ZL v R - [2023] NSWCCA 279 - NSWCCA 2023 case summary — Zoe

NSWNSWCCA

ZL v R

[2023] NSWCCA 279

Court of Criminal Appeal (NSW)|2023-10-20|Before: Adamson JA, Price J, Fagan J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2023-10-20

Before

Adamson JA, Price J, Fagan J

Catchwords

[2022] HCA 25 Livermore v R (2006) 67 NSWLR 659
[2006] NSWCCA 334 M v The Queen (1994) 181 CLR 487
[1994] HCA 63 MFA v The Queen (2002) 213 CLR 606
[2002] HCA 53 MWJ v The Queen [2005] HCA 74

Source

Original judgment source is linked above.

Catchwords

[2022] HCA 25 Livermore v R (2006) 67 NSWLR 659[2006] NSWCCA 334 M v The Queen (1994) 181 CLR 487[1994] HCA 63 MFA v The Queen (2002) 213 CLR 606[2002] HCA 53 MWJ v The Queen [2005] HCA 74[2020] HCA 12 R v Kennedy [2000] NSWCCA 487(2000) 118 A Crim R 34 R v Macfie (No 2) (2004) 11 VR 215[2004] VSCA 209 R v Tangye (1997) 92 A Crim R 545 R v Teasdale [2004] NSWCCA 91(2004) 145 A Crim R 345 Regina v Walton [1999] NSWCCA 452(1999) 113 A Crim R 308 Soames v R [2012] NSWCCA 188 The Queen v Baden-Clay (2016) 258 CLR 308

Judgment (21 paragraphs)

[1]

The applicant's mother's evidence

The applicant's mother was called in the prosecution case. She gave evidence that the complainant would stay every fortnight in the three or four month period leading up to July 2011 as her mother had a second job. The complainant would arrive on Friday and leave on Sunday. She agreed that the last time the complainant had stayed over was on the weekend of 29-31 July 2011. On that weekend, the complainant arrived at about 4.30pm. The applicant's father came to stay that weekend too and arrived at about 7pm.

[4]

Police evidence

Sergeant Daniel Payton was the Officer-in-Charge (OIC) of the investigation from May 2019. He was not the OIC when the matter was originally reported to police in 2011. The police computerised records (COPS) indicated that a complaint was first made on 22 August 2011. Arrangements were made for the complainant to be interviewed on 5 October 2011.
The COPS records indicated that on 20 March 2012, the police investigation into the applicant was suspended. The complainant also attended at a police station in about May 2018 and provided a statement to police on 28 May 2018.
In September 2019, Sergeant Payton contacted the applicant in relation to the investigation and made arrangements for the applicant to attend Maitland Police Station on 10 September 2019. He came voluntarily and, as was his right, declined to participate in a recorded interview.
Mr Dalton put to Sergeant Payton in cross-examination the contents of the COPS record which recorded the "original event narrative" which came from the complainant's mother and included the following: "The child has since stated to her mother on 21 August 2011 that she was in her bedroom when the person of interest has walked into the room and closed the door behind him. The person of interest has kissed the victim, put his hand on her leg and touched her here, indicating her vagina. The person of interest has then put his hands down her pants and touched the vagina again. The person of interest has then exposed his penis to the victim and has told the victim to lick it. The person of interest then further told the victim to suck it. Sometime after this, the victim has informed the person of interest that 'I feel sick, I need a drink'. At this point, the person of interest apparently left the room. The victim did not disclose this incident until recently to a friend of the family, [Tina]. The victim has then informed her mother of what occurred. … The child was not spoken to by attending police. All details were obtained from the next of kin."
Sergeant Payton agreed that there was no record of any examination of the premises at which the sexual assaults were alleged to have occurred and that, from his investigations, no such examinations had taken place. He also agreed that a crime scene officer "normally" takes photos and videos of the crime scene and swabs (for DNA and semen) "if that's deemed appropriate". In re-examination, Sergeant Payton said that he could not say why those investigations were not done in the present case.
At about this time in the trial, the jury asked to see the JIRT interview again and also asked about the statements of the applicant's mother and stepfather because it wanted "clarification about the boxes in the room at the time they made their original statements". They were permitted to watch the JIRT interview again but were told that they could only have regard to the evidence and, as the statements of the applicant's mother and stepfather were not in evidence, they could not have them.

[6]

The defence case

Following the closing of the prosecution case, Mr Dalton did not say anything further by way of opening. He called the applicant who denied all of the allegations and said he had no particular memory of the last time the complainant had stayed at his mother's house. He also gave the following evidence in cross-examination: "Q. Did you become aware that [the complainant] had told you something about or [the complainant] had said that you'd done something sexual to her at the end of August 2011? A. I was made aware that some, that something had been said. I only knew the nature of the allegations that it was sexual in nature but beyond that, no. Q. At that point in time when you were aware that [the complainant] had said that you had done something to her on the last occasion that she stayed, at the end of July, did you at that time rack your brain trying to remember what had gone on that weekend? A. So I, I wasn't informed when, when it was. Q. Yes? A. And, yeah, no, I, so I wasn't racking my brain. I was just, at the, I mean at the time I was terrified cause of course of the allegations of this nature. Q. So you didn't sit back and think about what you'd done on the last weekend, what [the complainant] had done, what you did with [the complainant]? A. No."
The applicant agreed that he found out about the allegations when his mother picked him up from school in the latter half of 2011 and told him that some allegations had been made by the complainant of a sexual nature. He said that he "had a small discussion with the whole family" when he got home from school that day but beyond that, he had not discussed it with his stepfather. He agreed that there was no discussion about there being boxes in the spare room on the last weekend that the complainant had stayed. He agreed that it was "entirely possible but rare" for him to have a shower in the evening before dinner. He could not recall whether there were boxes in the spare room as he had no recollection of the weekend on which the offences were alleged to have been committed.

[7]

The Crown's closing address

Of present relevance, the solicitor advocate submitted to the jury that the applicant had the opportunity to commit the offences, notwithstanding his evidence and his father's evidence that they were together for most of the time. As to the state of the spare room, she submitted as follows: "You've also heard evidence from [the applicant's mother and stepfather] about the state of the spare room on the weekend. Now, if they're accurate in their recollections about the state of the room, you might find that counts 3, 4, 5, and 6 couldn't have taken place in the way that [the complainant] described. In cross-examination [the applicant's mother] was asked by my learned friend about the spare room. Now, as his Honour told you from the outset the trial, it is open to you as to what facts you find. You are not obliged in my submission to accept the evidence of [the applicant's mother and stepfather] on this issue. You are able to find that they could be mistaken in their recollection about the state of the spare bedroom. They could be mistaken about the state of their recollection of that particular weekend, you know, that they didn't learn about these allegations until some time after the nights that they are alleged to have taken place. The accused stated that he had no memory of boxes being stored in the spare room on that particular weekend. He said he didn't have a recollection of that particular weekend to any significant degree at all, but you heard [the complainant's] evidence about what happened in the spare room, and I submit to you that it was detailed and compelling. You heard her disagree in cross-examination that there were boxes and bags in that spare bedroom the way that it's been described by [the applicant's mother and stepfather], and she was not shaken when it was suggested to her. My submission is that you are well able to accept [the complainant's] evidence about what the accused did to her in that spare room on the last weekend. She stayed there and that she was a witness of truth in relation to what happened in that spare room." [Emphasis added.]

