] HCA 42, the missing witness (the complainant in a sexual assault trial) had provided a statement to police, as was the case in R v Apostilides (1984) 154 CLR 563; [1984] HCA 38 at 575, where the missing witnesses were two people who had been present during the evening before the complainant was allegedly raped in her home by a fourth person present during that time.
In a case where an account of the evidence a witness would have been prepared to give was available before or at least during the trial, the authorities suggest that the proper approach is to make the assessment as to whether the failure to call the witness has resulted in a miscarriage of justice by reference to the circumstances as they stood at that time. The principle was stated in Apostilides at 575 in the following terms: "A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice."
However, in at least two decisions of this Court, the Court has admitted evidence obtained after the trial as to the evidence a person would have been prepared to give in circumstances where no statement (or in one case, an incomplete statement) was available during the trial.
In R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279, the complainant in a sexual assault trial gave evidence that, while she was being raped by her mother's partner, her mother had opened the bedroom door and said "that's enough": at [34] (Greg James J); at [103] (Smart AJ). The mother had made a statement to police during the initial investigation denying having observed an alleged physical assault but had been silent as to the alleged sexual assault. In the appeal, the Court admitted a statement from the mother in which she denied having seen any sexual assault or making the remark attributed to her by her daughter: at [93]. She said she had been contacted by the police before the trial and told she was on the list of witnesses. She attended the trial and stayed throughout, ready to give evidence. During that time, she was not interviewed by either the prosecution or the lawyers acting for the accused. Having regard to the evidence in the appeal, the Court held that the failure to call her as a witness in the trial had resulted in a miscarriage of justice even though no such request had been made on behalf of the accused: at [61] (Greg James J); [105] (Smart AJ); Spigelman CJ agreeing with both at [1].
In Adam PEACOCK v R; Brendan PEACOCK v R [2008] NSWCCA 264, the involvement of the missing witness in the relevant events was not known to the Crown until he was mentioned during a Basha inquiry (R v Basha (1989) 39 A Crim R 337) conducted after the commencement of the trial. The witness had never been interviewed by or made a statement to police. At the hearing of the appeal, an affidavit annexing a statement he had made shortly before the hearing of the appeal was admitted without comment: at [31] (Simpson J, with whom McClellan CJ at CL agreed at [1]).
The Court was unanimous in dismissing the appeal but divided as to the reasons for doing so. On the assumption that the witness was material, Nettle AJA did not consider that "the mere fact that he had not made a statement to police or that his involvement was not learned of until after the start of the trial would have been sufficient to excuse the Crown from its obligation to call [the witness] or make him available for cross-examination". His Honour remarked at [15]: "To state what should be obvious after Kneebone, the Crown cannot avoid its obligations to call material witnesses by the expedient of electing not to take statements from persons whom it considers may be material witnesses."
However, his Honour took the view that the evidence the witness could have given went only to the credit of one of the accused and so was not admissible.
Simpson J (with whom McClellan CJ at CL agreed) considered that the evidence would have been admissible. Her Honour's reason for dismissing the appeal was that the evidence could not "realistically be seen as being capable of having a bearing on the outcome": at [62]-[65]. Her Honour said: "In one sense, this involves an approach to the evidence of the kind outlined by the High Court in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, concerning the application of the proviso to s 6 of the Criminal Appeal Act 1912. Weiss, of course, involved the consideration of the application of the proviso after the wrongful admission (as distinct from omission) of evidence. But the decision in Weiss requires an appellate court: ' ... so far as it properly can, to judge the evidence for itself.'"
Her Honour considered the Crown case to be overwhelming and was further of the view that the jury could not have regarded the missing witness's evidence "other than with the utmost scepticism".
That was the basis on which Simpson J joined in the dismissal of the appeal. Accordingly, it was not necessary for her Honour to proceed to consider the separate question whether the Crown was under an obligation to call the witness. However, her Honour recorded her opinion at [66]-[75] that, in the circumstances of that case, no fair criticism could be made of the Crown. She noted that no explanation had been provided by trial defence counsel for not requesting that the witness be made available and that this may have been for tactical reasons or because counsel did not consider the witness's evidence likely to have any real bearing on the outcome of the trial. In addition, her Honour noted that there was no evidence that the legal representatives of the appellants had made any attempt to locate the witness themselves.
In Geitonia, the missing witness was also a person from whom police had not obtained a statement. Without ever having spoken to the man, the prosecutor at the trial formed the view (based on prior convictions) that he would be an unreliable witness and informed the trial judge accordingly: at [132]. No evidence was led in the appeal as to the evidence that the witness might have given, which accordingly remained a matter of speculation.
The absence of any account of the evidence the witness could have given about certain meetings led the majority to conclude that the appellants had failed to demonstrate that a miscarriage of justice had occurred: at [90]-[96] (Price J; N Adams J agreeing at [155]). Garling J dissented on that issue at [151]-[154], noting that the trial judge's conclusions as to the acceptability of the only witness who did give evidence in the trial about the meetings in question were made "when the state of the evidence on the critical meetings was incomplete". His Honour's conclusion that there was a miscarriage of justice in that case rested on the conclusion that it was "not possible to say that had [the absent witness] been called to give evidence, no other conclusion would have been open to the trial Judge."
Those authorities support the conclusion that, while a ground of failure to call a material witness should ordinarily be determined by reference to the conduct of the trial taken as a whole (by reference to the material that was available during the trial), in a case where no account of the evidence the allegedly material witness would have been prepared to give was available during the trial, that evidence may be adduced in the appeal. I emphasise, however, that it does not follow that such a ground must fail in the absence of such evidence. That said, as recognised in Geitonia, it falls to the applicant to establish that the absence of an allegedly material witness has resulted in a miscarriage of justice. As explained below, it is well established that the bare fact of failure to call a material witness does not of itself establish a basis for interfering with the verdict.
In any event, the evidence was admitted in the present appeal on the application of the applicant and is available to inform the determination of ground 1. I turn now to that ground.

