Ward v R

JUDGMENT

1. ADAMSON J: On 15 October 2020, following a trial by jury presided over by Sutherland SC DCJ, Gavin Ward (the applicant) was found guilty of counts 1, 2 and 3 on the indictment, which charged the offences set out in the table below, each of which was alleged to have been committed between 22 July 2008 and 23 July 2010 against the complainant, a boy aged between 5 and 6 years: Count Offence charged and conduct Section of Crimes Act 1900 (NSW) 1 Assault with act of indecency against a person under the age of 16 years (applicant touched complainant on the penis) s 61M(2) 2 Sexual intercourse with person under the age of 10 years (applicant put his penis into the complainant's mouth) s 66A(1) 3 Sexual intercourse with person under the age of 10 years (applicant digitally penetrated complainant's anus) s 66A(1)

1. As count 4 was an alternative to count 3, it did not need to be considered.
2. The applicant seeks leave to appeal on the following grounds: "1. His Honour failed to direct the jury at the time the evidence was given or at all as to the fact that the Appellant had availed himself as to his right to silence when being interviewed by police. 2. His Honour failed to direct the jury properly as to the disadvantage to the appellant and absence of evidence lead by the prosecution in relation to the jury's question. 3. The verdict of guilty is unreasonable, or cannot be supported, having regard to the evidence."
3. It was accepted that leave to appeal is required in respect of each ground since none comprises a question of law: s 5(2) of the Criminal Appeal Act 1912 (NSW). Further, it was accepted that leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the Rules) is required in respect of grounds 1 and 2 since the applicant's trial counsel did not take objection to the omission by the trial judge to direct in accordance with the grounds.
4. It is necessary to summarise the evidence adduced at the trial and the progress of the trial, in so far as these matters are germane to the grounds.

The complainant's evidence

1. The complainant's evidence comprised: 1. a recording of his interview with police on 12 March 2018 (when he was 14 years' old) (police interview); and 2. his pre-recorded evidence on 25 June 2019 when he was 15, almost 16, years' old (pre-recorded evidence).
2. Except where otherwise indicated, this narrative is based on the complainant's evidence in his police interview.
3. The complainant lived in a town in the Hunter Valley with his parents and two older sisters. Their home was across the road from a wrecking yard (the yard), where the applicant, who was then 25 or 26 years' old, lived in a caravan. When the complainant's father got a job in the yard, the complainant would go with him to the yard to help him. While he was in the yard, he met the applicant, whose father, Paul, ran the yard. Subsequently, when the complainant's father left, the complainant still went to the yard.
4. In his pre-recorded evidence, the complainant said that his father moved to Queensland when the complainant was about eight or nine years' old. In his pre-recorded evidence, the complainant said that the applicant did not threaten to kill his family or "really did it" until his father had left for Queensland, although he had "touched [him] up once or twice." The complainant said that "things got worse" after his father left.
5. In his pre-recorded evidence, the complainant said that he knew the applicant's family members, including his siblings and nephews from going to the yard. When he was about seven years' old, he would play on a quad bike at the yard.
6. In his pre-recorded evidence, the complainant said that he went to the yard to play with car parts. At that time, he knew the applicant as a friend because the applicant and the complainant's mother were friends. The complainant said: "We would play with car parts, on the back we'd start from one end of the yard and jumped onto the roofs of the cars, jumping from car to car, different cars, making it all the way around the other, to the other side of the yard and go do something else."
7. In his pre-recorded evidence, the complainant said that there were pets at the yard as well and that he would go to see the animals there, too. He was allowed to go to the yard alone from about the age of six.
8. In his pre-recorded evidence, the complainant said that the gates to the yard were locked up with a padlock from about 5pm. Once the gates had been locked, the only way you could get out of the yard at night was to scale the fence. Usually, the applicant's father would lock the gates, but sometimes it was left to the applicant, who might forget to lock them up if he was drunk. The applicant began drinking at about 5pm. In re-examination, the complainant said that there was a tree on the other side of the fence which he used to scale. Alternatively, he could go over the "wired fence where it had the barbed wire on top."
9. In his pre-recorded evidence, the complainant said that, on two occasions, at some stage, the applicant took the complainant with him to Sydney, with the complainant's mother's permission. They stayed at the applicant's aunt's house for a week or two and went to the Sydney Aquarium. A photograph was tendered in evidence of the applicant and the complainant outside the Sydney Aquarium.
10. While the complainant was in the applicant's caravan, the applicant "played with [the complainant's] thing [penis] … [and] used to do stuff to [the complainant's] arse". The first time it happened, the complainant was "in kindy." These matters are referred to below by reference to the individual counts charged. In his pre-recorded evidence, the complainant said that the applicant "drunk every time he did it to me." In cross-examination in the pre-recorded evidence, the following exchange occurred: "Q. When you said just before that Gavin [the applicant] was drinking every time he did it to you, was he drunk when he did it to you? A. Yeah, he was getting - like he was pretty pissed, yeah, I'd say so because he was a different bloke when he drunk, when he was drunk, put it that way, he was a totally different bloke, I wouldn't - I don't know what to call him because it's - stuff happened when he's drunk."
11. The complainant said that the applicant would get drunk whenever he drank beer. The following exchange occurred in his pre-recorded evidence: "Q. So he couldn't just have one or two beers and not get drunk, is that what you're saying? A. No, there was three largies [longnecks] and he was done for."

The circumstances of the first occasion on which the offending occurred

1. In his pre-recorded evidence, the complainant said: "Because it was the carnival for school and me and Gavin [the applicant] went and got some Chinese and mum had to go do something for the Centrelink thing when I was younger. … And mum and no-one to watch me and then Gavin said 'I'll watch him' and then I ended up staying over his house. [The complainant's father could not watch him]. Dad was gone by then, he wasn't at home [because he was away for a week or two]."
2. The complainant explained that because his mother had to go to Centrelink in the morning, he went to stay overnight with the applicant so that he would get to school in the morning on the day of the carnival. His mother took him to the applicant's caravan and tucked him into bed and said goodnight before she left. Once his mother left, the offending conduct set out below took place for the first time.

Count 1 - indecent assault of person under 16 years of age

1. In the evening, when it was just getting dark, the applicant, who had been drinking Tooheys New, invited the complainant to come into his caravan. The complainant was expecting to play with car parts. The applicant asked him if he could keep a secret. When the complainant answered no, the applicant told him that if he told anyone, he would kill his family. The complainant began to cry. The applicant laughed at him and pulled down the complainant's shorts and pants. The complainant told him to go away but the applicant touched his penis and played with it for up to five minutes.

Count 2 - sexual intercourse with a person under 10 years

1. The complainant said that, after the applicant had played with the complainant's penis (count 1), the applicant had pulled his own penis out, taken his pants off and made the complainant suck it. The complainant estimated that this went on for about 10 minutes. Whenever the complainant stopped, the applicant told him to keep going otherwise he would hurt him. The applicant was standing and the complainant was sitting on the mattress of the single bed in the caravan while this occurred.

