Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Cabot (a pseudonym) v R (No 2) [2020] NSWCCA 354 Hearing dates: 16 September 2020 Date of orders: 21 December 2020 Decision date: 21 December 2020 Before: Gleeson JA at [1] Price J at [76] Wright J at [77] Decision: (1) Extend the time for filing of the notice of application for leave to appeal to 3 June 2020. (2) Grant leave to appeal against conviction on ground 1. (3) Appeal dismissed. Catchwords: CRIMINAL LAW – appeal – leave to appeal against conviction – convictions on four counts of acts of indecency on a child under 16 years and two counts of sexual assault on a child under 10 years – child aged between 5 and 8 years – incidents alleged to have occurred between 2013 and 2016 – first complaint in January 2016 and further complaint in May 2017 where child's evidence displayed some uncertainty about timing of some incidents – whether trial judge erred in declining to give a forensic disadvantage direction – Evidence Act 1995 (NSW) s 165B – whether accused suffered significant forensic disadvantage because of the consequences of delay – significance of accused's misconduct in making threats to the child Legislation Cited: Crimes Act 1900 (NSW), ss 61A(1), 61M(2), 578A Criminal Appeal Act 1912 (NSW), s 5(1)(b) Evidence Act 1995 (NSW), s 165B Cases Cited: Binns v R [2017] NSWCCA 280 Cabot (a pseudonym) v R [2018] NSWCCA 265 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCCA 140 Jimmy v The Queen (2010) 77 NSWLR 540; [2010] NSWCCA 60 Lever (a pseudonym) v R [2018] NSWCCA 107 Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60 PT v The Queen [2011] VSCA 43 TO v R [2017] NSWCCA 12; [2017] 265 A Crim R 191 R v Arnold (1993) 30 NSWLR 73 R v BWT (2002) 54 NSWLR 241; [2002] NSWCCA 60 R v Johns (1978) 2 NSWLR 259 R v Mai (1992) 26 NSWLR 371 Category: Sentence Parties: Cabot (Applicant) Director of Public Prosecutions (NSW) (Respondent) Representation: Counsel: S Odgers SC (Applicant) K Jeffreys (Respondent) Solicitors: Greg Walsh & Co (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2016/204469 Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987, publication of the names of, or any matter which could identify the complainant or his brother, is prohibited. Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: [2019] NSWDC XXX (Restricted) Date of Decision: 13 September 2019 Before: Traill SC DCJ File Number(s): 2016/204469 Judgment 1. GLEESON JA: On 11 February 2019, the applicant was convicted at his second trial of six offences, being four counts of committing an act of indecency on a child under the age of 16 years, contrary to s 61M(2) of the Crimes Act 1900 (NSW) and two counts of sexual intercourse with a child under the age of 10 years, contrary to s 61A(1) of the Crimes Act . The child was the applicant's stepson, and was aged between 5-8 years at the time of these incidents. 2. At his first trial, the applicant was convicted on 5 September 2017 of two offences of committing an act of indecency on a child under the age of 16 years, contrary to s 61M(2) of the Crimes Act. Again, the child was the applicant's step-son. An appeal by the applicant against those two convictions was dismissed by the Court on 28 November 2018: Cabot (a pseudonym) v R [2018] NSWCCA 265. As the applicant cannot be named by reason of s 578A of the Crimes Act, the pseudonym "Cabot" is also used here. 3. On 13 September 2019, the trial judge (Traill SC DCJ) sentenced the applicant in relation to his conviction on the six offences from his second trial and his conviction on the two offences from his first trial. Her Honour imposed an aggregate sentence of imprisonment of 14 years commencing on 11 February 2019 with an aggregate non-parole period of 8 years 6 months. 4. The applicant seeks leave to appeal against his conviction only: Criminal Appeal Act 1912 (NSW), s 5(1)(b). He requires an extension of time up to 3 June 2020 when his application was filed, which the Crown did not oppose. The delay was satisfactorily explained in the affidavit of Gregory Alexander Walsh, the applicant's solicitor, filed 3 June 2020. 5. The applicant ultimately relied on a single ground of appeal – that the trial judge erred by declining to give a forensic disadvantage direction to the jury pursuant to s 165B of the Evidence Act 1995 (NSW). 6. For the reasons that follow, there should be an extension of time to file the application for leave to appeal and a grant of leave to appeal, and the appeal should be dismissed. Background Circumstances of the alleged offending 1. The offences for which the applicant was convicted at his second trial were alleged to have been committed between January 2013 and June 2016. As indicated, the child was aged between 5 - 8 years. 2. The child lived with his mother and the applicant at a house in southern Sydney. His half-brother was born in March 2013 and he also lived at the family home following his birth. The house had three bedrooms; the main bedroom was shared by the applicant and the mother, and the child and his brother had their own bedrooms. The child referred in his evidence to the family room as the "little lounge room", and the combined living and dining room as the "big lounge room". The child turned 5 years in January 2013 and commenced kindergarten that year at the local public school. 