Ground 1: failure to call material witnesses

The first ground of appeal is: "By failing to call material witnesses to give evidence during the trial, the Crown prosecuted a trial that was unfair to the Applicant and his resulting convictions are a miscarriage of justice."
As already explained, the basis for this ground may be taken to have been narrowed during argument to concern only the wife, the son who gave evidence at the trial, the adopted son and the daughter. The applicant submitted: "These witnesses all lived in a small house…and there was evidence in the Crown case that nearly all of these witnesses either saw or were potentially present when the applicant was allegedly sexually abusing the complainant. Their importance to unfolding the narrative was and is obvious. It should not have been up to the applicant to determine whether or not to call the members of the household. By placing the applicant in this position, the Crown have denied the applicant the opportunity to cross-examine the witnesses and the applicant was jeopardised by the witnesses being potentially exposed to cross-examination by the Crown."
The applicant went so far as to submit that the failure to call the family members should have resulted in the accused being acquitted, invoking the principles stated in the decision of the High Court in Mahmood v State of Western Australia (2008) 232 CLR 397; [2008] HCA 1. The development of that submission resulted in the late addition of ground 3, which is addressed separately below.
The applicant's contention as to the importance of the witnesses to "unfolding the narrative" echoes the long-standing formulation of the question that should guide a prosecutor in deciding what witnesses will be called in the Crown case. The content of the prosecutor's responsibility was described in Richardson (repeated in Apostilides) by reference to the formulation adopted by Lord Roche in Seneviratne v The King (1936) 3 All ER 36 at page 49: "Witnesses essential to the unfolding of the narratives on which the prosecution is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution".
While that responsibility is sometimes described as a duty (for example in Chidiac v R (No 2) [2016] NSWCCA 120 at [232]), it is not a duty owed to the accused, breach of which entitles him to a new trial: Richardson at [13]. It may be accepted that, in the determination of a ground of appeal alleging failure to call a material witness, the circumstances surrounding the Crown's decision not to call the witness will be important. However, the establishment of a breach of the prosecutor's duty is neither necessary nor sufficient to warrant interference with the verdict of the jury (or, as here, the judge). It is not necessary because a miscarriage of justice may result from the absence of a material witness even where the conduct of the Crown was blameless. It is not sufficient because a clear instance of wrongful refusal on the part of the prosecutor to call an available, material witness may nonetheless not result in a miscarriage of justice, as recognised in the sixth principle stated in Apostilides at 575.
It is not appropriate for a prosecutor to refuse to call a witness merely because the witness is perceived, by virtue of their relationship with the accused, to be in the accused's "camp": Kneebone at [30], [52]-[54] (Greg James J, Spigelman CJ agreeing at [1]). However, as I will explain, the existence or appearance of an alliance between a Crown witness and an accused person undoubtedly complicates the prosecutor's decision.
It is recognised that the question of miscarriage of justice is to be determined by reference to the course of the proceedings as a whole. That may include consideration of the manner in which the accused conducted his or her defence: Chidiac at [224]-[228]. That was a case in which, as here, the applicant contended that a miscarriage of justice had been caused by the Crown's failure to call a material witness notwithstanding that defence counsel did not request the Crown to call that witness. The Court explained at [224]-[225] that, although the failure to request the Crown to call a material witness is not a matter that invokes r 4 of the Criminal Appeal Rules (NSW), it may be a significant factor tending to negate any miscarriage of justice.
It follows that, in the assessment of whether a failure to call a witness has resulted in a miscarriage of justice, the existence or absence of any expectation leading into the trial that the witness would be called by the Crown may be an important consideration, especially in the case of a witness who is not clearly central to the unfolding of the narrative.
At the time Whitehorn and Apostilides were decided, it appears there was a practice (at least in South Australia and Victoria) of listing the witnesses the Crown proposed to call on the back of the indictment. Thus the High Court in Apostilides at 565 described the case as one that raised "important issues touching the responsibility and powers of a trial judge when a Crown prosecutor declines to call as a witness a person whose name appears on the indictment and who would be expected to be able to give evidence which is material to the matters in issue in the trial."
If listing the Crown witnesses on the back of the indictment was ever the practice in New South Wales, it has not persisted. The entitlement to notice of the witnesses to be called in the Crown case is now met by the Crown's statutory obligation to provide to the defence "a copy of a statement of each witness whose evidence the prosecutor proposes to adduce at the trial" well in advance of the trial: s 142(1)(c) of the Criminal Procedure Act 1986 (NSW).
It is trite to observe that the proper discharge of the responsibility to decide which witnesses to call requires the prosecutor to undertake an independent assessment of the case; the decision is one to be made by the prosecutor, not the investigating police. While the brief containing all of the statements obtained by police provides the necessary starting point, the prosecutor is not bound to call every witness from whom a statement has been taken by police; equally, she may have a responsibility to call (or at least make available for cross-examination) a witness from whom no statement has yet been taken. In that event, steps will ordinarily be taken to obtain a statement from that witness.
While the responsibility of making the decision whether to call a witness has been described as a "lonely" task (Apostilides at 575, Kneebone at [107]), it does not have to be undertaken alone. The soundness of a decision not to call a potentially material witness may be tested by communication with defence counsel and, in some cases, by raising the matter with the trial judge. That is not to say that the prosecutor may pass the responsibility on to others but only to observe that a prudent prosecutor may see fit to have the decision informed by such exchanges.
Although the prosecutor did not have statements from the family members in the police brief in the present case, he took steps (presumably recognising their potential importance) at least to secure their attendance at the trial. It appears he may at the same time have requested police to obtain statements from them but that is not clear. About six weeks before the trial date, the DPP requested the police officer in charge of the case to serve subpoenas on the family members. The officer attempted to serve the subpoenas in person and said she was intending to ask the family members for statements at the same time (it seems likely that she was asked to do so by the DPP but the evidence was silent about that).
The police officer said she attended the house "on two or three occasions" and that she knocked but there was no answer. She said she could hear "someone moving around within the house" and so she slid the subpoenas under the door. The evidence in the appeal established that the daughter at least did in fact receive her subpoena and was in attendance on the first day of the trial. The adopted son did not know whether he had received a subpoena (he said he did not know what a subpoena was). As already noted, however, he also was in attendance on the first day of the trial. Indeed, trial defence counsel made the point in cross-examination of the police officer in the trial that "a large amount of family members" had attended on the first day of the trial, the implication being that they had done so in the expectation that they might be required to give evidence in the Crown case.
In cross-examination in the trial, the police officer was asked whether the details of her attendances at the house to serve the subpoenas and ask the witnesses to provide statements would be recorded somewhere. She said they may be recorded in her duty book, which was at police headquarters in Parramatta. She agreed to make inquiries to have that material produced in due course but trial defence counsel does not appear to have followed up on that request during the trial.
In the result, no statements were obtained from the family witnesses. It follows that, unlike the cases in which the missing witness was listed on the back of the indictment or had provided a statement to police, this was not a case in which there was a disappointed expectation based on the brief served that the witnesses were to be called in the Crown case. However, the prosecutor plainly perceived their potential relevance.
In the circumstances, the assessment of their proper role in the proceedings was a difficult task for the prosecutor. The applicant's bland submission that "nearly all of these witnesses either saw or were potentially present when the applicant was allegedly sexually abusing the complainant" was, with respect, something of an overstatement, for the reasons explained below in the discussion of ground 2. This was not a case like Kneebone, where the evidence of the complainant unequivocally asserted that the mother had observed a sexual offence alleged to have been committed by the mother's partner. The mother's evidence in that case was essential to the unfolding of the narratives on which the prosecution was based (to adopt the formulation approved in Richardson) because she was clearly positioned as an eyewitness to the offence and she said it didn't happen. She flatly contradicted the evidence of the complainant such that they could not both be telling the truth.
The evidence of the family members in the present case was not essential in that sense. Taken at its highest, their evidence could not exclude the possibility that the offences occurred. The most they could do (assuming they said they saw nothing) was to provide the basis for a submission that the complainant's evidence was unlikely to be true because it was likely that the family members would have seen something if the offences occurred.
