Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: SKA v Regina [2012] NSWCCA 205
• Hearing dates: 14 December 2011
• Decision date: 20 September 2012
• Before: Beazley JA at [1]; Adams J at [262]; Hislop J at [323]

Decision

1. Appeal allowed;

2. Quash the convictions in respect of all counts;

3. Order that the appellant be acquitted in respect of counts 4 and 5 of the indictment;

4. Order that the matter be remitted for a retrial in respect of counts 1, 2 and 3.

• Catchwords: CRIMINAL LAW - Appeal against conviction - Sexual assault, aggravated sexual assault and aggravated indecent assault - Challenge to jury verdicts - Whether verdicts unreasonable and not supported by evidence - Whether on whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that accused was guilty - Court undertakes independent assessment of evidence.; CRIMINAL LAW - Appeal against conviction - Sexual assault, aggravated sexual assault and aggravated indecent assault - Context evidence - Correctness of directions - Risk that jury might use as propensity evidence - Separate consideration of counts - Whether directions adequate - Whether conviction dangerous - Significance of complainant's evidence as to dates - Whether new trial appropriate.; EVIDENCE - Application to adduce new evidence - Principles governing the admissibility of new evidence - New evidence sought to be adduced not of such cogency as to cause the court to entertain a reasonable doubt as to appellant's guilt - Application dismissed.
• Legislation Cited: Criminal Appeal Act 1912; Criminal Appeal Rules
• Cases Cited: Aouad and El-Zeyat v R [2011] NSWCCA 61; 207 A Crim R 411; Chivers v R [2010] NSWCCA 134; DJV v R [2008] NSWCCA 272; 200 A Crim R 206; Douglass v The Queen [2012] HCA 34; DTS v R [2008] NSWCCA 329; 192 A Crim R 204; JDK v R; R v JDK [2009] NSWCCA 76; 194 A Crim R 333; Jones v R [1997] HCA 56; (1997) 191 CLR 439; Kaifoto aka Teaupa v R [2006] NSWCCA 186; Longman v The Queen [1989] HCA 60; 168 CLR 79; M v The Queen [1994] HCA 63; 181 CLR 487; MFA v R [2002] HCA 53; 213 CLR 606; Morris v R [1987] HCA 50; 163 CLR 454; Murray v The Queen [2002] HCA 26; 211 CLR 193; Pahuja v R (1987) 49 SASR 191; 30 A Crim R 118; Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463; R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417; R v ATM [2000] NSWCCA 475; R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82; R v Murray (1987) 11 NSWLR 12; R v Prasad (1979) 23 SASR 161; Ratten v The Queen [1974] HCA 35; 131 CLR 510; Rees v R [2010] NSWCCA 66; RGM v R [2012] NSWCCA 89; Seymour v R [2006] NSWCCA 206; 162 A Crim R 576; SKA v The Queen [2011] HCA 1; 243 CLR 400; Wood v R [2012] NSWCCA 21
• Category: Principal judgment
• Parties: SKA (Appellant); Regina (Respondent)
• Representation: H Dhanji SC; C Alexander (Appellant); J Girdham (Respondent); Crawford and Duncan Lawyers (Appellant); Solicitor for Public Prosecutions (Respondent)
• File Number(s): 2008/2784
• Publication restriction: No

Decision under appeal

• Date of Decision: 2009-02-06 00:00:00
• Before: Finnane DCJ
• File Number(s): 2008/11/0763

HEADNOTE

[This headnote is not to be read as part of the judgment]

SKA was convicted of five offences of sexual assault, aggravated sexual assault and aggravated indecent assault of his niece by marriage. SKA unsuccessfully appealed to the Court of Criminal Appeal against his convictions.

The High Court granted special leave to appeal against the convictions on limited grounds. The High Court allowed the appeal, set aside the Court of Criminal Appeal's order dismissing the appeal against conviction and remitted the matter to the Court of Criminal Appeal for re-determination of the appeal.

Five grounds of appeal were raised before the Court of Criminal Appeal:

(1) Whether the verdicts of the jury were unreasonable and could not be supported having regard to the evidence;

(2) Whether leave ought to be granted to adduce new evidence;

(3) Whether the trial judge erred in failing adequately to direct the jury not to engage in propensity reasoning;

(4) Whether the trial judge erred in failing to properly direct the jury with respect to the need to consider each count separately;

(5) Whether the trial judge erred in failing to adequately direct the jury in accordance with R v Murray (1987) 11 NSWLR 12.

A. Context evidence in sexual assault cases is admissible to enable the complainant to give a coherent account involving the charged misconduct and to avoid the apparent lack of credibility which a partial account might have, subject to the discretionary power of the trial judge to exclude it where its admission would be unfairly prejudicial.

The trial judge directed the jury that the context evidence could be used to prove that the 'true' relationship between the appellant and the complainant was a sexual one in support of the complainant's evidence, as well as going to proof of the charges and making what occurred easier to understand but could not be used to show that the appellant had a tendency or propensity to commit any offence.

Held per Adams J (Hislop J agreeing):

The direction invited the jury to use the context evidence in proof of the offences rather than for the purpose of understanding the complainant's evidence as to the charged conduct, a purpose for which it as not admitted and for which it could not be used. In effect, despite the qualification, it also invited the jury to use propensity reasoning. It also invited the jury to use evidence as to uncharged misconduct and on the other charges for the purpose of determining the particular charge when they should have been directed to consider each charge separately and the relevant evidence in respect of each charge clearly identified.

B. The trial judge directed the jury, in substance, that if they found that the complainant was to be believed on one count, that they would have to be very cautious about doubting her truthfulness and reliability in respect of the other counts and they should ask what is there that would make her unreliable in relation to them.

Held per Adams J (Hislop J agreeing):

This was an error. It was correct to direct the jury to the effect that, if the complainant was disbelieved in respect of one alleged assault, it would be difficult to accept her evidence in respect of the others. However, the other counts must be separately considered. Although favourable findings as to the complainant's credibility as to the other charge or charges may be borne in mind, it is not correct to approach her evidence on the remaining charge or charges as reliable unless there were something that established otherwise.

Held per Beazley JA (dissenting):

(1)The principles governing 'fresh evidence' and 'new evidence' are well settled in the case law. The new evidence sought to be adduced did not satisfy the requirement that it be of such cogency as to cause the Court to entertain a reasonable doubt as to the appellant's guilt: [184].

Followed: R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417

Considered: Wood v R [2012] NSWCCA 21

(2)The task for the Court of Criminal Appeal is to determine whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences with which he was charged. The Court is required to make an independent assessment of the evidence: [182].

Followed: M v The Queen [1994] HCA 63; 181 CLR 487

(3)The trial judge's written directions to the jury specifically stated that the jury could not use evidence of other acts in substitution of proof of the acts charged. That statement obviated the risk that the jury would engage in propensity or tendency reasoning. The trial judge did not fail to adequately direct the jury not to engage in propensity reasoning: [204].

Considered: JDK v R; R v JDK [2009] NSWCCA 76; 194 A Crim R 333; Rees v R [2010] NSWCCA 66

(4)The question whether a jury has been adequately directed or misdirected falls to be considered having regard to, and in the context of, the directions given by the jury as a whole. A fragmented examination of a trial judge's directions can itself lead to error and is likely to give an unrepresentative view of the directions: [208].

(6) In determining whether the jury has been adequately directed or misdirected in respect of a fundamental matter, in this case context evidence, it is relevant that no complaint was made at trial by experienced counsel for the appellant: [237]-[238].

(7) The Court of Criminal Appeal is entirely dependent upon the record and is not privy to the tone or inflection of the trial judge's voice when giving directions, in the same way that the Court is not privy to the nuances of the oral evidence of a witness: [238].

(8) Whether or not a direction in accordance with R v Murray (1987) 11 NSWLR 12 ought to be given is a matter for the discretion of the trial judge. There is no prescription as to the words to be used: [254].

Considered: Pahuja v R (1987) 49 SASR 191; 30 A Crim R 118

Cited: Kaifoto aka Teaupa v R [2006] NSWCCA 186

Judgment

1 BEAZLEY JA:

Introduction

2 On 10 October 2008, the appellant, after a trial by jury, was convicted of a total of five offences of sexual assault, aggravated sexual assault and aggravated indecent assault of his niece by marriage. The offences were alleged to have occurred in 2004 and 2006 when his niece was under the age of 10 in respect of the 2004 offences, and 10 years of age in respect of the 2006 offences.

3 The appellant was sentenced to a total term of imprisonment of 4 years 9 months and 15 days with an additional term of 4 years. Execution of the sentence was stayed and the appellant was granted bail pending an appeal to the Court of Criminal Appeal. That bail was subsequently revoked. The appellant appealed, unsuccessfully, to the Court of Criminal Appeal against his conviction. His application for leave to appeal against sentence was allowed but the appeal was dismissed. The Crown appeal against the sentence imposed in respect of count 1 was allowed.

4 The appellant was granted special leave to appeal to the High Court, on limited grounds. The appeal was heard instanter. The High Court allowed the appeal, ordered that this Court's order dismissing the appeal against conviction be set aside and that the matter be remitted to this Court for re-determination of the appeal: see SKA v The Queen [2011] HCA 13; 243 CLR 400.

5 On the hearing of the remitted appeal, the appellant proceeded by way of an amended notice of appeal filed on 20 October 2011 in which he raised the following grounds:

(1)the verdicts of the jury are unreasonable or cannot be supported having regard to the evidence;

(1A)the appellant seeks leave to rely on the new evidence contained in the affidavit of Michelle Louise Duncan dated 6 October 2011;

(2)the trial judge erred in failing adequately to direct the jury not to engage in propensity reasoning;

(3)the trial judge erred in failing to properly direct the jury with respect to the need to consider each count separately;

(4)the trial judge erred in failing to adequately direct the jury in accordance with R v Murray (1987) 11 NSWLR 12.

The reasons of the High Court

6 The central question raised on the appeal to the High Court was whether the verdicts of the jury were supported by the evidence. This ground was directed to the alleged failure by the Court of Criminal Appeal to comply with the Criminal Appeal Act 1912, s 6(1) to independently assess the whole of the evidence. Section 6(1) provides that the Court of Criminal Appeal:

"... shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence ..."

7 The plurality (French CJ, Gummow and Kiefel JJ) confirmed that the task of the Court of Criminal Appeal pursuant to s 6(1), was as stated in M v The Queen [1994] HCA 63; 181 CLR 487 at 493, by Mason CJ, Deane, Dawson and Toohey JJ:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."

8 In MFA v The Queen [2002] HCA 53; 213 CLR 606, McHugh, Gummow and Kirby JJ stated, at [58], that the reference to "unsafe and unsatisfactory" in M was the equivalent of the statutory test in s 6(1) of "unreasonable" or such as "cannot be supported, having regard to the evidence".

9 Their Honours noted that for the purposes of s 6(1), the starting point was that the jury had the primary function in determining the guilt or innocence of the accused. It was integral to that proposition that the jury had seen and heard the witnesses. However, as had been stated in M in the joint judgment, at 494:

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred."

10 Earlier in M, at 492, their Honours had said:

"... the court does not consider as a question of law whether there is evidence to support the verdict ... The question is one of fact which the court must decide by making its own independent assessment of the evidence ..."

11 In SKA, at [20], the plurality identified this Court's fundamental error on the first appeal as being that the Court concerned itself, as a matter of law, with the question whether there was evidence to support the verdicts, rather than making its own independent assessment of the evidence. Their Honours reiterated that the task of the Court of Criminal Appeal was to make an independent assessment of the whole of the evidence in order to determine whether the jury's verdicts of guilty could be supported.

12 Their Honours held that in making that fundamental error, this Court had erred in two respects. First, it had failed to determine the date upon which the complainant alleged the appellant had committed the 2006 offences, that is, the offences subject of counts 4 and 5. In this regard, the plurality stated that the Court was not bound by the dates identified by the trial judge as being the dates upon which the complainant alleged the offences had occurred. However, the Court was required to form an opinion as to the date of the 2006 offences so as to assess the whole of the evidence in the case.

13 The second error flowed from the first. The Court's failure to determine what date the complainant contended those two offences had occurred, led it into error in assessing the evidence for itself. Without that determination, the Court could not weigh the competing evidence to determine whether the verdicts could be supported. Their Honours pointed out, at [23], that the complainant's evidence as to when the conduct occurred was part of her account of the incidents and, at least potentially, was material against which her other evidence was to be assessed.

14 The factual background to their Honour's observations was that the complainant, in her ERISP, had identified dates just before Christmas as being the occasion on which the conduct in counts 4 and 5 occurred. The appellant had adduced alibi evidence in respect of the three days prior to Christmas 2006 to meet the complainant's allegations.

The family constellation and circumstances and summary of the central allegations

15 The appellant and complainant (M) were related by marriage. M's father and the appellant's wife are brother and sister. The appellant and his wife have a daughter, Sh, born in 1999, who was aged about 7 when the last of the charged assaults was said to have occurred. A second daughter was born in 2006. The appellant and his wife purchased their home in April 2001. The home had two bedrooms and was described as "not being large". In late 2002 or early 2003, they carried out renovations to the home which involved the addition of a family living area to the kitchen.

16 M's family comprised her parents and two older sisters, although the oldest sister did not have any involvement in the case. The prosecution revolved around the evidence of M, her sister L, who is three years older than M, and the evidence of the parents.

17 The families of the appellant and M were close, although the nature and extent of that closeness differed on the evidence of the two families. The relationship and the frequency of contact between the families was relevant, as M gave evidence that the appellant's sexual conduct towards her had commenced in 2001 when she had commenced having sleepovers at the appellant's home and had continued since that time. The appellant and his wife denied that sleepovers had commenced in 2001 or that they were as regular as M contended.

18 M's family had lived with the appellant's family for about six months when they first came to Australia. There was differing evidence as to whether there had been strained relations between the families for a period in 2002 to 2003, apparently arising out of an argument between the appellant's wife and M's parents such that the families did not see each other frequently.

19 According to M and her family, M and her sister L had sleepovers at the appellant's house from about the time Sh was born until late 2006. M slept over more frequently than her sister. The evidence varied as to how frequently the sleepovers occurred, from approximately weekly to two to three times a month, sometimes with longer gaps, to about once a month but more regularly during the holidays. When M, or M and L slept over, they slept with Sh in Sh's bed, which was a queen sized bed placed against the wall in her bedroom, identified in the evidence as bedroom 2.

20 M said that the appellant had commenced to touch her in 2001 when she was 4 years of age and this had continued every time she slept over. Her account changed as to whether the conduct had commenced in the school holidays in January or September of that year. I will return to that later. The charged offences were alleged to have occurred in June/July 2004 (counts 1, 2 and 3) and December 2006 (counts 4 and 5). The actual date that the 2006 offences were alleged to have occurred was a critical issue in the trial. In her ERISP, M said she thought the date of the 2006 offences was the day before Christmas Eve.

21 The applicant filed an alibi notice in respect of his activities on 23 December 2006 in the following terms:

"(i) On the morning of Saturday 23 December 2006 [the appellant] was at his residential address at ********** with wife and children.

(ii) About 1.30 pm to 1.40 pm [the appellant] in the company of his wife and children left their residential address and travelled to the premises of [RK and SK]. [RK and SK] reside at **********. Telephone number ********. ([RK and SK] will be overseas from 3 August 2008, until 12 August 2008).

(iii) Approximately 4.45 pm [the appellant and his wife] in the company of their children left the premises of [RK and SK] and returned to the residential premises. Upon returning home [the appellant and his wife] changed clothes so as to attend evening mass.

(iv) Approximately 7.05 pm [the appellant and his family] left evening mass and returned to their place of residence where they remained till about 8.30 pm to 8.45 pm.

(v) Somewhere between 8.30 pm and 8.45 pm [the appellant and his wife] in the company of their children left their residential premises and travelled to the premises of [SJ] at *********. [SJ's] telephone number is ********. [The appellant and his family] arrived at [SJ's] premises at about 9.00 pm and they remained at those premises till about 10.30 pm or 11 pm. Also present at these premises were [BR] and his family. [BR] resides at ********** and his telephone number is ********.

(vi) Some time between 10.30 pm and 11.00 pm [the appellant] in the company of his family left the premises of [SJ] and travelled to their residential premises where they remained until the following morning."

RK and SK are family friends of the appellant and his wife.

22 The appellant also adduced evidence of his and his family's activities on Friday 22, Saturday 23 and Sunday 24 December 2006.

23 Paragraphs (ii) and (iii) of the alibi notice were contradicted by the evidence of SK, who gave evidence that she had made a mistake about the date. SJ gave evidence in support of para (v) and (vi) of the alibi notice.

24 It is necessary to consider the evidence in detail. I propose to do so by reference first to M's ERISP as to general matters and her evidence in respect of those matters. I will then deal with her ERISP, her examination in chief at trial and her cross-examination in respect of counts 1, 2 and 3 and then counts 4 and 5.

M's evidence

General

25 M's evidence at trial was given first by way of a video recording of her ERISP taken on 10 April 2007 and then by way of further oral evidence in chief and cross-examination. The ERISP was taken three months after M complained to her mother about the appellant's conduct and approximately three and a half to four months after the last of the alleged assaults. M was aged almost 11 at that time. Her evidence at trial was given in August 2008, approximately 20-20.5 months after the last of the alleged assaults, when she was 12 years of age.

26 In her ERISP, M told the interviewing officer that she was there to talk about her uncle having "touched" her. She said the last time that he had touched her was "[a]bout, just before Christmas, around then". Having identified that time as being the last occasion upon which her uncle touched her, M was asked to state what had happened "from the beginning until the end".

27 It is not necessary at this point to deal with the detail of what M said happened to her. The matter which assumed importance at the trial, as a process of testing M's veracity as to whether any such conduct happened at all, revolved principally around her identification of when the conduct occurred. In this regard there was M's general evidence as to sleepovers and then her more specific evidence as to when the conduct commenced and the occasions when the conduct comprised in counts 1, 2 and 3 and counts 4 and 5 occurred.

28 As to the conduct occurring during sleepovers, M said in her ERISP:

"Q356 OK. You said before that it's happened, happened a lot of times, like a number of times.

A Yeah, quite a lot.

Q357 Quite a lot?

A Yeah, 'cause I'd sleep over a lot of times.

Q358 OK. And so when you say you slept over a lot of times, did this happen every time you stayed over, or sometimes, or something else?

A Every time.

Q359 Every time?

A Yep.

Q360 OK. And of all the times of when it's happened, obviously it's happened like a lot of times, is there any other times that you can think of that you remember when it was?

A I think it was just usually every, around every one or two nights, I think.

Q OK.

A. That's, I don't know specific times, but I know around every one or two nights."

29 M said that she was very close to the appellant's daughter, Sh. She said they slept in "this big bed and he would come to tuck us in at night". M said that the appellant would "go behind me and he'd touch me". She said she did not understand and thought that "[t]his must happen to everybody". She said that she realised what he was doing when she was around eight or nine years of age and that she could tell her parents about it. She said, however, that she was afraid that if she did so, she would not see her cousin, Sh, again. She said she was "really confused" and reiterated that she was going to tell her parents but got "really scared" and was afraid they would be angry with her or that nobody would believe her. She said that her uncle had:

"... made up this thing, like he said that I, I lied to my auntie, because he knew that if one day [she told her parents, they would think] she's just lying, she's just joking"

30 M said she had told her mother about the appellant's conduct "in the last school holidays, the big ... 6 week holidays ... around then". She said the subject of her uncle came up in a conversation about 'mothers' such as a friend's mother and M's aunt. M's mother asked whether she would like to be with her aunt and uncle (the appellant). M replied that she would not mind being with her aunt, but not with the appellant. She said her mother kept asking her about what she meant. M said that initially she said that she did not want to talk about it but "eventually it got out". She said her mother was "really sad" and told her father and they all sat on the couch together and "were crying and crying".

31 M said that the situation "wound up in this huge mess" as about that time the appellant and his wife had a new baby and her sister had been chosen to be the godmother. M said that the rest of the family had now "all turned their back against" them and did not believe them. In addition, her grandmother had been coming from India to visit. Everybody had been excited, but when her grandmother "found out, she turned her back against us, as well". M said "it was kind of like a family crisis" and now her family could not "do many things". She said the biggest problem for her would be if her cousin Sh found out, because if she did "she would probably hate me for the rest of my life". M had not had contact with Sh since April 2007 when she went to the police.

32 At the commencement of her evidence at the trial, M corrected the time she said that the first assault occurred, that is, in 2001. In her ERISP, she had said it had occurred in the December/January holidays. In her evidence, she said that she did not think it was the January holidays, she knew it was in the holidays sometime, but it may have been "in September even, I'm not sure, but sometime or other".

33 M was cross-examined as to when the appellant's conduct commenced, having regard to the evidence she had given in chief, that his conduct had commenced in the September school holidays, not the previous December school holidays, as she had said in her ERISP. In the course of the cross-examination, counsel for the appellant obtained M's agreement that it was "very important" to be accurate.

34 Counsel then reminded M that the appellant and his wife had not purchased their home until April 2001, so M's evidence that the appellant's conduct had commenced in the school holidays in December 2000/January 2001, "would cause a problem". It was suggested to M that that was the reason that she had changed the time she said the conduct first commenced. M agreed that it "might be part of the reason", but also because she had "thought about it a little more".

35 M was questioned further as to why she had changed the date. She said that she had heard it mentioned that the appellant and his wife came to Australia after M's family. It seems that from this evidence, M was indicating that was the factor that had caused her to rethink the date upon which the appellant's conduct first began. However, her memory on this point was inaccurate, as the appellant and his wife had migrated to Australia before M's family.

36 M was also challenged in cross-examination as to whether the relationship with Sh had really only commenced in 2004, when Sh went to the same school as M. This cross-examination was placed in a context in which it was suggested that the relationship between the families was strained and almost non-existent during the years 2001-2003. M was cross-examined directly that there were no sleepovers in that period and that the first sleepover was in April 2004. M replied that she was "pretty sure" there were sleepovers before that. She said she was 5 years of age when the appellant's conduct first commenced, so there would have to have been sleepovers prior to April 2004.

37 Counsel for the appellant then returned to M's ERISP where she had said that the appellant's conduct occurred every one or two nights: see at [28] above, Q and A 360. M denied she had told the police that the conduct happened every one or two nights. Her questions and answers were then read out to her. M said: "Sorry, I must have meant to say months instead of nights". The trial judge asked the following questions:

"Q. How often did you sleep over?

A. Once every one or two months.

Q. You're saying that when you did sleep over it happened every night when you slept over?

A. Yes.

Q. Is that what you meant to say?

A. Yes."

The cross-examination continued:

"Q. The fact that you said one or two nights twice to the police that was a mistake?

A. Yes.

Q. Nights grows into months, is that right?

A. I must have meant to say one or two months."

Counts 1, 2 and 3

M's ERISP

38 M identified the occasion upon which counts 1, 2 and 3 occurred by reference to having watched a movie whilst in bed with Sh and L. In her ERISP, she initially said that the movie was Chicken Little. She immediately corrected herself and said that it was The Incredibles. She said that they were watching the movie on a computer.

M's evidence at trial

39 In her evidence in chief at trial, M confirmed that the incidents the subject of counts 1, 2, and 3 occurred around the time of her mother's birthday in 2004. Her mother's birthday was on 20 June. She was cross-examined about the movie she watched on this occasion:

"Q. You've told the court that in 2004, sometime in June if I can just be that vague, sometime in June 2004?

A. Yes.

Q. Your Uncle sexually assaulted you again?

A. Yes.

Q. And on that night you say you had watched a movie or something?

A. Yes.

Q. And what movie was that?

A. I think it was The Incredibles.

Q. And indeed, you mentioned another movie to the police and then you settled on The Incredibles because you're pretty sure it was The Incredibles?

A. Well I think it was The Incredibles.

HIS HONOUR

Q. Think it was I'm sorry?

A. I think it was The Incredibles that I watched. It was - I remember watching that.

[Counsel for the appellant]

Q. And you watched it on a computer or?

A. Yes.

Q. On the computer, on the laptop computer, in [Sh's] room?

A. Yes.

Q. What if I was to say to you that in 2004, [the appellant] did not have access to a laptop computer?

A. Well I said it was on a computer. I remember watching The Incredibles on the computer. It - from what I remember it was most likely on that night that I watched The Incredibles. I did watch a movie on that night though.

...

Q. You're sure you watched it on a computer?

A. I think it was - -

Q. Don't get upset, don't get upset, just settle down. And just think nobody's rushing you sweetheart, just take your time. Feeling a bit better now?

A. I remember watching The Incredibles on a computer. I think it was on that night. I do know I did watch a movie on that night.

Q. On a computer?

A. Maybe on a computer but I do remember watching a movie that night and I do remember once watching The Incredibles in their house on that bed, in that room, on a computer.

...

Q. So it would have had to have been on a computer?

A. Well, it could have been on that if it was a projector it could have been that, I don't know, I just remember watching a movie that night from this room."