[8]

The defence closing

Mr Dalton told the jury that there had been "no challenge" to the evidence given by the applicant's mother and stepfather of their recollection of the spare room. He said further: "If you were to reject that in effect you are finding that those two respectable, our front line workers had perjured themselves because they had said they remember the state of that room on that weekend and it's accepted that these offences in that spare room are impossible accordingly. So the allegation which hasn't actually been put to them as such is that they've perjured themselves and they've conspired, they've conspired to pervert the course of justice in the fact that they had said specifically that is their recollection of that weekend and the state of that room, and there's no evidence adduced to know, no evidence adduced to demonstrate that they were provided with the particulars of these offences back in 2011 or 12. How would they know the significance of those boxes and bags being in there unless they knew that the allegation involved access along the side of that bed on that weekend? They wouldn't, which is another problem in the Crown case and that is a lack of a crime scene examination back then, back then when if they'd been told and the crime scene officers had come in and they'd been told about the significance of any of these aspects of it, they could've gone 'Right, well that room was full that weekend of the boxes and bags, and by the way our neighbours were involved. We can go and get the neighbours and bring them over, you can speak to them as well because they brought things over to be sold in the garage sale and stored in that room'. And they could also bring people who went to the garage sale along and say 'Yeah, that was the garage sale. The garage sale, well we were there, we bought things there'. None of that happens. Those are the reasons I'd suggest to you that you heard those two things being submitted by my learned friend." [Emphasis added.]
Mr Dalton repeated this submission at the end of his closing address. He also relied on other matters, such as that the police had not charged the applicant at or shortly after the complainant's JIRT interview, as well as the evidence of the applicant, his father, stepfather and mother as to creaking doors, tiled floors, dogs and the retiring and waking hours of the inhabitants of the house which were said to make the complainant's account implausible.

[9]

The summing up

Mr Dalton sought a forensic disadvantage direction as a consequence of the delay, which was opposed by the solicitor advocate for the Crown on the basis that the applicant was informed of the general nature of the allegations soon after their alleged occurrence and his mother and stepfather purported to remember the weekend. Of present relevance, the trial judge directed the jury as follows: "What the defence say is not only was there no immediate complaint and hence an immediate police investigation, when it did get to the police they still did not create a crime scene and undertake steps to see whether or not there was any forensic evidence available, so that you do not know, for argument sake, whether the garage sale had taken place. Whether there might have been, as Mr Dalton put to you, if there had been early notification it may well be that other evidence might have been able to be gleaned or garnered. It is simply not there because it was not done at the time. … So that by the time 2018 comes about, matter for you, but if you form the view that there may well have been a forensic disadvantage to the accused as a consequence of the lack of those things happening, then that is a matter that you should take into account and put into your deliberations and your consideration in determining whether or not the case is established beyond reasonable doubt."
Before the completion of the summing up, in the absence of the jury, Mr Dalton submitted that it had not been put to the applicant's mother or stepfather that they were wrong about the date. The trial judge responded that the Crown had addressed on mistake and Mr Dalton not only did not object but had also dealt with it in his address. Mr Dalton confirmed that he was not taking a Browne v Dunn (1893) 6 R 67 point but submitted that there was no evidence that the applicant's mother or stepfather were wrong, a submission which entirely disregarded the complainant's denial that items were being stored in the spare room that weekend.
The trial judge summarised the Crown's submission as follows: "The Crown … went on to say to you that … the evidence of [the applicant's mother and stepfather] in relation to the state of the spare room, was such that you would be entitled to conclude that they must be wrong or that they might be wrong in their recollection and that you would put that evidence to one side."
The trial judge said of Mr Dalton's address about the boxes: "He said there is no evidence to the contrary, other than [the complainant], in her JIRT interview and in her cross-examination saying she knew nothing about boxes, at any stage. But it is not as if she said well, yes there was a weekend, but it was some other time."
The trial judge also reiterated, at length, Mr Dalton's submission about forensic disadvantage. His Honour returned to Mr Dalton's submission about the boxes in the spare room as follows: "Now, Mr Dalton went on to say to you that you should imagine the circumstance where you are able to produce evidence from your mother or your stepfather to prove that the allegations in the spare room could not have taken place and says to you, despite the fact that there is no additional evidence to support that, that evidence is not challenged. It is not put to them that they perjured themselves or that they had lied or that they put their heads together to make up a story and that in those circumstances, you should accept what they had to say."
The jury retired to consider its verdicts at 11.23am on 23 February 2021 and returned with verdicts of guilty on all charges at 2.51pm that day.

[10]

