Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Mortimer v R [2021] NSWCCA 47 Hearing dates: 20 July 2020 Date of orders: 26 March 2021 Decision date: 26 March 2021 Before: Johnson J at [1]; Garling J at [223]; Wright J at [224]. Decision: 1. Grant the Applicant leave under Rule 4 Criminal Appeal Rules to rely upon the ground of appeal; 2. grant the Applicant leave to appeal against conviction; 3. allow the appeal and quash the convictions at the Newcastle District Court on 23 February 2018; 4. quash the aggregate sentence passed at the Newcastle District Court on 10 August 2018; 5. order a new trial of the Applicant on each of Counts 1, 2, 3, 4, 7 and 8 of the indictment dated 5 February 2018; 6. list the matter in the Arraignments List at the Sydney District Court at 9.30 am on 9 April 2021. Catchwords: CRIME – appeal against conviction – applicant convicted of child sex offences – ground of appeal challenges aspects of summing up to jury – statements by trial Judge concerning evidence of children – whether statements made exceeded permissible comment in accordance with RGM v R [2012] NSWCCA 89 and McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5 – held that cumulative effect of statements gave rise to miscarriage of justice – appeal allowed – convictions quashed – new trial ordered Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Criminal Appeal Act 1912 Criminal Appeal Rules Criminal Procedure Act 1986 Evidence Act 1995 Cases Cited: ABR (a pseudonym) v R [2020] NSWCCA 33 AL v R (2017) 266 A Crim R 1; [2017] NSWCCA 34 Alford v Magee (1952) 85 CLR 437; [1952] HCA 3 ARS v R [2011] NSWCCA 266 CMG v R [2011] VSCA 416 Decision Restricted [2020] NSWCCA 256 Galea v Galea (1990) 19 NSWLR 263 Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317 McKell v R [2017] NSWCCA 291 McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5 NJB v R [2010] NTCCA 5 OKS v State of Western Australia (2019) 265 CLR 268; [2019] HCA 10 Pyliotis v Director of Public Prosecutions [2020] VSCA 134 R v Heron [2000] NSWCCA 312 R v Murray (1987) 11 NSWLR 12 R v Pavlukoff (1953) 106 CCC 249 R v RTB [2002] NSWCCA 104 R v Sukkar [2005] NSWCCA 54 R v Taleb [2006] NSWCCA 119 R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20 RGM v R [2012] NSWCCA 89 Robinson v R (2006) 162 A Crim R 88; [2006] NSWCCA 192 SC v R [2020] NSWCCA 314 Spurritt v R [2021] VSCA 7 The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36 WX v R [2020] NSWCCA 142 Texts Cited: --- Category: Principal judgment Parties: David Mortimer (a pseudonym) (Applicant) Crown (Respondent) Representation: Counsel: Mr D Carroll; Mr P Swaine (Applicant) Ms MA Kumar (Respondent) Solicitors: AA Criminal Lawyer (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/3741343 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: --- Citation: --- Date of Decision: 12-23 February 2018 (trial) 10 August 2018 (sentence) Before: His Honour Judge Ellis File Number(s): 2015/3741343 Judgment 1. JOHNSON J: By Notice of Appeal filed on 4 February 2020, the Applicant, David Mortimer (a pseudonym), appeals against conviction for a number of child sex offences following a trial before his Honour Judge Ellis and a jury at the Newcastle District Court in February 2018. The Applicant's real name is not used in this judgment as publication of his name would tend to identify the complainants who are entitled to protection from publication under s.578A Crimes Act 1900 and s.15A Children (Criminal Proceedings) Act 1987. 2. On 10 August 2018, the Applicant was sentenced to an aggregate term of imprisonment for 12 years and three months comprising a non-parole period of eight years commencing on 20 May 2018 and expiring on 19 May 2026 with a balance of term of four years and three months commencing on 20 May 2026 and expiring on 19 August 2030. The Charges and Verdicts 1. The Applicant was convicted of offences committed against two complainants. Donna (which is not her real name) was born in October 2001 and the offences with respect to her involved events between July 2009 and July 2013 when Donna was aged between seven and 11 years. 2. Gail (which is not her real name) was born in February 2003. The charges involving her were alleged to have occurred between January 2011 and August 2015 when she was aged between eight and 12 years. 3. The charges and verdicts of the jury are set out in the following table: Count on Indictment Verdict Count 1 - Between 1 July 2009 and 30 September 2011, sexual intercourse of a child less than 10 years (Donna) contrary to s.66A(1) Crimes Act 1900 (digital penetration of vagina at the age of eight or nine years) Guilty Count 2 - Between 1 July 2009 and 30 September 2011, sexual intercourse with a child less than 10 years (Donna) contrary to s.66A(1) Crimes Act 1900 (cunnilingus at the age of eight or nine years) Guilty Count 3 - Between 1 January 2011 and 31 December 2012, act of indecency upon Donna, a person under the age of 16 years, contrary to s.61N(1) Crimes Act 1900 (whilst in bed, pulling down Donna's pants and exposing her vagina when aged 10 or 11 years) Guilty Count 4 - Between 1 October 2011 and 31 July 2013, act of indecency upon Donna, a person under 16 years, contrary to s.61N(1) Crimes Act 1900 (whilst in bed, pulling down Donna's top and exposing her chest and breasts when aged 10 or 11 years) Guilty Count 5 - Between 18 February 2011 and 17 February 2013, indecent assault of Gail, a person under 16 years, contrary to s.61M(2) Crimes Act 1900 ("humping" during hide and seek when aged eight or nine years) Not Guilty Count 6 - Between 18 February 2011 and 17 February 2013, indecent assault of Donna, a person under 16 years, contrary to s.61M(2) Crimes Act 1900 ("humping" during hide and seek when aged nine, 10 or 11 years) Not Guilty Count 7 - Between 1 January 2011 and 29 January 2015, aggravated sexual assault of Gail, a person under the age of 16 years, contrary to s.61J(1) Crimes Act 1900 (cunnilingus when aged 11 years) Guilty Count 8 - Between 18 February 2013 and 31 December 2014, indecent assault of Gail, a person under 16 years, contrary to s.61M(2) Crimes Act 1900 ("humping" in fire truck when aged 10 or 11 years) Guilty Count 9 - Between 1 January 2014 and 31 December 2014, indecent assault of Gail, a person under 16 years, contrary to s.61M(2) Crimes Act 1900 ("humping" in bedroom when aged 10 years) Not Guilty Count 10 - Between 1 July 2015 and 31 August 2015, indecent assault of Gail, a person under 16 years, contrary to s.61M(2) Crimes Act 1900 ("humping" in lounge room when aged 12 years) Not Guilty Ground of Appeal 1. The Applicant relies upon a single ground of appeal with several components: Ground 1 - The learned trial Judge erred in directing the jury as to how the evidence of the child witness complainants was to be assessed by: 1. directing the jury that the credibility of the complainants is to be assessed having regard to generalisations as to the quality of the evidence of children to retain, recall and recount sexual abuse; 2. directing the jury that the credibility of the complainants is to be assessed having regard to his Honour's observations as to how witnesses generally react to cross-examination; and 3. directing the jury that the credibility of the complainants is to be assessed having regard to arguments raised in his Honour's summing up which were not advanced by the Crown and/or were not supported by the evidence. 1. As will be seen, the complaints now made before this Court were not the subject of complaint or any application on the part of Senior Counsel who appeared for the Applicant at trial. In these circumstances, it will be necessary for the Court to consider the application of Rule 4 Criminal Appeal Rules in the course of determining the appeal. 2. The issues raised by this appeal concern the limits operating on a trial Judge to volunteer comments to a jury concerning the evidence of child witnesses, with this question to be considered by reference to the decision of the High Court of Australia in McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5, a judgment delivered on 13 February 2019, a year after the trial of the Applicant. 3. The Applicant does not seek to appeal with respect to sentence. The Crown Case Against the Applicant 1. As is apparent, the ground of appeal in this Court is directed to the trial Judge's summing up to the jury and matters raised by his Honour which are now the subject of complaint. In the context of this appeal, a relatively brief narrative of the charges against the Applicant which gave rise to the verdicts will suffice. 2. The Applicant was born in August 1969. In 2009, Donna's mother formed a relationship with the Applicant. In April 2010, the Applicant moved in with Donna's mother, Donna and Donna's 20-year old sister at an address in the Newcastle area. The Applicant had a son who was about the same age as Donna and the son would stay at the Applicant's home on weekends and during holidays as part of a parenting plan. 3. Donna and Gail are cousins. Their mothers are sisters. The families lived in the same area and were close, with the complainants attending the same high school. On the Crown case, Donna told her mother in mid-2014 that the Applicant had touched her sexually on two different occasions. Donna's mother confronted the Applicant who provided an explanation for each incident. The Applicant temporarily moved out of the home whilst Donna's mother considered the situation. A decision was made not to report the matter to police and the Applicant moved back home about a week later. 4. On 4 December 2015, Gail complained to her mother and older brother that the Applicant had been touching her sexually. Arrangements were made for Gail to speak to a general practitioner and, on 9 December 2015, Gail was taken to Waratah Police Station. Gail disclosed sexual offending against her and also told police that she had witnessed the Applicant committing an offence against Donna. 5. Gail participated in four recorded interviews with police between December 2015 and April 2016. Donna participated in one interview with police on 18 December 2015. 6. The Applicant was arrested and charged with offences against Donna and Gail on 21 December 2015. 7. The proceedings against the Applicant were conducted under the Child Sexual Offence Evidence Program Scheme at the Newcastle District Court, in accordance with the provisions in Part 29 of Schedule 2 to the Criminal Procedure Act 1986 considered in SC v R [2020] NSWCCA 314 at [16]ff. The evidence of Donna and Gail was pre-recorded and conducted, with the assistance of a child witness intermediary, before her Honour Judge Girdham SC. The evidence of Donna was taken on 30 January 2017 when she was 15 years of age. The evidence of Gail was taken on 31 January 2017 shortly before her 14th birthday. 8. As noted earlier, the trial of the Applicant proceeded before his Honour Judge Ellis and a jury commencing on 12 February 2018, with verdicts being returned on 23 February 2018. Count 1 - s.66A(1) Crimes Act 1900 Offence Against Donna Between 1 July 2009 and 30 September 2011 (Verdict: Guilty) 1. It was the Crown case that, a few months after Donna's mother commenced dating the Applicant, Donna (then about eight years old) was home alone with the Applicant. Donna's mother was working. Donna and the Applicant were watching the DVD "Finding Nemo" in the downstairs lounge room. They were on the lounge suite covered by a doona. The Applicant started tickling Donna under the arms and on her feet. He then started blowing raspberries on Donna's stomach. The Applicant moved further down Donna's body and pulled her pants down and then touched her vagina with his hands. The Applicant inserted his finger inside Donna's vagina. Count 2 - s.66A(1) Crimes Act 1900 Offence Against Donna Between 1 July 2009 and 30 September 2011 (Verdict: Guilty) 1. The offence in Count 2 followed on from Count 1. After the Applicant digitally penetrated Donna, she sat up. He placed his head between her legs and started licking her vagina. His tongue was on the inside of her vagina. Donna got up off the lounge and went upstairs. She stayed there until her mother got home from work. When her mother arrived home, the Applicant returned to his house. Count 3 - s.61N(1) Crimes Act 1900 Offence Against Donna Between 1 January 2011 and 31 December 2012 (Verdict: Guilty) 1. On a night when Donna was around 10 years of age, she was asleep in her bed. She was sleeping in the top bunk. Donna was wearing pyjama shorts, underpants and a singlet top and was underneath a doona. 