40 It was suggested to her that if she was told that the appellant did not have a projector in his house in 2004, that would also rule out having watched the movie on the projector. The cross-examination continued:

"Q. Are you sure you saw The Incredibles in that room on a computer and you watched a movie on that night that you say you were sexually assaulted by your uncle in June 2004?

A. Yeah."

41 M was asked why, on this occasion, she didn't wake L so as to obtain her assistance in relation to the appellant's conduct. M did not give a specific answer, other than to say that she "just didn't". She was also challenged as to her evidence as to the position of herself, L and Sh in bed, it being suggested to her that Sh was always in the middle. M responded that Sh was not always in the middle.

42 M was again challenged as to why she did not elicit L's assistance:

Q. ... When [the appellant] first got into the bed [L] was awake wasn't she?

A. Yeah.

Q. You told us that?

A. Yeah she probably was.

Q. She was sitting up?

A. Yeah.

Q. So why on earth couldn't you elicit her help?

A. Pardon?

Q. Why on earth, I'm sorry about that, why on earth [couldn't you] ask her for help?

A. I don't know it didn't occur to me at the time."

Counts 4 and 5

M's ERISP

43 M was asked by the interviewing officer to state what happened the "last time". M gave the following account:

"A40 ... I was having a sleepover at [Sh's] house ...

A41 ... and we were all on the bed. And then he just, I don't, do I have to say?"

44 M was encouraged to continue and was asked "what happened next, when you were in the bed?" She answered:

"A42 ... we were watching Charlie and the Chocolate Factory ... [L] was there with us ... [L] fell asleep ... And then [Sh] fell asleep. So then I fell asleep. And then he came back to tuck us in, and I don't know what he was doing, but he just, he got into the bed and I was like, he got behind me and then he just, like touched me down here."

45 M said that she started getting uncomfortable and had said she wanted to get a drink. She said she pretended to go and get a drink, but went into the laundry and sat there for "quite a ... long time". She said the appellant came and asked her if she was "OK". M said that she told the appellant that she was and she got up and went back to bed. She said "eventually he left and I was all calm and everything, and it was over".

46 The interviewing officer asked M whether she knew what day this had happened. M responded that she could not remember what day it was. She was then asked whether it was a weekday, or weekend, or something else. M said:

"A57 ... I think it was a Friday. No, wait, it was, it was the day before Christmas Eve.

Q58 The day before Christmas Eve?

A Yes, I think so. I think that was when ... I got dropped off there around 3.00, 4.00 in the afternoon ... my family came at around 6.00ish, 7.00ish, around then.

...

Q69 ... What did you do when your family was around?

A ... we ... watched a movie and we'd talk about just random things. We'd have dinner and everything. And they came to our house on Christmas Eve.

...

Q76 And whereabouts were you watching Charlie and the Chocolate Factory?

A In [Sh's] room ... they have ... a corridor and she is on the left, the last room to the left.

...

A77 We were lying down, on the bed, under the blanket.

...

Q79 And who was lying in the bed with you?

A .. [L]. Sometimes she would do that. [Sh] ... and me. And then my uncle would like come a bit later."

47 M then said that she did not think that L did stay that night. At this point in the ERISP, M appeared to have drifted into a general narrative as to what would happen when the appellant came into the bedroom. The interviewing officer directed M's attention back to the occasion she was watching Charlie and the Chocolate Factory. M said that on that occasion, she thought that L went home with the family and did not stay overnight.

48 M was asked to draw the layout out of bedroom 2. She drew a bed, which she said was a large bed, a projector, a screen on the wall, the door and window, a mirror, a table with an iron on it, and some mattresses next to the screen. M marked where Sh was, where she herself was and where her uncle was "when he hopped into bed with you".

49 The interviewing officer asked what happened when the appellant came to tuck them in. M then described the detail of the assault that she said occurred on this occasion:

"A119 He just come behind me and then he just put, like his hand, on my, my, on this. Then, yeah, he'd just do that. And then I'd kind of just shift over and move and try and get a bit away ...

...

Q130 And you said that he put his hands in your undies, tell me about your undies? What, what undies were you wearing?

A I was wearing my plain pink ones.

Q131 Plain pink. And do you know what your uncle was wearing?

A No. Sorry.

Q132 That's OK. OK, so you said that he put his hands inside your undies. What happened when he put his hand inside your undies?

A He just touched there and ...

Q133 OK. So, when you say, There, what do you call, There?

A My, my private parts and things.

...

Q140 Yes. And when you say he touched you on the vagina, what did he touch you with?

A His hands.

Q141 His hands. And what could you feel when he touched you on your vagina?

A Just that, and he just fiddled around his fingers in there.

...

Q156 OK. And what did, what did he do with his fingers when he put them inside your vagina?

A He just moved them around and pushed them in.

Q157 And pushed them?

A Yeah."

M's evidence at trial in respect of counts 4 and 5

50 In her evidence in chief at trial, M was asked to clarify whether L had been present on the occasion which was identified in the question as being, "the very last time it ever happened, this is the time you told us just before Christmas Eve". M answered that she thought that L was there, saying, "I think I do remember her being with us when we watched the movie. So she would have fallen asleep there". M confirmed that the movie they watched was Charlie and the Chocolate Factory.

51 The prosecutor asked M to state what happened on the "last time" which he identified in his question as "just before Christmas in 2006". In response to being asked how she felt at the time about what her uncle was doing, M replied:

"I thought it was wrong, I thought it was unfair and I thought it shouldn't have happened and even though it was happening I had to put an end to it somehow."

52 The concluding question and answer in her evidence in chief was:

"Q. You've told us about a couple of things, that you might be confused about the school holidays of when you were four, but apart from the things that you've told us about, is everything else that you told the police officer the truth?

A. Yes it is."

53 The appellant's counsel at trial drew M's attention to the architect's plan of the house, Exh C, which had been shown to M earlier in her evidence. The cross-examination continued:

"Q. And you remember his Honour asked you some questions about some dotted lines and perhaps some renovations?

A. Yeah.

Q. And you said so far as you were concerned and correct me if I'm wrong, or somebody will anyhow, that so far as you were concerned that plan showed the house as it was when you used to go to it?

A. Yeah.

Q. And that's right up until you say, 23 December 2006?

A. Yes but it may have - may have not been 23 December but - -

Q. I see - -

A. - - like I guessed that it may have been the day before New Year's Eve because I do remember some celebrations around then but it could have been maybe even a week before that.

Q. I see so why are you changing that?

A. Well because I've thought of it. I thought maybe - and I've watched the video I've thought, oh well then I think I thought that it may have been the day before New Year's Eve, but it may not have been. I thought it was around that time - -

Q. The day before Christmas Eve?

A. Yeah it's Christmas Eve, sorry.

...

Q. What I was asking you was the house the same as is shown in that plan, as it was at the time of the last sexual assault on you as you allege, by your Uncle?

A. Yes it was always like that as I remember.

Q. Always as far as you can remember?

A. Yeah.

Q. If I told you that the place renovated rather dramatically with walls removed and added and windows closed and things as indicated on that plan - -

A. Yes - -

Q. - - during to a four to five month period in 2003, would you be surprised?

A. Yes I would be.

Q. Would that be because you didn't start going to [the appellant's] place particularly to stay, until 2004 like I suggested before?

A. No.

Q. Now when you had that first sleepover that you've told us about back when you were four or five in 2001?

A. Yes.

Q. There was no movies and television or anything like that, that night was there?

A. No I don't think there was." (emphasis added)

54 The appellant adduced alibi and other evidence in respect of his activities on Friday 22 December, Saturday 23 December and Sunday 24 December 2006. The appellant's counsel cross-examined M about these occasions. He reminded M she had told police that the last occasion of the appellant's conduct towards her was "the day before Christmas Eve", namely, Saturday 23 December 2006.

55 The appellant's counsel sought agreement to the proposition that the day was a Saturday, which would fit in with M's overall evidence that she slept over on weekends. M responded that as that was a holiday time, it didn't have to be a Saturday. This led to cross-examination to the effect that M was saying she slept over "on days other than the weekend because it was school holidays".

56 The appellant's counsel then focused on Saturday 23 December, asking M whether she went to Mass with the appellant and her aunt on that day. M said that she did not remember that and added, "I did say it may have not been the day before Christmas Eve". Counsel reminded M that she had only said that in her evidence in court and it was not what she had told the police in her ERISP. On being further pressed on this topic, M said, "I may have gone to mass with him, I'm not sure. I don't remember". Her evidence continued as follows:

"Q. What I'm going to put to you now is that you didn't, you certainly didn't go to [your aunt and the appellant's house] on 23 December 2006, you definitely didn't?

A. I could have. I may not - -

Q. But you told the police fairly certainly that you did?

A. I told the police that I wasn't sure.

Q. Yes but then you settled, you said you thought it was the Friday and then you said, 'no it was the day before Christmas eve'?

A. Yes but I said I thought it was the day before Christmas eve I wasn't sure.

Q. But that's the only day you identified wasn't it?

A. That's the only day I thought it may have happened. It could have happened any other time.

Q. It could have too. It could have happened any time I suppose but it's a bit hard to answer if we don't know when you say it happened. So I suggest to you that you didn't go to [the appellant and your aunt's house] at all on 23 December 2006. You say you may have or you may not have is that your answer?

A. Yes.

Q. And that's a good an answer as you can give?

A. Yes."

57 Counsel again challenged her to the effect that the appellant in 2006 had only had access to a projector on two occasions, neither of which was in December. M said that she did not remember. The cross-examination on this aspect concluded as follows:

"Q. Irrespective of what day this last event occurred in 2006 it was in December 2006 and it was shortly before Christmas?

A. Yes.

Q. That occurred in bedroom 2 on the plan?

A. Yes."

58 M was re-examined by the trial advocate:

"Q. [M], I'll only just be a few more minutes. You were asked a question just a few minutes ago about the incident you described in December 2006, the very last time?

A. Yeah.

Q. The time that was just, it was some time before Christmas in December 06?

A. Yeah.

Q. You were also were asked about that a few times by the police during the interview?

A. Yep.

Q. You referred to a question and answer that you gave during the interview by my learned friend that question was, 'Do you remember was it a week day, a weekend or something else?'

A. Yes.

Q. Your answer was, 'It was, I think it was a Friday, no, wait it was, it was the day before Christmas Eve.' The police officer then asked you the question, 'The day before Christmas Eve?' And your answer is, 'Yes I think so.' Remember that?

A. Yes.

Q. Why did you say, 'I think so'?

A. Because I wasn't completely sure that it was that day.

...

Q. You say, 'Yes, I think so, I think that was when cause we were having that kind of, like since our families are really close we'd just go over to their house and we'd have that little family get together and so we went there, like I got dropped off there around 3:00, 4:00 in the afternoon and then like my, my family came at around sixish, sevenish, around then and yeah'?

A. Yeah.

Q. Now, and I think you've answered but I want to ask, but when you say 'I think so', the reason you said that is what?

A. Is because I wasn't completely sure that that was the exact date.

Q. When you were first asked by the police at the very beginning of the interview with the police when they started asking of this particular incident, the police asked you, 'So when was the last time that your uncle touched you?' and you answered, 'Around, just before Christmas, around then.' Now why did you use - I'll just put it again - you said, 'About, just before Christmas, around then'?

Q. Why did you use the words around and about?

A. Because again like I wasn't exactly sure what date it was. I do know it was before Christmas because I remember the last time I saw them which was the night of Christmas Eve and they were just leaving just before 12.00 and I was complaining because I wanted them to stay till the thing go to - the clock go to Christmas, so I do remember the last time was before Christmas, some time within December."

L's evidence

59 L also provided a statement to the police by way of an ERISP on 15 May 2007. She was then aged 14. She said that the two families were close and they did a lot of things together. She said that she sometimes stayed over at the appellant's home, but not as frequently as M did. L said that she stayed over about every three months. She said Sh "was always in between us".

60 L said that her uncle would sometimes come in and kiss Sh, his daughter, good night. She said she was usually asleep and she did not know if he ever stayed in the room. She said that there was an occasion when they were watching a movie that was projected onto the wall:

"... and [Sh] was asleep and [M] was going to fall asleep and [the appellant] just came round and he put his arm around me and stuff and I was just really uncomfortable and my parents, we'd all come over to his house because my parents were in the family room but you couldn't see our room from there."

61 She said that she did not say anything, just waited for him to leave and "eventually he did".

62 In her evidence in chief, L said that when she stayed over at the appellant's house, she slept in bedroom 2, except once when she slept in bedroom 1. She identified that occasion being when they were watching a projection of Charlie and the Chocolate Factory. She said this was in 2006, but was not sure what month.

63 L was asked if there were other occasions when they had watched movies in bed. She said that if they watched movies on a projector screen that would be in bedroom 1, but sometimes they watched movies on a laptop in bedroom 2. She remembered this occurring once or twice but she remembered a particular occasion when they watched a film called Lilo and Stitch on a laptop in bedroom 2. She said Lilo and Stitch was an animated movie. She said she could not remember the date they had watched that, but said it was in 2006. In cross-examination, L said she was sure that when they watched movies projected onto the wall, they were in bedroom 1.

64 L remembered that renovations were carried out on the appellant's home in 2003. However, she could only remember the kitchen being changed. She was asked about her statement to the police in which she said that Sh always slept between her and M. She responded by saying "[u]sually yes". She agreed she had told the police that Sh always slept in the middle.

M's mother's evidence

65 M's mother (Mrs R) gave evidence. She said the appellant and his wife arrived in Australia in early 2000, about three months prior to her family's arrival. She said that her family lived with the appellant and his wife for a short time when they first arrived in Australia. She said they got along very well and were "a very close family". The appellant and his wife purchased their house in 2001. She was not sure of the date but said "it would be after February".

66 She confirmed that M and to a lesser extent, L, frequently stayed overnight at the appellant's home. She said that this occurred "very often, every week, more often in the holidays". She said that this pattern remained the same, both in June and July 2004 and in December 2006. She also confirmed that M and the appellant's daughter, Sh, were very close. She described them as being "like sisters".

67 Mrs R said that when either or both of her daughters stayed over, they slept in bedroom 3, which she described as "like a playroom. It was used for sleeping in when my children went over". She said that bedroom 3 had a double bed in it. She disagreed that they slept in bedroom 2 because bedroom 3 was where they had toys and "the video, they would lie in bed and watch the video". She said that "maybe [they slept in] bedroom two" but usually they slept in bedroom 3.

68 Mrs R said that M was happy after her sleepovers at the appellant's house, but there was one occasion, late in 2006 when it was "different". She gave the following evidence about that occasion:

"Q. What happened on that occasion?

A. [M] took a while coming out of the bathroom and I asked her, 'Why are you taking that long?' And she said, 'It's all right.' And I said, 'Why are you taking that long?' I persisted. And she said, 'It's hurting a bit down there.'

Q. When she said 'down there' what did you think that meant?

A. I thought it was in her vagina area.

Q. And what did you do?

A. So I said, 'Can I come in?' And she said, 'Yes' and as I was helping her and looking to see what was happening, I said, 'Did you fall over, did you get hurt, did anyone touch you?'

Q. In particular, when you asked, 'Did anyone touch you' what did she say?

A. 'No, no,' she said.

Q. And what did you say in response to those question?

A. I said, 'I really think you should hop in the bath. You didn't have a shower last night, did you?"

69 Mrs R was then asked about the events of 8 January 2007 when M told her that she was "the best mum in the world". She confirmed that during the course of that conversation, M mentioned the appellant's name. She said that that evening and over the following weeks she and her husband had discussions and on 19 March 2007 she made contact with the police.

70 In cross-examination, Mrs R said that it was "not true" that there had been no sleepovers during the first year that the appellant and his family moved into their home. She agreed there had been an argument between herself and the appellant's wife when her mother-in-law had visited. She accepted that this was probably in early 2002. It was suggested to her that the argument had soured relationships between her and the appellant's wife. Mrs R responded, "No, she apologised and we put that away straightaway, before night on the same day". She denied that the relationship between her and the appellant's wife had soured to the extent that Mrs R's husband became involved in an argument with the appellant's wife. She denied that any rift in the relationship continued into 2003.

71 Mrs R was asked about renovations to the appellant's home in 2003, which extended over four to five months. She said there were renovations, but she did not know how long they took. She denied that sleepovers stopped whilst the renovations were being undertaken.

72 It was suggested to Mrs R in cross-examination that there was only a video and television in bedroom 3 shortly after the appellant and his wife moved into the house and that it was then moved into the living room. Mrs R did not remember there being a DVD player in the living room. She accepted it was possible that there was a television in the living room but said that the children watched a video on a laptop as well.

73 It was also suggested to Mrs R that after the birth of the appellant's second child, the sleeping arrangements changed so that the appellant and his wife occupied bedroom 2 and the new baby was in bedroom 1. Mrs R said that she did not know what the arrangements were. It was suggested that this was in the October, November, December period of 2006. Mrs R said that she did not recall that.

74 The appellant's counsel then suggested that there had been no sleepover in the appellant's house after the day of the Rugby League Grand Final in 2006. Mrs R denied that suggestion and said, "There definitely were. There were sleepovers all the time".

Evidence of M's father

75 M's father (Mr R) also confirmed the good relationship between the families, the close relationship between his daughter M and the appellant's daughter Sh and the sleepovers at the appellant's home. He said that when his family visited, the adults would be in the living room and the children would most often be in the room at the back, which he identified from the plan as being bedroom 3. He said that he was not sure where M slept when she stayed over. He said that the sleepovers occurred randomly. He said it could be two or three times a month but there could have been three weeks without any sleepovers.

76 It was suggested to Mr R in cross-examination that the children only ever slept over at the appellant's house on weekends. He said that the sleepovers occurred more frequently on weekends, but during school holidays there was no fixed pattern for it. He said: "[a]ll I know I remember it was being frequent".

77 Mr R agreed that there had been an argument between the appellant's wife and Mrs R when his mother came to Australia in 2002. He said he did not become involved in the argument but that he said to the appellant's wife that it would be best "to patch it up quickly and be friends and just move on". He denied the relationship between the families soured for a time.

78 Mr R was asked about renovations to the appellant's house which extended over a period of 4-5 months in 2003. He said that a room was added, but he could not say whether the renovations were extensive. It was suggested to him that there were no sleepovers during the period of the renovations and he responded:

"I would - I would think there would have been sleepovers, they were very frequent, very often. We did not record dates at every instance because they were so frequent ... it was very random, we did not set any dates for it."

79 Mr R disagreed that due to strained relations in 2002, coupled with the renovations in 2003, there were no sleepovers in 2002 and 2003. He also disagreed that it was only in 2004 that the relationship between the families improved and they were close once again. He said that the relationship was always good.

80 The appellant's counsel questioned Mr R about a sleepover on the day of the Rugby League Grand Final in 2006. Mr R said that he did not have a specific recollection of that. It was suggested to him that on that occasion, the appellant had projected the Grand Final onto the wall. Again, Mr R said he could not remember whether it was projected onto the wall. He recollected that they had watched a game, but he did not know whether it was that year or the year before. It was then suggested that the appellant only had access to a projector in 2006 and did not buy his own projector until 2007. Again, Mr R said that he did not keep track of the purchase of the projector and that it was not his business and he could not remember.

81 Mr R recollected there were conversations about sleeping difficulties with the appellant's second child but he did not know whether it was a significant problem. Nor did he know whether at that time the appellant's family's sleeping arrangements changed so that the appellant and his wife slept in bedroom 2 and the second child in bedroom 1.

The appellant's evidence

82 The appellant gave evidence at his trial. He gave evidence of meeting his wife, living in Dubai and then Abu Dhabi, where his wife was then working, and his conversion from the Hindu religion to the Catholic religion to ease the relationship with his prospective in-laws. The appellant gave evidence of his migration to Australia in May 2000 with his wife and child (Sh) and of the arrival of M's family about three months later. He gave evidence as to the purchase of their home in April 2001. The appellant said that when they purchased their home, his sister-in-law gave them an old queen sized bed which they used for a short period before they purchased a new bed for the master bedroom. The old bed was moved into bedroom 2. It seems the appellant and his wife bought a new queen size bed for this room.

83 The appellant also gave evidence that his mother-in-law had visited in December 2002 and that there had been an argument between his wife and M's mother. He said there was "a great deal of upset about this argument". He said that M's father had become involved and spoken to the appellant's wife and "there was a big argument about the whole thing". He said his wife had "wanted to put things ... in a respectable way". He said that the argument had an effect on the relationship between the families and that they did not socialise much at all.

84 The appellant said that up until that time, that is, from April 2001 when they purchased the home and December 2002 when the argument occurred, he did not believe that either M or her sister L had slept over. He said that before the argument at the end of 2002, the parties met occasionally for social events such as birthdays or anniversaries when they would have dinner.

85 The appellant next gave evidence of the renovations carried out on the home in 2003. He said that the renovations commenced in March and April 2003 and took some four to five months or more to complete. During part of this period, the house was missing part of its roof and was covered with tarpaulins. The family continued to live in the home during the renovations but, as far as he could remember, neither M or L stayed over during this period.

86 He also said that the relationship between the families was still strained in this period. In describing the nature of the relationship at this time, the appellant said that:

"Although there [were] apologies all around and as soon as the argument happened, there was always this cold war between our families. It was not cordial."

87 He said that the relationship between the families improved in early 2004 after M and her siblings and mother returned from a trip to India. During the time they were away, M's father had frequent meals with the appellant and his family. He said that on their return, M's mother was appreciative of what his wife had done and changed her attitude.

88 Sh commenced school in 2004, attending the same school as M. There was cooperation between the families in getting Sh to school. He said that during this time M and Sh became very close. The appellant was asked about Sh and M staying over at each other's house. He said that from memory, Sh stayed over at M's house in school holidays and he believed it was in April 2004 that M stayed for the first time at his house. His evidence was:

"I believe - I think from memory it was in April 2004, [M] stayed - sometimes - she might have stayed for the first time in our house."

89 He said that it was only during school holidays and only on a Saturday, as both he and his wife worked. He said the sleepovers were not planned, but usually occurred when the family came over to dinner. He said that Sh slept at M's house more than M slept at their house. He also said that as far as he remembered L always stayed whenever M slept over.

90 The appellant described the activities of the family when they visited. He said that he would serve the adults food and drink. He said that:

"[The] kids used to just muck around everywhere, especially in the living room, like bring in the toys and play around with the toys ... we used to watch DVDs, maybe some sports, and some of the programs on TV ..."

91 He said that in 2004 he had a DVD player that "was always in the living room". After dinner, the children would separate from the adults and go to the living room, while the adults would stay in the family room. He said that M's family used to stay late and the children would fall asleep on the lounge, with Sh usually the first to fall asleep. He said that they would then put her to bed in bedroom 2 and when the other children started to feel sleepy they would also go to bedroom 2 and go to sleep.

92 He said that the lock on the door handle in bedroom 2 did not work and that "we never closed our doors". He said that there was no television in bedroom 2 in 2004 and at that time he did not own a computer or a projector. He said he first had a computer in mid to late 2005, which was a laptop from his office which he used for his work. However, he said that Sh always liked to watch movies on the computer as well. He said he never had a computer in the third bedroom during the period 2004 and 2005 to 2006 and that the only computer he had was the work laptop.

93 The appellant was asked about the first sleepover and whether the girls slept in the same bed. He answered:

"They always slept in the same bed but I don't particularly recall the first sleep over but they always slept in the second bedroom on that bed."

94 The appellant was then asked about the sleeping arrangements for the children. He said:

"Q. Did you set it up in any particular way for them to sleep in it?

A. Yes. That was - I used to - that was my job to bring - basically that bed was used just for [Sh] or mostly just - nobody used to use that bed, so there was no pillows or blankets or doonas on that particular bed, so my job was to bring the pillows from the - this wardrobe and doonas and keep it on the bed. That's - that's how. I mean I used to arrange in the - the other way round, not the normal way, not lengthwise but width - width wise because there was always three girls sleeping on that bed.

Q. So you used to put the three pillows down one side of the bed?

A. That's correct. The side towards the wardrobe.

Q. And so they slept across the bed instead of head - -

A. That's correct, yes.

Q. - - to toe down the bed?

A. That is to have more room basically for them, yes.

Q. So far as the bed was positioned in the room was it against any walls?

A. Yes, it was always in the same position as that photograph. It is always against the - against the way - one wall - sorry, two walls.

...

Q. That left the one side and one end of the bed with nothing against it?

A. That's correct, yes.

Q. Was the bed right up against the wall under the window?

A. Yes.

Q. At that time did [Sh] generally sleep with - either with you in your room or on a mattress on the floor in your room?

A. That's correct. She was - she was always scared of sleeping alone.

Q. After the parents of [M] and anybody else that was with them that left the house, after they would leave - -

A. Yeah.

Q. - - what would you do?

A. What would I do?

Q. Yes, what was your job?

A. I just clean up the kitchen, wash the dishes, basically put things away and that's - that's just what happens.

...