Count 3 - sexual intercourse with a person under 10 years

1. When the complainant stopped sucking the applicant's penis, the applicant picked him up and lay him on the mattress and started playing with the complainant's anus with two of his fingers. The complainant told him to stop because it hurt. When the applicant stopped, the complainant told him that he was going home. The applicant said that if he told anyone, he would kill his family. For this reason, the complainant did not tell anyone when he got home.

After the first occasion on which the conduct occurred

1. In his pre-recorded evidence, the complainant said, as soon as the complainant stopped "playing" with his anus, he ran away from the caravan and climbed over the gate to get out of the yard. He was still in his in his pyjamas. When he got home, the complainant had to knock on the door because it was night time. He did not know when he got back home and was "pretty sure" that his mother answered the door. He was crying. She asked him what he was doing coming home and he said, "Gavin [the applicant] got a bit drunk he was yelling at me and that." In his evidence, he said, "I just like full like lied to her." He explained that he did not tell his mother because of the threats which the applicant had made to him.
2. The following morning, the complainant's mother rang Centrelink to inform them that she would be late for the appointment because she had to take the complainant to school. His mother retrieved his things from the applicant's caravan.
3. After the first occasion, the complainant continued to go to the yard and saw the applicant. He explained in his pre-recorded evidence that he continued to see the applicant because he was young and he did not know that "it was wrong".

The period of the conduct

1. The applicant, who would get drunk every day, would ask the complainant to stay over in his caravan. The applicant did similar acts to the complainant when he went to his caravan. The complainant did not stay there all night but returned to his home. This continued every week for a period while the applicant was between 5 and 6. At this time, the complainant's mother would ask the applicant to babysit the complainant. The complainant described the applicant as "act[ing] like my mum's best friend."
2. At some point, the complainant "clicked" that what the applicant was doing to him was not "right" and that the applicant was "not allowed to do this to me." He realised that "[t]hat's why he keeps telling me he's gunna get [the complainant's] family killed."
3. Subsequently, the yard closed and the applicant moved out. For a short period, the applicant parked his car outside the complainant's home and would sleep in the car. The complainant's mother would let the applicant come into the house and use the shower and toilet. When the applicant finally moved, he left some larger items at the complainant's mother's house, including a pushbike.

Complaint evidence

1. The complainant did not tell either his mother or his father (who was still at home until the complainant was about eight or nine years' old) about what the applicant had done because he was "too scared" that the applicant would kill his family.
2. However, at some stage, the complainant told the applicant that he was going to "dob [him] in". As a consequence, the applicant accused the complainant of stealing his pushbike. The complainant's mother bought him a new pushbike, which the applicant tried to take from the complainant. At about this time, the applicant moved away from the yard.

Complaint to T, the complainant's sister and the complainant's mother

1. In cross-examination in the pre-recorded evidence, the complainant gave the following evidence about the disagreement with respect to the pushbike: "Q. Did you sort out the misunderstanding about the pushbike with Gavin [the applicant]? A No, that's - this is why it's all come out, this is why I'm here. Q. Why is it because you're here, because about the pushbike? A Yeah, this is why we don't talk no more. He accused me of taking the pushbike, he tried to take the one what my mother bought me and then his dad took that off him, brought it over and told mum and he never come back. He come over once after doing that, try and get, like trying to be mum's friend again or something, trying to get back in, I ended up - I told him to get off my lawn or I was going to smash his windows with a metal bar because that's what I had on me at the time, I went back inside, I told my sister what happened, she told my mum when he left."
2. Later, when the complainant was about 12, the applicant returned and spoke to the complainant. He apologised for accusing him of stealing his pushbike. The complainant picked up a metal pole and told him that he would "smash his windows."
3. The complainant's sister, T, who was 18 or 19, asked the complainant why he was so angry with the applicant and told him to stop "trying to cave his windows in". When the complainant was with T in her bedroom, he told her that the applicant had molested him. T shook her head and "gave [the complainant] a cuddle and started crying."
4. T then told the complainant's mother, who spoke to the complainant. When the complainant told his mother that he had been molested, "she broke down … [and] said she trusted him [the applicant] and everything." The complainant was scared because of the threat that the applicant had made to kill his family if he told anyone.
5. In his recorded evidence, the complainant said that, about a week after he had told T and his mother, police officers came to his home. The following exchange occurred in re-examination: "Q. Did they mention the name Gavin Ward to you? A. Yes. Q. How did you react when you heard Gavin Ward's name? A. I instantly cried. Q. Why did you cry? A. Because I knew - I knew like what they were there for in that time, I don't know why I cried, but I just cried, I don't know, it felt like weight getting lifted off my shoulders, but it was still there, like I - I walk around all the time feeling like I've got a tonne like on my shoulders. Q. Did you tell the police officers, Martin and Chris, that day at your house that Gavin had done something to you? A. Yes. Q . When you said that to them were you trying to get money? A. No. Q . Sometime after that, you went and did the interview with Martin [one of the two police officers], was that at an office at Merewether? A. Yes."
6. The "interview with Martin" was the police interview on 12 March 2018 referred to above.

Other matters

1. In his pre-recorded evidence, the complainant was cross-examined about a neighbour who had received money because she had been sexually assaulted and had used the money to buy a new car. He agreed that he was aware of that but denied the suggestion put to him in cross-examination that he thought, when he heard of the neighbour's experience that he could make something up about the applicant and receive some money. In re-examination, the complainant said that he did not even know that he could do that.

Other evidence in the Crown case

1. It was an agreed fact that the complainant was in kindergarten at the local public school in 2009 and in year 1 in 2010. He remained at the school until he completed year 6 in 2015.