The relevant principles

The relevant principles which apply to an unreasonable verdict ground were summarised in Crickitt v R [2018] NSWCCA 240 at [12] (Bathurst CJ, R A Hulme and Davies JJ), as follows: "1) This Court must make its own independent assessment of the evidence, both as to its sufficiency and its quality. 2) It must be borne in mind that the tribunal of fact in the court below … had the primary responsibility of determining the question of guilt or innocence and had the benefit of seeing and hearing the evidence. 3) If this Court is left in doubt as to the reasonableness of the verdict, having taken into account the matter in 2 above, the verdict should be set aside. 4) A verdict will be unreasonable if it is concluded that the jury must have (should have) entertained a doubt about the applicant's guilt. It is not enough that the jury might have entertained a doubt or that it is possible the jury could have reached a different conclusion. 5) A finding that there was evidence on which a jury could convict does not mean that the verdict was not unreasonable. …" [Footnotes omitted.]
The question for this Court is whether it was "open" to the jury to find the applicant 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) 274 CLR 651; [2022] HCA 25; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
A verdict of guilty may be reasonable even if the complainant's evidence is not corroborated: Pell at [53].
The primary function of determining guilt or innocence has been entrusted to the jury as the tribunal of fact: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ). For this reason, it will not generally be appropriate for this Court to review pre-recorded or recorded evidence to form its own view of the credibility of particular witnesses on the basis of their presentation: Pell at [36]-[38]. This Court is obliged to proceed on the basis that the complainant's evidence was accepted by the jury as credible and reliable: Pell at [39].
The extent to which this Court is entitled to disbelieve a witness (such as the complainant in the present case) whose evidence a jury must have accepted, at least in so far as it established the elements of the offence or offences of which he or she has been convicted, is constrained. 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."
Because Mr Dalton relied heavily on Pell in support of the ground, it is important to address the circumstances of that case and what it decided.
In Pell, several witnesses called by the prosecution gave unchallenged evidence of the movements of the appellant and others following the conclusion of Sunday solemn Mass which was inconsistent with acceptance of the complainant's account. The appellant argued that no matter how favourable a view was taken of the complainant, it was not open to the jury, acting rationally, to conclude that the prosecution had eliminated all reasonable doubt, having regard to the prosecution's "passive approach" at the trial in failing to challenge the evidence of these witnesses.
The verdicts of guilty were held to be unreasonable on the basis that the evidence as a whole was not capable of excluding a reasonable doubt as to the appellant's guilt because, although the jury was taken (by its verdicts of guilty) to have accepted the complainant's evidence beyond reasonable doubt, the evidence of several witnesses called by the Crown, which rendered the complainant's account extremely unlikely, if not impossible, was not challenged.
The High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) said, of the first conviction: "118 It may be accepted that the Court of Appeal majority did not err in holding that A's [the complainant's] evidence of the first incident did not contain discrepancies, or display inadequacies, of such a character as to require the jury to have entertained a doubt as to guilt. The likelihood of two choirboys in their gowns being able to slip away from the procession without detection; of finding altar wine in an unlocked cupboard; and of the applicant being able to manoeuvre his vestments to expose his penis are considerations that may be put to one side. It remains that the evidence of witnesses, whose honesty was not in question, (i) placed the applicant on the steps of the Cathedral for at least ten minutes after Mass on 15 and 22 December 1996; (ii) placed him in the company of Portelli when he returned to the priests' sacristy to remove his vestments; and (iii) described continuous traffic into and out of the priests' sacristy for ten to 15 minutes after the altar servers completed their bows to the crucifix. 119 Upon the assumption that the jury assessed A's evidence as thoroughly credible and reliable, the issue for the Court of Appeal was whether the compounding improbabilities caused by the unchallenged evidence summarised in (i), (ii) and (iii) above nonetheless required the jury, acting rationally, to have entertained a doubt as to the applicant's guilt. Plainly they did. Making full allowance for the advantages enjoyed by the jury, there is a significant possibility in relation to charges one to four that an innocent person has been convicted."
As to the conviction on the second charge, the High Court said at [127]: "The unchallenged evidence of the applicant's invariable practice of greeting congregants after Sunday solemn Mass, and the unchallenged evidence of the requirement under Catholic church practice that the applicant always be accompanied when in the Cathedral, were inconsistent with acceptance of A's evidence of the second incident. It was evidence which ought to have caused the jury, acting rationally, to entertain a doubt as to the applicant's guilt of the offence charged in the second incident. In relation to charge five, again making full allowance for the jury's advantage, there is a significant possibility that an innocent person has been convicted."

[11]

The present case

Mr Dalton relied on the following matters which he submitted, either individually or in combination, made the verdicts unreasonable: 1. the evidence of the applicant's mother and stepfather about the state of the spare room (in which the complainant was sleeping that weekend) which, if accepted, would have made the offence virtually impossible (as was accepted by the complainant herself); and 2. other evidence which made it unlikely that the offending conduct occurred (such as the evidence of the applicant's stepfather being a light sleeper, the applicant spending his time with his father, the presence of dogs which tended to rouse when anyone got up, the creakiness of the doors, the positioning of the mattress in the applicant's room, the retiring and waking times of members of the household and the agreed facts as to the twilight times and sunrise on the relevant morning).
As set out above, the evidence of the applicant's mother and stepfather was that, on the weekend on which the offending was alleged to have occurred, the spare room where the complainant was to sleep was piled so high with material for a garage sale that she could only have accessed her bed by climbing over the bedhead. Mr Dalton argued that this evidence was not challenged by the Crown and that, accordingly, the verdict of guilty was unreasonable.
I consider the present case to be distinguishable from Pell in several respects. However, before turning to the points of distinction, I propose to address the consequences of the obligation cast on the prosecutor to open its case and to call relevant witnesses, whether or not they give evidence which conforms to the Crown case as opened, and the extent of the prosecutor's obligation to challenge evidence adduced in the Crown case, which is inconsistent with the Crown case.
In R v Tangye (1997) 92 A Crim R 545, this Court (Hunt CJ at CL, McInerney and Sully JJ agreeing) said at 556: "The obligation of the Crown prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence. It is also to indicate, in conceptual terms, the nature of the Crown case. This is to assist both the trial judge and counsel for the accused, more so than the jury. It is essential that any doubt about the nature of the Crown case, conceptually, be removed at that early stage. If it is not done at that stage, or if there had been some change in its nature since the case was opened, it is vital that it be identified with some precision, in the absence of the jury, before counsel commence their final addresses."
In Ngo v R [2023] NSWCCA 201, at [94]-[95], the question arose (but does not arise here) whether the prosecutor was obliged to put to an accused person all matters of which prosecution witnesses had given evidence whether or not they formed part of the Crown case. Of present relevance, I addressed what comprises the Crown case, having regard to the obligation of the prosecutor to call relevant witnesses as follows: "[94] The Crown case is delineated by the opening and closing addresses. … [95] The 'Crown case' is not the sum total of the evidence of all of the prosecution witnesses (some of whom may have been called by the prosecutor to fulfil its duty to the accused whether or not they assist the Crown case: Whitehorn v The Queen (1983) 152 CLR 657 at 674 (Dawson J); [1983] HCA 42). Thus, it does not follow from the fact that a prosecution witness has given evidence … that the Crown is required to adopt the evidence as part of its case …"
The question which arises in the present case is whether the verdicts were unreasonable because it was not open to the jury, acting rationally, to reject the evidence of the applicant's mother and stepfather as to the state of the spare room on the weekend on which the alleged offences were committed (or exclude the possibility beyond reasonable doubt) in circumstances where the prosecutor did not put to the applicant's mother and stepfather that they were mistaken about that matter.
This Court has addressed similar arguments in previous decisions from which certain principles can be derived. It is useful to review them.

[13]

Regina v Walton (1999)