3. On the Crown case, the charged conduct in the second trial involved four alleged incidents. 4. The first incident occurred in the little lounge room. The child had played with his Xbox, which he received on his sixth birthday, and fell asleep on the lounge after school. The applicant pulled the child's "doodle" (Count 1) and then sucked it (Count 2). According to the child, the applicant said, "Don't tell mum … if you don't tell mum, I'll get you a chocolate when you're 10. … if you do tell mum, I'll get out of your family". At the time of this incident, the mother had been to the gym after school and when she came home had gone to sleep. The incident finished when the mother woke up. 5. The second incident occurred in the main bedroom. The child identified the time of the incident as when he was in year 2 which was in 2015. The child went into his mother's bed, the applicant pulled down the child's pants and touched the complainant's "rude part" with his hand under his clothing (Count 3). This happened when the mother was in the bed, facing the other way. 6. The third incident also occurred in the main bedroom. The child identified the time of the incident as some stage before Easter but he was unsure which month. He said that he went into the bed shared by the mother and the applicant in the early hours of the morning. Before the applicant got up to go to work, he touched the child over the long pants he was wearing, "lifting up" his "rude part" (an action demonstrated by the complainant) (Count 4). The mother was in the bed at the time, facing the other way. 7. The fourth incident occurred in the big lounge room. The child said he was lying down for a sleep and the applicant "pulled" the complainant's "doodle" over his underpants (count 5) and while he was "pulling", the applicant said "Don't tell mum, don't dare tell mum". The applicant then put his mouth on the complainant's "doodle" and sucked it (count 6). The child demonstrated in his evidence how the applicant had covered his teeth with his lips. It stopped when the applicant heard KS's car pull up in the driveway and pulled up the child's pants. This happened when the child was about 7 years of age. 8. Evidence of two other alleged incidents of which the applicant had been convicted in his first trial was led as context evidence in the second trial. 9. One incident occurred when the mother was at the gym, and the child went to bed in the loft bed in his own bedroom. The applicant walked into the room, reached over and "pulled up" the child's "rude part" over his shorts for about three minutes. This happened when the child was in year 2. 10. The other incident occurred in the applicant's bedroom. The child said that in the year after he had his Xbox, he went into his mother's bedroom to jump on the bed. His younger brother went with him but then left the room. The applicant, who was in the room, having just got changed after work, grabbed the child's hand and forced it onto the applicant's "doodle". The applicant's penis was "hard" and "weird". The child "grabbed" the hand away and ran out. The applicant said, "if you do tell mum I'll be disgraced in you". Reporting of the alleged offending and the complainant's pre-recorded evidence 1. In early 2016 the complainant reported to his mother that the applicant "touched me on the doodle". In late June 2016, the mother told the applicant she would be reporting the allegation to the police and that he should move out. She made a formal notification that was passed on to the Joint Investigation Response Team (JIRT) within Family and Community Services. 2. The child participated in two video recorded interviews with Detective Senior Constable Leanne Kelly. Those interviews took place on 1 July 2016 and 10 May 2017, and may conveniently be described as the first and second JIRT interviews. 3. What occurred next is summarised in the judgment of Leeming JA in Cabot (a pseudonym) v R at [7]-[9], in relation to the applicant's first trial: [7] Following the original reporting of the matter to authorities in late June 2016, and the child's first JIRT interview on 1 July 2016, the applicant was charged with 5 offences, including the offence which became count 5 on the indictment. The matter was committed for trial and the complainant's evidence was pre-recorded on 6 February 2017, before a judge other than the primary judge. However, on 4 May 2017, the child made a further complaint to his mother and was interviewed by police again on 10 May 2017. In this second interview, which was also recorded, the child made allegations for the first time of fellatio as well as other allegations of indecent assault. That gave rise to charges including count 3 on the indictment. [8] The child's evidence at trial (including cross-examination) was pre-recorded with the assistance of a witness intermediary, pursuant to the provisions of Part 6 of the Criminal Procedure Act 1986 (NSW), immediately before the commencement of the trial, on 21 and 22 August 2017. (There is some scope for confusion concerning the second day, which comprises pp 100–148 of the transcript, because each page is dated, incorrectly, "07/08/17".) [9] Thus, the child participated in two recorded JIRT interviews on 1 July 2016 and 10 May 2017, and gave pre-recorded evidence on 6 February 2017 and 21 and 22 August 2017. 