The evidence of the complainant's sister, T

1. As referred to above, T is one of the complainant's two sisters. T is four years older than the complainant. T and the complainant's mother gave evidence of the relationship between the complainant's family, Paul (Kitching), who ran the yard, and the applicant. The applicant would visit the complainant's mother and the complainant's mother and T would visit the yard. She recalled the complainant staying over in the applicant's caravan from a young age until he was about 11 or 12 years of age. T agreed that the applicant was regarded as a "family friend."
2. T recalled an occasion in 2017 when the applicant's name was mentioned in the complainant's presence. T gave the following evidence: "Q. … your mother brought up Gavin [the applicant] in a conversation. A. Yes. Q. What happened then? A. [The complainant] became aggravated. … He looked anxious. He looked mad. He was storming around the house. He was swearing. He didn't want Gavin to come over. I think he said he would smash his car or something. I - he was just - didn't want him there. Q. Did you say anything to [the complainant] on account of how he was acting? A. I asked him, 'What's wrong?' … He didn't - I didn't ask - he wouldn't tell me while mum and my sister were around. So, I asked him to come into my room. … I asked him what was wrong and he just broke down crying and he had said, 'Gavin molested me.' Q. Please take a moment. A. I'm good. I'm good. I'm good, thank you. … I had told him that we needed to tell mum and I think I said that we need to call the police. … So, I sat him down on my bed - on the end of my bed, and I'd asked him, and when he said it, he just cuddled me, and he was like, shaking, and he was just crying. Like, he would not stop crying. Q. Take your time. A. I just tried to cuddle him. I was in shock. I didn't know how to react so I just cuddled him and then told him he needed to go tell mum. … Q. Is it the case that you left the room and went and got your mum? A. Yes. Q. What happened after that? A. I let them talk so he could tell her because he didn't go into details and I thought he might of with mum. … Q. That's fine. After your mum and [the complainant] left the room, what happened then to the best of your recollection? A. I think mum became, like, upset and stuff, and I think Gavin may have arrived afterwards, and I think mum had confronted him or something and he may of left. I - it's just a blurry mess. I can't pinpoint all of it."
3. T gave evidence that when she told the complainant that they needed to go to the police, he said, "No, I don't want to." Whenever T or her mother suggested it, the complainant "would just become angry and stressed out, and he would just say no. … his body would instantly get in defensive mode … he looked uncomfortable, really."

The evidence of the complainant's mother

1. The complainant started kindergarten in 2009 at the local public school. He and his mother and two sisters lived in a house opposite the yard. The man whom the complainant regarded as his father was actually his step-father. From time to time, the complainant's step-father worked in the yard.
2. The yard started operation in 2005, when the complainant was about 18 months' old. The complainant's mother would take him there from a young age, including to use the Coke vending machine at the yard. In about 2008, the applicant came to live in a caravan in the yard. From the time the complainant was about four years' old, the applicant would take the complainant to the local "bottle-O". In order to get there, they would walk along the train line. The round trip took about an hour. From the time the complainant was about five years' old, he was allowed to go to the yard without his mother. (Other evidence from Mr Kitching (see below) suggested that he went to the yard alone when he was even younger.)
3. The complainant would regularly go to the applicant's caravan. Sometimes he would stay overnight. The complainant's mother regarded the applicant as a "friend" and would request the applicant to "watch [the complainant] … sometimes if [she] weren't going to be home at after-school time."
4. The following exchange occurred in the cross-examination of the complainant's mother: "Q. When [the complainant] was going over to stay overnight with Gavin [the applicant], that was something that he would want to do? A. Sometimes, yes. Q. You didn't force him to go over there? A. No."
5. According to the complainant's mother, the overnight stays continued until the complainant was about 12 years' old. The complainant also accompanied the applicant and the applicant's family on trips to Sydney.
6. In cross-examination, the complainant's mother was asked about contact between her and the applicant and the applicant and the complainant over the years. She confirmed that the complainant had accompanied the applicant to Sydney and that there had been a close association between the two families, which extended to the applicant picking her up and taking her to work when she was required to work "for the dole". She recalled the complainant becoming "really difficult" at the age of about 12, which she assumed was an "age thing." She vaguely remembered a dispute between the applicant and the complainant which arose from the applicant accusing the complainant of stealing his pushbike.
7. The yard stopped operation in 2016. There was a period following its closure when the applicant lived in his car, which was parked outside the complainant's house. By that time, the complainant, according to his mother, "didn't want nothing to do with him, at all." The complainant told his mother that he did not want the applicant there outside their house.
8. As far as the complainant's mother could recall, the disclosure (that the applicant had molested him) had been triggered by her asking the complainant to go and visit the applicant. By that time, the applicant had moved to a location which was about ten minutes' drive from the complainant's home. As far as she can recall, he responded, "No, no way, I'm not going over there" and "No, I'm not going over there, I'm not going and staying over there." The complainant's mother asked him why that was the case, but he did not tell her until he had told T.
9. The complainant's mother said that the complainant went into T's bedroom and that T came out and told her mother that the complainant had told her that the applicant had molested him. His mother went into T's bedroom and asked him if this had happened, to which the complainant responded that the applicant had "made him touch his dick". She did not recall whether he said anything in addition to that. His mother then "just cuddled him [because she] didn't know what else to do." He was crying and was "very upset." She told him that he had to talk to somebody about it even if he could not talk to her.
10. His mother asked the complainant when it had started but he did not tell her because he did not want her to know "what actually happened." Whenever she has asked him more about what happened, he became upset and refused to tell her. When she asked him why he did not want her to know, he responded that he did not want to hurt her.
11. The complainant's mother gave the following evidence regarding reporting the matter to police: "I said, 'Look, we have to call - tell the police because if he's done this to you he'll do it again,' and - and he said no and I said, 'Well, it's up to you what' - you know, I didn't want to push him because I didn't know what to do sort of thing."
12. Two male police officers arrived at the complainant's home on 9 March 2018. As he was not at home, his mother called him and asked him to come home. When the complainant came home, he spoke to police. His mother, who was on the verandah, watching her son speak to police, saw that he was crying and "upset" but that he continued to talk to them.

The evidence of the applicant's father, Paul Kitching

1. The applicant's father confirmed that the applicant came to live in a caravan in the yard in about 2008 and remained there until the yard closed in October 2016. The yard had stopped operating in June 2016.
2. The yard became operational in 2005 when the complainant was "still in nappies". Mr Kitching said: "He was still in nappies, yeah. Yeah, I would remember him in nappies, yeah. It was very unusual for me, a … wrecking yard operator to have a lady and a - with a little bloke with a nappy and no shirt on every morning coming over and going to me coke vending machine and saying hello and asking for a smoke. I had never experienced that before, but that is what happened. Yeah."
3. The vending machine was located in the main entry area behind a roller door.
4. Mr Kitching recalled the complainant leaving home and wandering over to the yard when he was a toddler. He said: "I would say that he was three - three years old with a nappy on and no adult present that was taking notice of where he was. And we're opening the gates of a wrecking yard and here is a little bloke walking around the front lawn across the road, and then he sees me … or other staff members arriving, and he would just come over. And again, we would just take him back. So when you ask when I first - unaccompanied would be a toddler [the complainant] unaccompanied by his parent and no supervision by anyone. So we would get him and we could take him back, and this would be on a regular basis."
5. Mr Kitching agreed that the complainant became part of his family as well as being a "permanent fixture" in the yard. The complainant used to play with Mr Kitching's grandchildren. When questioned about whether the applicant's relationship with the complainant was closer than it was to any other member of Mr Kitching's family, Mr Kitching said that "it was no different than any other member of [his] family." Mr Kitching said that he was not aware that the complainant had stayed over with the applicant in his caravan. He said that he and his wife took on the complainant as a member of their family "because there was something missing for him and that was family".
6. Mr Kitching described the complainant's interaction with others at the yard as follows: "Well, see, he didn't - he didn't seem to specifically be coming there to - 'Can I go and see Gavin?' All right? He was coming over to see everybody and even as a young kid he was a witty little bugger where once he - he seemed to have an interest in tools. You know what I mean? And, you know, you think of a kid, maybe starting kindergarten or a bit older, whatever, playing with plastic tools or whatever, but he really had an interest in the - in cars and that, and I think, maybe he got that from Rob, once his stepdad, that once he - because he was across the road pulling something apart, so, yeah. That's what anybody - that's what I say - he would follow off other staff members. He'd wander off into the yard area and, yeah, so, and do that type of stuff. Always like to get flat tyres and use our tyre machine and pump …"
7. Mr Kitching identified a pepper tree inside the yard, a photograph of which was tendered in the prosecution case.