Q. Were the girls ever looked at before you adults retired for the night? Were they ever attended to?

A. Only by [B], yes. [B] used to go and check on the - on the girls, whether they're sleeping or, like, if they're all right or some - anything.

...

Q. I think you've already told us but was it only during particular periods of the year when there were sleep overs?

A. Yes, only during school holidays, maybe once during the school holiday. That's - and it's only on a Saturday because both of us used to work full-time, no-one on the other days."

The reference to B was a reference to the appellant's wife.

95 The appellant next gave evidence about Sh's birthday in early July 2004. He said that she had a birthday party which M attended but he could not remember whether there was a sleepover on that night. He could not recall whether anybody watched a DVD on that occasion and again said that there was never a DVD player in bedroom 2.

96 The next period of time in respect of which the appellant gave evidence was 2005. At that time the appellant's wife was undergoing IVF treatment. He said that there could have been sleepovers during this time, but it was highly unlikely because of the treatment they were undergoing, which was stressful for them. Nor could he remember sleepovers in 2006, although he said there could have been "one maybe in the whole year. It could have been, I'm not sure".

97 The appellant then gave evidence that his uncle and aunt came to stay for a period of four to five weeks in March or April of 2006 and after they left, his mother-in-law stayed with them until the end of May or early June.

98 The appellant's second child, S, was born in 2006. S had sleeping difficulties and on 18 August they attended the Tresillian Hospital in Nepean. The appellant's wife, B, then had a period of residency at the Tresillian Hospital between 27 October 2006 and 1 November 2006. Acting on advice from Tresillian, the appellant and his wife altered their sleeping arrangements and moved into bedroom 2 with Sh, leaving the baby to sleep in the master bedroom. The purpose of the rearrangement was to promote independent sleeping for S and as she was used to sleeping in the master bedroom, they were advised to leave her in that room.

99 The appellant was then asked about sleepover arrangements in the latter part of 2006. He said that the last sleepover was on Grand Final day which he identified as being in late September or early October. He said on that day he had borrowed a projector from his office that attached to his laptop. He said he had borrowed the projector on one previous occasion, being on Sh's birthday in July that year. On that occasion, the projector had been used in bedroom 2 when a movie had been screened onto the wall. On the occasion of the Grand Final, the projector was used to screen the football match on the wall in the family room. He said that the projector had never been used in bedroom 1.

100 The appellant gave evidence of his activities and those of his family in December 2006. He said the house was painted in early December. Pest control work was carried out in the second week of December because the house had become infected with bird mites. He produced receipts in respect of the purchase of paint on 2 December and for the pest control work on 7 December. The appellant said that nobody stayed over whilst the pest control work was being carried out.

101 The next focus of the appellant's evidence was in respect of the period 22-24 December 2006 and then 25-27 December 2006.

102 The appellant said that on Friday 22 December, his daughter Sh had a concert in the evening from about 6:30 pm to 9:30 pm. He said that apart from his family nobody stayed over at the house on that night.

103 On Saturday 23 December, he said the neighbour's daughter came to play with Sh and he took some photos. He said M was not in his house at that time. They went to Mass at 6 pm. He did not recall seeing M at Mass. He said that they returned home after Mass and then, at about 8:30 pm-8:45 pm they went to his uncle's house. He said his other brother-in-law and his family were present, in addition to his uncle's family. They stayed there until 10:30 pm or 11 pm, before returning home. He said that M was not with them on that occasion.

104 On Sunday 24 December, the appellant said he thought they had gone shopping in the morning and in the evening had a formal dinner at M's family's house. Other family relations were also there. The appellant said that he did not have any trouble with M that night.

105 On 25 December, the appellant and his family went to Mass. On 26 and 27 December, the family stayed at home, except for the appellant's wife, who went to work on 27 December. In early January 2007, the appellant's and M's families attended a drive-in movie.

106 On 2 March 2007, the appellant purchased a DVD projector. He said that was the first projector he had owned. He produced a receipt for the purchase.

107 A letter was also admitted into evidence from Walt Disney Studios Home Entertainment dated 29 July 2008, which stated:

"This is to confirm that The Incredibles was released on DVD in Australia on 6 April 2005."

108 This contradicted M's evidence that she had watched The Incredibles on the occasion of Sh's birthday in 2004.

109 In cross-examination, the appellant said that M could possibly have stayed over in 2004 but never earlier than that. He said that M would only ever have slept over "maybe six to eight times in total". He said that most of the time, L was with M, but "maybe once or something like that", M had stayed over when L did not. He reiterated that it was only during school holidays that M stayed over "and could be once during the school holiday".

110 The appellant accepted it was possible that M slept over on Sh's birthday in July 2004, but was not sure. He was asked about sleepovers prior to that occasion:

"Q. But in any event, you say there were no sleep overs when you first moved into that house because you just moved in, is that right?

A. That's correct.

Q. There were no sleep-overs from the end of 2002 to 2003, all of 2003 because of an argument?

A. That's correct.

Q. That wouldn't have been unusual, you're not suggesting this argument stopped sleep-overs?

A. No. There was no sleep-over because [Sh] was too small to have a sleep-over.

Q. So the sleep overs - you're not saying there were no sleepovers in 2002, 2003, because of an argument?

A. No.

Q. That's got nothing to do with it.

A. It's nothing to do with it. That argument happened in December 2002. And after that in 2003 we didn't have any sleepover and before there was no concept of having sleepovers in my house.

Q. [T]here were no sleepovers before this argument you say?

A. That's correct.

Q. So that argument had nothing to do with the lack of sleepovers?

A. That's in 2003 ... that's why we didn't have any sleepovers or anything.

HIS HONOUR

Q. I'm not quite clear what you're saying. Are you saying that there were no sleepovers because of arguments or are you saying there were just no sleepovers anyway, it just wasn't something that came up?

A. I'm sorry your Honour. There was no sleepovers at all.

Q. So it wouldn't have mattered whether there were arguments between the families, there just weren't sleepovers?

A. That's correct your Honour."

111 He said that the sleepovers did not commence until Sh was four and a half years old. He again said that there were no sleepovers during the renovations, that there was "dirt everywhere", his "house was not in order" and he would not have any family members come and sleepover at that time. There was then the following cross-examination:

"Q. But they still did [come] around that time?

A. No I don't think so.

Q. So [M's father] was never in the house and never saw any renovations?

A. He - I don't think so.

Q. So [M's father] was never in the house and never saw any renovations?

A. He - I don't think so because he must have just come in, had a look and must have gone, that's it, on his own."

112 The appellant was cross-examined about the regularity of visits with M's family. He suggested they saw each other once a month or sometimes less. If there was a special occasion, it could be twice a month. He said that sometimes they did not see each other for a couple of months, "but sometimes we see [them] all the time". When challenged as to the veracity of his evidence that sometimes the families did not see each other for a couple of months, the appellant explained that his family was "too busy" with their own life, and family and children.

113 He agreed, however, that M and Sh were particularly close, saying, "they are one of the closest, yes". However, he modified his evidence somewhat, as the following cross-examination demonstrated:

"Q. In one of those photographs you just described to us there was a picture of [Sh], [M] and yourself, there's a birthday cake?

A. That's correct.

Q. I think you said that was [Sh's] birthday?

A. That's correct, she was seven years old in that case.

Q. Do you remember what [M] was doing in that photograph?

A. She was blowing the candles.

Q. [M] and [Sh]?

A. Yes.

Q. It was [Sh's] birthday and there we have a photograph of [M] and the two of them together are blowing out the candles?

A. Because she youngest and I mean [Sh's] youngest and next comes [M], so we always invite kids to - when we blow the candles we ask the kids to come near the birthday cake, so everybody blows the candle.

Q. So they weren't doing that together because they were particularly close?

A. I don't - I don't know, I don't know.

Q. They were doing that because part of your custom or something - -

A. Yeah.

Q. - - is to ask the children to blow out candles together?

A. That's correct, yes, who was youngest in the family they, everybody comes together and blow the candles out.

Q. If there had been another child there who was closer in age to [Sh] [M] wouldn't have been there?

A. She - of course she - [M] plus other child could have been in that I imagine.

Q. ... [M] and [Sh] were really closer weren't they?

A. Not exact - I mean, very close not particularly.

Q. Not particularly?

A. Yes."

114 The next section of cross-examination related to the argument between his wife and M's mother, as follows:

"Q. You say when did that happen?

A. At some time happened in - end of 2002.

Q. End of 2002?

A. That's correct.

Q. Are you sure about that?

A. I believe so, yes.

Q. You wouldn't have said earlier 2002?

A. No.

Q. That argument didn't linger on until the beginning of 2007 did it?

A. From my - from my point of view could have been there, could have been not, don't know.

Q. From the end of 2002 you are saying you don't know whether that argument was still lingering?

A. That's correct, yeah.

Q. Until the beginning of 2007?

A. That's correct. From our point of view there was - we are simple people, myself as less and my wife and we very accommodating people and - and we never considered that much but could be from other side. We could see - we could feel it sometimes, yeah.

Q. Isn't it the case that that argument was settled very quickly, that same day in fact?

A. Not - not exactly, no. It might have said sorry and all that thing, patched up, but it lingered on at least for a year.

Q. What I asked you about was the beginning of 2007, that's over four years?

A. Yeah.

Q. Are you saying it perhaps lingered until 2007?

A. Perhaps, perhaps, yes.

Q. Are you being serious ...?

A. Yes, I am.

Q. After that argument happened you say from you and I think you said there from your side you didn't take it any further. Did you do anything about it?

A. Me personally, no, nothing.

Q. You didn't harbour any ill will against [M's parents] did you?

A. No, not from my end, no.

Q. You didn't stop your children from seeking [M and L] did you?

A. No, never.

Q. In fact the children kept seeing each other just as normal?

A. Possibly but I don't recall anything specific.

...

Q. Did you refuse to allow [M] to come to your house after that argument?

A. No, we were not so close, we were not socialising much, doing that after the argument, so we - there was not much interaction between our families.

...

Q. Did [M] come to your house or not after the argument?

A. I don't recall how she's coming because there's no point because my daughter was very small, she was just three years old at that time, she wouldn't know what is - what friends, and all the sleep overs and nothing at that time.

...

Q. Are you saying that this argument meant that [M] came to your house less?

A. Possibly, yeah.

Q. You just don't know?

A. I don't - I don't recall them coming to my house more often during that time.

Q. There was certainly nothing you did to stop them coming after this argument?

A. That's correct, yeah.

Q. There's nothing [your wife] did to stop them coming?

A. Possibly ... without my knowledge, but - possibly.

...

Q. What I want to say to you is, or put to you, they didn't stop coming to your house at all?

A. Could be possible but I don't recall them coming much during 2003 at all to my house.

...

Q. In 2002, 2003 you can't really remember them being there at all?

A. No, only during - like birthdays or some - something."

115 The Crown next cross-examined the appellant to the effect that the two families were close. The appellant agreed that when M's family first came to Australia, they stayed with his family in their two bedroom unit. He also agreed that he and his wife had purchased their home in the suburb where M's family lived, but said that this was because they liked the house and that they hadn't moved to the same suburb "because of [them]".

116 The following evidence was then given:

"Q. What I want to suggest to you is from the time you've been in that house you've had regular contact with [M's family]?

A. Yes because they're family, that's why we keep in touch with them.

Q. And you're close?

A. Not exactly.

Q. You refuse to admit you're close, is that correct?

A. It's how do I put it, the grasp of it, we are close but it's not as if we are in each other's pants et cetera. What I mean is like that, it's not like we are so close that we go and hug each other every time we see - it's not like that. We are just one family and we keep in touch with the family, that's it."

117 The appellant was then cross-examined about the position of the bed in bedroom 2. In particular, he denied that it had ever been moved a short distance from the wall. He denied having touched M inappropriately.

118 The appellant was cross-examined about his activities during December 2006. This evidence is critical in the overall assessment of the evidence, of both the appellant and M. Accordingly, it is set out in full:

"Q. You'd go to mass on a Sunday?

A. That's correct.

Q. You've a specific recollection on 23 December of 2006 going to mass and not seeing [M] there?

A. That's correct.

Q. How do you remember that so clearly?

A. Because this allegation it came up - it came up to us on the end of January and during Christmas we remember everything happened during Christmas, lead up to the Christmas and after Christmas. Every day we had some function on that particular month, so I - we specifically remember going to the mass on that particular day.

Q. Where were you on Saturday 16 December 2006?

A. We could be at home, yes.

Q. You could be?

A. Yeah.

Q. But you just told us you remembered the month leading up to Christmas - where were you on Saturday 16 December 2006?

A. We could be at home on that particular night.

Q. Are you saying you were? You're saying 'I could be.' What does that mean?

A. We didn't think about what - on 16 December, but on 23rd there is a specific allegation against me. That particular night [M] put up - she suggests that she comes to our house for a sleepover, which did not happen.

Q. Am I correct in saying you don't remember what you were doing on 16 December 2006?

A. We were at home.

Q. Definitely?

A. We could be at home, yes.

Q. What about 18 December 2006? Do you remember specifically on that day?

A. I don't - I have spoken to my solicitors and I have given all the records of my day to day life as far as I remember. We went through the credit cards, we went through the phone records and everything. I have given them a list of my activities during December.

Q. What I am saying to you is as you sit here now, you don't actually know you don't actually know what you were doing every day in December 2006, do you?

A. Almost every day - no, but I don't know from my heart, but I have given a list of - through my records of the credit cards and the phone records, talking to people, and that's how I know where I was.

Q. We'll try one more. What about 9 December 2006? Where were you?

A. Can you tell me what day is that?

Q. It's a Saturday?

A. On the 9th I could be doing a painting.

Q. You could be?

A. I was doing a painting, yes.

Q. On the 9th?

A. Yes.

Q. What about 2 December 2006?

A. The 2nd, again I was doing the painting, because, in December two, three weeks I was doing, especially on weekends I was doing the paintings.

Q. Did anyone come to visit you on any of those evenings?

A. Not during the painting. My brother in law was ... (not transcribable) ... he came to help me out, yes.

Q. But nobody - I will be specific. Did [M's father] and his family come and visit you in December 2006?

A. They came near the door, they saw the painting is happening, they went away. That's all they came in December, that's it.

Q. That's the only time they came to your house, was December 2006?

A. That's correct.

Q. You remember that specifically?

A. That's correct, because I was in the back under the foyer doing the painting and the prime, and I think his daughter [L], they came to the door, and they saw the painting is happening and they stood near the door. My brother in law also was there. They spoke near the thing and they went away.

Q. Apart from that did you see them at any other time in December 2006?

A. Yes, I did.

Q. When?

A. On 24 December, and I think on one of the weekends, on a Sunday which was the 14th, I think. We went to a park. I think it was Horsley Drive Park or Parramatta Park somewhere.

Q. You think that was the 14th?

A. On the 14th, which was a Sunday.

Q. Are you sure about that?

A. I think it was one of the Sundays leading up to that particular day.

Q. So it's Sunday 14 December 2006, you remember seeing [M's family]?

A. That's correct, and we met each other on the 24th, evening. We had a formal dinner in his house and we met on the 25th, which is in [B's] house with [M's family] - that was 24th, 25th and again we met on 29 December. I think we celebrated [L's] birthday party in their house, and again we met on - sorry, that's January, that's after that, it's January.

Q. Tell me more about - tell me everything you remember about Sunday 14 December 2006? Tell me what you remember about that day?

A. We went to - we met each other in one of the parks in Parramatta or Horsley Drive Park somewhere. That's it. We spent the whole day. That's it. Sorry - just afternoon we spent as a family. That's --

Q. 14 December 2006 is a Thursday, isn't it, or wasn't it?

A. I'm not sure. That's one of the Sundays of that particular second week of December, on a Sunday we met in a park.

Q. So you don't specifically remember Sunday 14 December 2006?

A. I mean, that's the date I just remember, but on a Sunday in December we met each other in a park. That's all. I don't remember exactly what date is that, and I've got a photograph if you want. I have a photograph with my - with [my counsel], where I think there's a date imprinted on that particular photograph, and I took that photograph in that park with the whole family.

Q. I will just say to you one last time on this point ... you don't remember these specific days in December 2006 what you were doing?

A. Leading up to Christmas I do remember clearly what I did every day of that, and every weekend on that particular - I think I was doing on of the other things, so I do remember. Not during the week, because I was working full time, and of course on 16 or 12th or something [B] went back to work. I remember that day. She started work after a long major delay she started to work."

A photograph of a picnic was tendered in re-examination. However, it did not bear any date imprint.

The renovations

119 The appellant said that the renovations to his house commenced sometime in "April/March 2003" and went on for "four, five, six months". He was asked whether he was contending that in the two years before those renovations, M's family only ever came to the appellant's house once or twice. The appellant responded, "[c]ould be I mean, they must have just come for dinner". On being pressed on this issue, the appellant said further:

"I don't remember exactly how many times they've come to my house but there could be some occasions where they've come ... I don't have exact number no, it could be sometimes."

120 He denied that he could not remember the exact number because in fact M's family were "in and out" of the appellant's house "all the time". He said had that been the case, he would have remembered.

121 The appellant said that before the renovations there was "no facility to watch a movie" at his house. He said that after the renovations and before he got his laptop, in 2005, the children would watch movies in the family room with everybody. The appellant agreed that when he had the laptop and the projector, he would be the person who set up the equipment to watch the movie. He agreed that the children had watched a movie on his laptop in bedroom 2. He agreed that he was the person who would be there when the movie had finished so as to turn the movie off and shut down the laptop.

122 He was asked:

"Q. And before the children were going to sleep and to stay over, you'd be the person who would make up the bed?

A. Before they went inside the bed, yes. Before they enter the bedroom, I would set up the bed, yes.

Q. Are you saying you wouldn't go into the bedroom at the same time that the children were in the bedroom?

A. No, I mean if they're all in bed I won't go in there because I won't set up the bed. If they say okay they want to - I mean if the children are sleepy or something like that I just go down, bring the pillows and keep it there, on the bed, just set up the bed and walk on from there, that's it.

Q. And it was you who decided how the bed was to be set up?

A. Not me alone but with my wife.

Q. What discussions did you have with your wife about setting up the bed?

A. I mean maybe she would have - she was the one who might have come up with us. I don't know how we ended up with that idea of turning the bed because I don't remember exactly why we changed that."

123 The appellant said his wife was the person who would tuck the children into bed. The cross-examination established that usually, when the appellant's family had guests, including children staying over, he would normally be the last person at night walking around the house, as his wife would go to bed after they had cleaned up together and he would have a bath. He said that he would walk from the bathroom to the first bedroom. Later in his cross-examination he said he would have a "quick bath", but later explained this was a shower.

124 The appellant could not remember the movie that the children watched on the projector on the occasion of Sh's birthday in 2006.

125 There was a change in sleeping arrangements after the family attended Tresillian in November/December 2006 in that the appellant and his wife moved into bedroom 2. When they did that, Sh slept on a mattress on the floor.

The alibi defence

126 The alibi notice was served on the Crown on 29 July 2008, two weeks before the commencement of the trial.

127 The appellant said the notice was prepared in terms that he now accepted to be incorrect. He said:

"... it was actually suggested by [SK]. When we had - the whole matter came up after I got accused last year in August and that's when my wife spoke to - I mean we were discussing with all the family members like you know this is the events like this is what has happened and that's when this matter came up of - when [the appellant's wife] was discussing it with [SK] and [SK] said, hey you were on - in our house on 23rd. So that's when we thought yes we would have been there on that particular day in [SK's] house. That's why we didn't give too much thought about the whole thing. And finally when this alibi notice is served she discussed that matter with her husband and that's when husband ... pointed out to her that they were in - in fact they were driving to Brisbane on that day. So we had got - we knew we had gone to their house either on 23rd or 29th but like we were sure it was on 23rd but it happened to be on 29th."

128 The appellant said that he was sure that it was on the afternoon of 23 December 2006 that he and his family had gone to the Ks' home. However, he said that he had just made an innocent mistake as to the date. He said that he accepted that he was not at the Ks' home on the afternoon of 23 December and said that he would have been at home with his wife and children until they went to Mass in the evening. The appellant said that at the time the notice was served, he believed it was correct. He denied that he knew the information in it as to what he was doing on the afternoon of 23 December 2006 was not correct. He denied that he had hoped SK was going to back him up and say that the reference to the afternoon of 23 December was correct.

129 The appellant was cross-examined to the effect that M had slept over at his house between 1 December and 25 December. He denied that she slept over at all in December and denied that he had sexually assaulted her at any time.

130 In his evidence in reply, the appellant was shown photographs of a picnic which he said had occurred over the weekend of 16 December 2006. In cross-examination, the appellant said that these photographs were dated. However, that turned out not to be the case.

131 None of M's family, or M, were cross-examined about a picnic in mid-December.

The appellant's wife's evidence

132 The appellant's wife (B) gave evidence. She said that there had been an argument relating to her mother in 2002, when her mother had come to Australia for a holiday. B said this affected the relationship between the families, but they continued to socialise, "like for birthdays or things like, but just - it was very civil just to keep the peace, very basic, nothing more than we were invited, that was it". B said that situation continued until January 2004 when M's mother returned from a holiday in India, "a changed person". B said "[f]rom then on I had some hope that we could pick up from where it left off".

133 B said that the first time Sh had a sleepover at M's house was just before Christmas 2003. She said that she was not comfortable with sleepovers and she had never been in favour of them. She said that she would warn her daughter that she was not to ask for sleepovers. She said that neither M nor her sister had stayed over at her home before the occasion when Sh slept over at M's house. She said that the sleepovers at her house commenced probably in April 2004. She said it was always during school holidays and not at any other time of the year and then only on a Saturday.

134 B said that the relationship between Sh and M developed when Sh commenced school and she was dropped off at M's home in the morning to be taken to school with M.

135 B said that when M and her sister stayed over, Sh slept in the middle.

136 B gave evidence about making up the bed, tucking the children in, and the appellant having a shower before he came to bed. She also gave evidence as to moving into bedroom 2. With one exception, this evidence was essentially the same as that given by the appellant. The one difference was that B said that she would put the pillows out on the bed when there was a sleepover, whereas the appellant said that he did that job. In cross-examination, B agreed that it was the appellant who put the pillows on the bed. She said that she would know if the appellant was walking around the house because the house was not large and the flooring had both boards and tiles so that every footstep could be heard. Her evidence that the children could not stay at her house whilst the renovations were being undertaken was also to the same effect as the appellant's.

137 B said that there were a couple of occasions when the appellant borrowed a projector from work. One occasion was for Sh's birthday, in July 2006.

138 B said there were no sleepovers that she recalled in December 2006 and that the last sleepover was on the night of the Grand Final that year. She remembered that some painting had been done in the house in December. She said that she was at home on the morning of 23 December, as some neighbouring children came over and she took photographs of them with Sh, "[s]o I know we must have been at home that morning".

139 She remembered going to the house of a friend on the evening of 23 December, and that she prepared the food for the occasion. She said that on the previous evening, her daughter had been performing at the Blacktown La Valette Centre. She said they were there until about 8.30 pm.

140 B also gave evidence as to what the family did on 24, 25 and 26 December. She said she went back to work on 27 December.

141 In cross-examination, B said that from April 2004 and until 6 October 2006, there had been about eight sleepovers, "give and take one or two". She said that she was able to give this estimate because the sleepovers only occurred during school holidays. She said that the sleepovers had only been on a Saturday and the children would leave on a Sunday morning. She confirmed, however, that the last sleepover was on the night of the Grand Final. It was established in the cross-examination that the Grand Final being spoken about was the Rugby League Grand Final on 1 October 2006, which was a Sunday night.

142 She was asked:

"Q. So, do you accept you might be mistaken that this was a sleep-over on a Sunday night?

A. Possible, maybe just that one occasion, possible because of the long weekend that you say it was, yes.

...

Q. Is this the only time when a sleep-over might have been on a night other than a Saturday?

A. Possible, yep.

Q. And that's the very one that I've just pointed out to you, is that right?

A. Yes, that's right, the last one."

143 B said that M and L were both very fond of Sh, but probably more so L. She said that she had that opinion because L would come to her house more often. She said that "every opportunity L got she was always there at my place and she's my godchild too". She insisted L was much more attached to Sh, notwithstanding the greater age difference between L and Sh (6 years) as compared to the age difference between M and Sh (3 years). This was contradictory to L's evidence.

144 B accepted that the two families had been close and they did a lot of things together but said that this was "[f]or the sake of the kids". Her evidence continued:

"Q. So are you saying you were close for the sake of the kids?

A. Mostly yes.

Q. But you and your husband and [M's family] would see a lot of each other as well?

A. Because yes invariably when we've got the kids together we ended up seeing each other too.

Q. I'm not asking you why you saw a lot of each other, you would see a lot of each other on social occasions?

A. Yes we did yes.

Q. ... are you trying to make it sound like you and [the appellant and his wife] weren't as friendly as you actually were?

A. That's exactly right.

Q. That's what you're trying to do?

A. Yes that's what I'm trying to imply to you, what I'm trying to say to you is exactly the way I felt and I do not want, it was a façade, there was a lot of, we did a lot of things together which is why time and time again I said that it was for the sake of my daughter that I did a lot of these things.