1. It is necessary to say a little more about the child's evidence. In his first JIRT interview, the child confirmed that the applicant had touched his genitals on multiple occasions. He described specific incidents, and also did a drawing of each of them (Exhibit C), being the incidents the subject of counts 3 and 4 in the second trial (see [11] and [12] above) and one of the two counts of which the applicant was convicted in his first trial (see [14] above). 2. In the child's first pre-recorded evidence taken on 6 February 2017, the child stated that when the applicant touched his genitals he would say, "Don't tell mum". He had disclosed this to an unknown person on 3 February 2017, when he was watching his first JIRT interview in preparation for giving evidence. In cross-examination, the child displayed some uncertainty about the timing of some of the incidents. 3. When the child made a further complaint to his mother on 4 May 2017, he asked her if he could write down a secret in his book. The book was used, at the suggestion of a psychologist, to write down the child's thoughts if he could not talk about them. The child wrote down his secret and clarified for his mother that it said, "he sucked me on the doodle". His mother told the complainant he was a "brave boy". She reported this further allegation to DSC Kelly and a second JIRT interview was arranged. The day before the second JIRT interview, the complainant told his mother that there was something else that he needed to write in his book. His mother helped him to write "he grabbed my hand and forced my hand to go on his doodle". 4. At his second JIRT interview on 10 May 2017 the child said that the applicant had sucked his "doodle" on multiple occasions. He described the incidents the subject of counts 1, 2, 5 and 6 (see [10] and [13] above) and the second of the two counts of which the applicant was convicted in his first trial (see [16] above). 5. When the child's second pre-recorded evidence was taken on 21 and 22 August 2017, the child was aged 9 years. He stated that he did not mention the applicant sucking his "doodle" earlier because he was "not confident" and was "shy". He said it was "a different story" to the applicant pulling his doodle and "a lot worse". He said he was not confident to tell his mother, but he was confident to write in his book. In cross-examination, the child again displayed some uncertainty about the timing of the incidents. The second trial 1. At the applicant's second trial in January-February 2019, the recordings of the child's evidence were played to the jury. The child's mother gave evidence as to the complaints made to her and aspects of the family's daily routine. DSC Kelly gave evidence about her investigation, including the two JIRT interviews with the child, obtaining a floor plan and photograph of the family home, information from the child's schools, and interviewing and charging the applicant, who had participated in an electronically recorded interview on 6 July 2016. 2. The applicant gave evidence in his defence. He denied that any of the incidents described by the child had taken place and that he had ever sexually or indecently assaulted the child or touched or sucked his penis. The applicant gave evidence about his relationship with the child's mother, his employment and work hours, the occasions on which the child would wake up in the night and go into the bed the applicant shared with the child's mother and that in 2015 the applicant changed jobs and his work hours were the same. Ground 1: Delay – forensic disadvantage to the defence 1. The sole ground of appeal as pressed contends that the trial judge should have given a direction to the jury for which his then counsel had applied during the summing up, concerning forensic disadvantage to the defence. The Crown opposed the giving of such a direction. 2. This application was founded on s 165B of the Evidence Act which is in these terms: 165B Delay in prosecution (1) This section applies in a criminal proceeding in which there is a jury. (2) If the court, on application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay. (5) The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury. (6) For the purposes of this section— (a) delay includes delay between the alleged offence and its being reported, and (b) significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay. (7) For the purposes of this section, the factors that may be regarded as establishing a significant forensic disadvantage include, but are not limited to, the following— (a) the fact that any potential witnesses have died or are not able to be located, (b) the fact that any potential evidence has been lost or is otherwise unavailable. 1. The proposed direction as ultimately formulated at trial by defence counsel (MFI 15) identified the delay in question as being the delay between the alleged offences and the first complaints, as well as the JIRT interviews and cross-examination. Three forensic difficulties were identified in writing by defence counsel: 1. the disadvantage to the accused in relation to the complainant's difficulty in remembering the details of events which may have occurred as early as 6 January 2013, having regard to the complaint's age; 2. the disadvantage to the accused in questioning the complainant at the pre-recorded evidence in relation to events which may have occurred some years before, having regard to the complaint's age; and 3. the disadvantage to the accused arising from being denied the timely opportunity to test the evidence of the complainant. 