The jury note regarding the timing of the school carnival

1. On the second day of the trial, after Mr Kitching had been excused but before Detective Senior Constable Swadling had given evidence (see below), the jury sent a note to the trial judge in the following terms: "Want to clarify a time line of school carnival (date)."
2. In the absence of the jury, the prosecutor informed his Honour, that the Crown did not have evidence of that and relied on the complainant's recollection. When the jury was brought back, his Honour said, of present relevance: "I take it that that's a request for if there's any evidence about the date of the school carnival. The Crown prosecutor tells me in your absence that the Crown will be relying upon [the complainant's] recollection and his memory as to the sequence of what happened and there is not, as presently advised, anticipated that there's going to be any precise evidence as to the date of the school carnival. All right - nothing you want me to add, Ms Reed or Mr Crown?"
3. Both counsel confirmed that there was nothing either wished to add.

The evidence of Detective Senior Constable Swadling

1. The final witness in the prosecution case was Detective Senior Constable Swadling, the officer in charge of the investigation. He came to the complainant's house on 9 March 2018. He told the complainant, who arrived after his mother had telephoned him and asked him to come home, that he was not in any trouble and that they were conducting an investigation into the applicant. The complainant's reaction to hearing the applicant's name was to become "extremely emotional", to "[break] down in tears" and be "visibly upset". The complainant told Detective Swadling that the applicant had "been molesting [him] since [he] was a kid." The detective did not take a statement from the complainant that day but interviewed him at the police station on 12 March 2018, following which the applicant was arrested and charged.
2. Detective Swadling gave the following evidence (which is the subject of ground 1 of appeal): "Q. Now, it's the case that following the 12 March 2018 [interview], the accused was charged with these alleged offences. A. That's correct. Q. It's also the case that after he was charged, you offered him, through his lawyer, the opportunity to take part in a recorded interview concerning the allegations. A. That is correct. Q. And it is correct, isn't it, that, as is his right, his legal representative declined for the accused to take part in a record of interview. A. That's correct." [Emphasis added.]
3. No direction was given by his Honour that the jury was not entitled to draw any adverse inference against the applicant on the ground that he had declined to take part in a recorded interview. Nor was any such direction sought. Detective Swadling was not cross-examined.
4. At the close of the Crown case on the second day of the trial, the trial judge directed the jury, as his Honour had done previously, not to conduct their own investigations. His Honour also said: "Please, keep your discussions to just the twelve of you. No googling, no investigating. I don't want anybody saying, 'Well, look, maybe the police couldn't work out what the school holidays were or where the school carnival was, but I think I can,' …"
5. After having given this direction, the trial judge sent the jury away early. There was a short discussion in the absence of the jury about the spelling of the complainant's name in the transcript. When his Honour adjourned, the applicant's trial counsel had not indicated whether there was to be a defence case. On the morning of the third day, the applicant's trial counsel informed the Court, in the absence of the jury, that there was to be a defence case.

The defence case

1. The applicant gave evidence. He accepted that the complainant would stay overnight with him "a handful of times" a month and that two to three times a week he would take the complainant with him when he went to the bottle shop. He also accepted that, on more than one occasion, the complainant had gone with him and other family members to Sydney and explained that his family took the complainant on holidays because the complainant's own family did not do so.
2. The applicant did not accept that his relationship with the complainant could be described as a friendship and maintained that it was no different from the relationship he had with any of his nephews or nieces. However, he agreed that he had developed a close bond with the complainant, had spent considerable time with him and that they used to go for walks and watch movies together in his caravan. He also agreed that he babysat him.
3. The applicant gave evidence that he had moved into the yard in 2009 despite having earlier said that it was around 2008. He said when he first met the complainant, the complainant would have been in about year 1. He said that he could not agree that the complainant had ever stayed over when he was as young as five or six years' of age, although he had previously admitted that he had. In re-examination, the applicant said that it was impossible for the complainant to have stayed over when he was either five or six years' old. He disagreed that the complainant had stayed in his caravan, just the two of them, "many times" a year and estimated that it was more like six to eight times a year. He said that other children had stayed there on several (up to 30) occasions.
4. The applicant said that he and the complainant had fallen out over a pushbike. He gave evidence that one day he picked up the complainant's mother from work and dropped her home. When they arrived home, the complainant was standing at the fence. This was the first time the applicant had seen him since his pushbike had disappeared. He had been told by the complainant's mother that the complainant had taken it. When the applicant "had a go" at the complainant, the complainant denied that he had stolen it and "had his little mental attack".

The summing up

1. Of present relevance, his Honour said to the jury, with respect to the applicant's evidence: "Had [the applicant] elected to not give evidence, I would have given you a direction that you were to draw no adverse inference against him because he had elected to exercise the right to silence."