Such witnesses can be dangerous for an accused, particularly in child sexual assault trials. As observed by Smart AJ in Kneebone at [104] (in a remark endorsed by N Adams J in Geitonia at [143]), a prosecutor determining whether to call a witness should be mindful of s 38 of the Evidence Act 1995 (NSW) and the accused's desire for the witness to be called. Under s 38, the prosecutor can be granted leave to cross-examine his own witnesses. In the hands of a good cross-examiner, a defence case can go backwards during the evidence of a family member relied upon by the accused to establish that an offence is unlikely to have been committed. It is not uncommon for such evidence to establish unequivocally that there was ample opportunity for the offence to have been committed exactly as described by the complainant. A family member can also incidentally prove lies by an accused person who gives evidence in the trial, as the applicant did in the present case.
In the circumstances of the present trial, the prosecutor had no basis for knowing whether the evidence of the family members would be helpful to the accused. If the family members were in the category of witnesses essential to the unfolding of the narrative of the Crown case, that would be an irrelevant consideration; there would be a duty to call them whether or not they were helpful to the accused. However, as they were in the category of witnesses who (as it transpired) could say no more than that they saw nothing in circumstances where that rendered the commission of the offences not impossible but arguably less likely, the accused's desire or otherwise to have them called was an important consideration.
Although the family members were not included in the police brief, the prosecutor took the precaution of giving notice of his decision about them. Six days before the commencement of the trial, his instructing solicitor wrote to the applicant's trial counsel and solicitor by email listing the five family members as persons the Crown did not intend to call.
There was no response to that email. Trial defence counsel did not raise the matter with the prosecutor and he did not take the matter up with the trial judge. At no point did the prosecutor refuse to call them; he communicated a decision not to and was never asked to reconsider that decision.
In circumstances where trial defence counsel had received written notice of the Crown's decision not to call the witnesses, knew what evidence they could give and knew they were present at the trial, the absence of any response to the prosecutor's decision had the appearance of a forensic decision by trial defence counsel (who also appeared for the applicant in the appeal). This prompted the following exchange during the appeal: "N ADAMS J: I don't want to put you in a difficult position here because obviously you can't give evidence as to what your decision-making process was but, just looking at the record of the trial objectively, couldn't it be inferred that a tactical decision was made that, rather than have the witnesses there, you sought to raise a reasonable doubt from the fact that they weren't there and that was the forensic basis for the cross-examination of the OIC at the end of the Crown case? [COUNSEL]: No doubt that was part of it but there was no need for that cross-examination to make that submission at the end. It wasn't incumbent to cross-examine the officer about the failure to do that to make the ultimate submission of "where are these witnesses?" MCCALLUM JA: The critical forensic choice was not whether to cross examine the OIC but whether to go one step further and ask the Crown to call those witnesses. I think the burden of what Adams J is putting to you is should we infer a forensic decision that you would rather have the Mahmood submission than actually have the witnesses giving evidence? [COUNSEL]: Certainly, and it is somewhat difficult also having been, obviously, the trial advocate, you could infer that that was one of the considerations. The submission is though that it was incumbent upon the Crown to call them regardless of whether or not the accused asked for them to be called. It was plainly obvious they should be; they weren't."
In the circumstances I have described, I do not accept the submission that it was incumbent upon the Crown to call the witnesses "regardless of whether or not the accused asked for them". That was the conclusion reached in Kneebone but that was a very different case. Police had taken a statement from the mother and that statement formed part of the brief on which the accused had been committed for trial. Further, it was beyond dispute that the mother was a material witness. The complainant's evidence was that she was pinned to the bed by her step-father and was screaming and yelling; that he removed his shorts and underpants and was lying on top of her inserting his penis in her vagina and moving backwards and forwards and that she then became aware of the bedroom door being opened and her mother standing in the doorway. She said her mother said, "that's enough"; that she (the complainant) said nothing, that her step-father said nothing and that her mother walked away, leaving the door open. The complainant said that her step-father pushed in and out a couple more times, got off and walked out of the room leaving his clothing there.
On the second day of the trial, the prosecutor informed defence counsel that he did not propose to call the mother as a witness because he had formed the view (without interviewing her) that her evidence would be unreliable. The reason the appeal succeeded was that the prosecutor had not taken the steps required before forming any such view. The relevant principle was stated in the following terms by Smart AJ at 102 (Spigelman CJ agreeing at [1]): "The prosecutor's judgment must be based on more than a feeling or intuition. There must be identifiable factors pointing to unreliability or lack of belief in the proposed evidence of the witness. It is not enough that the prosecutor considers that the evidence may be unreliable. Suspicion, scepticism and errors on subsidiary matters will not suffice. The attention of the prosecutor should be on matters of substance and even on these there may be significant differences between the witnesses. It is for the jury to resolve these: Apostilides at 576."
The relevant circumstances in the present case may be summarised as follows. The starting point is that the procedural steps required to be taken in advance of the trial did not create any expectation that the family members would be called because there were no statements from any of those persons in the police brief. That of course is not the end of the matter. The circumstances in which the offences were alleged to have been committed raised the obvious prospect that the family members or some of them were potentially material witnesses. Probably at the request of the Crown, the officer in charge of the investigation made some attempt, albeit limited, to speak to them. That attempt having been unsuccessful, the prosecutor gave timely notice that he did not intend to call the family members as witnesses. There was no response to that email. Separately, the prosecutor had taken steps to secure their attendance at the trial, in case they were required.
The Sunday before the trial commenced the prosecutor again wrote to trial defence counsel identifying the order in which he intended to call the Crown witnesses and also explaining how he proposed to deal with a number of evidentiary issues. The witnesses listed did not include the five family members. The letter concluded with a request that counsel let the prosecutor know his "attitude to the above". There was no reply to that email.
In her record of interview with police dated 28 February 2017, the complainant had said that, during one of the sexual assaults in the lounge room, her "brother" (the son who gave evidence at the trial) had come out from his room to get something to eat and that the applicant "got up quickly and he jumped back to the chair". During cross-examination in the trial, she said "It wasn't only [the son who gave evidence in the trial]" who walked out of a bedroom during a sexual assault in the lounge room. She said, "It was sometimes [the adopted son] or [the daughter]."
The applicant made the point during the appeal that the prosecutor made no further attempt, after that evidence was volunteered by the complainant, to obtain a statement from the adopted son or the daughter. While that is so, nor did the applicant's counsel raise the issue at that time, even though (as established by the evidence in the appeal) he knew they were available to give evidence and that, if called, they would say that they had never seen any sexual misconduct by the applicant towards the complainant. That is a powerful basis for concluding that counsel for the applicant made a tactical decision to rely on the forensic benefit of the absence of the family members as witnesses rather than request their attendance. Having remained silent on the issue in the face of the Crown's pre-trial correspondence and throughout most of the evidence, the first time counsel raised the absence of the witnesses was during the cross-examination of the officer in charge of the investigation, who was the second-last Crown witness. Counsel then made submissions based on the decision of the High Court in Mahmood (addressed below).
Before leaving this ground it is necessary to say something about a particular submission concerning the failure to call the daughter. The evidence of one of the complainant's sisters (in the form of an interview with police) was to the effect that she and the daughter had seen and then discussed an incident of sexual misconduct. In cross-examination in the trial she clarified that she had not seen anything herself but that the daughter had discussed what she had seen. The applicant submitted that, in the face of that evidence, the importance of the daughter's evidence became even more apparent.
The submission appears to proceed on a misconception as to the use that could be made of the sister's evidence. It could not prove what the daughter saw. Certainly, it placed the daughter on scene. However, as already explained, her evidence in the appeal established that, if called, she would have said she saw nothing. That evidence, if accepted, would not have established a lack of credibility in the complainant. It would have established an inconsistency of doubtful relevance between the daughter and the sister. In any event, the judge (with respect, appropriately) put the sister's evidence to one side. That left her Honour with a case in which no one had witnessed any of the events described by the complainant, which is all that the missing witnesses would have proved in any event, had they been called.
Given the limited value of the evidence of a witness who says they did not see an offence in circumstances where the offence could well have been committed without their having seen it, a decision to seek a Mahmood direction rather than seeking to have the family members called may well have been a good tactical decision. In my view, however, the consequence is that the applicant has failed to establish any miscarriage of justice resulting from the Crown's alleged failure. That is particularly so given that the Crown case implicitly accepted that nobody had witnessed the offences described by the complainant.
For those reasons, I would dismiss ground 1.