HIS HONOUR

Q. When you say it's a façade what do you mean it was a façade?

A. There was a lot of underlying tension your Honour. It was - it happened back in the Middle East, when we came here it happened here and I was - I wanted - I didn't want the stress of having to deal with any more family arguments or tensions or anything, I didn't want anymore cold wars.

Q. So you just put up would it be fair to say you were just putting up with them?

A. We just kept the peace, that's the way I would put it.

Q. And you reluctantly had this girl in your house on occasions for sleepovers?

A. I wasn't very excited about it.

Q. Would reluctant be right or?

A. Yes probably."

145 B said that M never slept over on her own and that when M stayed, L also stayed, so far as she could remember. When she gave that evidence, B was asked, "[s]o it would be just simply wrong to say that [M] slept over at your house more than [L], is that right, is that what you're saying?" B responded, "[M and L] stayed over at my place the same number of times as far as I can remember".

146 B said her husband always turned the laptop off when the children were watching a movie on it in the bedroom. He would do this at the end of the movie, or earlier if the children had fallen asleep. She was also asked about going in to check on the children in the bedroom. She said that they would take turns doing that, but that she would always check on them before she went to bed. She was asked:

"Q. What I'm saying to you is, there's nothing unusual about the fact that he would go into the room and check on the children is there?

A. No, not really."

147 B said that she could not recollect whether her husband would sit up and watch TV after she had gone to bed, but later agreed that if she had gone to bed unusually early, he would stay up a little later. B was further questioned as to whether the appellant would sometimes stay up for half an hour or so after she had gone to bed on the assumption that only the family was at home and it was not an occasion of a sleepover. She agreed that there were occasions when the appellant would do so if it was not too late.

148 She was then asked about the position on occasions when there was a sleepover. It was suggested to her that on those occasions, "there would be nothing unusual at all if your husband didn't come to bed for half an hour or so after you went to bed?" To which she replied, "[p]robably not". She qualified her answer, however, to say she did not remember anything like that happening.

The evidence of SJ

149 SJ gave evidence that he returned from India on 23 December 2006 at about 8 pm. He was met at the airport by family members. He arrived home at about 9 pm and shortly after, the appellant, his wife and two children arrived. They brought food with them and left at about 11 pm. This supported the appellant's alibi evidence in respect of the evening on 23 December 2006.

The evidence of the appellant's sister-in-law (BT) (sister of the appellant's wife and of M's father)

150 The appellant's sister in law, BT, said that she saw M at family gatherings. She was asked whether she had noticed anything about M's willingness to stay at the appellant's home. BT said that M always wanted to sleep over, saying, "she kept asking to want to come and spend time in [the appellant's] house". BT also gave evidence of an argument that occurred when their mother was visiting from India and that relations were strained for many months after that.

The evidence of the appellant's brother-in-law (BR) (brother of the appellant's wife and of M's father)

151 The appellant's brother-in-law, BR, said that SJ was his wife's uncle and had effectively raised his wife when she was a child. He said that he had gone with his family and with BT's husband to meet SJ at the airport upon his return to Australia on 23 December 2006. BR drove SJ home from the airport and the appellant's family arrived at SJ's home. BR said that M was not at SJ's home. He said that he left SJ's house at around the same time as the appellant's family, which was around 11 pm. This also supported the appellant's alibi evidence in respect of the evening on 23 December 2006.

152 BR then attended M's home on 24 December 2006 during the evening and the appellant was there with his family. BR remembered the appellant took photos that day and he remembered M was present.

153 In his evidence in chief, BR was asked about whether he was "aware of a practice of [M, L and Sh] sometimes sleeping at each other's place?" He responded that he was aware and that to the best of his knowledge this occurred during school holidays. He was then asked the following:

"HIS HONOUR

Q. How do you know that?

A. Because we used to meet quite often and we had opportunities for gatherings.

Q. Who is we?

A. The family.

Q. Which members?

A. That it, that would include [BT's] family, my family, that's with my wife and my child, [M's family] and [the appellant's] family.

Q. So you were all fairly close?

A. We used to use opportunities to meet but the closeness was as much as a family would be."

154 BR then gave evidence that he was aware that there had been some disagreement between the appellant's wife and M's mother regarding the appellant's mother visiting in 2002. BR also gave evidence that an argument occurred in 1997 when the families lived in Abu Dhabi between the appellant and his wife and M's parents, which was about M's parents wanting to be closer to the appellant and his wife. He said that the argument in 1997 "didn't linger on until December 2006".

155 In the course of cross-examination, the following exchange took place:

"Q. You're trying to make it sound like they weren't very close, aren't you?

A. I'm not trying to make it sound, I'm just stating a fact.

HIS HONOUR

Q. Could you make plain what the fact is? I'm not quite clear?

A. The fact is that there was always a bit of tension after what had happened. So everyone was on our guard about how we are supposed to behave.

TRIAL ADVOCATE

...

Q. You've said to here just to answer the questions, I'd appreciate it if you'd answer this question. Your family was close and if anything happened within the family, you and your brothers and sisters would talk about it?

A. Not necessarily."

156 In re-examination, BR said the argument that occurred between the appellant's wife and M's mother was "a big thing, it was huge".

Consideration of grounds of appeal

Ground 1: the verdicts of the jury are unreasonable or cannot be supported having regard to the evidence

Ground 1A: new evidence

157 Pursuant to ground 1A, the appellant sought to introduce evidence of a letter, dated 30 September 2011, from the Walt Disney Company (Australia) Pty Ltd to the appellant's solicitors. The letter was in response to a letter from the appellant's solicitors, dated 19 September 2011, in which they stated:

"We understand that the movie the Incredibles was released into cinemas for the first time world wide into London in October 2004 and into November 2004 in the USA. Would you please confirm in writing if this is correct or if the movie The Incredibles was released earlier any where else in the world and if so what date and where.

We also require the same information regarding the movie Chicken Little. We understand this movie was first released in 2005. Would you please provide written confirmation of the release date into cinemas and [w]here this was."

158 The Walt Disney Company responded:

"The Incredibles was released in UK on November 19 2004 and in USA on November 5, 2004. Chicken Little was released in UK on January 27, 2006 and in USA on November 4, 2005.

The USA dates are the first dates of release worldwide for each picture."

159 This ground is inextricably linked with the challenge raised in ground 1, that the evidence did not support the verdict of guilty. However, before dealing with that issue, it is convenient to consider the principles relating to admission of fresh and new evidence.

160 The principles with respect to 'fresh evidence' and 'new evidence' are well settled. Kirby J's summary of the relevant principles in R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 at [63], has been cited with approval in the case law including recently in Wood v R [2012] NSWCCA 21; Aouad and El-Zeyat v R [2011] NSWCCA 61; 207 A Crim R 411. It is helpful to set out that part of Kirby J's judgment:

"The authorities in respect of fresh evidence have recently been collected and analysed by Giles JA in R v Bikic [2002] NSWCCA 227, and Heydon JA in R v M [2002] NSWCCA 66 at paras 61-64; see also R v Sleiman [2003] NSWCCA 231 paras 101-105. The test was stated by Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 at 518-520 (McTiernan, Stephen and Jacob JJ agreeing). It was reaffirmed in Lawless v The Queen (1979) 142 CLR 659 by Mason J at 674-5 (Barwick CJ and Aiken J agreeing). The principles may be summarised as follows:

First, a distinction is made between 'new evidence' and 'fresh evidence'. Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence.

Second, great latitude must be extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial (Ratten v The Queen (supra) per Barwick CJ at 512).

Third, the Court is ultimately concerned with whether there has been a miscarriage of justice. The rationale for setting aside a conviction on the basis of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. That evidence must be examined in the context of the evidence given at the trial (Mickelberg v The Queen (1989) 167 CLR 259, per Toohey and Gaudron JJ at 301).

Fourth, the issue of whether there has been a miscarriage is to be approached on a number of levels, depending upon the order sought (whether a verdict of acquittal or a new trial), and the capacity of the new or fresh evidence to sustain the order sought.

Fifth, where a verdict of acquittal is sought and the new evidence is of such cogency that innocence is shown to the Court's satisfaction, or the Court entertains a reasonable doubt as to guilt, the guilty verdict will be quashed and the appellant discharged. In such circumstances, it does not matter whether the evidence is fresh or simply new (Ratten v The Queen (supra) Barwick CJ at 518/519; cf Gibbs CJ in Gallagher v The Queen (1986) 160 CLR 392 at 398/399).

Sixth, where the evidence does not have that quality, or where a new trial is sought, a number of issues arise. The verdict will be quashed and a new trial ordered only where the following questions are answered affirmatively:

° Is the evidence fresh?·

° If it is, is it 'credible' or at least capable of belief (Gallagher v The Queen (supra) per Gibbs CJ at 395), or 'plausible' (Mickelberg v The Queen (supra) per Toohey and Gaudron JJ at 301)?·

° If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused (Gallagher v The Queen (supra) per Brennan J at 410) or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused (Gallagher v The Queen (supra) per Mason and Deane JJ at 402)? See Mickelberg v The Queen (supra) per Toohey & Gaudron JJ at 301-302.

Seventh, the concept of a miscarriage of justice is not an abstract investigation of truth (cf an Inquiry under s474D Crimes Act 1900). It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better (Ratten v The Queen (supra) at 517).

161 In Wood v R, McClellan CJ at CL summarised the distinction between 'fresh evidence' and 'new evidence' at [707]:

"The law makes a distinction between 'new evidence' and 'fresh evidence.' 'New evidence' is evidence that was available and not adduced at the trial. 'Fresh evidence' is evidence which either did not exist at the time of the trial or, if it did, could not then have been discovered by an accused exercising due diligence". (citation omitted)

162 The appellant accepted the evidence contained in the affidavit of Ms Duncan of 6 October 2011 was not 'fresh evidence', but nonetheless submitted that that evidence supported an order of acquittal. The appellant contended that this new evidence, when considered alongside the other evidence in the trial, was sufficient to raise doubt as to the appellant's guilt. The appellant submitted that, having regard to all of the evidence, including the new evidence, the Court would be positively satisfied of the innocence of the appellant, or have a doubt as to the appellant's guilt. The appellant relied, in particular, upon the following statement in Ratten v The Queen [1974] HCA 35; 131 CLR 510 at 518, per Barwick CJ:

"If the court is considering whether the verdict of guilty should be set aside outright for the reason that innocence is shown, or the existence of an appropriate doubt established, the court will consider all the material itself, forming and acting upon its own belief in, or disbelief of, the evidence, and upon its own view of the facts of the case including the evidence at the trial, though, as I have said, taking the facts as proved at the trial in the sense which having regard to its verdict the jury must have taken them. Of course, if it is concluded that there was a miscarriage in the sense that the court itself is satisfied of innocence or entertains a reasonable doubt as to guilt, there will be no question of a new trial. The verdict of guilty will be quashed and the appellant discharged." (emphasis added)

163 The Crown submitted that the new evidence, upon which the appellant relied, was not of a quality that of itself demonstrated innocence and thereby did not satisfy the fifth principle outlined by Kirby J in Abou-Chabake in relation to an acquittal. Nor did this evidence satisfy the principle that applied for a new trial.

164 With respect to the Crown's primary submission, the appellant in reply contended that there was no requirement in the authorities that the new evidence itself demonstrated innocence or was of such cogency that, without more, it gave rise to a reasonable doubt. Rather, the Court needed to make an independent assessment of the new evidence in light of all of the evidence at trial.

165 I have read the full transcript of the evidence in this matter as required of an appellate court when this ground of appeal is raised: see M and MFA.

166 The evidence adduced by the Crown and that adduced by the appellant was almost in perfect contradistinction. From the appellant's side, the evidence sought to minimise the close relationship between the families, the frequency of their contact and the nature of the relationship between M and the appellant's daughter Sh. The evidence adduced on behalf of the Crown was that the families had a close relationship from the time M's family arrived in Australia. The families socialised together, M and Sh were very close and there were frequent sleepovers.

167 A significant feature of the case was M's credit and reliability. That was to be expected. There were essentially four areas of challenge to her credit and reliability. The first was the date upon which the sexual contact had commenced. M's evidence changed on this. She first said it was the December/January school holidays 2001. She later said she thought it was the September school holidays. It is clear it could not have been the December/January school holidays.

168 The second was the movie that was watched on the occasion of the first, second and third counts in 2004. There seemed overall consensus in the evidence that the families celebrated Sh's birthday together on that occasion. In her ERISP, M first identified the movie as Chicken Little and then corrected that to say it was The Incredibles. If the new evidence is admitted, the children could not have watched The Incredibles on that occasion. However, M's evidence in cross-examination was she thought it was The Incredibles that she watched on that sleepover (above at [39]). When challenged again on this, she said:

"I remember watching The Incredibles on a computer. I think it was on that night. I do know I did watch a movie on that night."

169 The third and perhaps most critical challenge was the date upon which counts 4 and 5 occurred. M never precisely identified on what night this conduct had occurred, although on the ERISP, the date most likely to have been identified was 23 December 2006. In cross-examination, she said it "may not have been 23 December ... it could have been maybe even a week before that" (above at [53]). She remained constant in her evidence that although she had told the police she thought the last occasion was on 23 December, she had also said that she was not sure. As it turned out, the weekend before 23 December was the weekend about which the appellant did not give convincing evidence.

170 For myself, I did not find the evidence of the appellant, overall, to be convincing. There were some contradictions between his evidence and that of his wife. Whilst that might be expected, there were some points of contradiction that were particularly important. One significant contradiction was his evidence that he did not go into the bedroom when there was a sleepover. He said that only his wife checked on the children (above at [94]). By contrast, his wife said that she and the appellant would take turns in checking on the children. She also said that her husband was the one who turned the computer off if the movie had finished or the children had fallen asleep. The appellant's evidence that he did not go into the bedroom when the children were in bed was also contradicted by L's evidence.

171 Another aspect of the evidence that was unsatisfactory was in respect of the closeness of the relationship between M and Sh. The appellant initially said that their relationship was "one of the closest" (at [113] above). However, he downplayed the relationship in later cross-examination when he said that they were "not particularly" close (at [113] above). The appellant's wife also downplayed the closeness of the relationship. Her evidence was that L was more fond of Sh than M was and that L stayed over more frequently than M (at [143] above). This was contradicted by M's evidence, but more particularly by L's evidence.

172 The appellant's evidence was that the families were "not exactly" close and they only socialised because they were family. This was different from the effect of the following evidence of his wife. In giving evidence of the relationship in 2002 and 2003, following the family argument, the appellant's wife said that after M's mother returned from India, she had "some hope that we could pick up from where we left off" (at [132] above). She did not indicate in her evidence that her hope did not materialise, whereas the appellant in his evidence said that there were lingering tensions right up until the beginning of 2007, which he considered emanated from M's family.

173 In another part of the appellant's wife's evidence, she too sought to downplay the closeness of the relationship between the families when she said that the families were mostly close for the "sake of the kids" (above at [144]). She said that the apparent closeness of the families was in fact "a façade". She said there was a lot of underlying tension which went back to their time in the Middle East. She stressed that they did a lot of things together for the sake of her daughter, Sh.

174 There were a number of other differences, but not of such significance. For example, there was a difference in the evidence of the appellant and his wife about the improvement of the relationship between the families in 2003. However, that difference in the evidence may have been merely a difference of perception as to the cause of the improved relationship.

175 The appellant sought to support his own evidence where possible. This was so in respect of his activities on the first two weekends in December and his activities on 22, 23 and 24 December. The veracity of his alibi notice was successfully attacked in part, but not, in my opinion, critically as to his activities on the night of 23 December. However, for my part, I am not satisfied that M's evidence as to the date of conduct involved in counts 4 and 5 could reasonably be confined to 23 December. It is apparent that the jury did not so confine it, notwithstanding the trial judge's statement in the summing up. It should be accepted that the jury exercised an independent mind in that regard.

176 The appellant contended that he did not have the use of a work computer until mid 2005. However, the jury did not have to accept that evidence. There was also the evidence in relation to the projector that was not independently supported. Had the jury accepted the appellant's evidence, at least in its substantial aspects, including his denial that he had committed the offences alleged, they would have acquitted him. It is apparent, however, by the jury's finding of guilty, that they did not accept the appellant's denials and must have rejected other aspects of his evidence. On that assumption, the jury had to be satisfied, beyond reasonable doubt, on M's evidence and to the extent that there was evidence in support from her parents and L, that the appellant had committed the offences.

177 The appellant contended that certain answers M gave in the ERISP were such that L must have known that the appellant was assaulting M, if in fact that occurred. The following questions and answers were critical to this submission:

"A414 And yeah, so then [L] would wake up, she would move. And then [L] waking up made me wake up, so then I thought, and then realized he was there and that, so, the same, the same routine, the same thing.

...

Q430 OK. So when you said the first time, before you said that you were, you woke up, [L] woke up, which made you wake up and you realised that your uncle was in the bed, is that right?

A Mmm.

Q431 So when you were watching the movie, did you watch the whole thing, or did you fall asleep, or were you awake or something else?

A I fell asleep around halfway through the movie.

Q432 OK. And, and it was when, was that when you woke up next, when [L] woke up?

A What, like what happened was, [L] heard him coming in. I knew that because otherwise she wouldn't have woken up, so [L] probably heard him coming in. And when he came in, he got into the bed. I knew that she was awake because she always, when, when she wakes up, she doesn't stay lying down, she gets up and then she kind of just bounces on the bed and she just sits there and tries to make people like notice that she's there.

...

Q449 OK. OK. So, you noticed that [L] woke up and you noticed that he was there and he was getting into bed lying down, he was about to lie down. What did [L], what did, did you see [L] then, after that - -

Q450 - - or - -

A Yeah, [L] was just sitting up and she was just looking at me. And I just went, Oh, go to sleep. So she just went to sleep and I went to sleep.

...

Q474 - - what made it stop?

A No, I don't know why he stopped. Maybe, maybe he was afraid that [L] might see what he was doing - -

...

Q516 OK.

A And then [L] came with me. And then he came back to check if we were OK, and I said, Yeah, we're fine. And we went back there and then he came back.

Q517 OK.

A And then he started touching me again.

Q518 And so when you said that you needed to go to the toilet, who were you saying that to?

A To him, my uncle.

Q519 To him. And how did [L] know that you were saying that you needed to go to the toilet?

A I don't know, maybe she was awake - -

Q520 OK.

A - - cause, yeah, knew that, yeah.

Q521 So then [L] said that she will come with you, too.

A Yep.

Q522 OK. When you got out of the bed to go to the toilet, was your uncle still in the bed, or he'd, had he got out of the bed, or something else?

A I went. And he kind of sat up.

Q523 Yes.

A And then my, then [L], when [L] got out of bed and she followed me, he followed us. And he went and he knocked on the door and he said, Are you OK? And we said, Yeah, we're fine. And we got out of the bathroom and we went back to the bed.

Q524 OK. So then you went back to the bed. And what did you do once you back into the bed?

A I got in and [L] got in and then he came."

178 At Q and A499 M said that L was mostly asleep on the occasions the appellant assaulted her and at A500, that L did not know "what was going on".

179 The appellant submitted that this answer was consistent with M's knowledge that L would not support her. In effect, the submission was that M was not only fabricating her story, but also providing her own 'cover' to explain away the obvious inconsistency she knew she would be confronted with in the description of how the assaults occurred.

180 The appellant also relied upon the following cross-examination to counter the Crown's argument that there was no evidence that L was "awake, conscious and aware that something unusual was occurring at a time when the appellant committed the offences":

"Q. ... When uncle first got into the bed [L] was awake wasn't she?

A. Yeah.

Q. You told us that?

A. Yeah she probably was.

Q. So why on earth couldn't you elicit her help?

A. Pardon?

Q. Why on earth, I'm sorry about that, why on earth ask her for help?

A. I don't know it didn't occur to me at the time."

181 The appellant contended that L did not give any evidence of sitting up in bed to find him in bed with them. The appellant submitted that, given M's account, it was inconceivable that he could have sexually assaulted her without L being aware of it. I do not agree. There were aspects of L's evidence that did support M's evidence and in certain respects it did so in a compelling way. In other respects there were differences in the evidence, including the bedroom in which the children watched Charlie and the Chocolate Factory. However, it would be unusual if there were not differences in their recollections.

182 The task on this ground of appeal is for the Court to determine whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty: see M cited at [7] above. In undertaking this task, I am required, in accordance with the instruction in M, at 492-494, to make an independent assessment of the evidence. In that regard, having considered that the appellant's evidence was not convincing, it has been necessary to carefully assess the evidence adduced by the Crown.

183 Since preparing my reasons for judgment, the High Court has handed down its decision in Douglass v The Queen [2012] HCA 34. That case involved the credibility and reliability of a young child, who at age three made allegations of aggravated indecent assault in response to leading questions and after initially denying the conduct that was said to constitute the offence. Relevantly, the Court reaffirmed the principle that in a criminal trial the jury (or in a judge alone trial, the judge) must determine whether the evidence taken as a whole proves the elements of the offence beyond reasonable doubt: see Murray v The Queen [2002] HCA 26; 211 CLR 193. It is not merely a question of preferring the evidence of one witness over the evidence of another. The question of reliability of the child's evidence had to assessed having regard to its inconsistencies.

184 In this case, the evidence adduced by the Crown, even with its variations amongst the Crown witnesses, did not cause me to have a doubt that the appellant committed the various acts that comprised the offences with which he was charged. In any event, this was a case where I consider that the jury had an advantage in seeing and hearing the witnesses. They were faced with conflicting evidence and evidence that in some respects was inaccurate or uncertain. These inaccuracies and uncertainties have been set out in the extracted portions of the evidence. Given his Honour's direction as to the date of the 2006 offences and the jury's clear and independent determination that the offences must have occurred earlier, considerable weight must be given to the jury's assessment of the witnesses and in particular, their assessment of the credibility of the complainant. If I were to have a doubt, the jury's advantage in seeing and hearing the evidence in this case would have resolved that doubt for me. I would reject ground 1.

185 My conclusion has involved a consideration of M's evidence in its totality, including those aspects of her evidence that must have been wrong. In particular, if account is taken of the new evidence, she must have been wrong as to the movie she watched in 2004 on the occasion of counts 1, 2 and 3 . Having said that, as a matter of principle, the new evidence sought to be adduced does not satisfy the requirement that it be of such cogency as, relevantly, to cause the Court to entertain a reasonable doubt as to the appellant's guilt. As I have said, M's evidence was that she thought The Incredibles was the movie she watched on that occasion, but that it was certainly a movie that she had watched on some occasion of a sleepover. The reliability of that evidence was a matter for the jury. Nor is it fresh evidence, so that the principles relating to a new trial have not been satisfied.

186 It follows in my opinion, that the new evidence does not satisfy the principles for admissibility and ground 1A should be rejected.

Ground 2: the trial judge erred in failing to adequately direct the jury not to engage in propensity reasoning

Ground 3: the trial judge erred in failing to properly direct the jury with respect to the need to consider each count separately

187 The appellant argued grounds 2 and 3 together. Leave of the Court is required in respect of each ground: see the Criminal Appeal Rules, r 4. The application for leave to appeal is itself out of time.

188 The Crown opposes the grant of leave on the basis that the directions given by the trial judge to the jury were not the subject of a complaint by senior counsel at the trial, nor did senior counsel seek directions in terms in which the applicant should have been given to the jury. I will deal with the question of leave later.

189 M gave evidence of three separate instances of sexual misconduct, namely, one occasion in each of 2001, 2004 and 2006. Evidence of the 2001 allegations was admitted as relationship or context evidence in support of the charges based on the 2004 and 2006 allegations. None of the evidence was adduced as tendency evidence in support of the other occasions of alleged sexual misconduct.

190 The appellant submitted that the trial judge erred in the following two respects:

(1) in directing the jury as to how they should take into account the 2001 allegation;

(2) in directing the jury as to how they should take into account the 2004 offences (counts 1-3) when considering the 2006 offences (counts 4-5).

191 Directions on these issues were given to the jury both in writing and in his Honour's oral summing up. The written directions were as follows:

"Contextual evidence

The Crown has adduced from [M] evidence the appellant improperly touched [her] in 2001. He has not been charged with these offences and the evidence is given to show that the true relationship between them from the time she was four years old had a sexual element to it. This is done to show the events of 2004 and 2006 did not occur in a vacuum. However, you cannot use evidence of what occurred in 2001 to conclude that [the appellant] has a propensity to commit sexual acts against [M] or a tendency to do that and you cannot use evidence of other acts for substitution for proof of the acts charged. Furthermore, you can only take them into account to conclude that there was a sexual element in their relationship before 2004, if you are satisfied beyond reasonable doubt that they did happen." (emphases added)

192 The oral directions were as follows:

"But you are entitled to say to yourself, how reliable, how accurate is she? Is she speaking about what happened in 2001 or some time around then? If you are satisfied beyond reasonable doubt that the relationship between them starting at that time was a sexual one then you are entitled to take it into account when you are weighing up the charges. It does not prove the charges. It does not show he has a tendency to commit any offence or a propensity to commit any offence. But if the relationship is of that type then what occurs later on is easier to understand."