1. Defence counsel submitted in oral argument that the forensic disadvantage of the delay in making the allegations in respect of counts 1, 2, 5 and 6 resulted in the complainant not being cross-examined about them at his first pre-record of evidence on 6 February 2017 and only being cross-examined about them at his second pre-record of evidence on 21 and 22 August 2017. In this Court, senior counsel for the applicant did not contend that this matter satisfied the requirements of a significant disadvantage because of the consequences of delay. 2. To anticipate the argument on appeal, senior counsel for the applicant placed reliance on the two other arguments advanced by defence counsel in oral argument at trial, namely, that because of delay in making complaint: 1. the complainant had a poor memory as to precisely when the offences occurred, and this would hamper the accused's ability to defend himself by obtaining evidence to show that he did not have the opportunity to commit the alleged offence; and 2. the complainant was unable to provide "contextual details" regarding the offences and this would hamper the accused's ability to obtain evidence challenging those matters. Ruling by trial judge 1. The trial judge refused the accused's application for a forensic disadvantage direction and indicated she would give reasons at a later time. 2. In a judgment delivered on 13 September 2019 at the same time as sentencing the applicant, her Honour gave three reasons for holding that the accused had not established that he had suffered a significant forensic disadvantage: J at [19]. * First, that the complainant was a young child who had significant difficulties with telling time and his concept of time would not have improved if he had been younger or made an immediate complaint. * Second, that it was difficult for the complainant to be precise about the occasions the incidents occurred in the context of multiple occasions in which similar acts had occurred. * Third, the accused said to the complainant, "Don't dare tell Mum", which was a reference to the accused allegedly sucking the complainant's penis in the big lounge room. (Counts 5 and 6) The accused also said to the complainant, "If you do tell Mum I'll be disgraced in you". The complainant said he had not told his mother as a consequence (His evidence was, "I was going to tell Mum but he told me not to but I was just saying in my head I will but I didn't say it in my words"). The complainant also said he didn't say anything because it didn't feel right to tell anyone whilst the accused was still sitting in the house. 1. Her Honour continued at J [20]-[21]: [21] Having considered the authorities, in particular TO, I am not satisfied that the accused has suffered a significant forensic disadvantage due to the consequences of delay. The accused could not point to any lost documents, witnesses who had died or who could not be located, or that potential evidence had been lost or otherwise unavailable. Significant forensic disadvantage is not to be regarded as being established by the mere existence of delay. The defence could not establish a significant disadvantage. [22] For the court to be satisfied that there was a significant forensic disadvantage there must be more than a supposition that a child's memory would have been better if it was possible for him to complain at an earlier stage. In the circumstances where the accused threatened the complainant and he did not complain because of the words spoken to him for some time until he got older, I find that the accused's misconduct significantly contributed to the delay and any forensic disadvantage is not a consequence of the delay in complaint. Section 165B of the Evidence Act 1995 is not a presumptive prejudice test, there must be something concrete that the defence can point to that there is a significant disadvantage because of the consequences of the delay such as that which is set out in the section of the Evidence Act 1995. Section 165B 1. At common law, particular warnings were required to be given to a jury where there had been a delay in the reporting of an alleged sexual assault. In Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, the delay was some 20 years between the date of the sexual assault and the first complaint. The joint judgment of Brennan, Dawson and Toohey JJ stated at 91: The fairness of the trial had necessarily been impaired by the long delay ... and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. 