2. In the middle of the night, Donna woke up to find the Applicant holding his Samsung mobile phone with the flashlight on. She was no longer underneath the doona and her pants and underpants were down around her knees. The Applicant told Donna he was just fixing her doona. He said sorry and quickly ran out of the room. Donna pulled her pants up, got out of bed and went to the bathroom. She returned to her bed and lay there, but could not sleep. Count 4 - s.61N(1) Crimes Act 1900 Offence Against Donna Between 1 October 2011 and 31 July 2013 (Verdict: Guilty) 1. A few months after the incident in Count 3, Donna was again woken in the middle of the night by the Applicant in her bedroom. Again, he was using a flashlight on his mobile phone. When Donna had gone to bed, she was wearing a singlet top. She awoke to find the straps down by her elbows and the neck area of the singlet top down around her ribs. She was not wearing a bra and her breast area was exposed. The Applicant said sorry and ran out of the bedroom. Donna began hyperventilating. She went to her mother and told her that something had scared her. They went downstairs and Donna spent the rest of the night sleeping on the lounge suite. Count 5 - s.61M(2) Crimes Act 1900 Offence Against Gail Between 18 February 2011 and 17 February 2013 (Verdict: Not Guilty) 1. When Gail was about nine years old, she was at Donna's house. The Applicant was home. Gail and Donna were playing "hide and seek". Gail was in the lounge room. The Applicant flipped Gail over the armchair and started "humping her" from behind. Count 6 - s.61M(2) Crimes Act 1900 Offence Against Donna Between 18 February 2011 and 17 February 2013 (Verdict: Not Guilty) 1. On the same occasion as the events giving rise to Count 5, Gail saw the Applicant place Donna over the arm of the lounge and place his arms on her waist and "hump her" from behind. 2. In her evidence, Donna denied that such an event took place in the company of Gail. Count 7 - s.61J(1) Crimes Act 1900 Offence Against Gail Between 1 January 2011 and 29 January 2015 (Verdict: Guilty) 1. At a time after the incidents described in Counts 5 and 6, Gail was at Donna's house playing with a video game console together with the Applicant's son. The Applicant was present in the house, but no one else was there including Donna. 2. Gail went upstairs to use the bathroom and the Applicant grabbed her by the waist and picked her up. He took her into his bedroom, closed the door and pulled her pants down before dropping her on the bed. The Applicant then licked Gail's vagina. 3. The Applicant placed a pillow over Gail's head and was holding it down. She told him to get off, but he did not. Gail kicked him and eventually he stopped. Gail ran from the house and went to a nearby shopping centre. She stayed there for a while before returning to the Applicant's house. Gail then went to the movies with the Applicant and the Applicant's son before being collected at a later time by her mother. Count 8 - s.61M(2) Crimes Act 1900 Offence Against Gail Between 18 February 2013 and 31 December 2014 (Verdict: Guilty) 1. When Gail was about 10 years old, the Applicant sent a text message to Gail's mother asking if he could take Gail to the place where he worked. The Applicant collected Gail from her house and they went to this location in the Newcastle area. No one else was there. The Applicant let Gail sit in a vehicle used in his employment. At first she sat in the front seat, then she climbed over to the back seat. The Applicant climbed in. He turned Gail over and started "humping" her. Gail kicked him. She told him to get off, but he did not stop. The Applicant then showed her around the office for a while. The Applicant told Gail that if she told anyone, they would not be a family anymore. Count 9 - s.61M(2) Crimes Act 1900 Offence Against Gail Between 1 January 2014 and 31 December 2014 (Verdict: Not Guilty) 1. On a day in 2014 prior to Gail's birthday, the Applicant arrived at Gail's house unannounced. She was watching television in her bedroom. Her mother, father and sister were home. The Applicant came into her bedroom and started talking to her. He then grabbed her around the waist and flipped her over onto his knees. He started "humping" her. Gail flipped herself back over, kicked and said, "Get out of my room". The Applicant left. Count 10 - s.61M(2) Crimes Act 1900 Offence Against Gail Between 1 July 2015 and 31 August 2015 (Verdict: Not Guilty) 1. In August 2015, Gail was aged 12 years. On this day, she was home from school and her 20-year old sister was also home. Gail was in the back room watching the MTV television program "Catfish" when the Applicant turned up at the house around midday. 2. Gail's sister went outside with the dogs who had started chewing on the Applicant's shoes. Gail saw the Applicant approach her. She asked "What do you want?". The Applicant sat down on the lounge next to her, then flipped her over so that she was on her knees. The Applicant started "humping" her, his hands were on his waist. She could feel the Applicant's penis touching her butt through their clothing. Gail kicked him and said, "Can you get off me" and "Hey, stop that". The Applicant then grabbed Gail's hand and tried to force her to touch his penis. Gail clawed him with her nails making his hand bleed. 3. Gail's sister came back inside after about two minutes. As the Applicant was walking back into the kitchen, he said "Don't tell anyone because this is our little secret and you'll split the whole family up". Context Evidence 1. The Crown also adduced evidence as context evidence of other acts of sexual misconduct. With respect to Donna, the context evidence comprised frequent sexual touching and "humping" which took place after the counts in the indictments and until Donna complained to her mother. With respect to Gail, the context evidence constituted allegations of sexual touching and/or misconduct which did not give rise to a separate charge. The Course of the Trial 1. The Crown case included the recorded evidence of Donna and Gail which was played to the jury. 2. In addition, the Crown tendered a report of Dr Rita Shackel, an Associate Professor at the University of Sydney with post-graduate qualifications in psychology, education and law. The report (Exhibit K) was read to the jury. Dr Shackel did not give oral evidence at the trial. Dr Shackel's report addressed the issue of disclosure (and delay in disclosure) of child sexual assault by complainants and the reasons for delay. The report was expressed in general terms and was not based upon any examination of Donna or Gail, nor did it refer to the circumstances of the Applicant's case. 3. In the absence of the jury, the Crown informed the trial Judge on 14 February 2018 about the report of Dr Shackel (T48): "CROWN PROSECUTOR: There's one aspect, Dr Shackel. We've agreed upon a report from Dr Shackel talking about behaviour in general terms, your Honour. HIS HONOUR: Yes. CROWN PROSECUTOR: It's just being reformatted, but there were nine points, in particular, in Dr Shackel's report, which was, I think, handed up to your Honour." 1. Given the issues raised on appeal, it is appropriate to set out the contents of Dr Shackel's report which stated that, in summary, relevant research findings generally indicate the following (AB115-116): "1. Child victims of sexual abuse respond to their abuse, during and after such abuse, in a myriad of different and diverse ways. 2. The impacts of child sexual assault are varied and point to a complex interaction of multiple factors including individual, perpetrator and assault characteristics. However, research indicates that child sexual assault is commonly associated with a range of short and longer-term adverse impacts in childhood and adolescence (and adulthood) including interpersonal, behavioural, mental health and educational consequences. Victims of child sexual assault are also more likely to experience disrupted and disturbed behaviours. In particular the literature strongly suggests that victims of child sexual abuse are at an increased risk of experiencing varying degrees of anxiety as a result of the abuse. Self-harming behaviours are also amongst the most common effects associated with child sexual abuse. 3. Whilst behavioural changes in a child can be indicative of child sexual abuse there are no clearly identifiable markers of sexual abuse and there are no behavioural changes specific to sexual victimisation. Symptoms commonly associated with child sexual abuse and trauma in a child are wide ranging and may include clinginess, fear of being alone, academic difficulties, anger and aggression, social withdrawal, and sleeping and eating disturbances. 4. Disclosure of child sexual assault is increasingly understood as not being a single, complete event but as a process that may not uncommonly occur in a 'staggered' or piecemeal way. A range of factors including the child's personal characteristics, family environment and the nature and circumstances of the experienced abuse will impact how an individual victim of child sexual assault discloses their particular experience/s of abuse. 5. Delay in disclosure and complaint of child sexual assault is not unusual. Research suggests that child victims of sexual abuse may face a range of barriers in disclosing and talking about their experiences of abuse. These barriers are multiple; research indicates barriers commonly include fear of the consequences of disclosure and of not being believed, embarrassment, self-blame, shame and disgust. 6. Research findings suggest that younger children and children sexually assaulted by a close or trusted family member may in certain circumstances experience more difficulties in the disclosure process. Intrafamilial child sexual assault may be particularly difficult for a victim to disclose, in whole or part, due to possible ambivalent feelings towards the perpetrator, fear, and the authority and power that may be exerted over the victim. Intrafamilial child sexual assault may also be particularly difficult to disclose and may be especially devastating to a victim because of the familial context and likely impacts on the family, most notably family disruption and family breakdown. 7. Younger victims of sexual assault may also not fully understand and recognise that the conduct perpetrated against them is improper or may be confused about the nature of the conduct, particularly when the abuse is perpetrated by someone close to the child such as a parent or close relative whom the child loves, and who is in a position of authority and trust. Greater understanding of the abuse may be acquired by a child victim with time, which may impact on the process of disclosure. 8. It is not uncommon for a victim of child sexual assault to reveal details of their abuse in an 'incremental' or piecemeal way as a means of 'testing' responses to their disclosure. Research has indicated that reaction/s to an initial disclosure may be linked to whether and how a victim further discloses the abuse. The response of a mother to an initial disclosure of child sexual assault has been shown to be particularly influential on a victim's further disclosure of the abuse. 9. Incomplete or 'staggered' disclosure of child sexual assault should not be assumed as being more consistent with false allegations of such abuse. Increasingly research is pointing to disclosure of child sexual assault as a process that is interactive and unfolds over time." 1. Having identified those points, Dr Shackel's report continued to make the following general comment by way of expert opinion (AB116-117): "It is not possible to draw blanket conclusions about how victims of child sexual assault respond to, and disclose such victimisation. A victim's response to child sexual assault, including their behavioural responses, mode and pattern of disclosure will be impacted by a complex interaction of factors related to victim characteristics, the nature and situation of the abuse, including: their relationship with the perpetrator; family environment; community influences; and cultural and societal attitudes (Alaggia 2010, p. 36; Kendall-Tackett 2002, p. 715). In the case of a child victim of sexual assault, the child's lack of maturity means that sexual abuse involves distinct developmental, cognitive, emotional and behavioural dimensions that may give rise to fear and feelings of confusion and ambivalence on the part of the child victim. This shapes the abuse situation, the victim's understanding of the abuse, and also the victim's responses to the abuse, including the disclosure process, and how and when they disclose, and the broader shorter and long-term effects and impacts of such abuse." 1. Given the matters complained of in the ground of appeal, it is appropriate to set out what was said in the trial in the absence of the jury regarding the requests for directions concerning the evidence of children and what the trial Judge said to counsel about what may be said in the summing up. 2. At the conclusion of proceedings on 14 February 2018, discussion took place in the absence of the jury between the trial Judge, the Crown and Senior Counsel for the Applicant concerning Dr Shackel's report. 