In Regina v Walton [1999] NSWCCA 452; (1999) 113 A Crim R 308 (Walton), the appellant raised two grounds of appeal relating to the evidence of his daughter: ground 2 related to directions given as to that evidence and ground 3 alleged that the Crown address gave rise to a miscarriage of justice. The complainant gave evidence that the appellant's daughter was present at the time of the conduct which comprised two of the charges. The Crown case was that, after squeezing pimples on the complainant's back, the appellant fondled her breasts. The complainant's evidence was that, after he had fondled and kissed her breasts, he said, "Don't worry, I do this to [the daughter] all the time." The appellant denied touching the breasts of either girl but admitted squeezing pimples on both of them.
The prosecutor called the appellant's daughter in order that she could be cross-examined by the appellant's trial counsel. The prosecutor asked for her name, address and occupation. The account she gave in cross-examination was confirmatory of the applicant's account and contradicted the complainant's evidence. The prosecutor made no application under s 38 of the Evidence Act.
In closing address, the prosecutor submitted that the jury might think that the applicant's daughter had given "a version of the event … to support a cock-and-bull story made up by a father" (extracted by Greg James J at [32] of Walton). He also said (extracted at [35]): "It's a story that the accused in his desperation has invented, supported by his daughter … who is in, you might think, an extremely embarrassing situation. I mean if [she] had told the truth that her father in demonstrating to the young - bear in mind [the complainant] is below the age of 16 years, [the daughter] is above the age of 16 years, that's the significance in the charges before you might think. You might think [the daughter's] sorely embarrassed by what her father did to her that day and to cover her embarrassment she's told a story which supports the story that her father invents."
Greg James J (Beazley JA and Newman J agreeing) said: "37 The address powerfully built on the assertion that the jury could find support for the complainant's account in the asserted lies of the appellant and sought to nullify the daughter's account. It followed that the attack on the credibility of the daughter was essential to the line of advocacy employed. That attack was not merely casual but integral to the way in which the Crown submitted its case to the jury. 38 In the absence of an opportunity being afforded to rebut the attack, this address was completely indefensible. … 42 It is submitted by the Crown, that it must have been clear that the Crown contended that the version given in evidence by the daughter was incorrect. But the address went well beyond this. The Crown prosecutor asserted the witness was party to an agreement to give false evidence and on that submission was based an argument that because of that, guilt could be inferred, yet the prosecutor stood back from allowing the correctness of the contention to be subjected to the acid test of putting it to the witness. Here, on appeal, it was not sought to defend that address." [Emphasis added.]

[15]

R v Teasdale (2004)

In R v Teasdale [2004] NSWCCA 91; (2004) 145 A Crim R 345, the appellant, an off-duty police officer, was convicted of inflicting grievous bodily harm by throwing a glass. Only one of the Crown witnesses, a man whom the appellant had recently arrested, gave evidence that he saw the appellant throw the glass. Other witnesses, some of whom were also off-duty police officers and another who was a friend of the appellant, gave evidence that they did not see who threw the glass. In closing address, the prosecutor said (extracted at [10] of the reasons): "Well as I said, you might have wondered near the end of last week whether the glass did materialise in thin air and suddenly appear in Mr Eggins' face because by the time that we had called nine off-duty police officers and the accused himself had given evidence which totals about ten, no one saw the glass thrown. We sat through a very boring State election campaign where it seems to be that everyone debates the need for additional police officers, it becomes like an auction. Someone says let's get a thousand more, and then the Labour Party says let's get 1500 more and then the Liberals say get 2000 more, well that would be fantastic, because if we had another say 2000 police in the Kent Hotel that night, we'd probably have 2000 who didn't see a glass thrown. I mean what are they teaching down there in that academy, brilliant observational police who can't see anything happen? Almost all the civilians who were called in this trial, whether they be Mr Ian Eggins' group or not and Dane Foster wasn't with Mr Eggins nor was Matthew Wheeler. Somehow they seen it's their glass thrown. Maybe their benefit was they'd never been to the Goulburn Academy for 12 months. Also these police seem to have a unique ability to witness assaults on fellow police but don't seem to be able to witness assaults on anybody else. They can see headbutts on their officers without any problem, and they can see punches to the head on their own officers, no problem there, they can even see punches on themselves, but if it's on anyone else who, not an off-duty police officer, or wearing a uniform, we just can't see it, what's going on … "
This Court continued: "11 Having informed the jury that the Crown was obliged to call all witnesses who had relevant evidence to give irrespective of where their allegiances lay and that that was the reason why the off-duty police officers had been called, the Crown prosecutor then invited the jury to assess those witnesses and decide who was and was not truthful. He asked, perhaps rhetorically, 'Why was it that none of them were able to see that glass? 12 The Crown prosecutor then referred to some of their evidence and, in particular, to evidence that they 'just weren't interested'. He then said this: 'Was there some agreement at the Station Hotel [to which some of the witnesses had proceeded after leaving the Kent Hotel] that no-one would see the glass?'"
Tobias JA (Adams J and Smart AJ agreeing) explained the prosecutor's forensic purpose at [24]: "It is readily apparent that it was in order to negate that doubt [as to whether the appellant had thrown the glass] that he asserted to the jury that they should, in effect, disbelieve the evidence of the off-duty police officers concerned upon the basis that they had conspired to close their eyes to the truth in order to protect their colleague, the appellant."
Tobias JA at [26]-[30] held that, at the very least, the trial judge should have directed the jury to ignore the prosecutor's submission that the off-duty police officers were covering up for the appellant and that his Honour's failure to do so had resulted in the trial miscarrying, although no such direction had been sought by the appellant's trial counsel. In addition, the Court held that the unreasonable verdict ground ought be upheld because of the discrepancies in the evidence.

[16]

Soames v R (2012)