1. Section 165B was introduced into the Evidence Act on 28 November 2007. In contrast to the position at common law (see, for example, R v BWT (2002) 54 NSWLR 241; [2002] NSWCCA 60 at [9]-[14]), s 165B(6)(b) has the effect that the mere existence of a delay is not to be presumed to cause significant forensic disadvantage to the accused. As the Explanatory Memorandum to the Evidence Amendment Bill 2007 stated: The section is intended to make it clear that (contrary to the tendency at common law following Longman v The Queen (1989) 168 CLR 79 for judges to routinely give warnings in relation to forensic disadvantage arising from delay) information about forensic disadvantage need only be given if a party applies for it, and should only be given where there is an identifiable risk of prejudice to the accused. Such prejudice should not be assumed to exist merely because of the passage of time. 1. In Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCCA 140 at [60]-[63], Basten JA (R A Hulme and Campbell JJ agreeing) identified a number of broad considerations that bore upon the application of s 165B, of which the third consideration has present relevance: [62] Thirdly, although various factors may contribute to a delay, where a significant element is misconduct on the part of the accused, any resultant forensic disadvantage may not be characterised as a consequence of delay or, in the alternative, may provide a good reason for a judge not to give a direction, pursuant to the permissible exception in s 165B(3). … 1. In TO v R [2017] NSWCCA 12; [2017] 265 A Crim R 191 at [167], Price J (Button and Fagan JJ agreeing) gave the following summary of the effect of s 165B: (1) The duty on the judge to give a direction in accordance with subsection (2) arises only on application by a party and what is said to be the particular significant forensic disadvantage must form part of the application: Groundstroem v R [2013] NSWCCA 237 ("Groundstroem") at [56]. (2) Subsection (5) prohibits the judge from directing the jury "about any forensic disadvantage the defendant may have suffered because of delay" otherwise than in accordance with the section: Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCCA 140 at [53] ("Jarrett"). (3) There is a duty to inform the jury of the nature of the disadvantage and the need to take that disadvantage into account when considering the evidence, only when the judge is satisfied that the defendant has "suffered a significant forensic disadvantage because of the consequences of delay": Jarrett at [53]. (4) Subsection (3) provides a rider to the obligation to inform where the judge is satisfied there are "good reasons" for not taking that step: Jarrett at [53]. (5) Subsection (4) prohibits the judge from suggesting that it would be dangerous or unsafe to convict the defendant "solely because of" the delay or the disadvantage. Otherwise, no particular form of words need be used: Jarrett at [53]. (6) Whether there has been a significant forensic disadvantage depends on the nature of the complaint and the extent of the delay in the circumstances of the case. The extent of delay is not the test. It is the consequence of delay which is decisive: Groundstroem at [61]. The proper focus of s 165B is on the disadvantage to the accused: Jarrett at [60]. (7) The concept of delay is relative and judgmental. Although various factors may contribute to a delay, where a significant element is misconduct on the part of the accused, any resultant forensic disadvantage may not be characterised as a consequence of delay or, in the alternative, may provide a good reason for a judge not to give a direction, pursuant to the exception in s 165B(3): Jarrett at [61]–[62]. (8) If the accused is put on notice of the complaint, any failure to make inquiry thereafter will not normally constitute a consequence of the delay, but a consequence of the accused's own inaction: Jarrett at [63]. 1. The onus rests on the defence to satisfy the Court that "the defendant has suffered a significant forensic disadvantage because of the consequences of delay". In Binns v The Queen [2017] NSWCCA 280, Basten JA (R A Hulme and Garling JJ agreeing) said at [10]: The applicant submitted that, upon an application by counsel for the accused, the trial judge was under an obligation to provide a relevant warning unless he had been positively satisfied that the defendant "did not suffer a significant forensic disadvantage because of the consequences of delay" or that there were "other good reasons for not providing such a direction". That submission appears to have resulted from reliance upon what was said to be a "summary of principles in relation to s 165B directions" derived from the judgment of this Court in TO v R. Each of the eight principles identified was in turn derived from other authority in this Court. However, as so often happens in reliance on statements in the case law, rather than the language of the statute, the fact that the restatement by a judge may involve paraphrase or may be directed towards a particular set of circumstances is lost sight of. (citations omitted) Submissions 1. Senior counsel for the applicant submitted that the three reasons given by the trial judge for declining to give the direction sought are not satisfactory reasons. According to the submission, the trial miscarried and the applicant lost a chance of acquittal fairly open to him as a result of the absence of the direction, and therefore the appeal should be allowed and a new trial ordered. 