3. Senior Counsel for the Applicant said that he would be seeking some directions concerning Dr Shackel's report (T49). The discussion continued (T49-52) (emphasis added): "HIS HONOUR: Each of you can give me some - I mean, just in brief, what it is you want me to say about -- ROSSER: Yes. Look, essentially, I'd be saying that if they're going to draw inferences adverse to the accused on the basis of watching that, then the usual inference direction applies, they have to be satisfied that that inference is the only rational. HIS HONOUR: Yes. I mean, it's not just that it's the background against which they can consider criticism really, isn't it, normally? Or background against which they -- ROSSER: For example, the report will say that children who experience child abuse often develop anxiety and rage. If they are going to attribute anxiety and rage of one of these complainants to having been sexual assaulted, they have got to be satisfied, we would submit, that that's the only rational inference. They certainly can't reason from those symptoms or those behaviours to proof. That's the basis of the submission, in any event. It can only ever be an inference. HIS HONOUR: The reason that I would have thought a jury gets information in relation to what experts have said has been the experience generally in relation to victims of sexual abuse is so that the jury can (1) put aside some of the false adult expectations -- ROSSER: That's the shield aspect to the evidence. HIS HONOUR: Then the second aspect is -- ROSSER: Sword aspects. HIS HONOUR: It's to put aside the incorrect adult expectations about what you would think and to assess the credibility of the complainant against the background of what expert evidence is. I probably agree to say that you can't - for the reason that the expert can't come forward and say, 'This person is telling the truth,' the jury can't infer that they're telling the truth because of that generalised evidence either, but it's a background against which they filter or examine the evidence of a complainant to make their mind up as to whether they think the evidence is credible, and that means weighing it against the criticisms that will be made. ROSSER: As I say, there's two aspects to this sort of evidence, one is a sword and one is a shield. The shield is, 'Don't worry too much about those flaws because you often see them.' The other is, 'As a matter of positive fact, victims often act in this way.' That's where you're getting into a position where -- HIS HONOUR: But that's an expert saying that they can say that, but that doesn't mean that this victim did act in that way. ROSSER: No. That's why we would be saying your Honour has got to direct the jury fairly strongly that they have to be careful about reasoning from that. They can consider it only as part of a background, an overall picture, in assessing the credibility of the witness. I think I need to formulate something in writing. HIS HONOUR: Yes. ROSSER: I'll do that over the weekend. HIS HONOUR: I probably don't have any issue with what you just said. ROSSER: Perhaps not. I might not be asking for as much as I seem to be asking. HIS HONOUR: Yes. I mean, normally I'd simply be saying to the jury, 'Look, it's a filter through which you assess the evidence.' It's no more or less, I guess, than a doctor coming along to talk about a physical injury saying, 'The type of force required generally to cause this injury would be X,' or, 'It couldn't be caused by a blunt object, it had to be a sharp object,' or stuff like that, even then the jury is still - they're told, 'Well, that's the expert opinion as to general statements. You have to have a look in much the same way as I say to you that we all accept that children are sexually abused by adults, but that that isn't the question, the question relates to this particular allegation against this accused by this particular complainant.' I mean, mainly because there are so many misconceptions that I think we have had over the years as adults in relation to what the expectations are, even if you go back to the original complaint, the hue and cry was, 'The woman literally had to run naked from the house yelling, 'I've been raped.'' ROSSER: There's biblical support for that proposition. HIS HONOUR: You know, that's exactly what the hue and cry came from and what the early law was. But we all know now the world is a little more complicated than that, people are a little more complicated than that, and conduct isn't quite so black and white in terms of expectations. ROSSER: May I say, it's those, the aspects which explain away their misconceptions, I have a lot less problem with. Serial complaint, I have no problem with. HIS HONOUR: Like staggered disclosure -- ROSSER: Staggered disclosure. HIS HONOUR: -- seem to be fairly common. ROSSER: Let me formulate something. HIS HONOUR: Yes. All right. CROWN PROSECUTOR: I do have a copy of that report and tagged the parts, your Honour. HIS HONOUR: All right. You can hand it up. I sort of have a reasonable expectation of what will be in there. CROWN PROSECUTOR: Points 1 to 9 really indicate what it is, your Honour. It's over two pages. HIS HONOUR: I mean, in a sense there's - I don't know, I've often given directions to juries about not applying adult logic to an assessment of a child, and there's a perfect example in this case actually that comes from a question asked of [Gail] in the very first JIRT interview, I think it was, where she was asked about, it was, 'What happens when you lie,' and she said, 'Mm. You get believed.' The question should have been, 'What happens if you are caught lying?' The answer is, 'Well, you get into trouble,' which is what he was after, but what - you know, then the child gets asked a question and the child's mind goes off on a tangent that's different to maybe the way the adult is thinking, and that's just a simple example of how you've got to assess the child against the background that you're not applying adult logic to children. Children are not little adults, they're children, and it's probably one example of the sort of things no doubt Dr Shackel speaks of." 1. The record of the trial does not indicate that the Crown or Senior Counsel for the Applicant provided any document to the trial Judge (by way of submission or proposed direction) concerning the report of Dr Shackel and what should be said to the jury in that respect. 2. A number of other witnesses were called in the Crown case. For the purpose of considering the ground of appeal in this case, it is not necessary to outline the evidence of other witnesses. 3. As the last step in the Crown case, the trial Judge read Dr Shackel's report to the jury on 20 February 2018 accompanied by some additional comments made to the jury (T173-174): "HIS HONOUR: It's necessary, ladies and gentlemen, for me to read to you this report. It's on the University of Sydney letterhead and it's from Dr Rita Shackel, associate professor at Sydney University. It's dated 19 February 2018. It's noted up as being an expert report prepared by Dr Rita Shackel and then in brackets, Bachelor of Science LLB, Diploma of Education MA, Master of Psychology and PhD. As I understand it she has both a psychological qualification including postgraduate doctorate level and she's done the LLB which is a law degree. It's referenced as being in the matter of the [the Applicant] and a case number, number 1 is executive summary: EXHIBIT #K REPORT FROM DOCTOR RITA SHACKEL TENDERED, ADMITTED WITHOUT OBJECTION. READ I should say something to you. Expert evidence is permitted to be placed before a jury on the basis that the expert has experience, educational and a general understanding of particular areas that goes above and beyond what one would expect to be the understanding of the average person within the community. So such an expert can give evidence within their field of expertise, and there are quite a few fields of expertise, as you might imagine. You can have people who are scientists, analysts - say DNA, things like that; in this case, it's within the field of research going into child sexual abuse. As I understand it there will be no evidence to the contrary of what you've heard, but nevertheless it is a matter for you as to whether you accept the expert evidence or not. But unless there is some good reason for you not to accept that evidence - such as it's inconsistent with your factual findings, for instance - then you would normally work on the basis that you will follow the guidance provided by the expert evidence. Is there anything else that he wants me to say about it at the moment? ROSSER: Not at the moment, no, your Honour. HIS HONOUR: Obviously, ladies and gentlemen, I expect that there will be further coverage - if you like - of what I've just read to you. I'm assuming there will be within the closing addresses via the barristers - there will be comments made about some of that material. But it is now evidence that is before you and I've read it to you so - in a sense - it's the same as the oral evidence of each of the witnesses that you have been party to already today, for instance." 1. The Applicant gave evidence in the defence case at trial on 20 February 2018 in which he denied the commission of the offences and was cross-examined (T175-210). Discussion Before Closing Addresses 1. After the close of the defence case, the jury was excused for the day and discussion took place between his Honour and counsel with respect to issues which may arise in closing addresses and the summing up principally concerning a tendency direction (T218-225). In the course of this discussion, the trial Judge said to counsel (T222-224): "HIS HONOUR: … I'll tell you basically the topics that I'm intending to cover and you can tell me if there any other topics apart from the normal stuff we talk about with - you know, assessing witnesses, et cetera, et cetera, the introductory stuff. I will give some directions in relation to witnesses; generally and more particularly, witnesses and children as witnesses. I'll take them to the expert report in some ways and I will give directions in relation to the CCTV/pilot scheme that we already have touched on, but I'll repeat those. … Then I will give the direction on lack of, or delayed complaint. ROSSER: It might be appropriate, your Honour, just a suggestion, to give that in the context of your Honour dealing with the report of Shackel. HIS HONOUR: I'm going to do that. What I had proposed to do was to give Dr Shackel's evidence immediately before the complaint and then go through what the time periods were during which there were - as I can see it, there were no complaints during any of the time periods made in the indictment, even on your --- ROSSER: On any version. HIS HONOUR: Yes, even on the version of 2013 - and then to take them through the process, and I will add some other stuff in there. I will add the Big W incident. I don't propose to take them to a lot of evidence, though. Then I will relate part of that back to what Dr Shackel has said and give the legal directions which are essentially consistent with what Dr Shackel says." 1. His Honour concluded the discussion with counsel as follows (T225): "HIS HONOUR: I will remind them at the very beginning that it's their role, not mine - tell them that I don't - that I find it easier not to make up my own mind; which is, in fact, the truth. So I won't be trying to suggest what the result should be but I will be pointing out various arguments that each side touches on and I'll be pointing out areas I think that they need to make a decision about. Nothing else that we --- ROSSER: No, your Honour. CROWN PROSECUTOR: No, your Honour." 1. His Honour foreshadowed further directions which would be given to the jury, but said nothing to counsel concerning any particular comments or observations which he had in mind stating to the jury concerning child evidence and the approach to evidence of children. The Closing Addresses 1. On 21 February 2018, the Crown addressed the jury (T229-238). 2. The Crown closing address was relatively short. The Crown invited the jury to use their "everyday experience of people" and their collective "wisdom" in assessing the evidence of witnesses (T229-230). The Crown referred to Dr Shackel's opinion evidence concerning factors bearing upon the evidence of children (T230). The Crown then reminded the jury of the evidence of Donna and Gail by reference to the counts in the indictment (T230-235) in the course of which brief reference was made to Dr Shackel's report (T235). The Crown referred to the evidence of other Crown witnesses (T236-237) and the Applicant (T237), before finishing the address with a further reference to the evidence of Donna and Gail (T237-238). 3. The Crown did not advance any particular submissions concerning the assessment of evidence of child witnesses. 4. Senior Counsel for the Applicant then embarked upon his closing address to the jury (T238-253, T256-265). 