In Soames v R [2012] NSWCCA 188 (Soames), (Latham J, Allsop P and Davies J agreeing) this Court held that a prosecutor was entitled to put submissions in closing address to the jury that a prosecution witness was unreliable in circumstances where the basis for the asserted unreliability had not been put to the witness in cross-examination.
In Soames, the complainant, the appellant, and associates, Ms Munro and Mr Duncan had attended a night club together. Mr Duncan offered the complainant a lift home. However, he detoured to a house in South Penrith first, where Mr Buckley was present. Mr Duncan and Ms Munro went to the main bedroom of the house for the purposes of having sexual intercourse. On his way to the main bedroom, Mr Duncan motioned to the complainant and told her that there was a spare bedroom where she could have a lie down if she wanted to (before he took her home). The complainant accepted the invitation, went into the spare bedroom and lay on the bed. The complainant's evidence was that shortly afterwards the appellant came into the bedroom and had sexual intercourse with her without her consent. She said that she "did not scream or cry out for help because she was petrified and crying". The appellant's case was that the sexual intercourse was consensual.
Mr Duncan, who was called in the Crown case, gave evidence, including that the appellant came out of the bedroom asking for a condom. The prosecutor applied for, and was granted, leave under s 38 of the Evidence Act to cross-examine Mr Duncan.
Mr Buckley gave evidence, which supported the appellant's case, that he saw the appellant in the loungeroom asking for a condom. Mr Buckley said that he went to the main bedroom and told Mr Duncan to leave. However, Mr Buckley also gave evidence (which supported the appellant's case that the sexual intercourse between the appellant and the complainant was consensual) that he then went with Mr Duncan to Mr Lee's bedroom, where all three of them sat and listened to 'moaning' and 'panting' sounds from the spare bedroom. His evidence was, in that respect, inconsistent with Mr Duncan and Mr Lee's evidence.
Mr Buckley acknowledged in his evidence that the appellant was a "really close friend." No application pursuant to s 38 of the Evidence Act was made in respect of Mr Buckley.
In the closing address, trial advocate for the Crown submitted that both Mr Buckley and Mr Duncan had given unreliable evidence which was designed to assist their friend (the appellant).
The appellant appealed against his conviction on several grounds, including that the verdict was unreasonable. He relied on several aspects of the evidence, which he submitted impugned the complainant's credibility, including the following: "(ix) The contradiction of the evidence of the complainant with respect to her entry into the spare room alone, by the evidence of Mr Duncan, Mr Buckley and the appellant, to the effect that they entered the room together. (x) The contradiction of the evidence of the complainant, that the appellant did not leave the room after he entered and before engaging in sexual intercourse, by the evidence of the appellant, Mr Buckley, Mr Duncan and Mr Lee, to the effect that the appellant went looking for a condom after entering the spare room."
The Court (Latham J, Allsop P and Davies J agreeing) rejected the unreasonable verdict ground. However, in a further ground, the appellant argued that there had also been a denial of procedural fairness. Latham J said of this ground: "101 The appellant now complains that the trial advocate did not put to the witnesses that they were lying or that they were exaggerating or qualifying their evidence in favour of the appellant. It was not put by the trial advocate to Mr Duncan and Mr Buckley in terms that their evidence was 'designed to assist' the appellant. No objection to the tenor of these submissions or to the failure by the trial advocate to put to Mr Duncan and Mr Buckley that they were lying was made at trial. Rule 4 applies. 102 The only direction given by the judge in the summing up (about which no point is taken on the appeal) on this aspect of the trial was:- Now you would have recognized that Mr Duncan gave a different account of [the complainant] entering into the spare bedroom. He said that he saw the accused and [the complainant] shortly after their arrival at the house walk from the hallway into the spare bedroom. You will recall that during the trial the prosecutor was allowed by me to cross-examine Mr Duncan. I explained that to you at the time. The Crown pointed to Mr Duncan's evidence about the entry to the bedroom, the fact he made no mention of hearing derogatory comments made when he was in a position to hear those comments, his minimisation of the evidence of [the complainant's] crying and in particular his evidence that when he asked [the complainant] if she said no she answered 'no, not really' when in fact in his statement he said she did say no once. The Crown pointed to those matters and submitted to you that you would tread carefully and not rely on his evidence in those critical areas. 103 Contrary to the appellants' submissions on this ground, there was no relevant unfairness in the trial advocate's conduct."
Latham J reviewed the authorities, including Teasdale, before noting that, in Soames, Mr Duncan had been cross-examined by the prosecutor and that the evident purpose of that cross-examination was to impugn his credit. Her Honour addressed the prosecutor's failure to cross-examine Mr Buckley as follows: "109 Although no application to cross examine Mr Buckley was made, the trial advocate's submission essentially drew attention to the unreliability of a very discrete aspect of his evidence. The basis of that unreliability was said to be his friendship with the appellant. Mr Buckley acknowledged in his evidence that the appellant was 'a really close friend'. That was a factor which the jury were entitled to take into account in their assessment of Mr Buckley as a reliable witness, that is, whether he was a witness who was uninfluenced by feelings of personal loyalty to the appellant. It has never been the law that a Crown prosecutor is prohibited from suggesting to a jury that there may be reasons why a witness in the Crown case is unreliable, where there is a basis in the evidence for such a submission. 110 The appellant's counsel at trial saw no unfairness to his client in the trial advocate's submissions. There is no merit in this ground. I would refuse leave to rely upon it." [Emphasis added.]

[17]

R v Macfie (No 2) (2004)

In R v Macfie (No 2) (2004) 11 VR 215; [2004] VSCA 209 (Macfie), the Victorian Court of Appeal considered an appeal against conviction where the prosecutor, having called the complainant's parents, sought in closing address to impugn their evidence. The alleged unfairness of the prosecutor's address was a proposed ground of appeal.
The prosecutor submitted in address that, because the complainant's parents knew that she was sleeping in the same bed as the appellant, they were, in effect, complicit because they wanted the appellant's money (he had heart problems and had told the complainant's parents that he needed someone to look after him). The prosecutor submitted that, in these circumstances, the complainant might have thought that there was no point complaining to her parents. Eames JA (Callaway and Buchanan JJA agreeing), at [29], recounted what had occurred at the trial, including: "29 Later in the address the prosecutor dealt with the fact that M had made no complaint at the time of the offences. He referred to her evidence that the applicant had told her not to tell her mother. He submitted that the jury might think that M well understood that her mother knew exactly what was going on and realised that there was no point in complaining to her mother in those circumstances. He submitted: You might think for a fifteen year old girl in circumstances where she was having sexual relations virtually under her parents' nose, that she thought that they probably knew in any event. After all, it was her mother who said to her, 'Go out, and keep an eye on Mr Macfie'. It was her mother that allowed her to be in the caravan with Mr Macfie."
Eames JA referred to Walton (as MRW) and distinguished it on two separate bases, only the first of which is relevant (the second related to the absence of an equivalent to s 38 of the Evidence Act in Victoria). His Honour said: "[42] Thus, the first distinction between MRW and the present case is that, as Greg James J held, the prosecutor's address went 'well beyond' merely submitting that the evidence of the daughter was incorrect. It amounted to an assertion that she had agreed with her father to commit perjury, and from that fact the father's guilt could be inferred. Greg James J held, however, that there was no evidentiary basis for putting that proposition to the jury and for inviting the jury to disregard the evidence that the witness gave, because the assertion that she had reached such an agreement with her father had not been put to the witness. [43] In contrast to MRW, the criticism of the witnesses in the present case was peripheral to the prosecution case and the prosecutor did not rely on the suggested dishonesty of the witnesses as proof of the Crown case. The comments about the witnesses were relevant only to explaining why it might have been that they did not see or admit what the Crown said was occurring under their roof, or proximate thereto, and also why the complainant had not complained to her parents about the conduct of the applicant."

[18]