193 Later in the summing up, his Honour dealt specifically with the contextual evidence, stating:

"You must be satisfied beyond reasonable doubt that the events occurred in 2001 before you could conclude that there was a sexual relationship between them as far back as 2001 ... and remember you cannot take it into account in any way to decide that he is likely to commit other offences or he has a propensity to do it or a tendency to do it. But if you consider beyond reasonable doubt that in 2001 there was a sexual relationship between them, then you can use that, when you are looking at 2004 to say, well he had a relationship as far back as 2001, that was the nature of it. In 2004, do the events fit into that relationship?" (emphases added)

194 The appellant submitted that although the trial judge directed the jury that they could not take into account the evidence of the 2001 allegations to establish whether the appellant had a tendency or propensity to commit such offences, his Honour did not direct the jury as to how they might use that evidence as relationship evidence. The appellant also complained that no directions were given as to the relationship between the written direction and oral directions. I do not see any such error as alleged in this last complaint. The question in issue on this ground is whether there was error in not directing the jury as to how they might use the evidence as relationship evidence.

195 The appellant referred to the statements made by his Honour that the evidence of the 2001 incidents was given to show the true relationship between M and the appellant and that it had a sexual element to it, and that that was a matter the jury would be entitled "to take into account" as, in effect, constituting tendency evidence.

196 In circumstances where directions in similar terms had been made, this Court, in JDK v R; R v JDK [2009] NSWCCA 76; 194 A Crim R 333 held that the direction involved propensity reasoning. McClellan CJ at CL (James and Adams JJ agreeing) stated:

"36 The written direction told the jury that they could not use the evidence as showing a tendency in the appellant to commit sexual offences. However, the jury were not told that they could not use the evidence when considering whether elements of the relevant offences had been proved. To the contrary they were told that the evidence enabled them to understand the 'true relationship' which was 'a sexual one' and could be used to assist them in determining the particular charges. This is propensity reasoning. When he gave the oral direction his Honour confirmed his written direction in relation to propensity but by confirming that the jury could use the evidence to understand the 'true nature of the relationship' between the complainant and the appellant a difficulty arose. When, as the law presently allows, evidence has been admitted going to an issue which can be explained by an understanding of the relationship between relevant persons, but that evidence has not been admitted as evidence of tendency a direction explaining the appropriate use of the evidence should be given. It may be, and this is often the justification for the admission of the evidence, that a failure to complain of an alleged criminal act at the time when it is said to have occurred may be explained by an understanding of the relationship between the complainant and an accused person. However, when it is said that the evidence is admissible so that the jury may understand the 'true nature of the relationship', without defining the issue which is informed by this understanding, the jury are being invited to use the evidence to reason towards the guilt of the appellant. It was these difficulties which I apprehend Hayne J had in mind when he discussed the admissibility of evidence of similar acts in HML.

37 The problem is evident in paragraph (c) of the written directions. His Honour's direction that the evidence could be used to understand 'the true nature of the relationship between them, which on the Crown case was a sexual one from an early time' to assist in determining whether the Crown had proved its case invites the jury to reason that the evidence of other acts was evidence which proved a propensity in the appellant to commit the acts with which he was charged. This was not permissible. The problem stemmed from a failure to identify the issue which justified the admission of the evidence."

197 In JDK, the appellant further contended that the trial judge had failed to give a direction as recommended in the Bench Book in terms:

"You must not reason that, because the accused may have done something wrong to the complainant on another occasion, he must have done so on the occasions charged."

198 In JDK the trial judge was asked to give that direction but had refused. McClellan CJ at CL in JDK considered that in the context of that case, this was an important direction. His Honour considered that had the direction been given, it may have operated to remove some of the problems to which he had referred. In the result the conviction in JDK was quashed and a new trial ordered.

199 The appellant also referred to the decision of this Court in Rees v R [2010] NSWCCA 66 where, according to the submission, this Court considered the adequacy of similar directions by Finnane DCJ regarding the use of evidence of an uncharged act. Those directions were:

"Relationship evidence.

During the course of the trial, evidence was presented to establish the true relationship between the accused and the complainant. It is of course, a matter for you to assess whether you accept the truth of this evidence, and what it shows about their relationship. The evidence was presented to give a context to what happened on the occasions of the alleged indecent assault and the act of sexual intercourse.

You can consider this evidence and use it to assist you in understanding what was the true relationship between the parties on these occasions. The relationship evidence consists of evidence of the complainant that on a fairly regular basis the accused would embrace the complainant around the area of her breasts, would kiss her and touch her in a way that caused her to be upset.

You must consider this evidence very carefully. You can use it to enable you to understand the true nature of the relationship between them, which on the Crown case was a sexual one from an early time, to assist you in determining whether you are satisfied beyond reasonable doubt that the Crown has proved beyond reasonable doubt that the accused committed the offences with which he has been charged.

You cannot use this evidence to reason that it shows in him a propensity or tendency to commit sexual offences."

200 In oral directions in that case, the trial judge reiterated that the relationship evidence could not be used to reason that it showed that the accused had a propensity to commit rape but the jury could use it to identify the nature of their relationship. This Court held, at [13], that the directions were erroneous and that the error was so fundamental that leave pursuant to r 4 should be granted.

201 In response to the appellant's argument in this case, the Crown acknowledged that evidence of uncharged sexual acts was capable of engaging propensity reasoning unless clear directions were given as to its use. This was so even if the evidence was only admitted on a contextual basis. The Crown submitted, however, that the appellant's complaint in relation to the directions given by the trial judge overlooked the further directions given during the course of the trial and, in particular, the direction given by his Honour in response to the following question asked by the jury after having viewed M's evidence:

"- Why has the Crown excluded or not made any charges for the alleged events which occurred when M was four years old?"

202 In responding to this question, his Honour gave the following directions to the jury:

"The prosecution is entitled to call evidence to establish the context in which something occurred. Now if a person has a relationship of any kind with another person, then and you want to establish what the exact nature of that relationship is, then you call evidence in a court surrounding that relationship to show what it is. How long lasting has it been, when it started, was it friendly, was it hostile, what it was. This is evidence, this is context evidence so in other words to give some reality to an event occurring in a particular year, the Crown is permitted to call evidence that things started somewhat before that. That there was a sexual - that the relationship between them before that was a sexual one of a type. So that when you come to consider whether this evidence, whether that you're satisfied beyond reasonable doubt that he committed the offences alleged, you're entitled to take into account whether that relationship existed. Was there a relationship between them going for some years and when she was very small up to the time of the first charges, that explains the relationship. That shows that the relationship between them wasn't just uncle and niece, but uncle and someone that the uncle in some way treated inappropriately, sexually ..."

203 The Crown submitted that when the directions were considered as a whole, the jury had been sufficiently directed as to the use to which the evidence of the 2001 allegations could and could not be used. In particular, the jury had been directed that the relevance of the material was to show that the events of 2004 and 2006 did not occur in a vacuum; that use could not be made of the 2001 evidence to conclude that the appellant had a propensity or a tendency to commit sexual acts against M; and the evidence of such acts could not be used in substitution for proof of the acts charged.

204 The Crown further submitted that his Honour had directed the jury that they had to be satisfied beyond reasonable doubt in respect of M's evidence of the 2001 incidents if they were to take that evidence into account when weighing up the charges. However, it was not necessary that the jury be satisfied beyond reasonable doubt that the 2001 incidents had occurred: see DJV v R [2008] NSWCCA 272; 200 A Crim R 206 at [31]. The direction given, therefore, was advantageous to the appellant. Further, in giving this direction, his Honour again stressed that the relationship evidence did not prove the charges and did not show that the appellant had a tendency to commit any offence or propensity to commit any offence.

205 In my opinion, there was an important difference between the directions given in JDK and Rees on the one hand and in this case on the other. The difference was that in this case the trial judge in his written directions to the jury specifically stated that the jury could not use evidence of other acts in substitution of proof of the acts charged. In my opinion, that statement contained in the written directions, to which the jury had constant reference, obviated the risk that the jury would engage in propensity or tendency reasoning. Further, when the oral directions the trial judge gave to the jury are also considered, including the highlighted portions in the passages as set out above, I am of the opinion that the appellant has not established that the trial judge made the error as alleged. Accordingly, I would grant leave under r 4 to extend the time in which to raise it to the date of the filing of the statement of claim, but reject ground 2.

206 The appellant also submitted that the trial judge failed to properly direct the jury as to the need to consider each count separately. No complaint of this was made at trial. Accordingly, the appellant requires leave pursuant to the Criminal Appeal Rules, r 4 to raise this ground. The ground is also raised out of time.

207 In advancing this ground of appeal, the appellant relied upon the direction his Honour gave in his summing up at p14 and, in particular, that part of the direction where his Honour said, "If [the complainant] is honest and reliable about 2004 you might find it difficult to conclude she was not honest and reliable about 2006". The appellant argued that this direction invited the jury to approach their decision-making on an "all or nothing" basis and left it open to the jury to use each of the 2001, 2004 and 2006 allegations as tendency evidence to establish the offences charged.

208 In support of this argument, the appellant placed some reliance upon his Honour's earlier direction in which he directed the jury not to compromise, because to do so would cause problems and possibly an appeal to the Supreme Court. The appellant submitted that the effect of this direction was to undermine the direction to consider each verdict separately, because they were told that different verdicts could lead to an appeal.

209 The question whether a jury has been adequately directed or misdirected falls to be considered having regard to, and in the context of, the directions given to the jury as a whole. A fragmented examination of a trial judge's directions can itself lead to error. Such an approach is likely to give an unrepresentative view of the overall directions given. It may also result in an unwarranted emphasis being given to a particular direction, or part of a direction, that is not borne out when the direction is considered in context. For that reason, I have found it necessary to give attention to his Honour's directions as a whole, both written and as given in his summing up, in order to determine whether the error alleged in this ground of appeal has been made out.

The written directions

210 The trial judge, at the commencement of the written directions, gave the following direction to the jury as to the requirement to consider each count separately:

"... the Crown must prove each of the elements of the charges in the case against [the appellant] beyond reasonable doubt."

The written directions then set out each element of each count in respect of which they had to be satisfied beyond reasonable doubt.

211 The written directions continued:

"Credibility of the complainant

The complainant's evidence is the most critical Crown evidence in the trial. Her evidence, is of utmost importance. If you decided that her evidence was not credible, then you should not convict the accused. She is the only witness to give evidence of the crimes alleged against the accused.

I must warn you that you must scrutinise her evidence with great care and you should only convict the accused if you are satisfied beyond reasonable doubt that her evidence is credible and reliable.

I must further warn you that you should give consideration when considering her reliability to the fact that she gave evidence that she may have been mistaken about the date of some events, and that her evidence in some respects as to what happened was somewhat vague. This is not to say that she was necessarily unreliable or untruthful. I am merely warning you to look carefully at what the complainant has said.

Evidence of [the appellant]

[The appellant] gave evidence, although he was under no obligation to do so. He is a witness like all other witnesses. You must assess his evidence and decide if it is credible. At the same time, you must bear in mind that the Crown must prove its case against him. He does not have to prove anything. You must consider his evidence with all the other evidence and decide whether you are satisfied beyond reasonable doubt that he is guilty of all or some of the charges laid against him.

...

Consistency in verdicts:

Each charge must be considered separately and a verdict given on each. It is wrong to compromise. There is no place at all for saying that you will find some counts for the Crown and some for [the appellant].

The Crown must prove its case beyond a reasonable doubt. The Crown case depends entirely on the evidence of the complainant. If you accept that she is a truthful and reliable witness, you are entitled to convict the accused. She gives evidence about offences on the indictment occurring in 2004 and 2006. The Crown must satisfy you beyond reasonable doubt that the accused committed offences in each of those periods. If the Crown satisfies you, your duty is to convict.

However, if the Crown does not so satisfy you, you should find [the appellant] not guilty. If you find him not guilty of one offence, that must mean that you doubt the reliability and truthfulness of the complainant in relation to that charge. If you come to that conclusion on one charge, you should take that into account when considering whether the accused is guilty or not guilty o[n] the other charges. There is no basis for compromise."

212 No complaint is made about any of the written directions. Those directions were, of course, with the jury in the jury room.

The oral directions

213 In his summing up to the jury, the trial judge dealt, relevantly, with each of the subject matters dealt with in the written directions.

214 In dealing with the complainant's credit, his Honour directed, at SU 4-5:

"As you will see from the directions I express the view and it is the law. If you come to the conclusion that she is not truthful or not reliable in relation to any one of the counts in the Indictment you would have to take that into account when you are looking at the others. If you come to the conclusion that she was not telling the truth, members of the jury, then you could not convict the accused ... If she is not telling the truth in one matter, how could she be telling the truth in relation to other matters? It would be unreasonable and unfair to take that view that she could be.

If you found she was not untruthful but unreliable in relation to one matter, just any one of the counts on the indictment, you would have to look very carefully at all the other counts and say, well is she reliable in relation to them, what is there that would make her unreliable in relation to this but unreliable in relation to something else?"

215 His Honour explained the interrelationship between the complainant's evidence (including its credibility and reliability) in respect of the events in 2001 and the offences with which the appellant was charged, directing them, at SU 6, that that evidence was not to be used as tendency evidence:

"But you are entitled to say to yourself, how reliable, how accurate is she? Is she speaking about what happened in 2001 or some time around then? If you are satisfied beyond reasonable doubt that the relationship between them starting at that time was a sexual one then you are entitled to take it into account when you are weighing up the charges. It does not itself prove the charges. It does not show he has a tendency to commit any offence or a propensity to commit any offence. But if the relationship is of that type then what occurs later on is easier to understand.

...

The question is, after you have all discussed with one another all your different views are you satisfied beyond a reasonable doubt the case has been proved? And as it will become clear you have to look at each count or each charge separately." (emphasis added)

216 His Honour next gave directions as to what constituted an assault, an indecent assault and sexual intercourse.

217 His Honour returned to the complainant's credit, at SU 9-11:

"You have to look at the credibility of the complainant. Her evidence is the most important evidence in the case. If she is not credible you should not convict. She is the only witness to give evidence. Now the fact that she is the only witness does not mean something did not happen.

...

The first batch of charges relates to 2004. The girl did not complain to anyone in 2004 and by the time these matters came to attention in 2007 there was no test they could carry out about what might have happened in 2004. Indeed there was not any test they could carry out about what might have happened in December 2006, there is just nothing that could be done. So it is her evidence. That does not mean she is not telling the truth and it does not mean she is not reliable when I say this. I just say you have to scrutinize her evidence with care.

The warnings that I give are required to be given by me as a matter of law, all judges are required to give them. They are not my personal warnings, we are required by law to express ourselves in this way. [Appellant's counsel at trial] has pointed out to you all sorts of aspects in which she has given evidence that is vague in some respects and in some instances may have been mistaken. You have to look at that very carefully."

218 His Honour next referred to the 2004 charges followed by references to the 2006 charges. There is no sense in these portions of the summing up that the jury was being invited to consider the charges other than as distinct and separate charges and no complaint is directed to these directions.

219 In dealing with the 2006 charges, his Honour referred to the alibi evidence. In that regard, his Honour said, at SU 11-12:

"The alibi only relates to the 2006 matters ... The Crown has to establish beyond reasonable doubt the accused was at his home at the relevant time with this girl. The Crown relies on her evidence, you are entitled to act on her evidence if you regard her as truthful and reliable. You must consider, however, the alibi evidence.

The Crown has to remove any reasonable possibility that he was not at his home with the complainant. If the Crown fails to prove or eliminate that possibility you must acquit the accused of these 2006 charges."

220 The next 'topic' upon which his Honour gave directions in his summing up was the contextual evidence. Relevantly, his Honour said, at SU 13:

"You must be satisfied beyond reasonable doubt that the events occurred in 2001 before you could conclude that there was a sexual relationship between them as far back as 2001.

...

... remember you cannot take it into account in any way to decide that he is likely to commit other offences or he has a propensity to do it or a tendency to do it. But if you consider beyond reasonable doubt that in 2001 there was a sexual relationship between them, then you can use that, when you are looking at 2004 to say, well he had a relationship as far back as 2001, that was the nature of it. In 2004, do the events fit into that relationship?"

221 No complaint is directed to any of the above directions.

222 Although the appellant did not contend that the next portion of the summing up, at SU 13-14, was erroneous, he submitted that the trial judge's direction as to the need to consider each count separately began to be undermined at that point because the jury was told that if they brought in different verdicts on various counts there could be an appeal. The direction was as follows:

"Each charge has to be considered separately and a verdict given on each. At the end of the trial my Associate will ask the foreperson of the jury to stand up, ask, 'Have you reached your verdict. As to count 1, how say you? And as to count 2?' And each of the counts is read out.

There is no place at all for saying you will find some for the Crown and some for [the appellant]. Members of the jury this is a very important matter. Every so often, regrettably, there can be juries who decide they cannot really work it out so they just say, 'yes' for some and 'no' for others'. That always leads to big problems because there are then arguments perhaps in the Supreme Court which hears appeals from this court that the verdict was nothing more than a compromise, the jury did not do its job. So do not compromise."

223 The appellant's specific complaint was directed to the next passage in the summing up and in particular to the emphasised portion, at SU 14:

"Obviously what occurred in 2004 is different from what occurred in 2006 because in 2006 there is positive evidence given by [the appellant] and people supporting him that he could not have committed these offences. In 2004 there was no alibi evidence. However, be very cautious against drawing a conclusion that that creates some difference. It all still depends on whether she is honest and reliable. If she is honest and reliable about 2004 you might find it difficult to conclude she was not honest and reliable about 2006." (Appellant's emphasis)

224 However, there was more in this direction than that relied upon by the appellant. The direction continued:

"If you conclude she is not honest and reliable in relation to 2006, how can you draw the conclusion she was honest and reliable in relation to 2004?"

If the Crown satisfies you that these offences were committed you must convict. If the Crown does not satisfy you, you must find him not guilty. If you find him not guilty on one offence that must mean you doubt the reliability and truthfulness of the complainant in relation to that charge. If you come to that conclusion you should take that into account when considering if he is guilty or not guilty in relation to other charges and you would have to look very carefully at that situation."

225 The appellant's complaint was that the direction (above at [223]) suggested to the jury that it was permissible to link their consideration of the 2004 offences with their consideration of the 2006 offences. He submitted that taken on its own, the direction amounted to an invitation to the jury to take an "all or nothing" approach to the verdicts in circumstances where they were not properly directed in relation to the use of relationship evidence. Senior counsel for the appellant labelled this as a reverse Markuleski direction: R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82.

226 In Markuleski, the Court was concerned, at [34], with the question as to:

"... when an acquittal [on one count] so affects the credibility of the complainant that, in combination with other factors, a conviction was not open to the jury."

This question arose because of different views expressed in the cases as to what the High Court had determined in Jones v R [1997] HCA 56; (1997) 191 CLR 439.

227 In Jones, the High Court was concerned with inconsistent jury verdicts in the case of multiple alleged sexual offences. The question was whether the inconsistent verdicts so affected the complainant's credibility such that convictions on the other counts were not open. The High Court noted that that question had to be considered in combination with all other relevant factors. In Jones, the relevant factors were unexplained delay in complaint and absence of corroboration. Subsequent to the High Court's decision, Jones was treated by some trial and intermediate appellate courts as authority for the proposition that where the only direct evidence of sexual offences was that of the complainant, an acquittal on one charge meant that it was not open to the jury to convict on others.

228 In Markuleski, this understanding of Jones was held to be erroneous. As Spigelman CJ said, at [65]:

"In my opinion this is not what the High Court intended. Whether or not the failure of the jury to accept the complainant's version in one respect ought to have led to the jury to have a reasonable doubt with respect to other matters, must depend on the full range of relevant circumstances."

229 His Honour, at [66], re-emphasised that in Jones, the High Court had said:

"There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count."

and noted that:

"The reference to 'the surrounding circumstances' requires an appellate court to consider all the facts of the case."

230 Spigelman CJ continued:

"68There have, of course, been cases since Jones in which the Court was able to detect from the transcript that there were relevant differences in the way the complainant gave evidence on the matters which led to an acquittal when compared to those which led to a conviction (see e.g. R v RJB [1999] VSCA 188 at [26]; R v Tee [1999] SASC 352 at [70]; R v A [2000] QCA 520 at [23] and [106]; Jaensch v The Queen [2000] WASCA 212 at [37]; Miles v The Queen [2000] WASCA 364 at [66]; R v OGD (No. 2) [2000] NSWCCA 404 at [126]; Strickland v The Queen [2000] WASCA 68 at [65]-[70], [74]; Duniam v R (TASSC, 22 September 1997, unreported).

69The absence of any relevant difference in the complainant's evidence was emphasised in Jones, as it had been in M (at 494 quoted at para 4 above). It is not, however, in my opinion, the case that the reasoning in Jones requires a court of criminal appeal to quash a conviction in a pure word against word case, unless the differences between or amongst the verdicts can be explained in this way.

70Indeed, the courts' respect for the constitutional role of the jury, affirmed in Jones itself, is such that a court of criminal appeal could conclude that subtle differences in the way evidence was presented - differences not apparent from the transcript available on appeal - may explain what appear to be, at first sight, inconsistent verdicts."

231 The import of the appellant's submission was that the trial judge had exhorted the jury to find the offences proved if it had come to a decision that one or other of the group of charges had been proved. It was said that this was contrary to principle. I agree that if such a direction was given it would be erroneous. In my opinion, the particular direction of which complaint is made, when read in the context of the directions as a whole, both oral and written, does not have the vice for which the appellant contends. In this regard, it is not unimportant that the appellant's submission was framed in terms that "read on their own", the directions were "troubling". It is also relevant that support for this ground was sought to be gained from the alleged error in respect of tendency or propensity reasoning. I have already concluded that there was no error in the latter respect.

232 Read in context, the trial judge's directions, at SU 13 (set out above at [222]) and SU 14 (set out above at [223]) meant this. First, he told the jury there was no basis for compromise (at SU 13). He did so where immediately prior to that statement he had directed the jury that each charge had to be considered separately. That direction was also contained in the written directions in two separate places, one of which was directly connected with the direction not to compromise. His reference to the possibility of arguments on appeal to the Supreme Court emphasised the importance of not doing so. His Honour then reiterated: "So do not compromise". The direction not to compromise was unambiguously a direction to consider each charge separately.

233 His Honour, at SU 14, for a further time differentiated between the 2004 and the 2006 offences. The particular differentiation to which he referred was the absence of any alibi evidence in respect of the 2004 offences. The jury were told to be cautious about concluding that that created some difference. His Honour next stated, "It all still depends on whether [the complainant] is honest and reliable". That, in my opinion, was a direction to decide whether they accepted the complainant's evidence in respect of each of the offences.

234 The appellant particularly relied upon the next part of the summing up (emphasised at [223] above) but which I set out again for convenience:

"If she is honest and reliable about 2004 you might find it difficult to conclude she was not honest and reliable about 2006."

235 However, that was not the direction. The direction was:

"If she is honest and reliable about 2004 you might find it difficult to conclude she was not honest and reliable about 2006. If you conclude she is not honest and reliable in relation to 2006, how can you draw the conclusion she was not honest and reliable in relation to 2004?

If the Crown satisfies you that these offences were committed you must convict. If the Crown does not satisfy you, you must find him not guilty. If you find him not guilty on one offence that must mean you doubt the reliability and truthfulness of the complainant in relation to that charge. If you come to that conclusion you should take that into account when consider if he is guilty or not guilty in relation to other charges and you would have to look very carefully at that situation."

236 It is clear from the direction taken in context that the jury could use a doubt about one aspect of the complainant's evidence in their consideration of whether she was truthful and reliable in respect of her evidence as to the other charges. As his Honour concluded this particular direction, "you would have to look very carefully at that situation", as indeed the jury was required to do in the overall assessment of the complainant's evidence. In the emphasised portion of this direction, his Honour was posing a question for the jury's thinking, that is, if the complainant was not honest and reliable about one set of charges, they would ask themselves and consider very carefully whether she was honest and reliable about the other. There was no direction that this was an "all or nothing" situation, as the appellant contended.

237 It is apparent that the direction in respect of which the appellant now complains at SU 14 (set out at [223] above) was directed to the complainant's credibility and reliability and would have been so understood by the jury. Nor do I consider that the second part of the earlier direction at SU 13 (set out at [220] above) undermined the clear written and oral directions that each count was to be considered separately. In my opinion, in the context of the directions as a whole and even on this direction alone, there was no undermining of the clear direction which immediately preceded it: viz, "[e]ach charge has to be considered separately and a verdict given on each".

238 In determining whether this ground is made out, it is not unimportant that no complaint was made at trial that the jury had not been properly directed in respect of such a fundamental matter. The appellant was represented by experienced senior and junior counsel and no complaint is made as to their competence at the trial. A significant issue at the trial was the complainant's credit and the reliability of her evidence. Indeed, there was a sustained attack on her evidence, not only in cross-examination but through the evidence of the other witnesses both for the Crown and the defence.