5. Immediately before the luncheon adjournment and before the defence closing address had concluded, the trial Judge raised some issues with counsel in the absence of the jury (T254) (emphasis added): "IN THE ABSENCE OF THE JURY HIS HONOUR: In your closing address you mention anything about tendency? ROSSER: I can answer that. HIS HONOUR: I know, but I'm --- CROWN PROSECUTOR: No, no. HIS HONOUR: But the Crown didn't put it. There are a lot of things you didn't deal with, but --- CROWN PROSECUTOR: Yes. HIS HONOUR: --- that was one of them. But we had been discussing that if you don't put to the jury as part of your case, what am I supposed to do? CROWN PROSECUTOR: Yes. HIS HONOUR: All right. Well, we can have a think about that. You also didn't put anything on good character or challenge any aspect of good character, so ROSSER: I don't - yeah." 1. After the luncheon adjournment, the trial Judge raised the following issues (T254-255) (emphasis added): "HIS HONOUR: Now, Mr Crown, what do you want me to do about tendency? It seems to me if the Crown does not run tendency, which you haven't, I've in fact got to not only not give them the tendency direction that we've been talking about, but give them a direction that they can't use tendency reasoning. CROWN PROSECUTOR: I held back on it because I was cautious having regard to the discussion that was taking place between you and Mr Rosser. That might have been the wrong thing to do. HIS HONOUR: Well, it is. You've got to say to the jury that you depend on reasoning. You can hold back in the sense that you don't have to spend 35 minutes on it, but there are certain areas where I think you have an obligation to put what your case is to the jury. One of them is the tendency; the other one would have been on limited character, given that there's no long line of witnesses to come along and attest to character. You needed to sort of put what the Crown's position was in relation to that, because absent you saying something, then there's no reason for the jury not to accept good character. Absent you saying something about relying on tendency reasoning, there's no basis for the jury to use tendency reasoning. There are a lot of other areas that I thought it was telegraphed that the defence would be running with that you didn't address, but they're matters of evidence and they're not as - that you don't put a contrary argument to a lot of those things, it doesn't impact on what I've got to do, whereas in relation to tendency in particular it does. I'll see what Mr Rosser says. Mr Rosser, it seems to me I'm at that point now where it's not been put as part of the Crown case, and I would normally then have to give a direction that they can't use tendency reasoning. ROSSER: I agree. HIS HONOUR: Was there anything else? CROWN PROSECUTOR: Your Honour, I think I've got to live with that. HIS HONOUR: We can't give you a second bite at the cherry at this point in time. Are you ready then, Mr Rosser, for the jury? ROSSER: Yes, your Honour." 1. The defence closing address challenged the credibility and reliability of the evidence of the child complainants. Reference was made to Dr Shackel's report (T241, T244-245). Senior Counsel for the Applicant invited the jury to use their "common sense" in assessing the evidence of the complainants whom he pointed out were not "five or six year old children", but were "young adolescents" (T246). There was no challenge to or criticism of Dr Shackel's general opinion evidence with the submissions being directed to the evidence of the two complainants. It was submitted that the jury should "try to make sense out of this and try to fit it with what [the jury] know of human nature", even allowing for their age and immaturity (T248). 2. There was no application made at the conclusion of the defence address nor any discussion in the absence of the jury concerning the content of the summing up. The Summing Up to the Jury 1. The trial Judge commenced his summing up to the jury immediately after the defence closing address on the afternoon of 21 February 2018. The summing up continued on the morning of 22 February 2018. 2. Having regard to the ground of appeal, it is appropriate to set out extracts from the summing up. 3. Early in the summing up, whilst explaining the roles of the Judge and jury, his Honour gave the following routine general direction (SU3-4): "So I will not be endeavouring to convince you as to what evidence you should accept. I will take you to the criticisms of it. I will highlight things that I think are important for you to consider, take into account, but I will not be trying to make up your mind for you, or suggesting that you make up your mind in a particular way. And I certainly will not be endeavouring to suggest to you what your verdict should be. There may be some areas where I will say to you there does not appear to be any real conflict between the parties and that therefore you would not have a lot of trouble with that particular aspect, but that is about as far as I intend to go. So I will not be trying to subtly or not so subtly suggest anything in terms of your function." 1. Whilst giving the jury directions concerning the general topic of witnesses and their evidence, his Honour touched upon the issue of evidence given by children (SU6-7) (emphasis added): "Witnesses come from all walks of life. They have different personalities. They have different attitudes, for instance, to being tested, or called a liar. Some people react aggressively to a suggestion that they are not telling the truth. Others might go into more of a shell. So it is important that you actually make an assessment of the individual. Children when they give evidence are not little adults. They are children. Children have a different sense of logic, one that is not necessarily the type of logic that adults use." 1. In the course of directions concerning the memory of witnesses, his Honour referred once again to the evidence of children (SU8) (emphasis added): "You should remember that our memories - I think the first thing that can be said about that - that our memories are nowhere near as good as we think they are when it comes to casting your mind back. Some criticism has been made, obviously in this case, about memories and/or lack of memory. A child who is eleven and casting their mind back to when they were eight is casting their mind back over a quarter of their life. So you have to take into account the vagaries of memories. The reality is that things that are significant to us tend to stick." 1. Soon after, his Honour referred to the issue of evidence of children and the report of Dr Shackel (SU10-12) (emphasis added): "As I said to you children are not little adults and depending upon the child their understanding of time and sequence may not be dynamic and they may answer in a way which you think is a bit odd. The child might be vague from time to time regarding details. It does not necessarily mean that the substance of what they are saying is unreliable. A young person's understanding of what they are being asked is not necessarily the understanding that you as an adult listening get. So to criticise a particular answer that might be given, based on adult logic and understanding, may not actually be valid. For instance during the JIRT interview, this is just an example, when the officer was exploring [Gail's] understanding of truth and lies he asked her 'So what happens when someone tells a lie?'. Now as adults listening to that we are all thinking all right, well what he means by that is well do you get into trouble? [Gail] answered 'Mm they believe you'. Well you stop and think well, yeah, well they might believe you if you are telling lies they may believe you. So in her mind there was no suggestion that at that point in time she was trying to lie. That is just the way her mind heard that question, different to the way an adult might hear that question. And that is a simple example, which is a neutral example. I am not suggesting she is not lying, or she is lying, in her evidence. But that is a neutral example of how you need to just, in order to assess that question, look at perhaps how it is that the child might have been responding because the child responds in a child-like logic which may indicate nothing other than that is just what the child thought she was being asked. I will take you to what Dr Rita Shackel has said in relation to research regarding victims of child sexual assault. I will take you to that a little bit later. But part of what she has said obviously is relevant to your assessment. Her evidence does not go to whether or not [Gail] or [Donna] are telling the truth. She is not here to give you an opinion about that. Or her report is not before you to give you an opinion about whether these two particular complainants are telling the truth. A report is to give you a bit of a heads up in terms of you not having any false perception. Sometimes in the past I think there has been a false perceptions [sic] by adults in relation to expectations of what a child should do in certain situations, or not do, or that if they have done something that is contrary to the adult logic that must mean that they have fabricated. So her evidence goes to give you a bit of a heads up, as it were, into that type of thing, but it does not go to whether or not she is of the view that either of these two complainants is telling the truth, or otherwise." 1. The trial Judge's reference to Gail's JIRT interview had not been referred to in the closing addresses, but his Honour had raised this aspect with counsel during the trial (see [42] above). 2. Shortly before adjourning for the day on 21 February 2018, his Honour referred again to the report of Dr Shackel, noting the limits on the use of the report (SU34-35): "In this case, as I said to you before, it is not Dr Rita Shackel coming along to tell you whether or not [Donna] or [Gail] is telling the true or not telling the truth. It is that she comes along to say that research among experts in relation to victims of child sexual abuse has reached a number of conclusions, that is, the research indicates a number of things. It indicates, as you will be able to read in full but I will shortly state it, according to the doctor, that victims of child sexual assault are also more likely to experience disrupted and disturbed behaviours. Obviously it is clear that not every child who demonstrates disruptive and disturbed behaviours has necessarily been sexually abused. There can be different reasons for children having that as an issue." 1. His Honour repeated parts of Dr Shackel's report to the jury (SU35-37). 2. His Honour then reminded the jury of the complaint evidence before giving the jury the following further direction on this topic (SU39-40): "Clearly the expert evidence of Dr Shackel potentially has relevance to your consideration obviously of this issue about complaint. As a matter of law, I direct you that the absence of complaint or the delay in the making of complaint about alleged conduct does not necessarily indicate that the allegations made are false, and that relates both to [Donna] and [Gail]. There may be good reasons why a victim of sexual assault may hesitate in making or may refrain from making a complaint about such an assault. For instance, in this case, [Gail] said that the accused told her to keep what he was doing to her a secret and not to tell anyone, as it would ruin the family. [Gail] also said that she did not want to talk about it, and you have evidence that there was a complaint by [Donna] but, in essence, she was told of what she would have to do in terms of the involvement of police and essentially she said, 'It was all a bit too hard and I just gave in.' So there may be good reasons why a victim of sexual assault may make no complaint or may make staggered complaints. Obviously emotions are involved and there are questions of level of maturity and there are family issues. It is a not un-complicated thing. That is all I wanted to say to you about complaint." 1. Soon after, the jury was excused for the day and discussion took place in the absence of the jury concerning further directions to be given. At one point, the following was said (SU41-42) (emphasis added): "ROSSER: If your Honour would endorse what I put to the jury, that if they weren't satisfied that the hide and seek-- HIS HONOUR: Yes. ROSSER: They can't substitute another. HIS HONOUR: I propose to do that as I go through it. ROSSER: Yes. HIS HONOUR: I'm not sure exactly, no doubt I won't do justice to your closing address, and whenever you try and highlight something, obviously you can't do justice to something, but-- ROSSER: No, but I've-- HIS HONOUR: But I've made a note, well, I've made quite a few notes during both addresses and it's my opinion in relation to each of these, the particular cases, there will be some occasions where I say things you mightn't specifically have said or that Mr Crown mightn't have said but, generally speaking, it's my assessment of what your respective case is all about. I accept that part and parcel of - what you said is that [Donna] denied it happen. Well, it might have been more accurate to say that [Donna] denied the hide and seek. She said she had no recollection of that incident and then she denied the hide and seek and she denied a conversation, but I will--" 1. His Honour did not, at any point, identify what "things" he had in mind raising with the jury following this broad statement of intention. No complaint was made by Senior Counsel for the Applicant concerning anything said to the jury to that point in the summing up. 2. The summing up continued on 22 February 2018. A short way into the resumed summing up, his Honour said to the jury (SU46-47) (emphasis added): "There is some evidence which is capable of supporting [Donna] and [Gail], in terms of the complaint evidence, some general material, but the reality is without [Donna] and without [Gail] Crown cannot prove the specific allegations that are contained in the indictment. I should say it is not all that unusual in a sexual assault allegation that you only have a complainant or an accused who is able to give evidence as to what happened between the two people, if anything. But in some cases, for instance robberies, you can have the assistance of a CCTV recording, et cetera, which can provide some support to, for instance, bank tellers who are saying certain things were done to them. But it is usually the case in a sexual assault situation that it is a one-on-one situation. As I said to you before, it is not a case of choosing which one you prefer, the accused or the complainant. In each case, it is a matter of the Crown satisfying you beyond reasonable doubt as to the truthfulness and honesty or truthfulness, rather, and accuracy of the witness who makes the allegation. And that is certainly the situation here, so far as each of these counts is concerned. Commonsense would dictate that it is only appropriate and reasonable for a jury, before convicting a person on the evidence of a single witness, and this is a general statement that I am saying to you, not specifically aimed at these two particular complainants, but it would make commonsense that where a jury has to rely upon one person's evidence that it is appropriate and reasonable for the jury to closely consider the evidence of such a witness, so as to satisfy themselves that the witness is, in fact, both truthful and accurate. Mr Rosser suggested to you that if you had to make a decision in your personal life based on the evidence of either of these two girls you would not be able to do so because you would not conclude that they were truthful and/or accurate. But the reality is there are times in our lives where we do make decisions based on material given to us by simply one individual. We assess that individual, we assess what they are saying and, essentially, that is what you do here in this Court, you use your knowledge of human affairs, your commonsense, to consider the circumstances of the individual, remembering what I said to you about how people vary in terms of their ability to cope as witnesses. They vary in terms of their level of maturity, their ability to articulate themselves, et cetera. So, it is important that you carefully consider, and the law requires you to do so, that you carefully consider the complainant in each of these counts, albeit in count 6 you will be considering not the complainant but [Gail]." 