Ground 1: alleged failure to give direction regarding the right to silence

1. Ms Kluss, who appeared on behalf of the applicant, argued that the trial judge's failure to give the standard direction (set out below) when Detective Swadling gave evidence that the applicant had, through his legal representatives, declined to be interviewed by police, was such a fundamental defect that the convictions ought be set aside. She contended that this failure gave rise to a real risk that the jury had reasoned that the applicant was guilty because he had chosen not to participate in an interview with police and had only decided to give evidence much later when he had sufficient time to work out what to say, with the benefit of legal advice. Although Ms Kluss did not contend that the applicant's trial counsel was incompetent, she submitted that the only explanation for the failure to give the direction was that the applicant's trial counsel had been inadvertent. She postulated that, as the matter was a retrial and the evidence was adduced expeditiously (the Crown case having closed on the second day of the trial), the applicant's trial counsel had not been alert to the direction required.
2. Ms Kluss relied on Petty v The Queen (1991) 173 CLR 95 at 99 (Mason CJ, Deane, Toohey and McHugh JJ); [1991] HCA 34 (Petty), in which the High Court said, when referring to an accused who has exercised the right to silence on arrest: "That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable."
3. As is apparent from the narrative above, the prosecutor, in questioning Detective Swadling about the offer made to the applicant to be interviewed by police, made it clear that the offer had been made to the applicant's lawyer, who had refused the offer and that the applicant had a right to decline to be interviewed. Further, it is apparent that the trial judge referred to the applicant's right to silence, albeit in a hypothetical way, in the context of his choice having elected to give evidence.
4. However, his Honour did not direct the jury (and was not asked to direct the jury), at the time of Detective Swadling's evidence in accordance with the standard direction set out in the Criminal Trial Courts Bench Book, at [4-110]: "[The accused], as you are aware, chose not to answer questions put to [him/her] by the police at the time of [his/her] arrest. All people in this country have a right to silence - that is, to choose not to answer questions put to them by the police. That is what the police officer told [the accused] when [he/she] was asked if [he/she] wanted to answer their questions. There are some exceptions to this right, for example, when a police officer asks the registered owner of a car who was driving it at the time of some traffic incident. But those exceptions do not apply here. In this case, it would be quite wrong if [the accused], having listened to what the police said, and having decided to exercise [his/her] right to silence, later found that a jury was using that fact against [him/her]. You must not do that of course. It is important, therefore, that you bear in mind that [the accused's] silence cannot be used against [him/her] in any way at all. The fact that [he/she] took note of the caution given by the police and chose to remain silent cannot be used against [him/her]. Under our law, an accused person has a right to silence. [see: s 89 Evidence Act 1995 and Petty v The Queen (1991) 173 CLR 95 at 97.]"
5. This principle referred to in Petty has been legislatively endorsed in s 89 of the Evidence Act 1995 (NSW), which relevantly provides that, in a criminal proceeding, an inference unfavourable to the accused must not be drawn from evidence that he failed or refused to answer questions asked of him or respond to representations made to him by investigating police officers. Section 89(4) defines "inference" as including an inference of consciousness of guilt or an inference relevant to the party's credibility.
6. The requirement that a direction about the right to silence (and the consequential prohibition on drawing adverse inferences from its exercise) be given in every case where an accused chooses not to be interviewed finds support in R v Reeves (1992) 29 NSWLR 109, when this Court (Hunt CJ at CL, Mahoney JA and Badgery-Parker J agreeing) said at 115: "… where such evidence is given which discloses that the accused has exercised his right of silence, a direction should invariably be given - as soon as the evidence is given and, if necessary, again in the summing up - to make it clear to the jury that the accused had a fundamental right to remain silent and that his exercise of that right must not lead to any conclusion by them that he was guilty: R v Astill (Court of Criminal Appeal, 17 July 1992, unreported) at 9." [Emphasis added.]
7. The requirement that the direction be given at the time the evidence is led and also in the summing up was qualified by this Court in R v Matthews (Court of Criminal Appeal (NSW), 28 May 1996, unrep) where Badgery-Parker J (Cole JA and Sperling J agreeing) said that although it was preferable for the direction to be given when the evidence was adduced, it should ordinarily be given in the summing up.
8. These dicta establish, uncontroversially, that a direction in accordance with the standard direction (set out above) ought be given when the evidence is led and in the course of the summing up. However, they do not address the consequences for a conviction of such a direction not having been given. This is the question which arises in the present appeal. The answer to this question derives from the principles enunciated in decisions of this Court in appeals against convictions based on the failure or omission to give such a direction.
9. In Dent v R [2017] NSWCCA 166 (Dent), the Crown led evidence that the appellant, when arrested, "exercised his right not to be interviewed in relation to this matter". No direction was sought or given that no adverse inference could be drawn from the appellant's exercise of his right to silence. This Court (Hoeben CJ at CL, Bellew and Fagan JJ agreeing) held that no miscarriage of justice had been occasioned. The Court was satisfied that there was no chance that the jury might have used the evidence adversely to the applicant. The Court's reasons for so finding were as follows.
10. First, the evidence led was that the appellant had "exercised his right" not to be interviewed, rather than that he had "made no reply". The Court considered that the reference to "right" was sufficient to imply that the appellant had a right not to be interviewed and that he had exercised that right. On this basis, the Court did not consider that the evidence offended Petty: [103].
11. Secondly, the appellant in Dent gave evidence at trial. This Court regarded his having given evidence as an "important consideration" which "precluded any speculation on the part of the jury as to what was the appellant's explanation of various matters and why it was that he did not offer an explanation when first spoken to by the police": [104].
12. Thirdly, no submissions had been made about the evidence that the appellant had exercised his right not to be interviewed. Thus, the jury knew that the appellant had exercised his legal right not to be interviewed and knew what the appellant's case was because he had given evidence: [115].
13. Fourthly, the Court considered the "overwhelming inference" to be that trial counsel did not seek the standard direction because it would have served "no useful purpose": [114].
14. The present case shares at least the first three features of Dent: it was clear to the jury that the applicant had a right to silence and had exercised the right when his lawyers declined the opportunity for him to be interviewed by police; he gave evidence at trial; and no submissions were made about his electing not to be interviewed.
15. There are, however, two further features of significance in the present case: first, the effect of the evidence given by Detective Swadling was that the applicant's lawyers decided (or advised) that he was not to be interviewed, which was sufficient to indicate that he had not made the decision himself; and secondly, that the trial judge had given the hypothetical direction in the summing up about the direction his Honour would have given if the applicant had chosen not to give evidence. I regard this direction as tending to fortify the jury's appreciation of the applicant's right to silence and the requirement that no adverse inference ought be drawn against him.
16. The fourth feature referred to in Dent requires separate consideration as Ms Kluss contended that the only reasonable explanation for a direction not having been sought was inadvertence by the applicant's trial counsel. No evidence was adduced to support this contention.
17. The issue of forensic choice not to seek a direction arose in Taylor-Joycey v R [2021] NSWCCA 29. In that case, the appellant refused to participate in a recorded interview but gave evidence at trial. No direction was given or sought when the evidence was adduced that he had refused to participate in the recorded interview but, as here, the appellant gave evidence. The Court (myself, Leeming JA and Harrison J agreeing) said, at [91]: "However, there are reasons why defence counsel might not have asked for such a direction, on the basis that the direction would have emphasised the fact that the appellant chose not to speak to the police (immediately after the relevant events but before his arrest) although he chose to give evidence (when he must have had more time to consider what he would say). Although the trial judge had an obligation to ensure that the accused was tried fairly, his Honour was entitled to rely on the judgment of the appellant's trial counsel that such a direction was not sought because it was not thought to advance the interests of the appellant: see, for example, R v Cao (2006) 65 NSWLR 552; [2006] NSWCCA 89 at [14]-[18] (Howie J, Spigelman CJ and Barr J agreeing)."
18. This Court has not been favoured with an explanation from the applicant's trial counsel that she saw no forensic advantage in not seeking a direction but failed to do so through error or inadvertence. I do not accept Ms Kluss' submission (which is no more than speculative) that the applicant's trial counsel was, in effect, going through the motions because it was a re-trial (which meant that she did not need to cross-examine the complainant since this was the subject of pre-recorded evidence). There is no indication that the applicant's trial counsel was not alert to the interests of the applicant when conducting the trial.
19. In these circumstances, I am inclined to infer that the applicant's trial counsel made a rational choice not to request such a direction. A failure to seek a direction can, in these circumstances, indicate that, as far as the applicant's trial counsel was concerned, the absence of the direction did not prejudice the applicant's interests or impugn the fairness of the trial: De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [35] (Kiefel CJ, Bell, Gageler and Gordon JJ).
20. I am persuaded, in these circumstances, that no miscarriage of justice has been occasioned. In my view, there was no real chance that the jury used, adversely to the applicant, the evidence of his decision not to participate in the interview with police.
21. Although I am persuaded that leave under r 4.15 of the Rules and that leave to appeal ought be granted in respect of ground 1, I am not persuaded that the ground has been made out.