Ground 2: unreasonable verdict

Ground 2 is: "The guilty verdicts were unreasonable or cannot be supported having regard to the evidence."
This ground invokes the first limb of s 6(1) of the Criminal Appeal Act 1912 (NSW). The approach to be taken in determining such a ground is well established. In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, the High Court confirmed that the nature of such an appeal is the same in the case of an appeal from the verdict of a judge alone as in the case of an appeal from the verdict of a jury. The Court held that, in such an appeal, the judge's finding of guilt is not to be disturbed "unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice". The Court also noted that, as with a jury's verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have then experienced. However, that is always subject to the important proviso that, where the trial judge's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by the appellate court, the appellate court may conclude that no miscarriage of justice occurred.
Based on my consideration of the whole of the record of the trial, I do not have any doubt as to the guilt of the applicant on the counts on which he was found guilty by the trial judge. The applicant's submissions in support of this ground rested on a combination of features of the evidence including the failure to call the family members but also the evidence of the son who gave evidence at the trial, the evidence of the complainant's two biological sisters, the evidence of the applicant and inconsistencies in the evidence of the complainant.
Considerable emphasis was placed on the failure to call material witnesses. That argument does not necessarily fall away with the rejection of ground 1. It is necessary to give separate consideration to the impact on the strength of the Crown case of the fact that there was no evidence (apart from the evidence of one of the complainant's biological sisters, which may be put to one side) that any person in the applicant's crowded household ever observed him engage in any sexual misconduct with the complainant.
In order to assess those matters, it is necessary to consider the evidence concerning the individual counts in a little more detail.
The 16 counts on the indictment reflected 7 individual alleged incidents.
Counts 1 to 4 were described by the complainant as the first occasion on which the applicant indecently assaulted her. The incident was described as having occurred at night, on a school night, when the complainant was lying on the mattress in the lounge room next to her two sisters. She said the applicant looked around before getting down on the floor and pulling her off the mattress to lie next to him. It is not suggested that her description of any particular incident was implausible for any reason other than the fact that the offences are alleged to have been committed under the noses of the other members of the household. Accordingly, it is not necessary for present purposes to describe the individual acts relied upon to support each count, save to observe that count 4, a charge of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW), was based on a handwritten statement by the complainant in which she said the applicant pulled down her underwear and touched her vagina after spitting on his own finger. I pause to mention that evidence only because her description of the detail of the applicant pausing to lubricate his finger with his own spit before touching a young girl's vagina has a ring of truth.
The evidence in relation to that incident did not establish the presence of the wife. There was no suggestion that any other family member entered the room. The only feature of the applicant's generic submissions as to the alleged implausibility of the complainant's allegations that is pertinent to this incident is the fact that it occurred while the complainant's two biological sisters were asleep on the same mattress. The complainant said one of her sisters woke up during the incident and told her to get back on the bed. The complainant thought the sister did not see anything; she said the applicant pretended to be asleep by snoring.
The proposition that the applicant could have silently touched and kissed the complainant in the way she describes as they lay on the floor next to the mattress without being observed by the other girls on the mattress does not cause me to entertain any doubt as to the applicant's guilt of those counts. Experience of such trials tells that stealth, opportunism and brazenness are common features of child sexual offending.
Counts 5 and 6 were based on the events of the following morning. The complainant said she woke up and walked to the kitchen to make her sister some noodles and that the applicant winked at her and slapped her on her bottom. After she protested, he smacked her on the mouth. The trial judge found the applicant not guilty in respect of the slap on the bottom, not because her Honour was not satisfied that the act occurred but because she was not satisfied that it was indecent. In reaching that conclusion, her Honour expressed the view that a slap on the bottom outside clothing does not necessarily carry a sexual connotation. Her Honour noted that she could not have recourse in determining that count to any tendency of the applicant to act indecently towards the complainant.
The judge found the applicant guilty of count 6, a charge of common assault based on the slap on the face. No specific arguments were directed to the verdict on that count and none of the applicant's generic arguments is relevant.
Count 7 was based on an allegation that, on an occasion when the applicant collected the complainant after a school excursion, he touched her on the top of her thigh towards the inside of her thigh. They were alone in the car and accordingly the arguments concerning the family members do not apply to this count. The applicant nonetheless submitted "the evidence of the family members as to the relationship between the applicant and complainant was still needed when determining the likelihood of that incident's occurrence. It is inconceivable that the accused could have been convicted of that count only."
The submission overlooks the fact that the applicant did not deny touching the complainant on the thigh. Rather, he sought to characterise the incident she described as a friendly, innocent touch. How the evidence of the family members as to "the relationship between the applicant and complainant" would have been admissible in respect of that count, let alone necessary, was not explained. The affidavits of the adopted son and the daughter admitted into evidence in this court offered no "relationship" evidence. The trial judge was satisfied that the touching was indecent because she accepted the complainant's evidence that, at the time he touched her thigh, the applicant asked her whether she had disclosed his sexual abuse to anyone and offered her a chocolate which the judge took to be a "sweetener to keep silent". No unreliability has been established in relation to that finding.
Count 8 alleged an offence of aggravated indecent assault at night in which, while the complainant was on the mattress on the floor, the applicant got down onto the floor and pulled her onto the floor next to him. She said he pulled her pants halfway down and rubbed her vagina. That was the incident during which the complainant said the son who gave evidence at the trial had walked out of his room, interrupting the incident. The trial judge was satisfied of the complainant's honesty that there was an incident of indecent assault that was interrupted by the son who gave evidence at the trial. However, inconsistencies in her evidence, which her Honour considered to be a result of inaccuracies in questioning during the third interview, indicated that there may have been more than one incident during which a family member walked in with the result that the complainant had become confused about the details of the offence charged. As a result, her Honour considered that she could not be satisfied beyond reasonable doubt as to count 8.
Her Honour's reasoning on that issue was, with respect, impeccable. The applicant submitted that the complainant's various accounts of the incident were irreconcilably inconsistent with the result that her credibility was "damaged in relation to all counts on the indictment", citing the judgment of Gaudron, McHugh and Gummow JJ in Jones v R (1997) 191 CLR 439 at 453; [1997] HCA 56. Their Honours said in that case: "The jury's finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the appellant's acquittal on the second count was a rejection of the complainant's account of the events which were said to give rise to that count."
The applicant submitted "had her Honour applied this principle correctly, the complainant's evidence was incapable of being accepted beyond reasonable doubt and the applicant should have been acquitted of all counts on the indictment as there was no or insufficient other evidence capable of supporting findings of guilt."
I do not accept that submission. It may be observed in passing that the analysis of the evidence in Jones, decided almost a quarter of a century ago, reflects preconceptions as to the ways in which a child victim of sexual assault might think or act which, in my respectful opinion, no longer reflect common understanding. In any event, the applicant's reliance upon the so-called "principle" in Jones (which is in truth no more than an analysis of the evidence in that case) is inapposite. Whereas in Jones the Court held that the jury's acquittal of the appellant on the second count "was a rejection of the complainant's account", the trial judge explicitly recorded in the present case that she believed the complainant and found her to be truthful and reliable.