1. His Honour gave the jury warnings concerning the use of context evidence and directed the jury not to engage in tendency reasoning. These directions were not challenged by the Applicant. 2. His Honour then commenced summarising the Crown case. It is submitted for the Applicant that propositions advanced by the trial Judge in this part of the summing up were either not matters which the Crown had put in argument or were not in evidence. It was submitted that, although his Honour used terms such as "the Crown says" or "the Crown would say", there were no statements by the Crown which approximated what his Honour attributed to the Crown. 3. As noted earlier, the trial Judge had told counsel, in the absence of the jury, that he would refer to some things which had not been specifically said in closing addresses, but which his Honour assessed to be the respective cases of the parties (SU41-42 at [68] above). However, his Honour did not identify what he proposed to say to the jury in this respect. 4. In this context, the trial Judge returned to the issue of the nature of the memory of children and the qualities of the evidence of children. 5. At the commencement of his Honour's summary of closing addresses, the following was said to the jury (SU53-54) (emphasis added): "Now, I am going to give you a potted version of each case and then I will ask you to retire. Obviously, what I am saying to you now will not necessary accurately reflect everything that is said to you by either side. It is my assessment of the Crown case, not necessarily me parroting what everybody has said to you. But I will, hopefully, at the end of it, have conveyed to you the essence of the Crown case and of the defence case. Now, the Crown position is that you would start your consideration of these complainants by reference to the evidence given in the report by Dr Rita Shackel, so as to put aside any misconceptions that you might have as an adult about what children should do in certain situations or should not do, so that where they have done things that you might think are different to what you would have done, then you need to have a look at the research so that you can see 'Well, look, there is no blueprint in terms of what a person who is the victim of child sexual assault will do and how they will behave' but certain research has indicated certain things in terms of what commonly occurs and the relevance then the Crown says of Dr Shackel is that it will mean that you will not be as critical, or critical at all, of the complainants in relation to things such as staggered disclosure and that there are some things which are consistent with conduct of a person who has been the victim of child sexual assault." 1. His Honour said (SU55-56) (emphasis added): "The Crown relies on that complaint and the Crown points out to you that there was some pressure placed upon [Donna] and you have to stop and think about this. If [Donna] was, in fact, the Crown says, a child who had been sexually abused, and she complains to her mother about that, would the child, in 2014 [Donna] was 12 in the middle of that year, would a child necessarily know what is involved when you make a complaint or does the child just think you just have to complaint about what has been done to you, just tell your mummy what has happened to you? She got a bit of pressure, in the sense that she got it from her sister as well, that he might lose his job, she would have to go to the police to tell them about it, she would have to tell her dad and I think she said, 'Well, I guess mum just believed him and I thought it would be much easier, so I just told mum it was a mistake, just to tell her it was easier to forget it, it was all going to be too hard.' Is that so hard to understand in a child who is only 12, faced with those sort of conflicts?" 1. The last (emphasised) proposition had not been advanced by the Crown. 2. His Honour continued (SU56-58) (emphasis added): "The Crown relies upon the context evidence as placing the evidence of the girls in a context but also as being a reason why you might think that they would struggle with their memory about recalling all the details. If things occur all the time and you will recall what I said to you about playing golf every weekend, you know, trying to look back and remember every round of golf, you know, it becomes difficult to remember each and every occasion. You might think they tend to blur. So the Crown says that context evidence is important from that point of view of giving you a realistic context, a realistic understanding of the difficulties that would face someone who is in that situation and who is very young, in being able to accurately recall things. And the Crown would say the reality that girls might not fare too well when cross-examined by a senior barrister, well, you know, would any of us fare too well when cross-examined in situations like that? So again, it is one of those factors you have to look at. There are a lot of criticisms and I will come to those shortly but you do have to look at the reality of what you are dealing with, a child who is not a lawyer, not a wordsmith, being tested on a subject upon which they might be quite emotional about if they are telling the truth. So, that is what the Crown says about that. … The Crown says you will remember the complainants, there are four JIRT interviews, four different interviews with [Gail], one lengthy one for [Donna] and then together with the recordings. Remember their age, their emotional states, the frequency of events and that that would provide you with some understanding of why there would be some memory and some confusion as between events and perhaps loose language. You know, do they necessarily understand that every single word they say is going to be dissected months later or did they just give general throw away answers? People do react poorly to be cross-examined and called a liar. Some people, it is water off a duck's back; other people get angry about it. Other people simply become anxious. So, you need to have a look at all those reactions, to see whether those reactions of themselves are indicative of honesty or dishonesty or whether they are just indicative of a particular personality in a given situation." 1. The emphasised parts of the extract from the summing up had not been addressed by the Crown. 2. His Honour commenced a summary of the defence closing address (SU58). The Applicant submits that the trial Judge provided the jury with a type of general warning in relation to the ability of a child to recall accurately the time of an event and to cope as a witness, with this occurring in a section of the summing up which, it was argued, was dedicated to explaining the defence case. Counsel for the Applicant submitted that these warnings were used as a counterpoint to defence criticisms of the reliability of the evidence of the complainants. It was submitted that, in this section of the summing up, his Honour advanced arguments which had not been raised previously by the Crown. 3. The trial Judge said to the jury (SU59-60) (emphasis added): "Mr Rosser addressed Dr Rita Shackel's evidence, confirming that there is no pattern or, as I said to you before, there is no blueprint that you can go to to say 'Ah, that conduct proves someone is the victim of sexual assault, child sexual assault.' He did not take any real issue with the fact that there was staggered disclosure. In this case, though, he suggested to you that it was a shrinking allegation. That is, it started off at a high point, with Dr Peck, so far as [Gail] was concerned and incrementally got less as she was questioned by different people. He said to you that these girls were not young babies, that they are young adolescents. Well, that might have been stretching it a little, I suppose. They were seven, eight, nine and 10, according to the age ranges potentially in the indictment and in December 2015, when the first JIRT interviews took place, [Donna] was just turned 14 and [Gail] was 12. In essence, if we forget the labels that have been given, what he is saying is that they were not five and six year olds, but nevertheless you would need to understand that as even 12 and 14 year olds they are not fully mature." 1. The trial Judge referred to the defence submission that it was illogical that the Applicant had warned Gail (but not Donna) not to tell anybody about the offending. His Honour said (SU60-62) (emphasis added): "It seems on the Crown case - and this is a comment I will make to you so we can clarify the timings of these things - it seems on the Crown case that middle of the year 2014 a complaint is made by [Donna] and that thereafter there is no further allegation of misconduct. [Donna] says, when interviewed, over 12 months ago, which would take you into 2014, but you do not know what time in 2014. It could have been January, before she even started school. Other occasions she said nothing happened after she started high school in 2014. But there is material there and you will have to make a decision about some of that timing, in terms, for instance, whether the complaint was in 2013, as the accused says, or 2014. It is clear that these statements that [Gail] claims were made are made at least during 2014, if they were made and also in 2015. So, arguably, after things had, on the accused's case, in any event, that is after [Donna's] complaint. On the Crown case, possibly after [Donna's] complaint, some counts, being counts 8 and 9, could have been before the middle of 2014, on the indictment range anyway. So the defence position is, well, would you not expect, if there was a particular modus operandi in relation to the way the accused was dealing with these two girls in this inappropriate way, that it would be similar, that if he was saying to one, 'Don't tell anybody, you will break the family up,' that he would say that to the other, yet the situation is, [Donna] says, 'No, he never said that to me,' and yet [Gail] says he did. But you would need to have a look to see whether or not what [Gail] claims, if you find that it was said, whether that was said after [Donna] had come forward and made her complaint. If there was no - at that stage, it is a bit late to tell [Donna] not to tell anyone; she already has. But the defence position on it is that it would cause you some concern that there is this difference between the two, and the defence case is, it is also concerning, you might think, that [Donna] would not warn her childhood friend and cousin about what was happening to her, given that [Gail] is about, I think 14 months younger, by the look, October through to February, and a year in between, so that may be 16 months. So when you look at those things, that is when the defence says you use your common sense, you think, well, why would a girl not warn her cousin. Even if she did not make any admissions about what had happened to her, even if she did not reveal that, she could still say, 'Look, be a bit careful around him,' but there is no such evidence of that. In fact, it seems to be denied. The defence position is another interesting factor is that both these girls came up with the same word, 'humping', independent of one another. Is that a coincidence? There are a lot of different criticisms that were made of [Donna] and [Gail]. Mr Rosser took you to various extracts, there have been various parts of the JIRT interviews and the pre-recordings, and I am not going to take you to all of those. You have heard those. There is a lot of