Ground 2: alleged failure to give a direction regarding the consequences of lack of evidence regarding the date of the school carnival

1. Ms Kluss submitted that it was plain from the jury's question on the second day of the trial that the jury was concerned about the date of the school carnival. She further submitted that the prosecutor's response to the jury's question about the date of the carnival ought be construed as implying that the Crown did not have evidence of the date of the school carnival (or the complainant's mother's interview with Centrelink, which was, according to the complainant, on the same day) "due to the lapse of time." She also contended that the complainant had a poor memory about when the offences occurred which hampered the applicant's opportunity to defend himself by obtaining evidence to show that it was impossible for him to have committed the offence on the day of the school carnival (or the complainant's mother's Centrelink interview).
2. Ms Kluss further submitted that a Mahmood direction (named after Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1) ought to have been given that the jury was not to speculate about the lack of available evidence but that its absence could be taken into account by the jury in determining whether the Crown had proved its case beyond reasonable doubt. She also contended that a "forensic disadvantage" direction ought to have been given pursuant to s 165B of the Evidence Act by reason of the forensic disadvantage to the applicant by reason of the fact that "potential evidence has been lost or is otherwise unavailable" within the meaning of s 165B(7)(b). She pointed to the delay between the time of the alleged offending (22 July 2008 and 23 July 2010) and the date on which the applicant was charged (12 March 2018) as compromising the applicant's opportunity to defend himself.
3. It is convenient to address first the submission that a direction under s 165B of the Evidence Act ought to have been given.
4. Section 165B relevantly provides: "165B Delay in prosecution (1) This section applies in a criminal proceeding in which there is a jury. (2) If the court, on application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence. … (5) The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury. … (7) For the purposes of this section, the factors that may be regarded as establishing a significant forensic disadvantage include, but are not limited to, the following - (a) the fact that any potential witnesses have died or are not able to be located, (b) the fact that any potential evidence has been lost or is otherwise unavailable."
5. The wording of s 165B(5) indicates a legislative intention to cover the field of warnings to a jury about the forensic advantage as a consequence of delay. It is plain from the wording of s 165B(2) that its operation is limited to circumstances where a party has applied for the direction, as this Court confirmed in Groundstroem v R [2013] NSWCCA 237 at [56] (Adams J, Macfarlan JA and Button J agreeing). It is common ground that no application was made. Accordingly, not only did the trial judge have no obligation to give a forensic disadvantage direction on the basis of delay, but his Honour was also, by reason of s 165B(5), prohibited from giving such a direction as no application had been made for it. His Honour had no obligation to "second guess" counsel: Groundstroem v R at [56]. The reasons for this are obvious: it will usually be peculiarly within an accused's knowledge whether the lack of evidence occasions forensic disadvantage.
6. This is sufficient to address Ms Kluss' submission that a forensic disadvantage direction on the ground of delay ought to have been given. However, even had such a direction been applied for, it is by no means clear that it would have been appropriate to give it.
7. The applicant would have been required to satisfy the trial judge that he had suffered significant forensic disadvantage (Cabot (a pseudonym) v R (No 2) [2020] NSWCCA 354 at [39] (Gleeson JA, Price and Wright JJ agreeing)). Such disadvantage would have needed to be identified. It is not sufficient to point to a lack of evidence, where the evidence has merely speculative probative value: Shanmugam v R [2021] NSWCCA 125 at [45] (Harrison J, Beech-Jones and Cavanagh JJ agreeing); Binns v R [2017] NSWCCA 280 at [22] (Basten JA, R A Hulme and Garling JJ agreeing). Ms Kluss did not address any of these matters or identify why, given the length of time alleged in the indictment, the date of the carnival or the complainant's mother's interview with Centrelink was particularly material.
8. The applicant's submissions were based on the assumption (which Ms Kluss asked this Court to make) that the records of the date of the carnival and the complainant's mother's Centrelink interview had been lost by reason of delay. Thus, s 165B(5), for the reasons given above, precluded any other direction being given about disadvantage caused by delay.
9. It is, in my view, significant that the applicant's trial counsel did not seek a Mahmood style direction (or any other direction) regarding the absent records. No issue was taken at trial regarding the unavailability of these records. In the circumstances of this case, no such direction was required to prevent a miscarriage of justice. The following observations made by this Court in Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [121] (Beazley P, Hall and Wilson JJ) are apposite to the present case: "Although it is true, as the High Court said in Pemble v The Queen (1971) 124 CLR 107, that in a criminal trial the judge must be astute to secure for the accused a fair trial according to law, nonetheless, as has been pointed out on many occasions and over a great many years, the fact that no objection is taken to a procedural step adopted by the trial judge, or to matters put or omitted by him in his summing up, is cogent evidence indeed, in most cases, that counsel absorbed in the atmosphere of the trial saw no injustice or error in what was done: Tripodina v R (1988) 35 A Crim R 183 at 191 (Yeldham J; Carruthers and McInerney JJ agreeing)."
10. I would grant leave in respect of ground 2, which has not been made out.

The general principles

1. The principles to be applied when convictions are challenged on the ground that the verdicts were unreasonable are well established. This Court must determine whether it was "open" to the jury to find the appellant guilty or whether a jury "must have had a doubt": M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 221; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
2. In Pell, the High Court said further, at [53]: "There is no requirement that a complainant's evidence be corroborated before a jury may return a verdict of guilty upon it."
3. The jury is the body which is entrusted with the primary responsibility of determining guilt or innocence: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
4. This Court must proceed on the assumption that the evidence of the complainant was accepted by the jury as credible and reliable: Pell at [39]. There are limitations on the extent to which this Court is entitled to disbelieve a witness whose evidence a jury may be taken to have accepted, including to establish the offence beyond reasonable doubt. This Court said in Z (a pseudonym) v R [2022] NSWCCA 8 at [29] (Macfarlan JA, Brereton JA and Beech-Jones CJ at CL agreeing): "… it should be emphasised that, in general, matters of credibility are for the jury to determine and only in an unusual case will it be able to be said that the complainant's credibility has been so damaged that it was not open to the jury to accept his or her evidence."
5. In order to address an unreasonable verdict ground, this Court is obliged to review the whole of the evidence for itself, having regard to the principles set out above. However, this is not an open-ended inquiry. Procedural fairness requires the applicant to identify on what basis or bases it is alleged that the verdicts are unreasonable in order that the prosecution has an opportunity to address such matters.