Consideration

The concept of "credibility" is a wide one. There are, accordingly, several bases on which it can be challenged, ranging from an allegation that the witness has been mistaken to an allegation that a witness has lied as a consequence of a conspiracy to give false evidence with the intention of perverting the course of justice. In Onassis v Vergottis [1968] 2 Lloyd's Rep 403 at 431, Lord Pearce said: "'Credibility' involves wider problems than mere 'demeanour' which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be... Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."
It can be seen from the review of the authorities set out above that, whether a prosecutor can make a submission impugning the evidence of a prosecution witness where no application under s 38 of the Evidence Act is made depends on the basis upon which the credibility (in the sense which includes reliability) is sought to be impugned and the circumstances of the trial, including the other evidence.
Where the attack on a witness is a significant one and involves a positive proposition of wrongdoing, it will usually be necessary for the prosecutor to seek leave to cross-examine the witness pursuant to s 38 of the Evidence Act to lay the foundation for the submission. If no such leave is sought, the conviction may be set aside on the ground of unfairness to the appellant or because it is unreasonable. The cases where this has occurred include Walton, where the prosecutor submitted that the appellant's daughter had agreed with her father to give false evidence; Teasdale, where the prosecutor submitted that the off-duty police officers had conspired to give false evidence that they did not see the appellant throw the glass; and Kennedy, where the prosecutor submitted, in effect, that the appellant's wife had given false evidence to protect him.
However, where it is plain that the evidence of a witness is challenged by the Crown because it is obviously contrary to the Crown case and the witness is clearly partisan (because of a relationship with the accused/appellant) and the attack made on the witness is merely that his or her evidence is incorrect or ought not be accepted, because of the relationship (as in Soames) or motive (as in Macfie), the prosecutor will not necessarily be obliged to seek leave to cross-examine under s 38 of the Evidence Act as a pre-condition to the propriety of making a submission that the witness's evidence ought not be accepted.
Pell is in a separate category. The offences charged in Pell were alleged to have occurred within a highly prescriptive, ceremonial setting, where tradition, practice and protocol dictated a nigh-on invariable practice from which any deviation would have been not only remarkable but also remarked upon, and obvious to the participants. The prosecutor neither laid a foundation for a challenge to the prosecution witnesses, nor invited the jury to reject their evidence on any particular basis. Nor was there any basis in the evidence for rejecting their evidence, it not having been put, for example, that these witnesses were giving false evidence to protect the appellant because of his high standing in the Catholic church. Indeed the honesty of the prosecution witnesses who gave evidence about the appellant's location and passage through the cathedral before, during and after the ceremony was accepted. The reliability of the substantial number of prosecution witnesses who gave consistent evidence of these matters could not reasonably be impugned in the absence of a direct attack. Because of the significant inconsistency between their evidence (the effect of which was that there was no opportunity for the sexual assaults alleged to have been committed by the appellant to have occurred) and that of the complainant, the verdicts based on the complainant's evidence were held to be unreasonable.
In the present case, the evidence of dogs, tiled floors, light sleepers, creaky doors, the time at which the sun rose and the usual waking hours of other members of the household was not of a calibre which was capable of reaching anywhere near the "cascading improbabilities" of the appellant having the opportunity to commit the offences referred to by the High Court in Pell. The offences charged in the present case occurred within a family home. The first two offences were alleged to have occurred in the applicant's bedroom after he had showered (when the applicant's father, who might otherwise have been there could be expected to be absent) and the balance of the offences occurred at night when many of the inhabitants of the house could be expected to be asleep and where the applicant's conduct could go undetected by anyone other than the complainant, who was sworn to secrecy.
It was open to the jury to consider that the applicant walking sometime during the night along the corridor from his own room (where his father was also sleeping) to the spare room where the complainant slept would have been so unremarkable as neither to disturb any of the sleeping persons or the dogs nor, if any were conscious of the disturbance, to cause them to rouse, in the case of the dogs, nor, in the case of the people, to recall it. Any creaking of the doors would presumably have become background noise as it was, according to the evidence of the general creakiness of the doors, usual.
It was also open to the jury to find that the evidence given by the applicant's mother and stepfather of the spare room being piled high with items such that the complainant could only reach her bed by climbing over the bedhead was, at the very least, mistaken. The jury might have considered that, even if the witnesses believed it to be true when they were giving their evidence, it was plain, having regard to the whole of the evidence, that their evidence could not be accepted. The inference of mistake could readily be drawn by the jury in circumstances where Mr Dalton was at such pains to emphasise the alleged forensic disadvantage which the applicant suffered because he had not known of the specifics of the allegations earlier.
The jury may well also have been influenced in weighing up the probative value of the evidence of the applicant's mother and stepfather about the furniture being in the spare room by the complainant's cogent recollection, ten years after the event, of the lay-out of the spare room, including the placement of the bed and the bedroom furniture. It was open to the jury to reason that, whatever might have been the state of the spare room on another occasion, it was not cluttered by stored items when the offences were committed. It was also open to the jury to reason that the value of the complainant's evidence was not reduced by the circumstance that this was not the only occasion on which she had slept in the spare room.
It is also significant that Mr Dalton did not object to the prosecutor's address but, rather, chose to address it himself in the defence closing. He did not limit his critique to the Crown's suggestion that the witnesses had been mistaken and told the jury (contrary to the fact) that the Crown was suggesting that these highly regarded witnesses had "perjured themselves and … conspired to pervert the course of justice" (see extract above). Had the Crown put such a submission, the present case would have been in a similar category to Walton, Teasdale and Kennedy. However, it did not. The Crown's submission was even more understated than in Soames: the proposition that the witnesses might have been mistaken was the most charitable and minimalistic way of inviting the jury to reject it.
Had an application under s 38 of the Evidence Act relevantly been made and acceded to, all that the prosecutor could have put to establish a basis for the submission was, "Is it possible that your evidence about the timing of the items stored in the spare room was mistaken?", to which it can be expected that the witness would have responded either, "No" or, "It's possible." The obligation of a prosecutor to put matters to a witness before impugning that witness's evidence depends on the circumstances. In the present case, having regard to the obvious conflict between the complainant's evidence on the one hand and the evidence of the applicant's mother and stepfather on the other about the spare room, there was no need for the prosecutor to do more than she did.
Further, when Mr Dalton raised in an adjournment during the summing up the point that it had not been put to the applicant's mother and stepfather that they were wrong about the timing of the storage in the spare room, he confirmed that he was not taking a Browne v Dunn point and merely submitted that there was no evidence that the applicant's mother or stepfather were wrong. The evidence that they were wrong came from the complainant herself, who denied that there were such items in the spare room when she was there at the time of the offences. It was open to the jury to accept the complainant's evidence and reject the evidence of the applicant's mother and stepfather to exclude as a reasonable possibility that the spare room was so full of furniture, boxes and other items that counts 3-6 could not have been committed.

[19]

Conclusion

It is an inevitable consequence of the duty of a prosecutor to call relevant witnesses (if only to make them available to be cross-examined by the accused's counsel) that there may be inconsistencies between prosecution witnesses. Every case will call for the prosecutor to adjudge whether an application under s 38 of the Evidence Act ought be made, and on what basis, in respect of a particular witness and, if no such application is made, what submission can properly be made in respect of such witnesses whose evidence does not fit within the Crown case as opened or as put to the jury in closing. The authorities which I have summarised above demonstrate that no general rule can be laid down although guiding principles can be articulated, as I have endeavoured to do above.
In the present case, the complainant's evidence was cogent and contained detail consistent with honest recollection. Her JIRT interview was conducted when the events which comprised the offences could be expected to have been fresh in her memory. It was open to the jury to regard the way in which she expressed herself, the revulsion she felt at the sight of the applicant's penis, her conclusion that what was coming out of his penis was not, in fact, "pee", as well as her acknowledgment that she had been expecting (and hoping) that the applicant would kiss her as consistent with the perspective of a 10-year old child. As befitted her age, she was sexually naïve, immature and had never been exposed to such matters before this event. It was also open to the jury to consider that the complainant's desire not to get the applicant into trouble and her suggestion that a suitable punishment might be to require him to clean a whole floor with a toothbrush demonstrated the truth of what she described in her JIRT interview. The jury was entitled to regard her recollection of the "deal" the applicant tried to make with her, that he would play "I-spy" and hide-and-seek with her if she "follow[ed] the rules" when he touched her sexually as adding to her credibility because it was an extrinsic, peripheral detail which she remembered when she was interviewed on 5 October 2011.
The jury was entitled to regard any differences between the JIRT interview and the statement made in 2018 as entirely explicable by the passage of time, particularly in circumstances where the complainant had not seen the JIRT interview before giving her further statement in 2018. Further, it was open to the jury to regard the concessions which the complainant made in her evidence at the trial as to what she no longer remembered as supporting her credibility rather than detracting from it. The jury may have considered that the circumstances that the applicant was not prosecuted soon after the JIRT interview but was later prosecuted could be explained by developments in police practices with respect to child sex offences between 2011 and 2018 rather than as reflecting any scepticism harboured by the initial OIC regarding the complainant's evidence (which would have been irrelevant, in any event), as Mr Dalton insinuated in his closing address.
Having reviewed all of the evidence in the trial, I am satisfied that it was open to the jury to accept the complainant's evidence of the offences beyond reasonable doubt and convict the applicant of the offences charged. I confirm that I have no doubt as to the applicant's guilt of the six offences of which he was convicted.
Given the importance of the principles raised and the detailed consideration of their application to the present case, I am disposed to grant leave to appeal, although, for the reasons given above, the appeal ought be dismissed.