239 It is also not unimportant, given that the appellant was represented by experienced counsel, to have regard to the likely way the directions would have been understood by the jury. In various ways, the trial judge directed the jury on 10 separate occasions that they were to consider each charge separately. I say 'in various ways', because I have included in this compilation his Honour's directions on the elements of each offence, both in the written directions and in the oral directions. The reinforcement of the need to consider each charge separately by its repetition at various times in the summing up would not be likely to have been lost on the jury. Care also needs to be taken when considering the transcript of the oral directions. This Court is entirely dependent upon the record and is not privy to the tone or inflection in his Honour's voice, just as this Court is not privy to the nuances of the oral evidence of a witness. In my opinion, to the extent that there were some passages in the directions that, taken singly, might attract some criticism, that criticism is not sustained when the directions are read as a whole.

240 When regard is had to the entirety of the directions given and the course of the trial, including the directions given in answer to the jury's questions and the directions warning the jury against engaging in tendency and propensity reasoning, I am of the opinion that the error alleged under ground 3 has not been made out. Accordingly, I would grant leave under r 4 to extend the time in which to raise this ground up to the date of the filing of the grounds of appeal, but reject ground 3.

241 I should also add the following. Since first preparing my reasons in this matter, I have had the opportunity of reading the draft reasons of Adams J. I have reviewed my own reasons in the light of the analysis his Honour has made of the summing up. However, notwithstanding his Honour's analysis and the agreement of Hislop J with it, I am not persuaded as to its correctness. In this regard, I would only emphasise what I have said as to the need to consider the trial judge's directions as a whole. His Honour has also expressed concern as to certain of the directions in respect of which no complaint was made. I do not criticise his Honour for doing so. Where an erroneous direction has been given which results in an accused person not being tried according to law, the Court ought to intervene, subject to questions of fairness to the Crown in being accorded an opportunity to address the matter. Not only have I arrived at a different conclusion, it should be noticed that this is the second time the matter has been before this Court and the points taken on the appeal in grounds 2 and 3 were not previously raised. On each occasion, the appellant was represented by experienced counsel. To extend the matters beyond the specific complaints made as to the directions is not, in my opinion, warranted in this case.

Ground 4: the trial judge erred in failing to adequately direct the jury in accordance with R v Murray

242 Leave is also required to raise this ground of appeal.

243 In Murray Lee J stated, at 19, that it was usual in cases of serious crime for the trial judge to direct the jury that where there was only one witness asserting the commission of the crime, the evidence of that witness "must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in". His Honour commented that a direction of that kind does not of itself imply that the evidence is unreliable and that it was necessary for the judge to make it clear to the jury that the weight to be given to the evidence was entirely a matter for them. His Honour concluded that there will be cases where the failure to bring home to the jury the position of the uncorroborated witness would result in the verdict being set aside.

244 In this case, the trial judge gave the following written direction to the jury:

"[M's] evidence is the most critical Crown evidence in the trial. Her evidence, is of utmost importance. If you decide that her evidence was not credible, then you should not convict the accused. She is the only witness to give evidence of the crimes alleged against the accused.

I must warn you that you must scrutinise her evidence with great care and you should only convict the accused if you are satisfied beyond reasonable doubt that her evidence is credible and reliable.

I must further warn you that you should give consideration when considering her reliability to the fact that she gave evidence that she may have been mistaken about the date of some events, and that her evidence in some respects as to what happened was somewhat vague.

This is not to say that she was necessarily unreliable or untruthful. I am merely warning you to look carefully at what [M] has said."

245 His Honour gave the following oral directions in the matter:

"But it is her evidence and her evidence alone, there is no other evidence.

I have got to say that it is not necessarily unusual in a case like that that there is no other evidence. If you accept that she is truthful and reliable you are entitled to convict, it is as simple as that. If she is telling the truth and you think she is reliable then you are entitled to convict."

246 In his summing up to the jury, his Honour again referred to the need for the jury to be satisfied that the complainant was telling the truth and was reliable.

"You have to look at the credibility of [M]. Her evidence is the most important evidence in the case. If she is not credible you should not convict. She is the only witness to give evidence. Now the fact that she is the only witness does not mean something did not happen."

247 The appellant made two complaints about these directions. The first was that his Honour, in saying, "it is not necessarily unusual in a case like that that there is no other evidence", minimised the significance of the evidence of M's sister, L. The appellant submitted that this was important to the evaluation of M's evidence in that it might have been expected that L would support her allegations, but she did not. The appellant submitted that the effect of the direction was to suggest to the jury that they could evaluate M's evidence, accepting that it stood alone, but taking into account that this was a perfectly commonplace situation.

248 For my part, I do not consider the jury would have misunderstood the trial judge's directions. The trial judge had dealt with the evidence of each of the witnesses. However, the critical evidence was M's evidence of the particular incidents. In that respect, her evidence stood alone in the manner described by the trial judge.

249 The second complaint related to his Honour's statement that the warning he was giving, that M's evidence needed to be scrutinised with care, was one that he was "required" to give "as a matter of law".

250 In Pahuja v R (1987) 49 SASR 191; 30 A Crim R 118 at 125, King CJ stated that a judge:

"... is free to frame the caution or warning in such terms as he sees fit. It must be clear to the jury, either from a specific direction or at least from the general tenor of the summing up, that they are free to reject the judge's suggested approach to the evidence of the alleged victim or any views which he might express on such questions of fact. He must not convey the impression that the caution or warning is given as a matter of law."

251 This statement was endorsed by Deane J in Longman v The Queen [1989] HCA 60; 168 CLR 79 at 96, although his Honour did not otherwise comment upon the observation that the trial judge should not convey the impression that the warning was given as a matter of law. No other member of the Court in Longman referred to Pahuja or made any statement to like effect.

252 In DTS v R [2008] NSWCCA 329; 192 A Crim R 204 I referred, obiter, to Pahuja. It was unnecessary in that case to determine whether the trial judge had erred by making reference to the warning being required by law. Pahuja was also referred to in Seymour v R [2006] NSWCCA 206; 162 A Crim R 576 at [64], where Hunt AJA (Simpson and Rothman JJ agreeing) appears to have endorsed the comment by King CJ to which I have referred. Hunt AJA's reference to Pahuja was also obiter.

253 The requirement to give a Murray direction was considered in Chivers v R [2010] NSWCCA 134. That case concerned sexual offences against two persons under the age of 16 years. The trial judge gave a Murray direction and added:

"This is a warning that a judge must always give where proof of an essential element of offence depends on the evidence of a single witness and is not directed at [the complainant] personally."

254 Schmidt J, with whom Hulme J substantially agreed, observed that the direction was erroneous because a trial judge is not always required to give such a warning. This is apparent from the statement of principle in Murray itself.

255 Whether or not a Murray direction should be given is a matter for the discretion of the trial judge. There is no prescription as to the words to be used: Kaifoto aka Teaupa v R [2006] NSWCCA 186 at [72]. In this case, the trial judge used standard and acceptable terminology in his reference to the need to scrutinise M's evidence. The complaint is directed at his reference to the requirement to give that direction as a matter of law.

256 The Crown submitted that the trial judge's statement that the direction was required by law arguably elevated rather than undermined the direction to the jury of the need to scrutinise M's evidence with care. Rather, the effect of his Honour's direction was to contrast that requirement with the fact that his Honour was not presenting to the jury his personal view of her evidence. The Crown argued that it was open to the trial judge to make that contrast and referred, by analogy, to the model Bench Book direction in respect of identification evidence, which includes a reference to "the experience of the criminal courts over the years" that identification evidence, even though honestly given, may turn out to be unreliable.

257 Alternatively, the Crown submitted that even if his Honour erred in making reference to the warning being required as a matter of law, there was no possibility that the jury was misled. The focus of the trial was on the credibility and reliability of M's evidence and both the prosecutor and the appellant's counsel addressed the jury in respect of her credit. In particular, the appellant made lengthy submissions as to M's unreliability and the credibility of her account.

258 The Crown referred to the following specific directions to the jury which, it submitted, made it clear that the Crown case in the final analysis turned upon M's credibility and reliability:

"- The Crown case depended entirely on the evidence of one witness;

- It is her evidence and her evidence alone, there is no other evidence;

- If you accept that she is truthful and reliable you are entitled to convict ... if she is telling you the truth and you think she is reliable then you are entitled to convict;

- You have to look at the credibility of the complainant. Her evidence is the most important evidence in the case. If she is not credible you should not convict;

- The Crown relies on her evidence: you are entitled to act on her evidence if you regard her as truthful and reliable;

- Ultimately you have to focus on her evidence because she is the principal witness."

259 Notwithstanding King CJ's status as a leading jurist in this country, it may be necessary to question whether it would be wrong for a trial judge to indicate to the jury that the direction is being given because the law required it. What the jury requires at the end of the summing up is a clear understanding of the task that it is to undertake including, in an appropriate case, the need to scrutinise the evidence of a complainant or other witness. The jury must approach its task neutrally. In other words, the jury must understand that regardless of any view of the evidence expressed by the trial judge and regardless of what has been said to them by the Crown and by the defence, the fact finding task in the trial is for them and them alone. It seems to me that there is merit in the Crown's submission that by informing the jury that the law required M's evidence be scrutinised with care, they were being warned of the essential task that the law requires them to undertake. This is particularly so where, in circumstances of a direction such as was given here, the trial judge made it clear that he was not expressing his own view that there was something about M's evidence that he considered should be scrutinised with care.

260 In any event, I am of the opinion that even if the direction involved error, the jury were repeatedly and consistently warned that they had to be satisfied that M's evidence was credible and reliable before they could convict and that no miscarriage of justice has been demonstrated. In my opinion, this ground of appeal should be dismissed.

261 It follows that, in my opinion, the appeal should be dismissed.

262 ADAMS J:

Introduction

263 I have had the advantage of reading the judgment of Beazley JA in draft and adopt with thanks her Honour's analysis of the judgments in the High Court of Australia and her Honour's summary of the evidence at, and the course of, the trial. With respect, however, I regret that I am unable to agree with her Honour as to grounds 1 (in part), 2, 3 and 4 of the appeal which (for convenience's sake) I set out below -

(1) the verdicts of the jury are unreasonable or cannot be supported having regard to the evidence;

(2) the trial judge erred in failing adequately to direct the jury not to engage in propensity reasoning;

(3) the trial judge erred in failing to properly direct the jury with respect to the need to consider each count separately.

Grounds of appeal 2 and 3

264 The appellant was charged with five counts involving sexual assaults and was convicted on all of them. In my view, the effect of the learned trial judge's directions, taken as a whole, was to instruct the jury that they could use the fact that he had committed the uncharged acts or the acts charged in the other counts as facts forming part of the proof that he had committed the offence charged in the particular count which they were considering. As I understand it, it is not controversial that, if this was indeed the effect of his Honour's directions or there was a real risk that this is how those directions might have been understood by the jury, the grounds are made out and the convictions should be quashed.

The relevant legal principles

265 The issues raised by these grounds of appeal have been considered in a number of decisions of this Court in recent years.

266 In R v ATM [2000] NSWCCA 475 the appellant's grounds of appeal included a complaint that the trial judge failed adequately to direct the jury with regard to relationship evidence. The indictment alleged two offences, one committed between February and July 1989 and the other between February and December 1990. The complainant gave evidence of sexual misconduct by the appellant toward her commencing in 1986 when she was aged four years and continuing until September 1992. The appellant denied that any sexual misconduct had occurred. It was submitted on appeal that the directions, taken as a whole, failed adequately to explain the use that they could make of the evidence of the other allegations of sexual misconduct and, in particular, that there was no warning about using the evidence as proof of a tendency on the part of the appellant to sexually assault the complainant. Howie J (with whom Sully and Whealy JJ agreed) said (omitting most references) -

[72] There is a substantial body of authority that evidence of uncharged acts of sexual misconduct by an accused toward a complainant may be admitted as evidence of the relationship between the complainant and the accused at the time of the commission of the offence or offences alleged in the indictment, where that relationship is relevant to the issues before the jury. ... As no objection was taken to the evidence at the trial, it is unnecessary for the purpose of considering the ground raised on appeal to refer in detail to the principles that apply in respect of the admission of evidence of this nature.

[73] However, it should be noted that evidence of allegations of uncharged misconduct by the accused is only admissible if it has sufficient relevance to the issues raised in the trial ... Simply because the evidence is said to disclose the relationship of the accused and the complainant, it does not necessary follow that it is either relevant or has sufficient probative weight to justify its admission having regard to its potentiality to prejudice the fair trial of the accused.

[74] Further, the admissibility of the evidence of relationship will depend upon the purpose for which it is admitted. As was made clear in R v AH (1997) 42 NSWLR 702 at 708-709, the evidence can be relevant in two different ways: (a) as evidence relevant to place the events giving rise to any charge in the indictment into context and to explain the conduct of the complainant and the accused upon the particular occasion to which a charge relates; and (b) as evidence of tendency on the part of the accused to act in a particular way toward the complainant, sometimes described as evidence of guilty passion.

[75] It is incumbent upon a trial judge to explain to the jury the purpose for which the evidence of uncharged acts was placed before them and the use they are to make of it in the course of their deliberations. In particular, if there is a possibility that the jury might use the evidence for a purpose for which it is not before them and to the prejudice of the accused, then it will generally be necessary that the trial judge warn the jury about any impermissible use which might be made of the evidence and direct them against using the evidence in a way other than that for which it was admitted into evidence ...

[76] Where relationship evidence is admitted only to give context to, or by way of explanation of, the allegation contained in any charge in the indictment, the trial judge should direct the jury against using the evidence as proof that the accused committed any offence on the indictment. This may require the trial judge to direct the jury that they must not use the evidence as proof of any propensity on the part of the accused ... The words used to convey to the jury the limitation upon the use to be made of the evidence is, of course, a matter for the judge. But for my part, I believe it is better to avoid introducing terms such as "guilty passion" or "sexual interest".

[77] Further, generally it will be necessary for the judge to give warnings that they should not substitute the evidence of any other sexual activity for the specific activity which is the subject of any charge in the indictment or reason that because the accused may have done something wrong to the complainant on some other occasion that he must have done so on an occasion which is the subject of any charge ...

[78] I believe that the directions given by the trial judge fell well short of what was required in this case. The admission of evidence of this nature carries with it the real risk that the jury might misuse it. The limited purpose for which the evidence was placed before the jury and the limited use that could be made of it by them during their deliberations should have been brought home to the jury in unequivocal terms. The trial judge did not do so in this case during the summing up. Nor did he explain to the jury the basis of its admission when the evidence was first placed before them during the examination of the complainant ...

[79] To tell the jury that the evidence of other misconduct could be used "in your assessment of the background of the relationship between the accused and his stepdaughter" and that the evidence was placed before them "so you can understand the relationship between the accused and his stepdaughter over the relevant period" would not have enlightened the jury as to the use to be made of the relationship between the accused and the complainant once they understood it. To inform the jury that their assessment and evaluation of their relationship "may assist you in determining whether he is guilty or not guilty of any or both of the charges before you" was merely to state that the evidence was relevant without indicating what its relevance was.

[80] Although his Honour later referred to the fact that the jury had been told about the "other touching" to put "the evidence in context", this statement would hardly have advanced the jury's understanding of how they might use the further allegations made by the complainant ...

[81] Nor was the admonition against what the trial judge termed "a quantitative approach" adequate to convey to the jury the limited use that they could make of the evidence. It did not direct the jury against the particular line of reasoning which might arise from the admission of such evidence: that the jury might use it as the basis of inferring a propensity or tendency by the accused to act in a particular way toward the complainant and, therefore, find it more likely that he committed the particular acts relied upon as the basis for the charges in the indictment.

[82] Nor did it warn the jury against substitution of the evidence for the specific allegations which made up the charges on the indictment. On the facts of this case such a warning was particularly important. In cases where the evidence of other misconduct is vague and unspecific, an omission to give such a warning may have little real impact upon the way the jury would approach the use of such evidence. The likelihood of substitution might be non-existent and the direction a mere empty formality. But in this case there was evidence of some particularity and detail about where and when some of the other acts of sexual misconduct occurred. There was a real risk that the jury may have found the facts and circumstances surrounding one of these other acts to be more plausible than one of the particular allegations giving rise to the charges on the indictment. Therefore, the jury should have been warned about substituting one allegation for another to prove either charge in the indictment.

[83] In my view the trial judge to a very significant degree failed to adequately direct and warn the jury as to the approach they should take to the evidence of relationship during the course of their deliberations. Because of the real risk of misuse which attends the admission of such evidence, the inadequacy of the summing up in this case led to the possibility of a miscarriage of justice ...

267 In Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463 the trial judge, at the conclusion of the complainant's evidence-in-chief, referred the jury to a number of allegations of uncharged sexual conduct made by the complainant, described as "relationship evidence" and gave similar directions in the summing up, essentially saying that the evidence could be used to put the offences in context and as having some bearing on the complainant's credibility. His Honour warned the jury that they should not reason that, because the appellant had committed sexual offences before, he was guilty of the charged offences and added, "the fact that other incidents occurred that were like this one, if that should be your finding, would not itself amount to proof that the specific charge you are considering occurred." McClellan CJ at CL (with whom Howie and Latham JJ agreed) said (omitting most references) after citing the above-quoted passages from AH with approval) -

[80] To my mind it is essential in any trial where the Crown seeks to tender evidence which may suggest prior illegal acts by the accused, especially where the charges relate to alleged sexual acts, that a number of steps are followed. Although the circumstances of the particular trial may require some modification the relevant steps will generally be -

...

If the evidence is tendered merely to provide context to the charges which have been laid, it is first necessary to consider whether any issue has been raised in the trial which makes that evidence relevant (see R v ATM [2000] NSWCCA 475 at [72]). In relation to crimes of a sexual nature, particularly involving children, it may be anticipated that lack of complaint or surprise by the complainant may be an issue at the trial. If it is, it will nevertheless fall upon the trial judge to determine whether the proffered evidence should be admitted having regard to s 135 and s 137. Because the evidence will inevitably be prejudicial, great care must be exercised at this point in the trial.

If admitted, the trial judge must carefully direct the jury both at the time at which the evidence is given and in the summing up of the confined use they may make of the evidence. They should be told in clear terms that the evidence has been admitted to provide background to the alleged relationship between the complainant and the accused so that the evidence of the complainant and his/her response to the alleged acts of the accused, can be understood and his/her evidence evaluated with a complete understanding of that alleged relationship. The jury must be told that they cannot use the evidence as tendency evidence.

In discussing the application of the relevant principles to the directions given, his Honour said -

[83] The question which arises in this case is whether, having regard to the fact that the evidence was tendered merely for the purpose of providing the jury with the context in which the charged acts occurred and which would assist them in weighing her evidence, the directions given by the trial judge gave the jury clear guidance as to the appropriate principles. In my opinion they did not.

[84] ... [At] the conclusion of the complainant's evidence the trial judge gave the jury directions in which he described the relevant evidence as "what lawyers call relationship evidence" referring to the uncharged sexual acts. His Honour then takes the jury to specific questions and the answers given by the complainant.

[85] Problems then emerge as his Honour tells the jury that the evidence is capable of placing "the five offences charged ... (in) a true and realistic context." Although this statement is itself unexceptional particularly if there was an issue making the context relevant his Honour then says:

"The Crown says that if you take the global view of all the acts, you would find as a fact, that within the accused there was sexual feeling or passion for the complainant, that he was prepared to satisfy."

[86] Later, his Honour says:

"If you are satisfied that the accused harboured sexual feelings or passions for her, that fact may well make more credible or believable the complainant's evidence of this specific five incidents that appear in the indictment."

[87] In both these statements his Honour raised the question of the appellant's sexual desire for the complainant. By so doing his Honour has crossed the line between evidence of the context of the charged acts and evidence raising for consideration the propensity of the appellant to commit those acts. Before this was appropriate, the admission of the evidence as tendency evidence would have to be considered and appropriate and clear instructions given as to its use.

[88] It is true that his Honour almost immediately proceeds to give the jury directions which confine the approach which the jury could take to the evidence in a manner consistent with authority. However, to my mind the damage has been done and although it may perhaps have been curable by withdrawal of the problem direction and giving of new directions this was not done.

[89] The problem was exacerbated by the direction which the trial judge gave, without further explanation, that relationship evidence may be used to draw inferences ... He then tells the jury that relationship evidence may also be used to impact upon the complainant's credibility ... Provided this is understood as relating to issues which might affect her credibility, lack of complaint, surprise or protest, which should be explained to the jury this statement is unexceptional. However, his Honour then directs the jury's attention to the question of whether the appellant harboured "sexual feelings or passions" for the complainant saying "that fact may well make more credible the complainant's evidence that sexual activity took place on the occasion and in the circumstances of the particular charge that you are considering".

[90] As with his Honour's earlier remarks by directing attention to the appellant and whether or not he harboured sexual feelings or passions for the complainant his Honour has crossed the line and invited the jury to consider the "relationship evidence" in coming to a conclusion as to the propensity of the appellant to commit the offence.

[91] The difficulties are compounded ... [when] his Honour says that although relationship evidence cannot amount to evidence which directly proves an essential element of the offence it may be "taken into account in the two ways I have indicated."

[92] To my mind the problems in the series of directions are such that the convictions must be quashed.

Howie J (with whom Latham J expressly agreed) added the following, with respect, a very useful and clear explanation of the crucial distinction in question -

[119] Both context evidence and tendency evidence can bolster the credibility of the complainant but they do so in different ways. Context evidence is relevant to the credibility of the complainant only in that his or her version of the particular incident which is the basis of the charge in the indictment may be more capable of belief when seen in the context of what the complainant says was his or her sexual relationship with the accused. It may explain, on the complainant's version, why the accused and the complainant acted as they did in circumstances where without the context of the relationship those acts might be inexplicable. But other than generally assisting the complainant's credibility in this way, context evidence does not make the complainant's account more reliable than it would be in the absence of that evidence. Context evidence does not make it more likely that the accused committed any of the offences charged in the indictment.

[120] Tendency evidence on the other hand is direct evidence relevant to the commission of the offence charged. If accepted by the jury, it makes it more likely that the offence charged was committed by the accused. It bolsters the complainant's credibility because her version is more likely to be true if the accused has a tendency to behave in the way she alleges he did on specific occasions.

[121] It is clear that the trial Judge in the present case confused the relevance of context evidence with tendency evidence when he directed the jury that they could find that the relationship evidence showed that "within the accused there was sexual feeling or passion for the complainant that he was prepared to satisfy". As I have noted, context evidence says nothing about the accused at all. It is not led to prove anything, let alone a propensity or characteristic of the accused. Similarly the Judge was in error in directing the jury that they could draw inferences from the relationship evidence. Context evidence may allow the jury to infer some aspect of the complainant's conduct but it does not give rise to any inference about the accused's conduct.

268 In JDK v R; R v JDK [2009] NSWCCA 76 the Court upheld a ground of appeal concerning the trial judge's directions as to the use of "relationship evidence". McClellan CJ at CL (with whom James and Adams JJ agreed) said -

[36] The written direction told the jury that they could not use the evidence as showing a tendency in the appellant to commit sexual offences. However, the jury were not told that they could not use the evidence when considering whether elements of the relevant offences had been proved. To the contrary they were told that the evidence enabled them to understand the "true relationship" which was "a sexual one" and could be used to assist them in determining the particular charges. This is propensity reasoning. When he gave the oral direction his Honour confirmed his written direction in relation to propensity but by confirming that the jury could use the evidence to understand the "true nature of the relationship" between the complainant and the appellant a difficulty arose. When, as the law presently allows, evidence has been admitted going to an issue which can be explained by an understanding of the relationship between relevant persons, but that evidence has not been admitted as evidence of tendency a direction explaining the appropriate use of the evidence should be given. It may be, and this is often the justification for the admission of the evidence, that a failure to complain of an alleged criminal act at the time when it is said to have occurred may be explained by an understanding of the relationship between the complainant and an accused person. However, when it is said that the evidence is admissible so that the jury may understand the "true nature of the relationship", without defining the issue which is informed by this understanding, the jury are being invited to use the evidence to reason towards the guilt of the appellant.

[37] The problem is evident ... [from his] Honour's direction that the evidence could be used to understand "the true nature of the relationship between them, which on the Crown case was a sexual one from an early time" to assist in determining whether the Crown had proved its case, invites the jury to reason that the evidence of other acts was evidence which proved a propensity in the appellant to commit the acts with which he was charged. This was not permissible. The problem stemmed from a failure to identify the issue which justified the admission of the evidence.

[38] The situation was exacerbated by further remarks which his Honour made. During the course of his summing up he said:

"You cannot use it directly to say 'Well he did those I'm satisfied he did that, had that general sexual relationship so I'm satisfied he had that general sexual relationship therefore he did this.' You must examine the evidence and see whether there is evidence of each of these offences."