The matters relied on by the applicant

1. Ms Kluss pointed to the following matters on which she relied (alone and in combination) in support of her submission that the jury ought to have entertained a reasonable doubt about the applicant's guilt: 1. the complainant's evidence was not corroborated in any material respect; 2. the complainant's mother did not give evidence about the complainant returning home on the night of the commission of the alleged offences, in circumstances where the drama of the incident (a five-year old boy returning at night alone from the yard having climbed a fence and crossed a road before knocking on the door, crying, and having his mother let him in) must have been memorable; 3. the complainant's mother gave evidence that the complainant was enthusiastic about the complainant going to the yard to stay with the applicant; 4. the complainant gave evidence that the end of his relationship was brought about by an argument over a pushbike as opposed to the alleged sexual assaults committed by the applicant against the complainant; 5. the applicant's father's evidence that he regarded the complainant as part of his family; 6. the complaint evidence was non-specific, disclosed little more than that the complainant had been molested by the applicant, made no reference to fellatio or anal intercourse and arose in the context of the applicant coming to apologise to him about the pushbike; and 7. the applicant's evidence did not lack credibility.

Consideration of the matters relied on by the applicant

(1) the complainant's evidence was uncorroborated

1. As to (1), as the High Court said in Pell in the passage extracted above, there is no requirement for a complainant's evidence to be corroborated for it to be accepted beyond reasonable doubt. Indeed, any such requirement would tend to grant perpetrators of sexual abuse immunity from prosecution since such offences tend to be committed in the absence of witnesses.
2. Further, delay in complaint is typical, particularly as here, where, according to the complainant, threats were made about the consequences of disclosure (that he and his family would be killed).

(2) the complainant's mother did not give evidence of his return on the night of the first sexual assaults

1. As to (2), the complainant's mother did not give evidence about the occasion on which the complainant said the applicant had first sexually assaulted him in the caravan. However, she did not deny that it had occurred. Thus, the inference can be drawn that she did not give evidence about the occasion when the complainant returned home at night, crying, because she did not remember. It was open to the jury to consider that her absence of memory was hardly surprising in the circumstances of the other evidence as to the complainant's childhood.
2. As the narrative of evidence set out above indicates, the complainant had a relatively unsupervised childhood in which he, from a very young age, made his way in an adult space (the yard). It was open to the jury to regard Mr Kitching's evidence about the complainant's habit of crossing the road and wandering around the yard from the time he was a toddler as evidence that the complainant's mother was not particularly watchful and did not regard the yard as an unsuitable place for a child.
3. Further, the complainant's evidence that he climbed over the fence to get out of the yard after the gates had been locked was neither challenged in cross-examination nor by the applicant's own evidence. It was open to the jury to consider that the regularity with which the complainant stayed with the applicant in his caravan before returning home to his family in time to go to school was such that the complainant's mother would not necessarily have remembered any particular homecoming as distinct from any other. The jury may have reasoned that the complainant's mother realised that the applicant drank beer and that she might have simply put down the complainant's distress that evening as a child's night time fears rather than an indication that anything untoward had happened.
4. The jury may also have regarded it as significant that the complainant was unsure as to whether it was his mother who let him in on that particular evening. As he also had two sisters who were living at home at the time, the jury might have regarded it as possible that one of his sisters had let him in that night.

(3) the complainant's mother's evidence about the alleged enthusiasm with which the complainant stayed with the applicant in his caravan

1. As to (3), the complainant's mother's evidence was not unequivocal about the complainant's attitude to going to the applicant's caravan. The passage from her evidence extracted above was that "sometimes" the complainant wanted to go to the applicant's caravan. Indeed, it was open to the jury to reason that the complainant liked going to the yard (because of its various attractions, including cars, other children, a vending machine and various animals), realised that his mother wanted him to go to the yard when she was not going to be home after school and simply regarded the overnight stays in the caravan with the applicant as a normal part of his life, relatively unconventional as it was.

(4) the relevance of the pushbike to the breakdown in the relationship between the applicant and the complainant

1. As to (4), the complainant's evidence about the pushbike was that the applicant had left his pushbike at the complainant's home when he moved to a different location. The complainant had taken it to be repaired and the applicant had accused him of stealing it, which angered the complainant. However, it was open to the jury to reason that the complainant's aversion to seeing the applicant was because he realised, at the age of about 12 years, that what the applicant had done to him by molesting him was wrong.
2. The jury might have regarded the complainant's anger when the applicant's name was mentioned and his threats to break his windows as explicable on the basis that the complainant had been traumatised by the applicant's sexually assaulting him as a child. It was open to the jury to reason that the dispute about the pushbike was the catalyst, but not the cause, of the complainant's aversion to the applicant. It was also open to the jury to reason that the complainant's breakdown with T, his mother and in front of police when the officers mentioned the applicant's name was a result of the sexual abuse, as opposed to an argument about a pushbike.

(5) the applicant's father's evidence that he regarded the complainant as part of his family

1. It was common ground that the complainant spent a lot of time from the time he was a toddler at the yard and that he came to know the applicant and his family. Mr Kitching observed the complainant's family situation and incorporated the complainant within his own family. The complainant's mother developed friendships with the applicant's family and the applicant cultivated a friendship with her as well as with the complainant. It was open to the jury to reason, from their experience of life, that sexual assaults against children occur in family situations and that adults might "groom" a child's parents in order to gain their trust and obtain greater access to the child. The jury might also have reasoned that the complainant liked the applicant when he was sober, did not like him when he was drunk and did not appreciate until he was about 12 (as the complainant explained) that what the applicant was doing to him was wrong.