For completeness, I would observe that, although the argument is frequently put, an acquittal on one count in a sexual assault trial is not necessarily a rejection of the complainant's account which damages his or her credibility with respect to other counts on the indictment. There is no such principle. Nor, with respect, does the decision of the High Court in Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12 establish any new principle, as the applicant appeared to suggest. The fact that Cardinal Pell was acquitted by the High Court does not compel the conclusion that this Court is required to find that the complainant's confusion concerning one count damaged her credibility with respect to all counts. That is contrary to the High Court's analysis in Pell and it is a subversion of the principles established in M v The Queen (1994) 181 CLR 487; [1994] HCA 36.
The applicant went so far as to submit that, having found the applicant not guilty of count 8, her Honour "failed to categorise the complainant's evidence as unreliable or non-credible, as it plainly was." The submission continued, "had her Honour done so, the flow-on effect would have been that the complainant's evidence should not have been accepted, certainly not on its own, to prove any of the offences beyond reasonable doubt." The applicant accepted in that context that the trial judge correctly directed herself as to the principle in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 but submitted that her Honour failed properly to apply that principle. I reject that submission. It invites the Court to ignore the advantage enjoyed by the trial judge of observing the complainant as a witness. The proposition that an acquittal on one count has, as a matter of principle, a flow-on effect that a complainant's uncorroborated evidence cannot be accepted to prove any other count beyond reasonable doubt is simply wrong.
Nor does the fact that the son who gave evidence in the trial denied seeing any misconduct damage the complainant's credibility on the other counts. This is not a case in which independent evidence contradicted the complainant's account such that she could not have been telling the truth.
Count 9 was a charge of aggravated sexual intercourse with a child under 14 contrary to s 66C(2) of the Crimes Act. That count was based on an allegation of forced fellatio in the laundry one Saturday night after church. The applicant submitted that the complainant's evidence in support of that count was inherently implausible because she described having been dragged to the laundry while the wife and the complainant's sisters were sleeping in the loungeroom. She said the applicant was whispering and that she was whispering too because "he didn't want my auntie to wake up". The applicant submitted, "It was alleged by the complainant that there was some struggling at or around the laundry door that was only a few metres from where the applicant's wife was sleeping". That misstated the evidence. The complainant said that at one stage when she and the applicant were "in the laundry" she tried to leave and he pulled her back in. It was not her evidence that there was "some struggling at or around the laundry door". The submission that such an incident could not have occurred without someone waking up was assessed by the trial judge and rejected. No basis is established for interfering with that assessment.
Counts 10-12 were based on an incident that included an alleged attempt by the applicant to have penile vaginal intercourse with the complainant, followed by associated acts of indecent touching. The evidence was that late one evening from his position on the couch, the applicant grabbed the complainant from the mattress, pulled her onto him and removed her underpants and then made her touch him on his "private bits", before touching her vagina and buttocks. The complainant said the applicant pushed her back down onto the mattress after one of her sisters moved. The trial judge accepted that the complainant's evidence was both truthful and accurate. However, as to the attempted penile vaginal intercourse, her Honour was not satisfied that the complainant's description was sufficient to prove the attempt as there was no evidence as to "where the accused's penis was in relation to her genitalia" (the complainant having said only that "he tried to put it inside me and I pushed him away"). Her Honour found the applicant guilty of counts 11 and 12, being two indecent assaults.
Counts 13-16 were based on the events of the last day the applicant and the complainant lived together before the complainant was removed and placed into care. The trial judge found that the applicant threatened the complainant that [the subsequent treatment] would continue if the complainant touched his daughters "stuff" again (referring to her use of the biological daughter's iPad). The trial judge accepted the complainant's evidence that the applicant then indecently assaulted her and that, while doing so, he kept looking at his wife as she was asleep on the couch nearby. There is nothing inherently implausible about the evidence accepted by the trial judge in support of those counts. The trial judge had regard to brazenness of the assaults and was satisfied that they occurred, based on her assessment of the complainant.
Turning to the evidence of the complainant's two biological sisters, one gave the evidence to which I have already referred in the discussion of ground 1. The effect of the evidence was that, one night when she was sleeping in the daughter's room, there was an incident during which the daughter saw the applicant with his penis on or near the complainant and that the daughter made remarks about that to her. The Crown did not rely on that evidence as corroborative of the complainant's evidence. It was not shown to relate to any of the counts on the indictment. As already explained, the evidence does not establish any anomaly in the complainant's evidence.
The other sister gave no evidence of ever having observed any sexual misconduct. The applicant submitted that this evidence was "not merely neutral but was squarely against the Crown case" and that the trial judge did not give the evidence "the gravity that she ought to have". The applicant was entitled at trial to rely on that evidence as one of the aspects of the case that rendered the complainant's evidence implausible. However, it did not prove that the sexual assaults did not occur. As already noted, the primary judge had appropriate regard to the brazenness of the assaults and was nonetheless persuaded that the complainant's evidence was honest and reliable. There is no warrant for this Court to intervene with the verdicts by substituting its own assessment of the gravity that "ought to have" been given to one piece of evidence over another. The submission reflects a misconception of this Court's role.
A further point relied upon by the applicant was the alleged implausibility of his being able to commit the offences having regard to the fact that he was described as being "fat" and was "in his 50s". The submission entailed a measure of rhetorical flourish. The complainant's evidence was to the effect that, when other members of the household came out of their rooms or woke up during the assaults, the applicant would pretend he was asleep. As noted above, she described one occasion when he "got up quickly". She did not describe any particular athletic act which this Court could find to be beyond the capacity of an overweight man in his 50s. Nor could the Court properly make the assumption that an overweight person in their 50s cannot be agile.
The applicant also relied in support of ground 2 on his own evidence. He of course denied the allegations. The judge rejected his denials and correctly observed that it did not follow that he was guilty and that it was necessary to be satisfied beyond reasonable doubt that the complainant was an honest and reliable witness. The applicant was critical of the fact that, in rejecting the denials, the trial judge referred to a "lack of reliability on a number of key issues" without listing them. The submission was simply wrong. Her Honour did list the inconsistent and contradictory evidence given by the applicant, on a different page of the judgment.
One of the matters to which her Honour referred in that context was the issue of the applicant's opportunity to commit offences after he got home from work. That was a "key issue" and one on which the applicant gave diametrically opposed evidence at different times. He said the offences alleged to have been committed during the night in the loungeroom could not have occurred at 1am or 2am or 3am because "sometimes I never - I never in the house at that time." In the next answer he repeated "I never come home because I go and wait for my wife to pick up". However, he later described often coming home in the middle of the night and waking one of the other sisters to make him food before returning to lie on the lounge next to where the complainant slept on the mattress.
The judge also rejected the applicant's denial that the laundry was big enough to hold him and the complainant at the same time. That was another issue on which his evidence was inconsistent at different times.
Other issues referred to by the judge were the applicant's evasive answers about his receipt of government assistance for adopting the girls, his deflection of blame for the physical assaults and his evidence that the discipline inflicted on 1 September 2015 was an isolated incident whereas this own son gave evidence in the trial that corporal punishment was normal in that house.
Her Honour also noted a feature of the applicant's evidence that also occurred to me as I read it. He frequently framed his denials in terms that there was "no evidence of that" rather than by direct denial that an event occurred. Of course there was evidence, from the complainant.
The trial judge saw the applicant give evidence; we did not. That said, I have read the whole of his evidence carefully. It supports the judge's findings.
Finally, the applicant submitted in oral submissions that the complainant should be disbelieved because, when questioned as to her attitude towards the applicant, she said that she was "not angry at all". Counsel submitted that that evidence "can't be accurate". The submission reflects the kind of preconception as to the way in which a child victim of sexual abuse should think or act which, in my respectful opinion, cannot form any part of this Court's analysis. It was a description of emotion by a girl in whose shoes no barrister and no member of the court can claim to have stood.
For those reasons, I would dismiss ground 2.