criticism that has been made, and it culminated in Mr Rosser saying to you, well, did these girls really care what they were saying? Were they prepared to do and say anything? Or did it suddenly dawn on them what they had got themselves into, and then they did not want to be any part of it, so the easier way was to say, 'No, don't remember,' or storm off and get angry? He put submissions to you that the text messages in July 2013 would appear to be the type of text message you would have expected between [Ms XX] and [the Applicant] if in fact [Donna] had just complained about him, and the defence says the relevance of that is, if that was in 2013 and he came back into the house, then notwithstanding that complaint and the problem that that generated, and his rejection from the house for a while, he must have resumed inappropriate conduct. Why would he do that? It seems to be ridiculous. When a child says, 'Oh, it finished last year, or a year ago', you do need to be a little careful about being too pedantic about exactly what that might mean. People use loose language all the time, and they round things up, broad brush things, so be a little careful about that." 1. His Honour referred to a defence submission as to the unlikelihood of the conduct alleged occurring in the near vicinity to other people by telling the jury that "humping" without the removal of clothing can be quickly ceased and was therefore less detectable. His Honour said (SU63) (emphasis added): "Mr Rosser pointed out, well, you know, it is a bit, pretty risky to be doing things like that; on other occasions it is said that the 'humping' was taking place when others were in the house, the fire truck incident, … was around somewhere, that how likely is it that a man would be stupid enough to do that sort of thing when there is a fair chance of being caught by somebody else? On the other hand, the 'humping' does not involve the removal of any clothing, and may be quickly ceased in terms of its conduct, so from that point of view, less likely to be caught than if we are talking about removing clothing, which you have suddenly got to put back on, et cetera." 1. His Honour turned to a defence submission that Gail was an evasive witness who chose not to engage in cross-examination (SU64) (emphasis added): "He pointed out that at one point in the pre-recording, she said she could not remember how often, 'More than once,' 'Can't remember', 'Remember any occasion', 'No', 'Remember where', 'No', 'How old', 'No', and that she stormed out. Well, again, you would have to look to see whether that is just her reacting to being challenged in what she was saying, whether she was simply, essentially, giving Mr Rosser the bird, as it were, by her conduct, so you have to make that sort of assessment. People get angry and do and say things that mean no more, or indicate no more or less than that they are angry, not necessarily the reason why they might be angry." 1. At the conclusion of the summing up, neither the Crown nor Senior Counsel for the Applicant sought to raise any matter with the trial Judge concerning the summing up either in the presence or the absence of the jury (SU66). 2. The jury retired to consider their verdicts at 10.32 am on 22 February 2018 and were excused for the day at 4.16 pm. 3. The jury continued their deliberations at 9.30 am on 23 February 2018 and returned to Court at 10.32 am so that his Honour could respond to a jury question concerning Count 7. 4. The jury retired to resume their deliberations at 10.34 am and returned at 1.07 pm with the verdicts indicated earlier (at [5]). 5. At no point during the trial was complaint made to the trial Judge concerning the parts of the summing up which are now challenged on appeal. The Applicant's Ground of Appeal 1. The Applicant relies upon what is said to be the cumulative effect during the summing up of the trial Judge raising a number of issues in a manner which infringed the proper function of a summing up and gave rise to unfairness to the Applicant and a miscarriage of justice. 2. Rather than addressing each subground separately, it is appropriate to gather the arguments made for the Applicant and the Crown and then respond to the ground of the appeal at a single point later in this judgment. Submissions for the Applicant 1. Mr Carroll, counsel for the Applicant, submitted that the cumulative effect of his Honour's directions in relation to the assessment of witnesses necessarily impinged upon the jury's assessment of the credibility of the complainants and denigrated the Applicant's submissions with respect to credit to the point that a miscarriage of justice occurred. 2. It was submitted that the trial Judge had, in a highly persuasive manner, imparted upon the jury a reasoning process which had not been advanced by the Crown nor supported by evidence or legal principle. The inference created was that evasiveness, external and internal inconsistencies and an inability to recall an event with sufficient details were not a marker of potential dishonesty or unreliability, but rather a benign artefact of the evidence of children. 3. The Applicant submitted that the trial Judge did not make the traditional statement to the jury that the jury was obliged to ignore any comment on the facts made by a trial Judge if it did not accord with the jury's own view. It was submitted that his Honour's directions and suggestions were delivered in terms which the jury would have understood as directions of law. With respect to the reasoning process the jury should follow when assessing the evidence of the complainants, it was submitted that the comments were expressed in mandatory terms. 4. It was submitted that, on two occasions, his Honour had identified explicitly that he was making a comment upon a fact in issue (at SU24 and SU60). It was submitted that, on both of those occasions, the statements made related to a factual matter which was not in dispute. It was said that no such qualifier was made when his Honour directed the jury as to how they were to assess the evidence of the complainants. It was submitted for the Applicant that the effect of the summing up was to warn the jury not to engage in a process of reasoning, favourable to the Applicant, in relation to fact finding concerning the honesty and reliability of Donna and Gail. 5. Mr Carroll submitted that neither the Crown nor the Applicant, in their respective opening and closing addresses, had made generalised prescriptive statements as to the quality of evidence given by children. The Crown did not call expert evidence in relation to the evidence of children, nor did the Crown lead specific expert evidence upon the cognitive abilities of Donna and Gail. The parties conducted their cases at trial upon the basis that it was for the jury to assess the evidence of the complainants calling upon the collective experiences of the jurors. 6. Counsel for the Applicant submitted that the trial Judge was not bound by statute or case law to give the directions or to make suggestions which are now challenged by the Applicant. It was noted that s.165A Evidence Act 1995 precluded any general statement which suggested that the evidence of children may be unreliable. 7. In support of Ground 1(a), counsel for the Applicant relied upon the following propositions in the summing up with respect to the evidence of children: 1. children, when they give evidence, are not little adults - they are children with a different sense of logic (SU6-7 at [61] above); 2. a child who is 11 years old and casting their mind back to when they were eight, is casting their mind back over a quarter of their life so you have to take into account the vagaries of memories - that is even worse if we are talking about a frequency of events (SU8 at [62] above); 3. a child's understanding of time and sequence may not be dynamic and the child may answer in a way which you think is a bit odd, but this does not necessarily mean that the substance of what they are saying is unreliable (SU10-12 at [63] above); 4. a child might be vague from time to time regarding details, but this does not necessarily mean that the substance of what the child is saying is unreliable (SU10-12 at [63] above); 5. a young person's understanding of what they are being asked is not necessarily the understanding that you as an adult listening might get (SU10-12 at [63] above); 6. no witness in the circumstances of these complainants would fare well when questioned by a senior barrister (SU56-58 at [78] above); 7. age (in combination with frequency of events and emotional state) provides an explanation as to why there would be some memory gaps and some confusion as between events and perhaps loose language (SU56-58 at [78] above); 8. when a child says "[the abuse] finished last year", you need to be a little careful about what that means (SU60-62 at [82] above). 1. It was submitted that these propositions have not been accepted at law with respect to the evidence of children and are contrary to s.165A Evidence Act 1995, which appears later in this judgment. 2. In criticising these statements in the summing up, counsel for the Applicant referred to CMG v R [2011] VSCA 416 at [13]-[14] where Harper JA (Ashley and Weinberg JJA agreeing) said: "[13] A real difficulty, however, remains. Her Honour was either giving evidence, or she was charging the jury on the law. But a judge cannot give evidence. He or she may of course comment on such evidence as is placed before the jury, but only after ensuring that the jury are aware that they must disregard those comments if they do not find them helpful. [14] The judge herself categorised what she had said to the jury as directions of law. If so, they were binding on the jury. The very real danger, therefore, is that the jury understood (for example) that they were bound to accept that a study as long ago as 1993 found that children, even very young children, are able to remember and retrieve from their memory large amounts of information; or that there is no evidence that indicates that the honesty of children is less than that of adults. As Latham LJ said in D [[2008] EWCA Crim 2557]: The judge is entitled to make comments as to the way evidence is to be approached particularly in areas where there is a danger of a jury coming to an unjustified conclusion without an appropriate warning. … But any comment must be uncontroversial. It is no part of the judge's task to put before the jury [a relevant expert's] learning without [that expert] having been called as a witness." 1. It was submitted that the trial Judge's suggestions as to the quality of evidence of children could be recast, with minor amendments, as the basis for a warning to a jury to be cautious to convict based upon the evidence of children, a step that would infringe s.165A Evidence Act 1995. It was submitted that this underscored that the contentions are apt to lead to decision making based on generalisations, prejudices and stereotyping as opposed to actual evidence. 2. In the absence of evidence relating to the particular complainants or a settled position in science as to the cognitive ability of all children, the Applicant submitted that the generalisations advanced by the trial Judge are fraught with difficulty. 3. It was submitted that, of critical importance to the issues joined in this trial was that the trial Judge, whilst putting the case for the Applicant, warned the jury to give little weight to the literal response by Donna that the abuse ended the previous year (2014) on the basis that it was said by a child (SU60-62 at [82] above). 4. With respect to the topic referred to at [98](f) above, concerning the question whether any witness "would fare well when questioned by a senior barrister", in the context of the defence case which relied predominantly on a submission that the cross-examination demonstrated that both complainants were dishonest or otherwise unreliable, it was submitted that it was devastating to the Applicant's case for the trial Judge to infer that the parameters of the complaint and the trial process itself would inevitably see a child witness flounder when questioned by Senior Counsel. In the absence of a similar statement from the Crown, it was submitted that this comment would have been interpreted by the jury as coming directly from the trial Judge and encapsulating the notion that it was the view of the Court, or a settled position in law, that the process of cross-examination is an extremely difficult task for a child complainant to navigate. 5. With respect to Ground 1(b), it was submitted that the trial Judge developed a powerful theme, enforced through repetition, that an apparent negative impression that the jury may have formed from their observations of the demeanour of the complainants may be no more than a reflection of their personality or maturity levels in the situation. 6. Counsel submitted that it was inferred from his Honour's comments that the difficulties confronted by witnesses when tested in cross-examination are amplified by youth and consequently criticism or doubt grounded in the observations of the child witnesses should be tempered. This direction was supported by statements as to his Honour's experience of witnesses. The jury were directed that, in their assessment of the demeanour of the witnesses, they must heed what his Honour told them about the varying ways that witnesses react when being cross-examined, such as getting angry and that such a reaction may not provide insight into the truthfulness of the witness. 