[39] Although lacking clarity a direction in these terms but for one matter may not have caused a difficulty. However, the use of the word "directly" provides a significant complication. If the jury had understood the direction it must have concluded that, although the evidence could not be used "directly" it could be used "indirectly," and, thus, the jury would have understood that the evidence could be used, at least to that extent, to reason towards the guilt of the appellant.

[40] The bench book contains two further suggested directions of particular significance in a case such as the present. The first matter is a direction in the following terms:

"You must not reason that, because the accused may have done something wrong to the complainant on another occasion, he must have done so on the occasions charged."

[41] In the context of the present case this was an important direction. Depending upon how it was introduced into the directions which his Honour gave it may have operated to remove some of the problems to which I have referred. Although his Honour was asked to give this direction he declined to do so.

269 In Rees v R [2010] NSWCCA 66, what was described as "context or relationship evidence" was given by the complainant involving sexual advances and indecent assaults by the accused between the occasion giving rise to the first charge and that giving rise to the second. The written directions stated -

"Relationship evidence.

During the course of the trial, evidence was presented to establish the true relationship between the accused and the complainant. It is of course, a matter for you to assess whether you accept the truth of this evidence, and what it shows about their relationship. The evidence was presented to give a context to what happened on the occasions of the alleged indecent assault and the act of sexual intercourse.

You can consider this evidence and use it to assist you in understanding what was the true relationship between the parties on these occasions. The relationship evidence consists of evidence of the complainant that on a fairly regular basis the accused would embrace the complainant around the area of her breasts, would kiss her and touch her in a way that caused her to be upset.

You must consider this evidence very carefully. You can use it to enable you to understand the true nature of the relationship between them, which on the Crown case was a sexual one from an early time, to assist you in determining whether you are satisfied beyond reasonable doubt that the Crown has proved beyond reasonable doubt that the accused committed the offences with which he has been charged.

You cannot use this evidence to reason that it shows in him a propensity or tendency to commit sexual offences.

270 The oral directions as to this matter were -

Now there is also evidence ... called "relationship evidence" ... [alleging] that during the period from 2001 up to 2006 on a fairly regular basis the accused would embrace her around the area of her breasts, would kiss her and touch her in an indecent fashion really. And that evidence was introduced to show you, the Crown sought to show you, that the relationship between them from an early time had a sexual aspect to it. It was not a relationship which she wanted but in fact it occurred on a fairly regular basis ... [The complainant's] evidence was to the effect that every second or third week one of these events would occur.

Well you can consider and you have to see do you accept it? If you do, does it tell you anything about the relationship between them? You cannot use it to reason that it shows that he has a propensity to commit rape but you can use it to say what is their relationship? Now, of course if you do not accept it then the relationship is not of this type at all. And if you have doubts about whether there was such a relationship then you should reject the question of relationship evidence.

Handley AJA (with whom Grove and Hislop JJ agreed) accepted the submission of the appellant's counsel that these directions were "in practically the same terms" as those which had been held in JDK to be erroneous, citing paragraphs [36] and [37] of the judgment of McClellan CJ at CL (set out above). Although counsel acknowledged that the trial judge had discussed a draft of his written submissions with both counsel and neither sought any variation, thus engaging Rule 4, the "error was too fundamental to be shut out by a refusal of leave", and a new trial was ordered.

271 Lastly, I refer to RGM v R [2012] NSWCCA 89. Since this judgment is at present restricted, I will confine myself to referring, in particular, to paragraphs [64] to [70] and [71] to [77] from the judgment of Fullerton J (with whom McClellan CJ at CL and Johnson J agreed), in which her Honour adopted and applied the distinction made by Howie J in Qualtieri at paragraphs [119] et seq (set out above), showing how the directions complained of, initially correct, went on to err.

The directions as to "contextual" evidence

272 Although Beazley JA has set out these in her Honour's judgment (except for some of the initial direction to the jury responding to a question), it is convenient to set them out again, indicating in each case what I take to be the effect of the direction from the jury's point of view (or, at the least, there was a substantial risk that the jury would so understand them). I should add that, in stating my view of the effect of the directions, I have taken into account the submissions of the Crown, which have helpfully been set out or summarised in the judgment of Beazley JA.

273 The first group of directions are largely concerned with the relevance of the so-called "relationship" evidence.

274 The issue of use to be made of the evidence of uncharged acts was the subject of oral directions shortly after the commencement of the complainant's evidence, prompted by a question from the jury -

Why has the Crown excluded or not made any charges for the alleged events which occurred when M was four years old?

His Honour then gave the following direction -

The prosecution is entitled to call evidence to establish the context in which something occurred. Now if a person has a relationship of any kind with another person, then and you want to establish what the exact nature of that relationship is, then you call evidence in a court surrounding that relationship to show what it is. How long lasting has it been, when it started, was it friendly, was it hostile, what it was. This is evidence, this is context evidence so in other words to give some reality to an event occurring in a particular year, the Crown is permitted to call evidence that things started somewhat before that. That there was a sexual - that the relationship between them before that was a sexual one of a type. So that when you come to consider whether this evidence, whether that you're satisfied beyond reasonable doubt that he committed the offences alleged, you're entitled to take into account whether that relationship existed. Was there a relationship between them going for some years and when she was very small up to the time of the first charges,that explains the relationship. That shows that the relationship between them wasn't just uncle and niece, but uncle and someone that the uncle in some way treated inappropriately, sexually. [Emphasis added.]

Now it's not evidence that can be used to conclude that he has a tendency to commit sexual offences or he has a propensity to commit sexual offences. Its only evidence that can be used to see what sort of a relationship there was. So in some cases far removed from this, say in a case that involved a violent assault on someone, and we hear about them and there are trials about them. Husbands and wives for example, a wife is being beaten by her husband for many, many years. And one day she stabs him or bashes him with a cricket bat or something. Well now as part of the case both the prosecution case and the defence case, its relevant to look at what was their true relationship long before this actual offence occurred. Was it a violent one or was it a sweet, loving one and I think we can all understand that anybody - we all have relationships of some kind. Everybody relates to some other person. The first day that you meet someone else might not be the first day, say, that something violent occurred. Your relationships develop with people over the years. You can start off being friendly and you can end up being hostile. You can start off being friendly and continue to be friendly the whole of your life. Well in a case like this involving a young girl, the Crown's entitled to call evidence to show that long before these offences were committed there was a relationship which was more than just an uncle neice relationship, it had a sexual connotation. But the evidence cannot be used to say he is guilty. It's only used to show that there was a relationship of that type. You still have to be persuaded beyond reasonable doubt that he committed the specific offences before you can convict him. And this happens I might say, this is not a unique case. This happens in ninety per cent or more of this type of a case where the persons concerned know one another. Now very many cases involving sexual matters involve people who know one another. There are occasionally cases where of totally different type obviously where people are attacked and so on, on the street by a stranger but very many cases family members or friends or friends of the family, people that have relationships with the person who's accused. So in those sorts of cases its relevant to find out what is the relationship. If you didn't - the theory behind it is that if you didn't have the evidence it would be a bit unreal. It would be as if one day something happened, out of the blue something just happened one day that had never happened before. Now that can happen in some cases obviously. And there's always got to be a first time that something happens. But that's what its all about to try and set what occurred in context. Now the fact is that's what the Crown case is and that's what her claim is, that this sort of inappropriate behaviour started some years before and then continued til she was eight and she started to realised what - this didn't seem right. Now that's her claim. You haven't heard any cross-examination of her so far, you haven't heard any evidence from the accused. You haven't heard any evidence from anyone else, it's merely a claim. That's why it's given. So I hope that helps ... [Emphasis added.]

275 In my respectful view, this direction significantly misstated the relevance of context evidence, which is permitted in order to enable the complainant to give a coherent account involving the charged misconduct and has no other purpose, with the potential and likely use of that evidence as evidence of the "reality" of what was happening, namely as proof of the uncharged allegations and, ultimately, as part of the evidentiary material to be considered on the charged offences. Taking the last sentence italicised above, the evidence is definitely not adduced to "set what occurred in context". It is adduced merely to set the evidence of the complainant as to the charged acts in context so that her evidence as to those matters (not the facts) can be fairly understood. Thus, early in the trial, the jury were misdirected as to the issue to which this evidence went and the use to which it could be put.

276 Certainly the jury was directed that the evidence could not "be used to say he is guilty" but, as is made clear in the following sentences, this was meant in the sense that, although the appellant had committed sexual offences for which he had not been charged, this did not mean that he had committed the particular charged offences, but the fact that he had a sexual relationship could be used, together with the other evidence, when considering whether or not he had committed the charged offences. That this meaning was meant to be conveyed is made evident also by the trial judge's subsequent directions, including particularly, his telling the jury, "It does not itself prove the charges".

277 As is clear from Qualtieri at [119] et seq, the evidence, as contextual, was admissible for the purpose alone of enabling the complainant to give a coherent account and, in that sense, to avoid the apparent lack of credibility which a partial account might have. It thus could not be used at all to prove the "true" relationship, for the reason as explained by Howie J, since this language must have inevitably involved, not only the avoidance of a unfair "vacuum" in the complainant's account, but proof of the sexual conduct of the appellant. This distinction, it must be conceded, is not an easy one for a jury to appreciate but it is vitally necessary that they do and, accordingly, that no language be used that might blur it.

278 The written directions stated -

Contextual evidence

The Crown has adduced from [M] evidence the appellant improperly touched [her] in 2001. He has not been charged with these offences and the evidence is given to show that the true relationship between them from the time she was four years old had a sexual element to it. This is done to show the events of 2004 and 2006 did not occur in a vacuum. However, you cannot use evidence of what occurred in 2001 to conclude that [the appellant] has a propensity to commit sexual acts against [M] or a tendency to do that and you cannot use evidence of other acts for substitution for proof of the acts charged. Furthermore, you can only take them into account to conclude that there was a sexual element in their relationship before 2004, if you are satisfied beyond reasonable doubt that they did happen.

279 The reference to the "true relationship" and the following reference to showing that the offences charged "did not occur in a vacuum" would have conveyed the notion that the jury could use the fact (if it so found - this condition is implied and I will not use it again when referring to this matter) that the "true" relationship was a sexual one in support of the complainant's evidence that sexual assaults occurred in 2004 and 2006. In my respectful view, as is clear from, inter alia, the passages cited above from JDK, the direction was, in substance, propensity reasoning.

280 In respect of those alleged offences, the evidence of the appellant was that no sexual conduct occurred and to the effect that there was no sexual relationship at all between him and the complainant. The effect of the direction, to my mind was that the jury could use the fact of the sexual relationship to support the evidence of the complainant that the other charged sexual offences occurred and disbelieve the appellant's denials. The reference to avoiding the possible appearance that the alleged misconduct occurred in a "vacuum" did not effectively confine the use to be made of the reference to the "true relationship". The appearance of a "vacuum" was to be avoided so that the complainant's evidence might not be subject to an unreal (and unfair) criticism. It did not and could not be used to prove the "true relationship" between the complainant and the appellant and, thus, to show that the later charged misconduct was part of that relationship, the existence of which made it all the more likely that the offences occurred.

281 The direction contained two qualifications: the first was that the evidence of the 2001 assaults could not be used to prove that the appellant had a tendency or propensity to commit sexual acts towards M; and the second that the evidence could not be used "for substitution for proof of the acts charged". However, the appellant's "tendency" or "propensity" would have been understood as descriptions of the appellant's character, leaving untouched the use of the "true" nature of the relationship to weigh up the evidence of the complainant on the one hand and that of the appellant on the other, the former deposing that the sexual conduct occurred and the latter that it did not, indeed, in effect that there was no sexual element in their relationship at all. Taking the second qualification, "substitution" means, in ordinary parlance "replacement", which is how, in my opinion, the jury would have understood it. Thus, the effect of this qualification was that the jury could not use it to replace the evidence of the complainant of the charged sexual conduct but it did not exclude its use to support or add to her evidence in the inadmissible sense to which I have adverted, in short, to make it more likely that the appellant's denials were not credible in light of the existence of the sexual relationship between him and the complainant.

282 Thus the direction informed the jury that the evidence of the 2001 - and the sexual character of the relationship - was available as part of the relevant factual matters proving the guilt of the appellant on the charges in the indictment.

283 The following direction was given orally -

If you are satisfied beyond reasonable doubt that the relationship between them starting at that time [in about 2001] was a sexual one then you are entitled to take it into account when you are weighing up the charges. It does not itself prove the charges. It does not show he has a tendency to commit any offence or a propensity to commit any offence. But if the relationship is of that type then what occurs later one is easier to understand.

284 It will be seen that this passage commenced by stating that the jury was entitled to take into account the fact that there was a sexual relationship between the complainant and the appellant in 2001 when "weighing up the charges", which could only mean, "when considering whether those charges were proved". This is reinforced by the following sentence in which his Honour points out, clearly enough, that the fact would not be sufficient to prove the charges by itself, that is to say that it went part of the way but not the whole way. He then explained that it did not (meaning, I think, "could not be used", though whether the jury would have appreciated this as it was listening is rather doubtful) to show tendency or propensity. However, as I have already pointed out, in ordinary parlance "tendency" or "propensity" are descriptions of a person's character or inclinations whilst a relationship is a description of the actual interaction between individuals. However, I would repeat that the evidence of other misconduct was admitted only for the purpose of avoiding the incoherence and possible unlikelihood of an account that was confined to the allegations concerning the charged misconduct. It could not be used to "weigh up the charges" in any other sense, and did not partly prove the charges at all.

285 The last sentence is, to my mind, fraught with error. It is an echo of the written direction reference to "true relationship" except that it proceeds upon the basis that "what occurs later" is the sexual assaults which then become "easier to understand". But the very question is whether any sexual assaults at all occurred later. The clear implication is that the existence of the sexual relationship makes it easier to believe that the allegations of the complainant were true and could be accepted as proof of the appellant's guilt. The point is that the "contextual" evidence is given to enable the complainant's evidence to be more easily understood where otherwise incoherence might be an issue for reasons but it is not given in any sense to make it easier to understand why the sexual misconduct occurred or to prove the facts. The "easier-to-understand" use of the evidence as explained in these directions is in substance propensity or tendency reasoning: it is easier to understand that the offences occurred because the appellant had a tendency or propensity to sexually interfere with the appellant. Thus the direction gives with the one hand what it takes away with the other by a change in phraseology. (It is also "easier to understand" what occurred if the true nature of the relationship between the appellant and the complainant has a sexual element. The vice in this reasoning is that it uses the relationship in proof of the charges, as discussed above.)

286 Later on in his directions, the trial judge returned to the significance of the 2001 misconduct -

The contextual evidence [plainly, a reference to the heading in the written directions]. You must be satisfied beyond reasonable doubt that the events occurred in 2001 before you could conclude that there was a sexual relationship between them as far back as 2001 ... and remember you cannot take it into account in any way to decide that he is likely to commit other offences or he has a propensity to do it or a tendency to do it. But if you consider beyond reasonable doubt that in 2001 there was a sexual relationship between them, then you can use that, when you are looking at 2004 to say, well he had a relationship as far back as 2001, that was the nature of it. In 2004, do the events fit into that relationship?

287 In my respectful opinion, the meaning that would have been conveyed or likely conveyed by the last two sentences was that the jury was entitled, in considering whether the 2004 offences occurred, to put into the scales whether there was a sexual relationship between the parties. Why else would it be material to consider the significance of the nature of the relationship when weighing up the likelihood that the 2004 (or, for that matter, the 2006) assaults occurred? It seems all to obvious that, once it had been decided that the later offences occurred, it did not matter at all whether they fitted into the proved relationship between the complainant and the appellant.

288 As to the relevance said to be ascribed to the nature of the "true relationship" (echoed by the use of the expression, "that was the nature of [the relationship])", this direction instructed the jury that this fact was material to deciding whether or not the offences occurred. If I may repeat, the contextual evidence is admitted only to enable the complainant's testimony to be understood and not to prove that the offences occurred, let alone explain why they occurred. To put the matter slightly differently, once it be established that the offences occurred, it could not matter in slightest whether or not they were consistent with the sexual relationship. Thus, the only sensible meaning that could be ascribed to his Honour's direction is that the jury could place in the scales, when considering whether the allegations were proved, the fact the appellant and the complainant had a sexual relationship.

Separate consideration of the charges

289 I now deal with the directions that impinged on the question of separate consideration of each charge, a matter which is connected with the way in which the jury were instructed they could deal with the credibility of the complainant and the appellant. These involved also the use of the relationship or contextual evidence, so there is some carry-over.

290 The written directions commenced with the following, under the heading, "Proof beyond reasonable doubt" -

The Crown must prove each of the elements of the charges in the case against the [appellant] beyond reasonable doubt.

This, of course, does not deal with the question of separately considering each charge on its own account. The only reference in the written directions to this vitally important matter was (under the heading "Consistency in verdicts") -

Each charge must be considered separately and a verdict given on each. It is wrong to compromise. There is no place at all for saying that you will find some counts for the Crown and some for [the appellant].

The Crown must prove its case beyond a reasonable doubt. The Crown case depends entirely on the evidence of the complainant. If you accept that she is a truthful and reliable witness, you are entitled to convict the accused. She gives evidence about offences on the indictment occurring in 2004 and 2006. The Crown must satisfy you beyond reasonable doubt that the accused committed offences in each of those periods. If the Crown satisfies you, your duty is to convict.

However, if the Crown does not so satisfy you, you should find [the appellant] not guilty. If you find him not guilty of one offence, that must mean that you doubt the reliability and truthfulness of the complainant in relation to that charge. If you come to that conclusion on one charge, you should take that into account when considering whether the accused is guilty or not guilty o[n] the other charges. There is no basis for compromise.

291 As Beazley JA points out, no submission is made by the appellant that this direction erred. As clearly foreshadowed, there might be a cross-over on the question of the complainant's credibility in the sense pointed to by the trial judge. The written direction, in respect of the complainant's credit, had not mentioned this aspect but, taken with the later direction, was adequate. The earlier direction had said -

Credibility of the complainant

The complainant's evidence is the most critical Crown evidence in the trial. Her evidence, is of utmost importance. If you decided that her evidence was not credible, then you should not convict the accused. She is the only witness to give evidence of the crimes alleged against the accused.

I must warn you that you must scrutinise her evidence with great care and you should only convict the accused if you are satisfied beyond reasonable doubt that her evidence is credible and reliable.

I must further warn you that you should give consideration when considering her reliability to the fact that she gave evidence that she may have been mistaken about the date of some events, and that her evidence in some respects as to what happened was somewhat vague. This is not to say that she was necessarily unreliable or untruthful. I am merely warning you to look carefully at what the complainant has said.

292 The relevant oral directions commenced in this way -

As you will see from the directions I express the view and it is the law. If you come to the conclusion that she is not truthful or not reliable in relation to any one of the counts in the Indictment you would have to take that into account when you are looking at the others. If you come to the conclusion that she was not telling the truth, members of the jury, then you could not convict the accused ... If she is not telling the truth in one matter, how could she be telling the truth in relation to other matters? It would be unreasonable and unfair to take that view that she could be.

If you found she was not untruthful but unreliable in relation to one matter, just any one of the counts on the indictment, you would have to look very carefully at all the other counts and say, well is she reliable in relation to them, what is there that would make her unreliable [sic, plainly, a typographical error for "reliable"] in relation to this but unreliable in relation to something else?

293 I would point out that the last sentence is non sequitur. It is obvious, as it seems to me, that a witness might be reliable and truthful about some parts of their evidence and yet unreliable or untruthful as to other parts and in this respect, allegations of sequential sexual misconduct are no different. Indeed, it is almost invariable that a direction to this effect is part of a summing up. Be that as it may, the evidential material in respect of the 2006 offences was very different in a number of respects from that concerning the 2004 offences, not only in terms of the complainant's evidence about them but also the evidence of the appellant in respect of the alibi. (I discuss this issue further below in connection with a later passage in the summing up.) The jury were, in effect being invited to reason that, if the complainant's evidence was true as to the 2004 offences, then they should rely on it in respect of the 2006 offences (or vice versa) unless there was some evidence that established positively a countervailing reasonable doubt about the second lot of allegations.

294 The last sentence suggests to my mind a reversal of the onus of proof, (though this was not how the matter was put on the appeal). However, it certainly informed, or at least implied that, the jury were entitled to take into account findings of guilt in respect of one group of charges for the purpose of considering the appellant's guilt on the other group. The correct direction was one that that confined itself to the potential impact of doubts as to the complainant's (or the appellant's) truthfulness or reliability in respect of one group of charges so far as the other group was concerned.

295 In my respectful view, it was imperative to direct the jury that, even if the appellant were found guilty of one charge, his guilt or otherwise of each other charge had to be separately considered, weighing up only the evidence relevant to that charge, which had to be distinctly identified. Of course, they were entitled to take into account their negative findings as to the appellant's truthfulness in respect of one charge when dealing with his evidence as to other charges. In this respect, the reasoning from adverse conclusions is symmetrical. It was not only necessary to identify that part of the evidence which was relevant to each charge but also, in particular, to direct the jury that the complainant's evidence of any sexual offence other than that involved in the particular charge under consideration was immaterial (with the possible exception that it might be "contextual", but in that event very careful directions as to its very limited use needed also to be given). The mere fact that this was a trial of a sequence of alleged sexual offences (as distinct, say, from a series of armed robberies) did not change this fundamental requirement. In my view, its absence meant inevitably that the directions as to separate consideration of the charges were significantly inadequate.

296 Taking the oral directions in sequence leads to the passage set out above in paragraph [21] since it is relevant in the context of separate trials. However, it is unnecessary to repeat the discussion already undertaken, which covers this ground. Immediately following this passage, the Judge took the jury to that part of the written directions under the heading "Proof beyond reasonable doubt" and, after pointing out that it was not necessary that each juror have the same reasons for reaching a verdict, said -

The question is, after you have all discussed with one another all your different views are you satisfied beyond a reasonable doubt the case has been proved? And as it will become clear you have to look at each count or each charge separately.

However, what was essential was to explain, even briefly, what was meant by looking at each charge separately. With respect it seems to me that the mere statement that this was to be done would not have conveyed to the jury that each charge was to be considered with regard only to the evidence relevant to that charge, together with identifying the relevant evidence in respect of each charge. Of course, some evidence was common to the charges, such as the layout of the complainant's house, the relationship between the families and so on. However, as already pointed out, it was essential to make it clear that a finding that the appellant was guilty of one charge could not be used in considering his guilt of another charge, particularly given the directions as to the use that the jury might make of the finding as to the existence of a sexual relationship.

297 After directions as to the legal elements of the offences, the directions returned to the significance of the complainant's evidence being that upon which the prosecution entirely relied -

"You have to look at the credibility of the complainant. Her evidence is the most important evidence in the case. If she is not credible you should not convict. She is the only witness to give evidence. Now the fact that she is the only witness does not mean something did not happen.

...

The first batch of charges relates to 2004. The girl did not complain to anyone in 2004 and by the time these matters came to attention in 2007 there was no test they could carry out about what might have happened in 2004. Indeed there was not any test they could carry out about what might have happened in December 2006, there is just nothing that could be done. So it is her evidence. That does not mean she is not telling the truth and it does not mean she is not reliable when I say this. I just say you have to scrutinize her evidence with care.

The warnings that I give are required to be given by me as a matter of law, all judges are required to give them. They are not my personal warnings, we are required by law to express ourselves in this way. [Appellant's counsel at trial] has pointed out to you all sorts of aspects in which she has given evidence that is vague in some respects and in some instances may have been mistaken. You have to look at that very carefully.

(I have included this passage for completeness and convenience because it contains a passage which is the subject of ground of appeal 4, to which I shall return.)

298 His Honour then briefly summarised the allegations concerning the 2006 events and moved to the appellant's evidence of alibi. These passages do not deal with the issue of separate charges and do not give any guidance about the way in which the jury should understand and apply the earlier general directions as to this requirement. The judge then moved onto the contextual evidence, with which directions I have already dealt.

299 The subject matter of separate charges was lastly dealt with as follows -

Each charge has to be considered separately and a verdict given on each. At the end of the trial my Associate will ask the foreperson of the jury to stand up, ask, 'Have you reached your verdict. As to count 1, how say you? And as to count 2?' And each of the counts is read out.

There is no place at all for saying you will find some for the Crown and some for [the appellant]. Members of the jury this is a very important matter. Every so often, regrettably, there can be juries who decide they cannot really work it out so they just say, 'yes' for some and 'no' for others'. That always leads to big problems because there are then arguments perhaps in the Supreme Court which hears appeals from this court that the verdict was nothing more than a compromise, the jury did not do its job. So do not compromise.

Obviously what occurred in 2004 is different from what occurred in 2006 because in 2006 there is positive evidence given by [the appellant] and people supporting him that he could not have committed those offences. In 2004 there was no alibi evidence. However, be very cautious against drawing a conclusion that that creates some difference. It all still depends on whether she is honest and reliable. If she is honest and reliable about 2004 you might find it difficult to conclude she was not honest and reliable about 2006. If you conclude she is not honest and reliable in relation to 2006, how can you draw the conclusion she was honest and reliable in relation to 2004? [Emphasis added.]