Ground 3: Mahmood direction

Ground 3 is: "The learned trial judge failed to give proper reasons as to the application of the Mahmood direction and failed to give proper consideration to the application of the Mahmood direction."
The trial judge directed herself in the following terms: "I direct myself that there could and should have been concerted attempts to obtain statements from the other occupants of the house, not just the complainant and her two sisters. This is in accordance with R v Mahmood. Contact should have been made with the accused's wife and the other four children living in the house at the time of the alleged incidents in order to determine whether any or all of them were prepared to make a police statement. I will take into account the absence of evidence from the accused's wife, his daughter Janet and his sons, [named], in determining whether I should entertain a reasonable doubt about the accused's guilt on all or any counts." (emphasis added)
The applicant submitted that the trial judge erred by directing herself as to whether the absence of the witnesses gave rise to a reasonable doubt. He submitted that the correct approach was to consider whether, in the absence of the witnesses, the Crown had proved the offences beyond reasonable doubt. I am not persuaded that the difference between those formulations has any practical significance. It is very clear from the judgment that her Honour understood the requirement for the Crown to prove the offences beyond reasonable doubt.
The applicant further submitted that the judgment does not reveal how the trial judge considered the absence of any evidence from the family members in reaching her conclusions. He submitted that the absence of any such analysis indicates that her Honour did not give proper consideration to this issue. The applicant relied in this context on an extract from the decision of the High Court in Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 which states, in relation to a warning given in a trial by judge alone, that "a mere recording or statement of it, without more, would amount to an empty incantation": at [33].
I do not accept that the trial judge merely recorded the direction and had no further regard to it. Her Honour gave a careful explanation of her findings and recorded in that context: "I have taken into account the criticisms of the complainant's evidence and the evidence that they occurred in a small household of nine people and that the allegations must involve the accused acting in a brazen manner and that there was a real risk of detection. I have taken into account that no evidence was called by the prosecution from the accused's wife [named], his daughter [named] or his sons [named]."
It is not fair to characterise those remarks as no more than empty incantation. They reveal that the judge, in her assessment of the evidence, was mindful of the shortcomings of the Crown case. Elsewhere, the judge explicitly referred to the Mahmood direction when explaining her conclusions on each count. In relation to counts 1-4 she said: "I have directed myself in accordance with Mahmood and taken into account the absence of evidence from the family members listed earlier in my judgment". In relation to count 9, she said "I have taken into account the absence of evidence…". In relation to counts 10-12 her Honour again said "I have taken into account the absence of evidence…". It cannot be said that her Honour's acceptance of the complainant's evidence notwithstanding the absence of evidence from other family members was without explanation. Her Honour set out the complainant's evidence carefully and repeatedly described her impressions of her as a witness.
This is not a case in which some glaring improbability had to be reconciled in detailed reasons. As explained above in the discussion of ground 1, the extent to which the evidence of the other family members could have assisted the applicant was limited. A number of witnesses gave evidence that the house was small and crowded and that various family members lived and slept in close proximity. The evidence in the appeal established no more than that they saw nothing. That was an implicit premise of the Crown case in any event.
The judge found that the complainant was a "truthful witness" who "was not prone to exaggeration or embellishment" and "did not give evidence suggestive of fabrication". Reading the trial judge's reasons as a whole, it is clear that her Honour was mindful of the absence of evidence but was nonetheless persuaded that, as to 13 of the 16 counts, the Crown had proved its case beyond reasonable doubt. For those reasons, I would dismiss ground 3.

Orders

I propose the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal.
CAMPBELL J: I have had the considerable benefit of considering the judgment of McCallum JA in draft. I have, however, come to a different view as to the disposition of the matter. I understand that mine is the minority opinion and I will attempt to express my reasons succinctly. I do not believe that my view as to the applicable law governing the outcome of the matter differs from that of McCallum JA in any material respect. My different view relates to the application of those principles in the circumstances of this case. For this reason, I gratefully adopt her Honour's analysis of the principles and summary of the evidence. It will, however, remain necessary for me to refer to some of these matters to explain my different views.