(6) the lack of specificity of the complaint evidence to the complainant's mother and sister

1. As set out in the narrative above, the complainant was very reticent to disclose what the applicant had done to him either to T or his mother. That he told them that the applicant had molested him was drawn out of him by T when she observed the violence of his reaction to the suggestion that he visit the applicant. T insisted that the complainant tell his mother, which the complainant did. However, he was even more reticent to tell his mother about what had happened. As referred to above, the complainant's mother gave evidence that the complainant was very reluctant to tell her what had actually happened and told her that he did not want to tell her because he did not want to hurt her.
2. It was open to the jury to reason that the complainant realised that his mother might feel guilty if she appreciated the extent of the applicant's sexual abuse of him because she had entrusted him to the applicant's care.
3. Further, although the complainant was relatively non-specific with his mother and sister, he was very specific to the police in the recorded interview in which he participated on 12 March 2018, which occurred not long after the disclosure to T and his mother. In those circumstances, the jury may have reasoned that his reticence to disclose details to T and his mother was to spare them rather than because of any lack of recollection on his part.
4. The complainant's realisation when he was about 12 years' old that what the applicant had done to him was wrong was expressed palpably in the complainant's reaction to the suggestion that he see the applicant, in his emotional reaction to telling T and his mother, and, perhaps most graphically in his reaction to the police officer's mention of the applicant's name. His reaction, set out in full above, was described by the complainant in terms which are, in this Court's experience, typical for victims of sexual abuse: "Because I knew - I knew like what they were there for in that time, I don't know why I cried, but I just cried, I don't know, it felt like weight getting lifted off my shoulders, but it was still there, like I - I walk around all the time feeling like I've got a tonne like on my shoulders."
5. Further, the way in which the complainant gave his evidence (in the police interview and the pre-recorded evidence), as indicated by the transcript, showed how difficult it was for him to recount the details of the assault and the need for him to pause to collect himself. It was open to the jury to regard these matters as corroborative of the complainant's verbal account of what had occurred.

(7) the applicant's evidence did not lack credibility

1. Although there was nothing particularly incredible about the applicant's evidence of itself, there were inconsistencies within it (particularly as to timing) which the jury may have regarded as significant. Further, the jury had been correctly directed that the evidence was to be regarded as a whole. It was open to the jury to reject the applicant's denials of the conduct alleged and accept the complainant's evidence on these matters.

Conclusion

1. I have reviewed the whole of the evidence and summarised it in the narrative above. I am not persuaded that the jury ought to have entertained a reasonable doubt about the applicant's guilt. Nor do I have a doubt about the applicant's guilt.

Proposed orders

1. I propose the following orders: 1. Grant leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of grounds 1 and 2. 2. Grant leave to appeal. 3. Dismiss the appeal.
2. CAMPBELL J: I have had the considerable advantage of reading the judgment of Adamson J in draft. I agree with what her Honour has written and with the orders she proposes. However, I wish to add some observations of my own in relation to Ground 1.
3. To my mind there is no doubt that the admission of the evidence of Detective Senior Constable Swadling set out by the presiding judge (at [64] above), and the omission of the learned trial judge to then direct the jury in substantial conformity with the standard right to silence direction (see Adamson J, [76]) were irregularities. The admission of the evidence was irregular for two reasons. First, it was irrelevant because it was evidence that could not rationally affect directly or indirectly the assessment of the probability of the existence of any fact in issue, except the credibility of the applicant, or less obviously, whether his state of mind harboured a consciousness of guilt. Secondly, the evidence was inadmissible for either of those purposes by dint of s 89 Evidence Act (Adamson J [77] above). Section 89 is entirely consistent with the common law as the passage from Petty set out by Adamson J (at [74]) makes pellucidly clear. It is important to emphasise that Mason CJ, Deane, Toohey and McHugh JJ stated (at 99): "Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable." (My emphasis)
4. I acknowledge that the Crown made no submission about either consciousness of guilt or recent invention at the trial. Indeed, the evidence of Detective Swadling was not mentioned again at all as far as my review of the record below shows. Moreover, the solicitor advocate prosecuting in fact made no reference whatsoever to the evidence of the applicant in his closing address. He did not make any attack, in submissions, on the credibility of the applicant although he had cross-examined the applicant as to some perceived inconsistencies in his account. It was not put to the applicant that his denials in his evidence in chief were lies (Appeal Book p. 266, lines 33 - 41). Rather, the prosecutor contented himself with merely challenging the applicant's denials in a formal manner (Appeal Book p. 277, lines 31 - 46). Of course, those questions involve the necessary implication that the applicant was guilty of the most disgraceful misconduct.
5. Speaking for myself, I see no real distinction between the formulations: the accused person exercised his right to silence; the accused made no reply; or when questioned the accused expressly declined to answer. They all amount to the same thing. However it was put to Detective Swadling, the significance of the right to silence, meshing as it does with the presumption of innocence and the fundamental accusatory principle required the learned trial judge to give the direction at the time the evidence was received without objection; even more so had there been an objection. While lay jurors may be familiar with the idea of the right to silence, uninstructed by the trial judge, they would not necessarily grasp the practical importance of the right for the purpose of their deliberations that the applicant's "silence cannot be used against [him] in any way at all". When evidence of an accused person exercising his right to silence is for some reason led by a prosecutor, it is important for the trial judge to stamp her or his authority on the issue by giving the required direction when the evidence is given or as soon as it may be conveniently done after its reception. As the presiding judge has pointed out conventionally the direction may be repeated in the summing up. And I do not regard the learned trial judge's "hypothetical" in an entirely different context as satisfying even the latter requirement.
6. It remains significant for the disposition of the appeal, however, that the applicant's trial counsel neither objected to the evidence nor sought the direction. I interpolate that in her closing address she did not put it to the jury that they should accept the applicant's denials. Rather, her approach was to attempt to persuade them in a careful address that they could not be satisfied of the truth of the complainant's evidence beyond reasonable doubt.
7. It is relevant to bear in mind that Mason CJ, Brennan and Toohey JJ pointed out in Glennon v The Queen (1994) 179 CLR 1; [1994] HCA 7 at 8, that while "the right to silence is a fundamental right of any accused person, it cannot be said that any misdirection on that subject is a fundamental irregularity of the kind discussed in [Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6]" of itself bespeaking a substantial miscarriage of justice so that the trial was "hardly a trial at all".
8. I am of the view that the evidence should not have been led and when it was the jury should have had the benefit of the standard direction; the latter because when the evidence was given the learned judge could not know what use, or rather misuse, the jury may make of Detective Swadling's evidence. But having regard to the whole course of the evidence, the content of the addresses for the Crown and for the defence, and the directions his Honour actually gave including as to the presumption of innocence, the burden of proof and the Liberato direction, I am not satisfied that either irregularity amounted to a miscarriage of justice.
9. There is nothing I wish to add to what Adamson J has written about Grounds 2 and 3. Her Honour's review of the record below as analysed in her judgment accords substantially with my own impressions formed from my independent review. I am satisfied that it was open to the jury to convict the applicant of each of counts 1, 2 and 3 in the indictment.
10. McNAUGHTON J: I have had the benefit of reading the draft judgment of Adamson J. I agree with her Honour's summary of the evidence. I also agree for the reasons provided by her Honour that the first two grounds should be rejected. In relation to ground 3, having reviewed the record of the trial for myself, I am of the view that it was well open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. I agree with the orders proposed by Adamson J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2022