If the Crown satisfies you that these offences were committed you must convict. If the Crown does not satisfy you, you must find him not guilty. If you find him not guilty on one offence that must mean you doubt the reliability and truthfulness of the complainant in relation to that charge. If you come to that conclusion you should take that into account when consider if he is guilty or not guilty in relation to other charges and you would have to look very carefully at that situation."

300 The crucial passage is that which I have italicised. The others are included to provide some context. They do not qualify in any way the effect of the italicised paragraph. In my respectful view, this passage is a serious misdirection, erring in a number of important respects. It will have been seen that it echoes the previous instruction as to the use that could (indeed, should) be made of a finding that, if the jury accepted the complainant's evidence as to the uncharged misconduct as truthful and reliable, they could not only use that conclusion to conclude that it was more likely that she was telling the truth about the charged offences but, in effect, should do so unless there was a good reason for concluding otherwise. However, this passage goes even further, since the direction is to the effect that it would not only be proper but appropriate, if they decided that the complainant should be believed in respect of the 2004 offences, to be "very cautious" about accepting the possibility that the defence evidence of alibi in respect of the 2006 might be true. There could not be a stronger demonstration of the intrusion of the findings as to the credit of the complainant with respect to the 2004 charges into the supposedly separate consideration of the 2006 charges. This is precisely what this Court in Qualtieri said must not be done (per Howie J at [119]).

301 Aside from anything else, such a strong comment on the evidence required the jury to be reminded that they were entirely free to disregard it, since such factual reasoning was a matter for them. In my view, the unqualified character of the direction would have led the jury to understand that it was a direction of law and, hence, binding upon them. This, of itself, is to my mind a serious error. Furthermore, the direction tended to reverse the onus of proof (which was, again, not the way the argument was put in this Court, however) for the reasons earlier expressed. Moreover, it was a non sequitur. In my view, it also implied that the jury should consider the 2004 offences first, again, an implication that should have been accompanied by a reminder that the order in which the charges were to be considered was a matter for the jury to decide. There were actually very good reasons for considering the 2006 charges first, because of the specificity of the dates (if the jury followed the judge's direction in this regard) and the countervailing alibi evidence, which gave more substance to the defence case. In that event, the direction as to approaching the alibi evidence with caution would have had no applicability. This further demonstrates, as I think, how fundamentally flawed this passage was.

302 As Beazley JA points out, counsel for the appellant in this Court constructed his argument by referring to R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82, submitting that the trial judge had, in substance, directed the jury that an "all or nothing" approach was appropriate. I respectfully agree with discussion by Beazley JA of the import of Markuleski but would put the essential question somewhat differently to her Honour (accepting, however, that this might be a distinction without a difference), that is, the question is whether the directions amounted to suggesting to the jury that they could use the finding of guilt of one charge as evidence in proof of (even if it did not entirely prove) the other charges.

303 I regret, however, that I am unable to agree with Beazley JA that the directions do not suggest the legitimacy of such reasoning. Certainly, they do not say so in terms, but as I have endeavoured to demonstrate, I am of the view that this type of reasoning was implied, perhaps most strongly by the directions as to the use that could be made of a finding of a "sexual relationship". Although that discussion was in the context of the use that could be made of the uncharged misconduct, plainly enough it applied to the use that could be made of a finding of guilt of the charged offences. I would point also to the directions concerning the use that should be made of findings in respect of the credit of the complainant, to the effect that if good on one or some charges, it should be taken as reliable in respect of the others unless there was a good reason for not doing so. Indeed, as I hope is clear from my earlier discussion of the directions, taken as a whole not only do they not dispel the implication to which I have referred, but reinforce it.

304 With respect, it is my view that, even if the instructions that the charges had to be separately considered and there should be no compromise might have had some qualifying effect, this was very much less than what was required, especially in the absence of any explanation as to what separate consideration entailed, except that inconsistent verdicts might be taken by the appeal court to mean they were the result of compromise. Indeed, as it seems to me, far from demonstrating that the separate trials directions were sufficient, this last explanation strongly implies an "all or nothing" approach was, if not necessary, at least desirable.

305 It follows that, in my view, grounds 2 and 3 should be upheld and the convictions quashed.

Ground of appeal 4

306 The relevant passages in the trial Judge's directions have been helpfully quoted in the judgment of Beazley JA. As it seems to me, the fundamental issue concerns the meaning that was conveyed or might well have been conveyed by the following passage (set out in paragraph [35] above but repeated here) -

The warnings that I give are required to be given by me as a matter of law, all judges are required to give them. They are not my personal warnings, we are required by law to express ourselves in this way.

It is uncontroversial that this passage must be understood in the context of the summing up as a whole, including in particular those passages set out in the judgment of Beazley JA. I agree with her Honour's view concerning the applicability and correctness of the passage from the judgment of King CJ in Pahuja v R (1987) 49 SASR 191; (1987) 30 A Crim R 118 at 125 (arising from the question, as it happened, whether there should be a warning where there was no corroboration for a complainant's evidence) -

In many sexual cases, prudence will dictate the giving of some appropriate caution or warning. If ...a judge cautions or warns the jury as to their approach to the evidence of an alleged victim of a sexual offence, he does this as part of his duty to provide guidance to the jury as to the evidence and the facts. He is free to frame the caution or warning in such terms as he sees fit. It must be clear to the jury, either from a specific direction or at least from the general tenor of the summing up, that they are free to reject the judge's suggested approach to the evidence of the alleged victim or any views which he might express on such questions of fact. He must not convey the impression that the caution or warning is given as a matter of law.

307 I would respectfully adopt Beazley JA's ensuing discussion of the way in which King CJ's judgment in this respect has been subsequently dealt with but I point out that, in Seymour v R [2006] NSWCCA 206, the only passage referred to from Pahuja dealt with a discussion of the applicability and character of a so-called Prasad direction: R v Prasad (1979) 23 SASR 161. Accordingly, although I am respectfully of the view that Seymour does not provide support for the correctness of the particular passage under discussion, I agree with Beazley JA that as expressed by the trial judge in the present case, it did not undermine the force of the direction to the effect that the prosecution case depended entirely on the complainant's evidence, which effectively stood alone and required careful examination before it could b relied on to convict the appellant.

308 It remains to say that I agree that, even if the direction involved error, the directions to the jury amounted to an adequate warning of the need to scrutinise the complainant's evidence with care before they could convict the appellant.

309 Accordingly I agree that this ground should be dismissed.

Appropriate orders

310 I have already explained why, in my view, the appeal should be upheld in respect of all convictions. The question whether the verdicts of the jury were unreasonable or cannot be supported having regard to the evidence and whether the appellant should be permitted to rely on the new evidence concerning the release dates of the movies therefore may be conveniently considered in the context of whether a new trial should be ordered. It cannot be doubted that, if there were to be a new trial, the appellant would be entitled to lead the "new" evidence. The potential effect of such evidence can, in my view, be considered in connection with the exercise of the Court's discretion as to whether a new trial should be ordered. For this purpose, it does not need to carry such cogency as to cause this Court to entertain a reasonable doubt as to the appellant's guilt.

311 It seems to me significant also that, accepting that the directions significantly erred in the way I have described, the verdicts should be approached on the basis that they were, or might well have been, influenced by the jury (wrongly, as I have held) taking into account evidence that ought not to have been considered. This problem is especially potent in respect of the 2006 offences and their consideration of the appellant's alibi evidence. It seems to me that the only appropriate course is to interpret the verdicts on the basis that the jury followed the directions they were given. For this reason, there is no room for applying the deference required by the principle, otherwise relevant in considering appeals brought on the ground that the verdict was unreasonable or unsupportable, that "the jury is the body entrusted with primary responsibility of determining guilt or innocence" (SKA v The Queen [2011] HCA 13 at [13], citing M v R (1994) 181 CLR 487 at 493). Furthermore, it follows that "the jury's advantage in seeing and hearing the evidence" cannot resolve a doubt experienced by a Court of Criminal Appeal (vide M 181 CLR at 494).

312 It seems to me that the appropriate test for determining whether, in the present circumstances, there should be a new trial ordered in respect of any of the charges, is to ask whether (adapting the language of M at 194), notwithstanding that there is evidence upon which a jury might convict, it would be dangerous in all the circumstances to allow a possible verdict of guilty on a new trial on the same evidential material, which would depend, here, on the Court's independent assessment of the evidence to determine whether it has a doubt about guilt: see also Morris v R (1987) 163 CLR 454 at 473 and MFA v R (2002) 213 CLR 606; [2002] HCA 53.

313 I propose to commence with the question whether the case propounded by the Crown at trial or that which followed from the evidence of the complainant confined the 2006 offences to the period from the evening of 22 December 2006 to and including the evening of 24 December 2006. The following passage from the judgment of French CJ, Gummow and Kiefel JJ in the High Court (SKA v The Queen [2011] HCA 13) explains why these dates are important -

[9] The date of the incidents the subject of counts 4 and 5 is critical because the applicant led evidence at trial which provided an alibi for the period from the evening of 22 December up to and including Christmas Eve. The applicant gave evidence that he was at a concert, in which one of his daughters was performing, on 22 December 2006, a fact confirmed by his wife. There was evidence that, on the evening of 23 December 2006, the applicant and his family visited a person recently arrived from overseas at his home and remained there until about 11.00 pm. Other evidence confirmed a large gathering, on the evening of 24 December, for dinner at the home of the complainant's family. The evidence of the first mentioned witness was unchallenged and the other witnesses were not seriously challenged about their accounts.

[10] The effect of this evidence, as the trial judge observed for the benefit of the jury, was that if the jury came to the view that the incidents could only have occurred in the period immediately before Christmas of 2006 and the evidence providing an alibi was not disproved, it was unlikely that the jury could conclude beyond reasonable doubt that the applicant was guilty of the 2006 offences.

314 The crucial material is, of course, the evidence of the complainant, (set out comprehensively in the draft judgment of Beazley JA), the crucial parts of which was as follows -

Video recording (10 April 2007):

Q23: So when was the last time your uncle touched you?

A : About just before Christmas, around then.

Q24: OK. Is it [question about the complainant's name]?

A: [The complainant's name].

Q25: [The complainant's name], OK. I just want to, I don't want to say it wrong. OK, I wasn't there. The last time that your uncle touched you, just before Christmas, at his house. Can you tell me everything that happened from the beginning to the end?

A: Yep.

...

Q39: All right. And so, why don't you tell me about the, you said the last time [it] happened, the last thing happened just before Christmas. Can you tell me about the last time, what happened on that ---

A: Um ---

Q40: Like at that time, what happened?

A: Well, I was having a sleepover at her house.

...

Q56: And do you remember what day that was?

A: I don't remember what day, I'm sorry.

Q57: Do you remember, that's OK. Do you remember, was it a weekday or a weekend, or something else?

A: It was, I think it was, I think it was a Friday. No, wait, it was, it was the day before Christmas Eve.

Q58: The day before Christmas Eve?

A: Yes I think so. I think that was when. Cause we were having that kind of, since our families are really close, we just go over to their house and we'd have that little family get together. And so we went there, like I got dropped off there around 3.00, 4.00 in the afternoon. And then like my, my family came at around 6'ish, 7'ish, around then. And yeah --- [23 December 2006 was a Saturday.]

...

Q64: OK. So you said your family came around 6.00 or 7.00. Who in your family came?

...

Q 69: OK. So, your family came around. What did you do when your family was around?

A: We all just, we like watched a movie and we'd talk about just random things. We'd have dinner and everything. And they came to our house on Christmas Eve.

Q70: OK.

A: Yeah.

Examination in chief (14 August 2007, my numbering):

Q 1: What I want you to do is just think about the very last time it ever happened, this is the time you told us just before Christmas Eve.

A: Yes.

...

Q 2: After that last time which was just before Christmas in 2006?

A: Yes.

Q 3: In the next few days after that did you tell anyone what had happened?

A: No I didn't.

Q 4: Why didn't you tell anyone there?

A: I still felt uncomfortable about the situation. I knew what was happening but I still couldn't really talk to anyone about it.

Q 5: You were about ten years old at this stage?

A: Yes I was - no I was eleven.

Q 6: This was just before Christmas - sorry, Christmas of 2006?

A: No, no. I would have been ten, sorry.

Cross-examination:

Q 7: ... [So] far as you were concerned, and correct me if I'm wrong, or somebody will anyhow, that so far as you were concerned that plan showed the house as it was when you used to go to it?

A: Yeah.

Q 8: And that's right up until, you say, 23 December 2006?

A: Yes, but it may have - may not have been 23 December but--

Q 9: I see--

A: --like I guessed that it may have been the day before New Year's Eve because I do remember some celebrations around then but it could have been maybe even a week before that.

Q 10: I see, so why are you changing that?

A: Well, because I've thought of it. I thought maybe - and I've watched the video - I've thought, oh well then, I think I thought that it may have been the day before New Year's Eve, but it may not have been. I thought it was around that time--

Q 11: The day before Christmas Eve?

A: Yeah, it's Christmas Eve, sorry.

TRIAL ADVOCATE: Your Honour can I just at this stage make an objection. Are we talking about when some renovations were done here. It appears that the witness is responding to something other than renovations. My friend used the date 23 December. The witness responded - it seems she's not responding to the question about renovations to a house.

...

Q 12: What I was asking you was the house the same as shown in that plan, as it was at the time of the last sexual assault on you as you allege, by your uncle?

A: Yes, it was always like that as I remember.

Q 13: So now we go to December of 2006.

HIS HONOUR

Q 14: Do you want a break?

A: No, thank you.

DAWE

Q 15: In 2006, you say that you went to [your uncle and aunt's] and you went over there on that day at about 3 or 4 o'clock in the afternoon. Do you remember saying that?

A.: Which event was this?

Q 16: This is the last time, the last occasion?

A: Yes.

Q 17: You only told the police in detail about three events, only gave any dates or times of the year about three events. Right? And this is the last time, the most recent in your memory?

A: Yeah.

Q 18: You told the police that it was "No, wait, it was the day before Christmas Eve." You told the police that?

A: Yes.

Q 19: That was a Saturday that year, so that would fit in if you were going to be sleeping over on a weekend it would fit in with the Saturday too, wouldn't it?

A: Yes, but it was the holidays, so.

Q 20: So?

A: It was the holidays, so maybe like it wouldn't have to be a Saturday or -because everyday was like a break in the holidays.

Q 21: So you say, do you, that you stayed at [your uncle and aunt's] place during school holidays on days other than the weekend?

A: Yes, because it was the holidays.

Q 22: It's clear you are saying you stayed on days other than the weekend because it was school holidays?

A: Yes.

Q 23: But you only stayed there at times when [your uncle and aunt] could be there with you, wouldn't you?

A: Yes.

Q 24: You weren't ever staying there by yourselves?

A: No.

Q 26: So anyhow, this was a Saturday and once again we get to that situation which was did you go to mass with them the Saturday or the day before Christmas Eve?

A: I don't remember that. I did say it may have not been the day before Christmas Eve.

Q 27: Yes, but you didn't say that to the police. You've only said that since you've been here today?

A: Yes, that's because--

Q 28: You've only said that since I asked you a question this morning. Don't get upset, I'm not getting cranky with you--

TRIAL ADVOCATE: Your Honour, I object just to the proposition that's been put to the witness, is it's misleading to a certain extent. When the witness is first asked about when it happened, she gave an answer, and what's been put to her is a later question when the police are asking again about dates, there are several occasions during the police interview when she's given an answer of when she thinks this was. I refer to answer 50.

HIS HONOUR: I think counsel is entitled to put questions to attempt to throw doubt. Of course you can make submissions about it, as can he, but I don't propose to stop it. If what he is doing is faulty, if it's not based on fact, then it will fall to the ground. He's put a number of questions based on assumptions. If those assumptions aren't established then the questions fall to the ground. That's obvious. When the Incredibles was released for distributed and all this sort of thing if those assumptions are correct then he's entitled to make a submission. Now I've got

to say [the complainant's name] if you're confused about anything please just let me know.

WITNESS: Yes.

HIS HONOUR: Don't rush into answering something if you're not quite sure, you don't quite understand what it is--

WITNESS: Okay.

HIS HONOUR: --he's putting to you. What Mr Dawe is doing as far as I can see is perfectly permissible.

DAWE

Q 29: So I was asking did you go to mass on Saturday before Christmas Eve and you said well it might have been on another day. Well did you go to mass with him on the Saturday before Christmas Eve the day before Christmas Eve?

A: I'm not sure. I don't remember if I did - I don't really remember those things?

Q 30: Well I suggest you didn't and so if that's correct you couldn't have got there at 3 or 4 o'clock on that Saturday afternoon?

A: Well, I may have gone to mass with him, I'm not sure. I don't remember.

Q 31: What I'm going to put to you now is that you didn't, you certainly didn't go to [your uncle and aunt's] on 23 December 2006, you definitely didn't?

A: I could have. I may not--

Q 32: But you told the police fairly certainly that you did?

A: I told the police that I wasn't sure.

Q 33: Yes but then you settled, you said you thought it was the Friday and then you said, "No it was the day before Christmas Eve"?

A: Yes but I said I thought it was the day before Christmas Eve I wasn't sure.

Q 34: But that's the only day you identified wasn't it?

A: That's the only day I thought it may have happened. It could have happened any other time.

Q 35: It could have too. It could have happened any time I suppose but it's a bit hard to answer if we don't know when you say it happened. So I suggest to you that you didn't go to [your uncle and aunt's] at all on 23 December 2006. You say you may have or you may not have is that your answer?

A: Yes.

Re-examination

Q 36: ... I'll only just be few more minutes. You were asked a question just a few minutes ago about the incident you described in December 2006, the very last time?

A: Yeah.

Q 37: The time that was just, it was some time before Christmas in December 2006?

A: Yes.

Q 38: You were also were asked about that a few times by the police during the interview?

A: Yep.

Q 39: You referred to a question and answer you gave during the interview by my learned friend. That question was, "Do you remember was it a week day a weekend or something else?"

A: Yes.

Q 40: Your answer was, "It was, I think it was a Friday, no wait it was, it was the day before Christmas Eve". The police officer then asked you the question, "The day before Christmas Eve?" And your answer is, "Yes, I think so." Remember that?

A: Yes.

Q 41: Why did you say, I think so"?

A; Because I wasn't completely sure that it was that day.

DAWE: I would ask my friend to read the rest of that answer.

TRIAL ADVOCATE

Q 42: You say, "Yes, I think so, I think that was when cause we were having that kind of, like since our families are really close we'd just go over to their house and we'd have that little family get together and so we went there, like I got dropped off there around 3:00, 4:00 in the afternoon and then like my, my family came at around sixish, sevenish, around then and yeah"?

A: Yeah.

Q 43: Now, and I think you've answered but I want to ask, but when you say "I think so", the reason you said that is what?

A 44: Is because I wasn't completely sure that that was the exact date.

Q 45: When you were first asked by the police at the very beginning of the interview with the police when they started asking of this particular incident, the police asked you, "So when was the last time that your uncle touched you?" and you answered, "Around, just before Christmas, around then." Now why did you use - I'll just put it again - you said, "About, just before Christmas, around then"?

Q 46: Why did you use the words around and about?

A: Because again like I wasn't exactly sure what date it was. I do know it was before Christmas because I remember the last time I saw them which was the night of Christmas Eve and they were just leaving just before 12.00 and I was complaining because I wanted them to stay till the thing go to - the clock go to Christmas, so I do remember the last time was before Christmas, some time within December.

315 There can be little doubt that, in the vast majority of cases, the most reliable account of an event is that which is given closest to the event in question. Here, that account was given to the police on 10 April 2007, something over three months from the alleged misconduct. Although it is true that the complainant commenced he specification of the date of the 2006 offence saying it was, "About just before Christmas, around then", she later went on to explain what she meant by "just before Christmas" by her answer to questions 57 and 58. Those answers mention two markers: the first is that she thought it was a Friday, the second, which was by way of correction, that it was the day before Christmas Eve. As it happened, the day before Christmas Eve was a Saturday. The phrase "I think" as to identifying the day as a Friday reflects some uncertainty only as to whether it occurred on a Friday and the complainant then positively asserted that it was (whether Friday or not) the day before Christmas Eve. The references to thinking in the subsequent answer 58, are explanations for the date expressed in the previous answer, in other words, the process of thinking that made her believe that it occurred on the day before Christmas Eve. Accordingly, I am unpersuaded by the complainant's evidence that the expression, at least so far as this passage is concerned, denoted doubt. The last specific mention (answer 69) carried on the same dating denotation. Considering this material alone, I find myself unable to accept that it was reasonably consistent with any possibility that the misconduct was alleged to have occurred, say, in the week prior to Christmas.

316 I now turn to the complainant's evidence, which is set out above. No qualification as to the date was introduced during examination in chief, in which the complainant responded without qualification to questions about the offences that occurred "just before Christmas" and "just before Christmas eve". In the circumstances, this was, plainly enough, an adoption of the language in the interview, a video recording of which had just been played. In the context, I find it difficult to accept that "just before" could comprehend the week before Christmas. At Q 27, the complainant agreed that she had told the police that the offences occurred on the day before Christmas Eve and had only suggested that might be a mistake in her evidence. When pressed further she said (at Q 26), "Yes but I said I thought it was the day before Christmas Eve. I wasn't sure". She went on to explain that she was not "completely sure" (Q 41 and Q 44) or "exactly sure" (Q 46) that the misconduct occurred on that day. The agreement to the leading question 36 is unpersuasive, especially given the actual language of the question.

Conclusion as to counts 4 and 5

317 It is, of course, important to bear in mind that the complainant was a young person giving evidence in circumstances of what must be accepted involved considerable personal embarrassment and stress. She was only ten years of age at the relevant time and twelve when she gave evidence. I have found the evaluation of her evidence a difficult task, on which my view has changed several times. In the end, however, I have - with some reluctance, having regard especially to the fact that in doing so I differ from the view of Beazley JA - come to the conclusion that the evidence does not permit the selection of any other date for the allegation of the 2006 alleged offences than 22, 23 or (only remotely possible) 24 December.

318 So far as the alibi evidence is concerned, the Crown did not challenge the appellant's evidence (supported by his wife), in respect of 22 December, that he attended a concert with his family in Blacktown from 6.30pm to 9.30pm. In respect of 23 December he said he was at his uncle's home from about 9pm to 11pm. This evidence was supported by his uncle and brother-in-law. As to Christmas Eve, he was at a formal dinner at the house of the complainant's family, also supported by other evidence. In substance, this evidence was not challenged by the Crown.

319 It is not necessary for me to deal with, in any detail, the other evidence dealing with the 2006 offences, which has been helpfully set out in the draft judgment of Beazley JA. In my respectful view, the complainant's account of what happened is, in some respects unconvincing. In particular, the failure of her elder sister, who shared her bed, to give evidence of any occasion on which she awoke to find the appellant present despite the frequency of the occasions on which he was alleged to be in the bed and the unlikelihood of the appellant undertaking the enormous risk of discovery if he had indeed not only entered the bed but interfered with appellant as alleged are problematical. Considered apart from the date question and the appellant's alibi, I would not regard the problematical features of the complainant's evidence as sufficient to raise a reasonable doubt and, hence, require acquittal. However, the former matters do leave me with a reasonable doubt, which is reinforced by the other troubling matters to which I have referred. Accordingly, I propose that the appellant be acquitted on counts four and five of the indictment.

Counts 1, 2 and 3

320 In respect of these counts also, Beazley JA concluded that ground 1 should be rejected. I gratefully adopt her Honour's thorough summary of the relevant evidence. For myself, I would give greater significance to the fact that the complainant's elder sister did not notice the appellant's coming into the bed and somewhat less significance to the differing evidence as to the closeness of the two families, this being very much a matter of subjective impression and the description itself rather elastic in its content. Moreover, I am inclined to regard the new evidence (as explained earlier in this judgment) of the timing of the release of "The Incredibles" as adding to the problems concerning this aspect of the complainant's evidence.

321 Although I have concluded the appellant must be acquitted of the 2006 charges, largely on the basis that the alibi evidence has led to a reasonable doubt about his guilt, and this has a consequent effect on my view of the complainant's reliability, and there are undoubtedly good reasons for doubting some aspects of her evidence in respect of particular matters, a careful reading of the whole of the evidence has not led me to the view that it would be dangerous for a jury to convict the appellant on counts 1, 2 and 3 of the indictment. Accordingly, although I would allow the appeals against the convictions on those counts, I would order a new trial in respect of each.

322 The formal orders I propose are:

1. Appeal allowed;

2. Quash the convictions in respect of all counts;

3. Order that the appellant be acquitted in respect of counts 4 and 5 of the indictment;

4. Order that the matter be remitted for a retrial in respect of counts 1, 2 and 3.

323 HISLOP J: I agree with the orders proposed by Adams J and with his reasons therefore.

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Decision last updated: 20 September 2012