Ground 1: The failure by the Crown to call material witnesses

As McCallum JA has pointed out, all of the offending bar count 7 is said to have occurred within the family's home. Count 7 was a charge of indecent assault alleged to have occurred in the applicant's motor vehicle while he was driving the complainant home from school after an excursion. Count 5, a charge of indecent assault, and count 6, a charge of physical assault, were said to have occurred in the kitchen of the home. Counts 1 to 4 and 8 to 16 occurred within the family home while the other members of the household were sleeping. Except for count 9, the alleged offending was said to have occurred within the lounge room where the applicant, his wife, the complainant, and her two sisters slept. Count 9, the most serious of the serious offences of which the applicant was convicted, is said to have occurred in the laundry of the home while the other members of the household, including the applicant's wife and the complainant's sisters slept. The learned trial judge, while accepting the complainant's evidence and rejecting the applicant's evidence, acquitted the applicant of counts 5, 8 and 10 essentially because the complainant's evidence, acceptable to her Honour as it was, did not establish the elements of those offences to the learned trial judge's satisfaction beyond reasonable doubt.
As McCallum JA has recounted, the Crown formed the intention of not calling five members of the family household of nine to give evidence during the trial, notwithstanding with the clear exception of count 7, and the possible exceptions of counts 5 and 6, all of the alleged offending occurred while they were present in the home, albeit asleep. I acknowledge that on the complainant's account, in respect of some of the offending, one or other members of the household disturbed the applicant by awakening or getting out of bed for some purpose during the offending. On the complainant's account, the applicant was adept at evading detection on these occasions. The members of the household the Crown did not intend to (and did not) call were the applicant's wife, his three children and his adopted son. In the event, the applicant and his son, James, gave evidence in his case. As McCallum JA (at [17]) has explained, counsel for the applicant did not complain of the failure to call the applicant's other biological son.
I accept that the Crown notified the applicant's legal representatives of their intention by email on 3 July 2019, just short of a week out from the first day fixed for the trial. This notice was reinforced by the omission of the names of these persons from the list of witnesses in the order in which they were to be called provided by email on 7 July 2019. No "general indication of the reason for [this] decision" was provided as is generally required by Guideline 26 of the Prosecution Guidelines issued by the office of the Director of Public Prosecutions. The applicant's legal representatives did not protest this decision.
The witnesses not intended to be called were apparently present at Court under subpoena on the first day of the trial. As McCallum JA has pointed out, the applicant's son James was called in his case. I accept that the giving of notice and the subpoenaing of the witnesses is relevant to, but not decisive of the question of fairness which is central to the prosecutor's duty to call all witnesses necessary to provide the tribunal of fact with a full narrative of all facts material to the question of whether the Crown have proved the guilt of the accused beyond reasonable doubt. However to my mind, the nature of a prosecutor's "duty" in this regard, the express terms of Guideline 26 and the omission of a general indication of the Crown's reasons for deciding not to call the witnesses raise an immediate concern about the fairness of the process. I cannot call to my mind any consideration in the case at hand suggesting that "the public interest may require that no reasons be given" (Guideline 26). As it appears the "absent" witnesses were interviewed by neither the police nor the prosecution, it could not be said there were "identifiable circumstances clearly establishing that [the evidence of each of them] was unreliable" (Guideline 26). And they were certainly available. I should say that the efforts made by police to attempt to interview them were not energetic.
Although I have referred to the text of Guideline 26, these guidelines appear to have been faithfully drawn from The Queen v Apostilides and Whitehorn v The Queen, well known, and indeed leading authorities referred to by McCallum JA in her legal analysis. To be clear, that the witnesses in question may "give accounts inconsistent with the Crown case" is not sufficient reason for dispensing with them: Whitehorn v The Queen at 674 by Dawson J.
I accept, on the evidence before this Court that, if called, the evidence of each of these witnesses was likely to be that they saw nothing of the alleged offending. None of the three members of the household who were called to give evidence, at least those whose evidence the primary judge accepted, one only of the complainant's sisters and the applicant's biological son called in his father's case, saw anything of the conduct constituting any of the counts. The "corroborating" evidence of the second sister, in the end, was not relied upon by the Crown and the primary judge, in substance, rejected it, without explicitly saying so. Rather her Honour put it "to one side", saying, "[I]t forms no part of my determination of whether the accused is guilty of the alleged offences." And this is because it was shown to be patently, indeed palpably, unreliable.
I differ from McCallum JA in my assessment of the potential significance of the evidence of the five absent members of the crowded household the Crown chose not to call (bearing in mind that ultimately one was called in the case for the accused). At [55] above, her Honour reasoned that assuming, as I do, that each of them would have said they saw nothing, that evidence does not exclude the possibility that the offences occurred but may render the complainants account less likely to be true "because it was likely that the family members would have seen something if the offences occurred". Her Honour also reasoned (at [57]) that this consideration made the accused's desire, or otherwise, to have them called important to in determining the reasonableness of the prosecutor's decision about whether, or not, they were required to be called. The failure of the legal representatives of the accused to respond to the prosecution emails by requesting that they be called and, rather, raising the failure to interview and call the absent witnesses in the cross-examination of the officer in charge provides a strong basis for inferring that counsel made a tactical decision to prefer the availability of a Mahmood submission rather than requesting their attendance for cross-examination (at [68] above).
Of the "general propositions" or principles established in the unanimous decision of the High Court in Apostilides (at 575), which I take to continue to represent the law, only proposition 1 and proposition 6 are of particular relevance to the present case. They are: 1. The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown. …. 6. A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice. (My emphasis.) I acknowledge that the Justices were not attempting to "exhaustively" deal with the responsibilities of the prosecutor. But I would quote the balance of the relevant passage (at 575-6): … the prosecutor's role in this regard is a lonely one, the nature of which is such that it cannot be shared with the trial judge without placing in jeopardy the essential independence of that office in the adversary system. It is not only a lonely responsibility, but also a heavy one. A decision whether or not to call a person whose name appears on the indictment and from whom the defence wished to lead evidence must be made with due sensitivity to the dictates of fairness towards an accused person. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence. In most cases where a prosecutor does not wish to lead evidence from a person named the indictment, but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defence and then, if necessary, be re-examined.
I do not regard the longer passage I have quoted from Apostilides to depend in any significant way on any practice that may pertain in any particular jurisdiction to naming crown witnesses on the indictment. To my mind this is made obvious by the judgment of Kiefel CJ, Bell, Gageler, Keane and Gordon in Nguyen v R [2020] HCA 23; 94 ALJR 686 at [36]. It has been said that the concept of a fair trial cannot comprehensively or exhaustively be defined. But there can be no doubt that fairness encompasses the presentation of all available, cogent and admissible evidence. In Ziems v Prothonotary of the Supreme Court of New South Wales, Fullagar J observed the rule in criminal cases to be that "the prosecution is bound to call all the material witnesses before the Court, even though they give inconsistent accounts, in order that the whole of the facts may be before the jury". This statement was quoted with approval by the Court in Richardson, where, as noted above, it was said that it was the responsibility of the prosecution to present the case for the Crown "conformably with the dictates of fairness to the accused". As Dawson J said in Whitehorn "[a]ll available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based". (Citations omitted).
I note the force of Nettle J's hesitation concerning a proposition formulated by reference to "all available, cogent and admissible evidence" (at [49]). I note also Edelman J's observation (at [54]), "It can never be said with certainty prior to the conclusion of the prosecution case that a prosecutor's duty of fairness would necessarily require a witness to be called or a video record of interview to be tendered".
It also may be said that although Nguyen concerned the question of a prosecutor's obligation to tender a "mixed" record of interview, the strong statement in the second sentence of [36] of the plurality judgment founded upon a premise that "there can be no doubt" must be taken, at the very least, to be considered dicta that "all available, cogent and admissible evidence" must be called by the prosecutor in a criminal trial. That aspect of the prosecutor's obligation of fairness is not founded upon any practice in relation to naming witnesses on an indictment or some other less formal document such as a list of witnesses.
In circumstances where the three household members who were called as witnesses failed to support the prosecution case because one was rejected as unreliable, and two saw nothing of a good deal of matters which occurred when all were present and in near proximity, the evidence of the remaining members of the household was likely to be covered by the phrase "available, cogent and admissible evidence". That one can assume that the evidence of each of them would be, "I saw nothing", does not detract from its cogency. Such evidence is not "neutral". Rather, in the weighing of probabilities inherent in the application of the stringent criminal standard of proof, that not one other person in a crowded household where all slept in relative proximity could give evidence of one single corroborating detail, let alone an eyewitness account of the commission of a crime, might well attract considerable, if not overwhelming, weight, in the mind of the tribunal of fact.
Counsel's candid "concession" that he was happy to make the Mahmood submission does not in my view detract from the obligation of fairness to which the prosecution was subject. Clearly, the prosecutor's "duty" cannot be delegated to counsel for the defence, notwithstanding the adversarial nature of the trial. If the dictates of justice required the witnesses to be called, the preparedness of defence counsel to utilise that shortfall to her or his client's advantage is only to be expected. Competence as an advocate requires no less. For my part, I would rather regard the exchange set out by McCallum JA (at [60]) as a submission by counsel in the nature of "confession and avoidance". Yes, he was content to make the most of the forensic advantage available to him in the presentation of his client's case, but that did not detract from the prosecutor's obligation. As McCallum JA has set out, learned counsel argued: "the submission is, though, that it was incumbent upon the Crown to call them regardless of whether or not the accused asked for them to be called. It was plainly obvious they should be; they weren't." I, for one, accept that submission.
For these reasons I am satisfied that ground 1 has been made good. Subject to the remaining grounds, this would necessitate a retrial.

Ground 2 - Were the guilty verdicts unreasonable?