7. In this context, it was submitted that this theme reached denouement when his Honour, summarising the argument for the Applicant that Gail presented as an unimpressive witness, retorted that Gail may have simply been giving Senior Counsel for the Applicant "the bird" by her conduct in the witness box (SU64 at [84] above). 8. It was submitted for the Applicant that the directions of the trial Judge in relation to demeanour constituted an impermissible encroachment upon the jury's role of assessing witnesses in a manner which contravened what was said in R v RTB [2002] NSWCCA 104. It was submitted that the jury was entitled to base its final judgment on its own impressions, but that the trial Judge's statements required the jury to absorb his Honour's own experience as to how a witness reacts to cross-examination and to insert that experience into the jury's assessment of the witness during their deliberations. It was submitted that such a task is impossible and that the directions with respect to demeanour could only have operated to warn the jury to give less weight to any initial negative reactions to the way in which the complainants presented. 9. Reliance was placed, as well, upon RGM v R [2012] NSWCCA 89 at [94], [97] and [102] and, in particular, the statement of Fullerton J expressing concern about the trial Judge's statement to the jury that they were to assess the complainant's evidence against the background that "if she was being truthful she might find difficulty giving her evidence because she was reliving the assaultive experience in the process". Counsel for the Applicant submitted that this was, in effect, what the trial Judge was saying to the present jury, "You have to look at the reality of what you are dealing with, a child who is not a lawyer, not a wordsmith, being tested on a subject upon which they might be quite emotional about if they are telling the truth" (SU57 at [78] above). 10. It was submitted for the Applicant that the trial Judge, when purporting to summarise the Crown case, used a similar reasoning process as to that criticised by this Court in RGM v R. 11. It was submitted for the Applicant that, when the entirety of his Honour's directions and comments are combined, whether expressed as his own or as "the Crown would say", there is little to distinguish this case, in terms of the reasoning process, from that contained in the summing up which led to the quashing of convictions in RGM v R. 12. With respect to Ground 1(c), Mr Carroll submitted that the trial Judge, in his summing up, made the following arguments which had not been raised by the Crown: 1. You cannot say, "The child should've said it all at once and the fact that they've taken so long to disclose it must mean that they're fabricating" (SU35). 2. The "reality is it is said that there is frequent touching, frequent 'humping' and it is the case that neither girl is able to identify every single occasion when they say things occurred ..." (SU50). 3. The "Crown says if you did not have [the context evidence] of [Donna] and [Gail], they might be found by you to be odd that there were these gaps if someone was infatuated with a child that they might only touch the child once every six months or there would be a year in between. That sort of thing might reduce the credibility" (SU50). 4. The "relevance then the Crown says of Dr Shackel is that it will mean that you will not be as critical, or critical at all, of the complainants in relation to things such as staggered disclosure" (SU54 at [75] above); 5. [The Crown says] "would a child ... necessarily know what is involved when you make a complaint or does the child just think you just have to complain about what has been done to you, just tell your mummy what has happened to you" (SU56 at [76] above). 6. The "Crown relies upon the context evidence as … a reason why you might think that they would struggle with their memory about recalling all the details ... you might think they tend to blur" (SU56 at [78] above). 7. The "Crown would say the reality that girls might not fare too well when cross-examined by a senior barrister, well, you know, would any of us fare too well when cross-examined in situations like that?" (SU56 at [78] above). 8. [The Crown says] "... remember their age, their emotional states, the frequency of events and that would provide you with some understanding of why there would be some memory and some confusion as between events and loose language. You know, do they necessarily understand that every single word they say is going to be dissected months later or did they just give general throw away answers?" (SU57 at [78] above). 9. "People do react poorly to be cross-examined and called a liar" (SU57 at [78] above). 10. "But you would need to have a look to see whether or not [Gail] claims, if you find that it was said, whether that was said after [Donna] had come forward and made her complaint. If there was no - at that stage, it is a bit late to tell [Donna] not to tell anyone; she already has" (SU61 at [82] above). 11. "When a child says, 'Oh, it finished last year...', you do need to be a little careful about being too pedantic" (SU62 at [82] above). 12. "'humping' does not involve the removal of any clothing and may be quickly ceased in terms of its conduct and [hence] less likely to be caught ..." (SU63 at [83] above). 13. "[Gail] may well have been simply giving Mr Rosser the bird by her conduct which would indicate no more or less than she was angry ..." (SU64 at [84] above). 1. With respect to [112](f) above, it was submitted that the Crown did not advance an argument that the context evidence was to be used as a reason for explaining deficits in memory and difficulty in recall. Rather, the Crown closing address repeated that the purpose of evidence of uncharged acts with respect to Donna was to demonstrate that the counts were not isolated incidents, but were occurring in a larger context of other acts being committed against Donna. Counsel for the Applicant submitted that the Crown's approach was consistent with the Criminal Trial Courts Bench Book direction with respect to the use of context evidence. 2. It was submitted for the Applicant that the direction with respect to context evidence and difficulties with recollection permitted the jury to use the context evidence of each complainant to bolster the credibility of that complainant. In the context of the trial, it was submitted that this reasoning process was significantly detrimental to the Applicant's case. 3. It was submitted that the denial by Donna of an incident involving "hide and seek" and "humping" which occurred whilst Gail was present, could be used to demonstrate that Gail had made this allegation "out of nothing" and that she was a dishonest witness. It was argued, however, that his Honour's direction allowed for a reasoning process that Donna was simply confused and that her memory of each occasion of "humping" was blurred. Accordingly, it was submitted that Donna's denial of the event captured by Counts 4 and 5 could be explained by deficit in memory rather than as evidence that the incident did not occur. 4. With respect to [112](j) above, it was contended that the trial Judge had developed a rebuttal to the argument as to the unlikelihood of the Applicant pressuring or threatening one complainant not to tell, and not the other, by suggesting that the difference was explained by a continuation of offending against Gail after Donna had complained to her mother. It was submitted for the Applicant that the Crown had not advanced such an argument to the jury. 5. It was submitted that the reasoning process advanced by his Honour was that the complaint by Donna led to a change in the Applicant's later conduct towards Gail and the incorporation of the threat not to disclose. It was submitted that, to demonstrate this argument, his Honour went to the dates on the indictment for Gail and pointed out to the jury that, using that date range, the offending against Gail post-dated the complaint by Donna to her mother. The evidence of Gail, however, was that the entirety of the offending against her, including the first occasion which occurred simultaneously with Donna (Counts 5 and 6) included the warning not to tell "… he pulled me over and said, 'this is our little secret'". It was noted that Counts 5 and 6 were said to have occurred when Gail was eight or nine years old and Donna was nine, 10 or 11 years old. 6. Contrary to the abstract argument advanced by the trial Judge developed by extrapolating the date range in the indictment concerning Counts 5 and 6, it was submitted that the evidence in the trial was that the Applicant was warning Gail not to tell prior to any complaint by Donna. 7. It was submitted that the Applicant had lost a real chance (or a chance fairly open) of being acquitted so that leave should be granted to him under Rule 4: ARS v R [2011] NSWCCA 266 at [148]. Counsel submitted that the suggested misdirection in this trial involved the fundamental task entrusted to the jury to determine from the jury's own experience the reliability of the complainants. The trial involved mixed verdicts and the impugned summing up undermined significantly the strength of the argument for the Applicant. 8. It was submitted that there could be no forensic advantage for the Applicant in having the trial Judge critique and dismantle the defence case and recast powerfully the case for the Crown. It was submitted that it is difficult to see how the summing up could have been rectified by corrections being made or the withdrawal of directions. Counsel for the Applicant submitted that the only practical remedy was to discharge the jury with such an application enjoying no prospects of success prior to the decision of the High Court of Australia in McKell v The Queen, a decision handed down on 13 February 2019 after the trial of the Applicant. 9. It was submitted for the Applicant that the summing up constituted, in effect, a second address for the Crown which answered the matters which had been "telegraphed" by the defence, but not met by the Crown. It was submitted that this approach was consistent with the prevailing view at the time (prior to McKell v The Queen) that a trial Judge had broad scope to make comment and suggestions upon the facts and the fact-finding process provided the jury is told that the ultimate decision remains theirs alone: McKell v R [2017] NSWCCA 291 at [100]. 10. Counsel for the Applicant noted that Rule 4 had not been applied to refuse leave in RGM v R and that, although complaint had not been made by defence counsel, an appeal was allowed in NJB v R [2010] NTCCA 5 at [17] as "the impermissible directions went to the heart of the case". 11. It was submitted that, in both McKell v The Queen and OKS v State of Western Australia (2019) 265 CLR 268; [2019] HCA 10, the High Court had emphasised that it is fundamental to our system of justice that the trial Judge should not descend into the forensic arena with the equivalent of Rule 4 not being applied in OKS v State of Western Australia. It was submitted that the present Applicant should be granted leave under Rule 4 to rely upon the ground of appeal in this case. 12. Counsel for the Applicant submitted that the Court should order a retrial with respect to Counts 1 to 4, but that verdicts of acquittal should be entered with respect to Counts 7 and 8. 13. In support of the application that verdicts of acquittal should be entered upon Counts 7 and 8, it was submitted that, in a subsequent retrial upon these counts which concerned Gail, the Applicant would be denied the significant forensic advantage that he acquired by demonstrating: 1. that Counts 5 and 6 were contradicted by Donna; 2. that Count 9 was contradicted by Gail's mother who confirmed that there was no television in her room; and 3. that events captured by Count 10 were contradicted by Gail's sister who, amongst other things, saw no visible signs of distress and overheard Gail laughing at a time when, according to the complainant, she was swearing and fighting off the Applicant. 1. It was submitted that it was not possible for the Applicant to receive a fair trial upon Counts 7 and 8 if the evidence in relation to the verdicts resulting in acquittal is parsed from a subsequent trial, so that a new trial should not be ordered on those counts. Submissions for the Crown 1. The Crown submitted that the ground of appeal does not raise a question of law alone so that leave to appeal is required under s.5(1) Criminal Appeal Act 1912. In addition, the Crown submitted that Rule 4 Criminal Appeal Rules applies in this case as none of the matters now complained of were the subject of an application or objection by Senior Counsel who appeared for the Applicant at trial. 2. The Crown did not accept that the trial Judge had impermissibly encroached upon the jury's task of determining the credibility of the complainants in this trial. Reference was made to parts of the summing up where his Honour had given directions to the jury which emphasised that it was a matter for the jury to determine issues of credibility concerning the complainants. 