2. The applicant's argument has two parts. The first challenges the trial judge's first and second reasons for refusing to give a forensic disadvantage direction. The second challenges the trial judge's third reason which, according to the submission, was not only wrong as a matter of law, but contained a "fatal flaw" that her Honour did not make a factual finding concerning the applicant's misconduct. The trial judge's first and second reasons - the complaint's undeveloped concept of time and the effect of multiple occasions of offending 1. It is convenient to deal with the challenge to the trial judge's first and second reasons together. 2. As to the first reason, counsel for the applicant accepted that the child was so young that precise statements of time would have been difficult, but submitted that one would expect much more precision as to when the offence occurred and the circumstances in which it occurred, if there had been an "immediate" complaint. 3. As to the second reason, counsel for the applicant said that notwithstanding the other alleged incidents occurring later, if there had been immediate complaint one would reasonably expect the child would have been able to provide much more precision as to timing and contextual details. 4. The Crown repeated its submission at trial that the delay did not involve many years; that no particular steps had been identified which the applicant might have been unable to take, in particular the applicant had not lost an opportunity to obtain evidence; and the jury would have been alert to the question of delay from the parties' closing addresses. 5. The Crown further submitted that the applicant has not established that any imprecision in the complainant's evidence about dates and surrounding details was the result of delay rather than the result of other matters, particularly given that the complainant was a young person with clearly an undeveloped concept of time and the impact of describing multiple occasions on which the conduct could be placed, including the matters relied upon by the Crown as context evidence. Decision 1. It is well-established that it is the consequences of delay rather than the extent of delay that should be considered: Binns at [24] citing PT v The Queen [2011] VSCA 43 at [23]-[24] (Maxwell P, Buchanan and Weinberg JJA). As Basten JA said in Binns at [25], the concern has always been that a long passage of time may make it difficult to have a fair trial, in ways which may not be immediately apparent to jurors. That is not the present case. Here, it would have been readily apparent to the jury that the child displayed some uncertainty in his pre-recorded evidence about the timing of some of the incidents and the jury would have been alert to questions of delay from the parties' closing submissions. 2. Contrary to the applicant's submissions, it is artificial to compare the child's evidence to what it might have been if he had made "immediate" complaint. The applicant's submission ignores what this Court said in Lever (a pseudonym) v R [2018] NSWCCA 107 at [45] (Basten JA, Johnson and Campbell JJ agreeing): It was likely that some degree of disadvantage would have been suffered unless immediate complaint had been made. It was the imprecision of the dates which directly contributed to the disadvantage, rather than the delay. The delay may have contributed to that imprecision, but some delay is a common circumstance with offences against young children. 1. In the present case the child's difficulty with dates and time was a consequence of his young age, as counsel for the applicant fairly accepted. The applicant's submission about "immediate" complaint appeared to equate "delay" with any lapse of time. The logic of the applicant's argument that one would expect much more precision as to when the offence occurred and the circumstances in which it occurred, if there had been an "immediate" complaint, was that any lapse of time which resulted in the possible loss of relevant evidence engaged the obligation to warn in s 165B. That proposition was rejected in Binns at [25]. 2. When assessing the consequences of delay it is necessary to bear in mind what would be expected or might be considered reasonable in the circumstances. That directs attention both to the identity of the complainant and the context of the delay in complaint. 3. As to the identity of the complainant, plainly the delay by a child in making a complaint is not the same as delay by an adult. In cases of delay in complaint involving a child, it is not unexpected that the child does not make immediate complaint about sexual assault, particularly when it involves members of their family or extended family such as close relatives. As Basten JA said in Binns at [21]: … the concept of "delay" involves a departure from a time period which would be expected or might be considered reasonable in the circumstances. It is by no means clear that the failure of a nine year old girl to complain of a sexual assault for a period of, say, three weeks, would, in that sense, constitute a delayed complaint. … 1. As to the context of the delay, where there are multiple occasions involving similar acts against a young child it is also not unexpected for the child to have difficulty in being precise about the occasions the incidents occurred. 2. And where the context of the delay includes misconduct by the accused, such as threats to the child if the incidents are reported, again it is not unexpected that the child does not make immediate complaint about sexual assault, particularly when it involves members of their family or extended family such as close relatives. 