With respect I agree with McCallum JA's succinct statement of the applicable principles (at [72]) and have nothing to add. I also accept her Honour's statement (at [88]) that Pell v the Queen establishes no new principle. However, Pell v the Queen does illustrate that a court of criminal appeal's deference to the natural advantages of the first instance tribunal of fact in evaluating lay evidence, an advantage which cannot be recreated in the appellate court, is not always decisive of an unreasonable verdict ground of appeal even where the tribunal of fact, here the learned trial judge, has had the considerable advantage of seeing and hearing the witnesses give evidence and acted upon that advantage in the determination of guilt.
I accept that having directed herself appropriately as to the law regarding the reliability of the evidence of the complainant and the nuances attending the use that may be made of the evidence of the accused and the consideration that he chose to give evidence, the learned trial judge's decision turned largely upon her rejection of the applicant as "an unimpressive witness and unreliable" whose denials were rejected and a conclusion that the complainant was "a truthful witness". But those conclusions were fully explained in her Honour's reasons. And these conclusions were not, and could not have been, called into question in this Court. However, that is not the beginning and the end of the discharge of this Court's statutory duty. In Pell v The Queen (at [39]) a unanimous High Court constituted by all seven Justices said (at [39]): The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. (My emphasis) Moreover, their Honours conclusion (at [119]) was that notwithstanding "the assumption that the jury assessed [the complainant's] evidence as thoroughly and credibly reliable, the issue for the Court of Appeal was whether the compounding improbabilities caused by the unchallenged evidence… nonetheless required the jury, acting rationally, to have entertained a doubt as to the applicant's guilt".
Clearly these same principles apply to trial by judge alone. The important consideration arising out of Pell v The Queen is that a trial judge's assessment of the evidence of the complainant "as thoroughly credible and reliable" is not necessarily inconsistent with "a doubt as to the applicant's guilt" by reference to other circumstances of the case as established by the evidence. From the point of view of the Court of Criminal Appeal, the question will be whether those other circumstances required the judge, "acting rationally, to have entertained" that doubt.
I wish to say that I am not of the view that my views in relation to ground 1 in any way govern the outcome of this ground. Ground 1 raised a question about the fairness of the trial process. Ground 2 is concerned with a separate and distinct question about whether the outcome was unreasonable or cannot be supported having regard to the evidence. Nonetheless absent available witnesses capable of giving cogent, relevant evidence is a factor which the Court of Criminal Appeal is entitled to have regard to in determining ground 2. In Mahmood v Western Australia (2007) 232 CLR 397; [2008] HCA 1 at [27] there, Gleeson CJ, Gummow, Kirby and Kiefel JJ explained: In the joint reasons in RPS v R [(2000) 199 CLR 260 at [27]-[29]] it was pointed out that where a witness, who might have been expected to be called and to give evidence on a matter, is not called by the prosecution, the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused. Similar views were expressed by Gaudron and Hayne JJ and by Callinan J in Dyers v R [(2002) 2010 CLR 285 at [13]].
I accept that the learned judge directed herself by reference to Mahmood in the following terms: I will take into account the absence of evidence from the accused's wife, his daughter Janet and his sons Joseph and Junior in determining whether I should entertain a reasonable doubt about the accused's guilt on all or any counts. Her Honour referred to the absent evidence again and said she'd taken it into account "in accordance with Mahmood".
However, it seems to me that her Honour rather, with great respect, missed the point. The complainant and her two sisters slept together on a mattress on the lounge room floor. Much, not all, of the alleged offending occurred there. The probabilities to my mind strongly suggest that not all of that offending could have occurred without either of them being aware of it, or at least some of it, notwithstanding the learned trial judge's very favourable assessment of the complainant's evidence. Yet, as I have said, the evidence of one sister was so unreliable that the Crown did not press it onto the learned trial judge notwithstanding that it was in terms favourable and her Honour "put [it] to one side". The second sister, as her Honour put it, "gave evidence that, in effect, she did not witness anything that would support the counts on the indictment".
Her Honour took into account that the second sister "did not witness any sexual or indecent behaviour" and that the applicant's son James, "did not see anything". Moreover, her Honour appeared to accept the complainant's evidence that she believed others who may have come into the living room "would not have seen anything" and that the applicant acted "opportunistically" and was apparently adept at evasive conduct.
For my part, the opinion of the complainant as to what others "would" have seen is both irrelevant and contrary to the exclusionary opinion rule established by s 76 Evidence Act 1995 (NSW). It was not entitled to any weight whatsoever however compelling the complainant's evidence might otherwise have seemed.
I also have real doubts about the weight that should be ascribed to the complainant's evidence that the accused acted opportunistically and was adept at evasion. Such circumstances might explain why a resident of the home who usually slept in another room, but who happened to enter the lounge room during the night, might fail to see what was going on, but it hardly explained the inability of the sisters who slept on the very same mattress as the complainant to give any corroborating evidence at all in respect of any count that was said to have occurred there. In my view, the inability of the sisters to give corroborating evidence greatly diminishes the probability of the accuracy of the complainant's account, and the guilt of the accused.
I am also of the view that when one puts the complainant's opinion about what James "would" have seen to one side, his failure to notice anything when he was said to have entered the room during at a material time counts in favour of the accused, and is not "neutral", as her Honour apparently thought.
If one adds to these matters the absence of witnesses who one might have thought would have been in the position to give cogent evidence, the compounding effect of these circumstances is one of increasing improbability demanding a doubt about the guilt of the applicant at least in relation to all counts other than counts 7 and 9 which did not occur when others were present. Count 7 occurred in the laundry and count 9 in the applicant's car.
I accept that the learned trial judge correctly directed herself by reference to the principle discussed in R v Markuleski. However, application of that principle does not depend upon the tribunal of fact's forensic advantage. Rather, the principle applies as a matter of inference. I accept a doubt about one or more count does not necessitate a doubt with respect to other counts. However, the doubt that I have for the reasons I have given in relation to all counts other than counts 7 and 9 causes me to doubt the complainant's evidence with regard to counts 7 and 9.
For the reasons I have given, I am of the view that it was not reasonably open to the learned trial judge to be satisfied beyond reasonable doubt of the commission by the applicant of any of the accounts on the indictment.

Ground 3 - misapplication of the Mahmood direction

Given my conclusions about grounds 1 and 2, it is probably unnecessary, on reflection, to consider ground 3. The question of whether a principle of law correctly stated has been misapplied generally involves a question of fact rather than law: Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 157. However, for the reasons I have given in relation ground 2, I am satisfied that her Honour failed to engage with the principle stated in Mahmood and that this materially influenced her decision.
In the circumstances I would grant leave to raise this error of fact and uphold the ground. However, I am rather of the view that, like ground 1, this too is a ground entitling the applicant, at best, to a retrial.
However, given my decision in relation to ground 2, I would have granted leave to appeal, allowed the appeal, quashed the convictions, and directed the entry of a verdict of not guilty on each count.
N ADAMS J: I have had the considerable advantage of the reading the judgment of McCallum JA in draft. I agree with the orders proposed by her Honour for the reasons provided. In relation to count 2 I too am not persuaded, for the reasons set out by her Honour, that the trial judge ought to have entertained a reasonable doubt as to the applicant's guilt. My agreement with her Honour on this ground was reached after an independent examination of the trial evidence.

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