[20]

Proposed orders

I propose the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal.
PRICE J: I have had the considerable advantage of reading the judgments in draft of Adamson JA and Fagan J. However, it is incumbent upon me to make my own independent assessment of the sufficiency and quality of the evidence. The question is whether I am satisfied that upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of each of the counts on the indictment.
In independently reviewing all of the evidence, I have taken into account the forensic disadvantage experienced by the applicant arising from the delay in being confronted with the specific allegations with which he was charged. The applicant gave evidence that "it would've been 2018, when the case was brought back" and he was provided "with the fact statements". [1]
The trial judge carefully instructed the jury on the forensic disadvantage that the defence had experienced by the delay, which included the inability to call people who had attended the garage sale; that the applicant's father might have remembered the weekend; that the applicant himself may have remembered the weekend and what was in the spare room where the complainant was sleeping.
The trial judge warned the jury that before they convicted the applicant, they must give the prosecution case "the most careful scrutiny" [2] bearing in mind the effect of the delay and "the absence of the opportunity to pursue items of what might have been additional evidence". [3]
The central issue in the trial was the honesty and reliability of the complainant's evidence. The evidence adduced by the Crown included the testimony of the applicant's mother and stepfather about the items in the spare room where the complainant slept and the Crown contended that the sexual offending in counts 3 to 6 occurred.
During the trial, Mr Dalton cross-examined the complainant about the items in the spare room. She firmly rejected the applicant's case that the room was stacked with boxes which would have prevented the sexual offending to take place.
In my view, it was open to the jury to accept the complainant's evidence and to find that the applicant's mother and stepfather were mistaken. Furthermore, it was open to the jury to reject the applicant's case that the offending could not have occurred without the knowledge of his father.
It should not be overlooked that the jury had the opportunity of viewing the JIRT interview and seeing and hearing the cross-examination of the complainant; the testimony of the applicant's father, mother and stepfather; the testimony of the applicant himself and the other witnesses in the trial.
I am grateful for Adamson JA's comprehensive disposition of the arguments advanced by Mr Dalton in this Court and for the additional reasons of Fagan J. I agree for the reasons provided by their Honours that the applicant's reliance on Pell was misplaced. I also agree with Adamson JA's conclusion at [147]-[152] above.
Having born in mind the trial judge's warning that the prosecution case must be carefully scrutinised in my independent assessment of the whole of the evidence, I am satisfied that it was open to the jury to accept the complainant's evidence of the offences beyond reasonable doubt. I am satisfied that it is not a reasonable possibility that the applicant is an innocent man who has been wrongfully convicted.
I agree with the orders proposed by Adamson JA.
FAGAN J: Having read the entire trial record, as has been necessary for determination of the applicant's unreasonable verdict ground, I agree with Adamson JA's analysis, conclusions and proposed orders.
The applicant's main claim of unavoidable reasonable doubt was based upon the evidence of his mother and stepfather about placement of household goods in the spare room where the complainant slept and where the offences in counts 3-6 were alleged to have been committed. At the hearing of the leave application the applicant did not abandon his lesser points - the asserted constant presence of the applicant's father such that counts 1 and 2 could not have been committed without his knowledge, the creaking doors, the alert and curious dog, the light sleep of the applicant's stepfather, the location on the floor of the applicant's room where his father slept and the father's habit of rising at 6:00 am. Despite being maintained as part of the argument, none of those lesser points, individually, involved a circumstance so invariable or definitive that the jury, acting rationally, was bound to have a reasonable doubt concerning the complainant's evidence. In combination those points did not become any more invariable, definitive or incapable of being reconciled with the complainant's evidence. It was open to the jury to conclude that the applicant's father may have been out of his bedroom during the few minutes required for the applicant to commit counts 1 and 2. The jury could reasonably have reconciled the occupants' testimony, that they were unaware of movement during the night when counts 3-6 were committed, to the complainant's evidence. They could have made such a reconciliation if they found the complainant's account of events sufficiently impressive that, for example, they concluded the dog must not have stirred loudly enough to disturb others in the house on this occasion, or that the doors must not have made enough noise to cause anyone to wake and investigate, or that the applicant's father must have slept a little past his usual waking time - and so on.
As for the principal point concerning goods stored in the spare room, the complainant gave evidence that she was sleeping on the left-hand side of the bed, as viewed from the foot. She said that the applicant came to that side, woke her and committed the offences in counts 3-6 first while sitting beside her on the edge of the bed and then with her kneeling on the floor beside it. In arguing that the jury must have had a reasonable doubt about those events, the applicant characterised as "unchallenged" the evidence of his mother and stepfather concerning boxes and bags that blocked access to the left-hand side of the bed. That submission referred to the lack of cross-examination of the mother and stepfather but failed to deal with direct contradiction of them, by the complainant herself.
The applicant laid great stress upon Pell v The Queen, particularly, as I understood the argument, the High Court's consideration of the evidence of the witness Portelli. Portelli said he had an actual recollection of the appellant engaging with congregants at the steps of the Cathedral for at least 10 minutes on the occasion of the first alleged assault in December 1996. If correct, that would have made it impossible for the applicant to have been in the priests' sacristy when the assault was said to have taken place. Portelli also said that he accompanied the appellant to the sacristy, which would have made it impossible for the offence to have been committed by the appellant upon entering the room alone, as the complainant alleged. Portelli was not cross-examined to suggest that he was in error on those points. Nor did the Crown call any witness who purported to contradict Portelli on either matter. The fact that Portelli's evidence was, as the High Court described it, unchallenged was central to the decision that the jury ought to have had a reasonable doubt about the sexual assault alleged to have been committed in December 1996: [61], [88], [91], [101], [118], [119]. Portelli's evidence of circumstances giving rise to reasonable doubt about whether it was possible for the offences to have occurred was unchallenged either in cross-examination or by the adducing of evidence to contradict those circumstances directly.
Portelli also gave evidence that he was with the appellant at the Cathedral on the occasion of the second alleged offence, in February 1997, and that the appellant's practice of engaging with congregants after Mass for at least 10 minutes was invariable and would have been followed on that occasion. He said it was invariable that the appellant would be accompanied when he returned to the vicinity of the priests' sacristy, near to which the second sexual assault was said to have taken place. Again, there was no cross-examination of Portelli to suggest that he was not present or that the practices described were not invariable and nor was any witness called to contradict him directly. The High Court's decision that the jury ought to have had a reasonable doubt about the offending on this second occasion rested in significant part upon Portelli's evidence having gone to the jury unchallenged: [126], [127].
The applicant's reliance upon Pell v The Queen as if the decision were determinative of the present application is misplaced. Unlike the situation in that case, the complainant in the present matter gave evidence directly refuting the supposed circumstance of impossibility concerning counts 3-6. She denied that there were boxes or bags of household goods in the spare room obstructing access to the left-hand side of the bed, where she said the offences were committed. In Pell v The Queen the complainant was not in a position to give evidence directly disputing Portelli's account of the appellant having remained with members of the congregation for upwards of 10 minutes; nor was he able to dispute the practice of the appellant being accompanied around the Cathedral. The complainant's evidence of the assaults upon himself was inconsistent with the testimony of Portelli but, in the absence of challenge to that witness in cross-examination, the jury were left with no basis upon which to exclude the reasonable possibility that he was right and that the offences therefore could not have been committed. None of that applies in the present case. It was open to the jury to prefer the evidence of the complainant that access to the bedside was not obstructed by stored goods, over the evidence of the applicant's mother and stepfather on that subject. That preference was open, beyond reasonable doubt, notwithstanding the absence of cross-examination of the mother and stepfather concerning the contents of the spare room and irrespective of counsel's submissions about the matter in final address.
Full consideration of the evidence does not cause me to feel a reasonable doubt regarding the applicant's guilt on any of the counts. I am not persuaded that the jury ought to have had a reasonable doubt. I would grant leave but dismiss the appeal.