3. There was no error by the trial judge in finding that the child's undeveloped concept of time would not have improved if he had made earlier complaint when he was younger. Nor did the judge err in finding that it was difficult for the child to be precise about the occasions the incidents occurred given the multiple occasions of offending against the child, including the matters relied upon by the Crown as context evidence. Further and importantly, the applicant did not establish an identifiable risk of prejudice to his defence of the charges which amounted to a significant forensic disadvantage suffered because of the consequences of delay. 4. I am not persuaded that the trial judge erred in refusing to give the s 165B direction sought by defence counsel for the first two reasons relied upon. The trial judge's third reason - the applicant's misconduct 1. The trial judge's third reason was independent of her first two reasons. Senior counsel for the applicant described the challenge to the third reason as the most significant and perhaps the strongest submission to the contrary of the trial judge's reasons for refusing to give the s165B direction. Two arguments were advanced. 2. The first involved a question of principle. It was submitted that the trial judge erred in relying upon the statement in TO at [167(7)], as applied by Price J at [183(3)], for the proposition that the applicant's misconduct was relevant to the s 165B inquiry. The submission continued that the reasons for the delay are quite simply irrelevant to the question whether the forensic disadvantage results from delay. 3. The second argument asserts that "her Honour did not actually make a factual finding to some standard of proof that the accused did threaten the complainant". According to the submission, "her Honour simply assumed based on the evidence of the complainant that such threats were made and then on that basis found that the accused's misconduct contributed to the delay". 4. Senior counsel for the applicant acknowledged that there is authority to the contrary of the first submission, which may be taken to be a reference to Jarrett and TO, and said however that the Court did not need to resolve this question because there is "fundamental flaw" in her Honour's reasoning, which was the second argument advanced. 5. It is convenient first to address the second submission, before turning to the question of principle. Did the trial judge make a finding of misconduct? 1. The "fundamental flaw" submission directs attention to the following passages in the trial judge's reasons at J [19] and [21], which it is convenient to reproduce again: [19] In the present case I am not satisfied that the accused has suffered a significant forensic disadvantage because of delay for the following reasons. … Thirdly, the accused said to the complainant, "Don't you dare tell Mum", which was a reference to the accused allegedly sucking the complainant's penis in the big lounge room. The accused also said to the complainant, "If you do tell Mum I'll be disgraced in you". He said, "I was going to tell Mum but he told me not to but I was just saying in my head I will but I didn't say it in my words". He also said he didn't say anything because it didn't feel right to tell anyone whilst the accused was still sitting in the house. … [21] … In the circumstances where the accused threatened the complainant and he did not complain because of the words spoken to him for some time until he got older, I find that the accused's misconduct significantly contributed to the delay and any forensic disadvantage is not a consequence of the delay in complaint. …. (Emphasis added.) 1. The applicant submitted that a linguistic distinction is drawn in the first sentence of the judge's reasons in J [21] between "the assertion of a circumstance and a subsequent finding". The submission continued that at no stage did the judge make a finding that the applicant said the words to the complainant recorded in J [19] in the sentence commencing "Thirdly". In my view this submission should be rejected. 2. The judge's reasons at J [19] and [21] need to be read in context with reference to the argument advanced at trial. At trial the Crown relied upon the child's evidence of threats made to him by the applicant, in opposing the s 165B direction sought by defence counsel. The Crown correctly submitted in this Court that no submission was made by defence counsel at trial to the contrary, nor was any matter raised by defence counsel that would have caused the trial judge not to accept the child's evidence of threats made by the applicant. The applicant's misconduct would only have been a relevant consideration if the judge accepted the child's evidence as to the matters said to him which was relied upon by the Crown as threats. Plainly, the judge was called upon to make a factual finding as to whether the applicant made threats to the child. It was open to the judge to accept the child's evidence. 3. On a fair reading of J [21] there is no linguistic distinction drawn by the judge between the introductory words and the finding of misconduct by the applicant in the latter part of the sentence. The introductory words in J [21] summarise the judge's findings in J [19], in the sentence commencing "[t]hirdly", that the applicant made threats to the child. The trial judge did make a finding of misconduct by the accused. Is the applicant's misconduct relevant? 1. To succeed in challenging the trial judge's third reason it is necessary for the applicant to demonstrate that this Court should depart from the approach to s 165B taken in Jarrett at [62] and in TO at [167(7)]. 2. The Court of Criminal Appeal is not bound by its earlier decisions. It is well-established that it should depart from such decisions with caution and only when satisfied that the law and justice of the case required such a result which requires a strong conviction that the previous decision was wrong: R v Johns (1978) 2 NSWLR 259 at 262, 264; R v Arnold (1993) 30 NSWLR 73 at 85-86 (Abadee J), at 74 (Gleeson CJ agreeing); R v Mai (1992) 26 NSWLR 371 at 380; Jimmy v The Queen (2010) 77 NSWLR 540; [2010] NSWCCA 60 at 570; [2010] NSWCCA 60 at [127]; Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [83]-[84]. 3. In Green v The Queen, Heydon J suggested at [85] that it is also necessary for the Court to consider the various factors there mentioned, which are not exhaustive, namely: The second condition is that there be a consideration of various factors stated in relation to the question of this Court overruling its own authorities in John v Federal Commissioner of Taxation. The first is "that the earlier decisions did not rest upon a principle carefully worked out in a significant succession of cases." The second is "a difference between the reasons of the justices constituting the majority in one of the earlier decisions." The third is "that the earlier decisions had achieved no useful result but on the contrary had led to considerable inconvenience". The fourth is "that the earlier decisions had not been independently acted on in a manner which militated against reconsideration". These factors are not exhaustive. Mutatis mutandis, considerations of this kind are relevant to whether the Court of Criminal Appeal should overrule its own decisions. 1. Jarrett and TO are authority for the proposition that where a significant element which contributes to a delay is misconduct on the part of the accused, any resultant forensic disadvantage may not be characterised as a consequence of delay or, in the alternative, may provide a good reason for a judge not to give a direction pursuant to the exception in s 165B(3). No sufficient reason has been advanced by the applicant for departing from these authorities. In particular, other than to assert that Jarrett and TO were wrong, no real attempt was made in the applicant's submissions to address the various factors referred to in Green v The Queen at [85] . 2. For my part, I do not consider that the statement in Jarrett at [62], which is cited with approval in TO at [167(7)] is wrong, and I respectfully agree with it. 3. The error in the applicant's submissions on the question of construction of s 165B is to ignore the causal element in s 165B(2) and the discretion in s 165B(3) not to give the direction sought "for good reasons". 4. As to the question of causality, which is directed to the consequences of delay, the expression "because of" in s 165B(2) requires that the consequences of delay causes or is one of the matters that causes the significant forensic disadvantage suffered by the accused. Thus, where the court makes a finding, as in this case, that the accused's misconduct significantly contributed to the delay in complaint because of threats made to the child and that the child did not complain sooner because of those threats, any forensic disadvantage is not a consequence of the delay in complaint; it is a consequence of the accused's threats. 5. Accordingly, there was no error in her Honour taking the accused's misconduct into account in answering the inquiry under s 165B(2), in addition to the first two reasons given by her Honour, when refusing to give the direction sought by defence counsel. 6. Further, even if it be assumed, as the applicant submitted, that the accused's misconduct is not relevant when the court answers the inquiry under s 165B(2), the accused's misconduct is a relevant consideration under s 165B(3) as to whether there are "good reasons" not to give the direction sought. Although the trial judge did not expressly consider the application of s 165B(3) in this case, in my view, the finding by the judge concerning applicant's misconduct amounted to "good reasons" to refuse the direction sought. 7. In all the circumstances of this case I do not consider that the trial judge's refusal to give the direction sought was an error. It follows, contrary to the applicant's submission, that there was no miscarriage of justice in the trial judge not giving the s 165B direction sought by defence counsel. Orders 1. I propose the following orders: 1. Extend the time for filing of the notice of application for leave to appeal to 3 June 2020. 2. Grant leave to appeal against conviction on ground 1. 3. Appeal dismissed. 1. PRICE J: I agree with the reasons and orders proposed by Gleeson JA. 2. WRIGHT J: I agree with the orders proposed by Gleeson JA for the reasons his Honour has given. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2020