Parties

Applicant/Plaintiff:

Respondent/Defendant:

Legislation Cited (5)

Evidence Act 1995(NSW)

Crimes Act 1900(NSW)

Criminal Appeal Act 1912(NSW)

Criminal Procedure Act 1986(NSW)

Children (Criminal Proceedings) Act 1987(NSW)

Cases Cited (26)

HEADNOTE [This headnote is not to be read as part of the judgment] ZL (the applicant) sought leave to appeal against his convictions for six sexual offences involving a child following a trial by jury before Sutherland SC DCJ. Each of the offences was alleged to have been committed in a single evening in July 2011 when the complainant was 10 years old and staying overnight with her grandfather, who was the applicant's stepfather. At the time, the applicant was 16 years old. The applicant sought to appeal on the ground that the verdict was unreasonable. He relied on the evidence of the applicant's mother and stepfather, who were witnesses for the Crown, that the spare room in which the complainant was sleeping that weekend was stacked with boxes for a garage sale. If accepted, this evidence would have made the offence virtually impossible. The applicant argued that, as the prosecutor had not sought leave under s 38 of the Evidence Act 1995 (NSW) to cross-examine the two witnesses, the evidence was unchallenged with the result that a reasonable hypothesis consistent with innocence had not been excluded. The applicant also relied on other evidence which made it unlikely that the offending conduct occurred, including evidence of the applicant's stepfather being a light sleeper, the applicant being constantly in the company of his own father for the entire weekend, the presence of dogs which tended to rouse, the creakiness of the doors in the house and the positioning of the mattress in the applicant's room on which his father was sleeping (such that he would have noticed or recalled if the applicant had left his room during in the night to commit the offences). The Court held (Adamson JA, Price and Fagan JJ agreeing) dismissing the appeal: (1) Whether a prosecutor can make a submission impugning the evidence of a prosecution witness where no application under s 38 of the Evidence Act is made depends on the basis for which credibility is sought to be impugned and the circumstances of the trial, including the other evidence. Where it is plain that the evidence of a witness is challenged by the Crown because it is obviously contrary to the Crown case and the witness is clearly partisan, and the attack on the witness is merely that the evidence is incorrect or ought not to be accepted, the prosecutor will not necessarily be obliged to seek leave to cross-examine as a pre-condition to making a submission that the evidence ought not be accepted: Adamson JA at [134], [136] (Fagan J agreeing at [164]). (2) It was open to the jury to find that the evidence given by the applicant's mother and stepfather of the spare room being piled high with items was, at least, mistaken: Adamson JA at [139] (Price J agreeing at [159], Fagan J agreeing at [164]). (3) No general rule can be laid down regarding whether an application under s 38 of the Evidence Act ought be made and if no such application is made what submission can properly be made in respect of witnesses called in the Crown case whose evidence does not fit with the Crown case. It is an inevitable consequence of the duty of a prosecutor to call relevant witnesses that there will be inconsistencies between prosecution witnesses: Adamson JA at [145] (Fagan J agreeing at [164]). (4) The evidence was not capable of reaching anywhere near the "cascading improbabilities" of the applicant having had the opportunity to commit the offences as were found in Pell v The Queen: Adamson JA at [137] (Price J agreeing at [161], Fagan J agreeing at [164]). Pell v The Queen (2020) 268 CLR 12; [2020] HCA 12, distinguished. (5) It was open to the jury to accept the complainant's evidence of the offences beyond reasonable doubt and convict the applicant of the offences charged: Adamson JA at [148] (Price J agreeing at [162], Fagan J agreeing at [164], [170]). (6) None of the lesser points raised by the applicant involved a circumstance so invariable or definitive that the jury, acting rationally, was bound to have a reasonable doubt concerning the complainant's evidence. In combination those points did not become any more invariable, definitive or incapable of being reconciled with the complainant's evidence: Fagan J at [165]. (7) The applicant's reliance upon Pell v The Queen is misplaced. It was open to the jury to prefer the evidence of the complainant that access to the bedside was not obstructed by stored goods, over the evidence of the applicant's mother and stepfather on that subject. That preference was open, beyond reasonable doubt, notwithstanding the absence of cross-examination of the applicant's mother and stepfather concerning the subject and irrespective of counsel's submissions about the matter in final address: Fagan J at [169]. (8) It was open to the jury to accept the complainant's evidence of the offences beyond reasonable doubt. It is not a reasonable possibility that the applicant is an innocent man who has been wrongfully convicted: Price J at [162].

[2002] HCA 53

[2004] VSCA 209

[2016] HCA 35

(2022) 274 CLR 651

(2006) 67 NSWLR 659

(1994) 181 CLR 487

(2002) 213 CLR 606

(2005) 80 ALJR 329

(2020) 268 CLR 123

(2004) 11 VR 215

(2016) 258 CLR 308

(2020) 268 CLR 12