3. The Crown referred to parts of the summing up which addressed the following matters: 1. a direction concerning the different functions of the jury and the Judge with the jury being informed that its task was to be "the judges of the facts" and to make findings concerning "the facts as you find them" (SU2); 2. a direction that his Honour "will not be trying to make up your mind for you or suggesting that you make up your mind in a particular way" nor would he be "trying to subtly or not so subtly suggest anything in terms of your function" (SU3); 3. instructed the jury concerning the assessment of witnesses with the jury being told that "you just have to carefully look at all of the evidence to assess whether or not what is being said to you is impartial and objective, truthful and accurate, and that is entirely a matter for you" (SU7-11); 4. directed the jury that Dr Shackel's report did not go to whether the complainants are telling the truth (SU11), but that Dr Shackel refers to research amongst experts in relation to victims of child sexual abuse which indicates a number of things (SU34); 5. the drawing of inferences (SU13-14); 6. directions concerning the Applicant raising motive and the need for the Crown to convince the jury to accept the evidence of the complainants beyond reasonable doubt (SU14-16); 7. directions on the onus of proof and the requirement before the jury should convict that each complainant must be accepted as a witness of truth and reliability in relation to each count (SU20-23); 8. the trial Judge addressed each count and then stated that the real issue is whether the Crown has established that Donna and/or Gail are "honest and truthful witnesses, such as allowing you to be satisfied beyond reasonable doubt about their allegations" (SU29); 9. his Honour summarised the research findings in Dr Shackel's report and told the jury, "Incomplete or staggered disclosure should not be assumed to be consistent with the allegation being false. It cannot be assumed that it is true but it cannot be assumed that it is false" (SU34-37); 10. the trial Judge made clear that it was not a case of choosing the Applicant or the complainant, but that "in each case, it is a matter of the Crown satisfying you beyond reasonable doubt as to the … honesty or truthfulness … and accuracy of the witness who makes the allegation" and "… it would make common sense that where a jury has to rely upon one person's evidence that it is appropriate and reasonable for the jury to closely consider the evidence of such a witness so as to satisfy themselves that the witness is in fact both truthful and accurate" and that "the law requires you to do so that you carefully consider the complainant in each of these counts" (SU47); 11. the summing up referred to the Crown case (SU54-58) and the Applicant's case (SU58-65). 1. The Crown submitted that the trial Judge had discussed directions with the parties and had asked for input during the trial (T52), before the closing addresses (T218-221, T225 and T226-228) and during the summing up (SU41). 2. In addition, the Crown noted that his Honour stated during the summing up that he would say things which the parties had not specifically said, but that "It's my assessment of what your respective case is all about" (SU42 at [68] above). Further, before the jury retired to consider its verdicts, the trial Judge invited counsel to raise any matter and no further issue was raised before the jury commenced its deliberations (SU66). 3. The Crown submitted that the relevant question for determining whether there was a miscarriage of justice caused by the trial Judge's summing up was that stated by Meagher JA (Bellew and Lonergan JJ agreeing) in ABR (a pseudonym) v R [2020] NSWCCA 33 at [61]: "These grounds identify two instances during the evidence and five in the course of the summing up in which it is contended that there was unfairness to the applicant by reason of what his Honour said. Ultimately the question must be whether the trial judge's comments were inconsistent with his obligation to give the jury accurate and fair instructions to enable them to arrive at a just determination of the matters of which they are the sole arbiters. Thus, it must be shown that the judicial intervention created a 'real danger that the trial was unfair': Galea v Galea (1990) 19 NSWLR 263 at 281 (Kirby ACJ, Meagher JA agreeing)." 1. The Crown submitted that, in order to determine whether the summing up was unfairly balanced, it is necessary for it to be considered in its entirety and in the context of the issues and the evidence led in the trial: R v Sukkar [2005] NSWCCA 54 at [90]. 2. The Crown submitted that the trial Judge's directions did not impinge upon the jury's task to assess the credibility of the complainants. Rather, the summing up made it clear that it was the jury's task to assess the credibility of the complainants with it being a matter for the jury as to whether they were satisfied beyond reasonable doubt as to the truthfulness and honesty of each of the complainants concerning each count on the indictment. 3. The Crown submitted that the trial Judge did not make generalised statements as to the quality of evidence given by children nor did the Judge state cognitive abilities of the complainants. 4. With respect to Ground 1(a), the Crown pointed to the trial Judge raising with the parties, in the absence of the jury, that he had often given directions to juries about not applying adult logic to an assessment of a child (T52 at [42] above). It was submitted that this flagged the topic sufficiently so that the parties were on notice that his Honour intended to say something on this issue. 5. With respect to the eight matters complained of by the Applicant under Ground 1(a) (see [98] above), the Crown submitted that these were proper matters for the trial Judge to point out and that they did not prevent or discourage the jury from fairly evaluating the evidence of the complainants: ABR (a pseudonym) v R at [66]. 6. The Crown pointed, as well, to provisions now contained in s.293A Criminal Procedure Act 1986 (which commenced on 1 December 2018) which provide for directions to be given with respect to the evidence of complainants in trials of sexual offences. 7. The Crown submitted that the trial Judge told the jury that it was necessary to keep in mind the ages of the complainants and that the jury was not being told to disregard any concerns which they may have about their evidence. The trial Judge's comments did not express any opinion to the jury as to how they should resolve disputed issues of fact which would have contravened the principles stated in McKell v The Queen. 8. With respect to the complaint concerning the trial Judge's comment (at SU56 at [78] above) concerning cross-examination "by a senior barrister", the Crown submitted that this was a proper matter for the trial Judge to point out and that it did not prevent the jury from taking inconsistencies or any other matters into account in assessing the evidence of the complainants. 9. With respect to Ground 1(b), the Crown disputed submissions made for the Applicant concerning the effect of statements made by the trial Judge during the summing up. Insofar as the Applicant sought to rely upon what was said in RGM v R concerning the assessment of a complainant's evidence against the background of difficulty "because she was reliving the assaultive experience in the process", the Crown submitted that the trial Judge had made no such comment in respect of any difficulty of the complainants "reliving the assaultive experience" in the present case. 10. With respect to the statement by the trial Judge concerning Gail "giving Mr Rosser the bird" (SU64 at [84] above), the Crown submitted that the incident in question was part of the pre-recorded evidence where Gail, in an answer in cross-examination, said "this shit" and walked out of the room (MFI15, T10). The video depicted Gail putting her hand down on the table where there is a "stop" sign to indicate that she wanted a break and she then left the room. His Honour's comment was that the witness was, figuratively speaking, giving Mr Rosser "the bird" (that is, figuratively sticking her middle finger up at the cross-examiner) and that this was not surprising because people do get angry when they are cross-examined for all different reasons. 11. Contrary to the submissions for the Applicant, the Crown submitted that the trial Judge did not repeat the same reasoning process as was criticised by this Court in RGM v R. This was because his Honour's comments were not expressed as "his views about child witnesses": RGM v R at [96]. The Crown submitted that the summing up, read as a whole, did not suggest an approach to the assessment of a child's evidence such that it has the appearance of a direction of law: RGM v R at [97]. 12. With respect to Ground 1(c), the Crown noted that this complaint asserted that there had been a miscarriage of justice on account of an unbalanced summing up. With respect to the complaint that the trial Judge had advanced arguments which had not been raised by the Crown, it was submitted that the comments made by the trial Judge were available on the evidence and that there had been no objection by Senior Counsel who appeared for the Applicant at trial. 13. The Crown noted that the Crown closing address at trial was brief and did not address two important aspects of the evidence, namely: 1. even though the Crown had presented a joint indictment with two complainants and had served a tendency notice in 2016 and run a joint trial, the Crown at trial did not put the Crown case to the jury on the basis of tendency reasoning with the Crown's oversight leading the trial Judge to warn the jury that it was prohibited from engaging in tendency reasoning (SU53); 2. the Crown did not make any submissions or challenge the good character evidence led by the Applicant with the trial Judge noting that there were "a lot of other areas … telegraphed that the defence would be running with that you didn't address" (T254 at [55] above). 1. Concerning the 13 matters relied upon by the Applicant (at [112] above), the Crown submitted that these were all proper matters for the trial Judge to point out and that they did not prevent the jury from taking into account any inconsistencies in assessing the reliability of the evidence of the complainants. It was submitted that his Honour's comments were unexceptionable and did not give rise to a miscarriage of justice. 2. In conclusion, the Crown submitted that the summing up, when considered as a whole, did not give rise to an unfair trial and that there was no miscarriage of justice. The summing up emphasised to the jury that the central issue was whether the jury accepted each complainant as a witness of truth and reliability in relation to each count on the indictment. 3. The jury was made aware of the fundamental issues in the trial, particularly the reliability and honesty of the complainants, since that issue was stressed by his Honour and made clear in his Honour's direction in accordance with R v Murray (1987) 11 NSWLR 12 (at SU47-48). 4. The Crown submitted that the trial Judge's summing up was not "apt to create a danger or a substantial risk that the jury might actually be persuaded of the appellant's guilt by comments in favour of the prosecution case made with the authority of the judge": McKell v The Queen at [42]. 5. Relying on The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36, the Crown emphasised that the reaction of defence counsel on hearing the impugned portion of the summing up is a cogent consideration and that, in this case, where the Applicant was represented at trial by a most experienced Senior Counsel, the absence of complaint at trial supported a conclusion that no unfairness was detected at the trial and that a miscarriage of justice has not occurred. 6. The Crown submitted that leave under Rule 4 ought be refused in the circumstances of this case and that the appeal should be dismissed. 7. If the Court reached a contrary view concerning the appeal, the Crown submitted that the appropriate order would be a retrial on all of the quashed convictions. 8. It was submitted that Counts 7 and 8 are serious charges where the public interest in due prosecution and conviction of offenders, as well as the public interest in not usurping the role of the Director of Public Prosecutions in deciding to prosecute and the role of the jury in determining the guilt or innocence of an accused, are powerful factors in favour of a new trial: WX v R [2020] NSWCCA 142 at [95]. Further, the nature of any error in this case did not relate to the nature or quality of the evidence at trial and there was no ground asserting that the verdicts were unreasonable: WX v R at [100]. Determination of Ground of Appeal 1. It is appropriate to commence with several important statements of principle before moving to consider the matters complained of in this appeal. The Role of the Trial Judge 1. Some general observations should be made concerning the role of a Judge in a criminal trial and the functions to be fulfilled in a summing up. 2. A criminal trial is conducted as adversarial litigation involving an accusatorial process in which the prosecution bears the onus of proving the guilt of the accused person beyond reasonable doubt: Robinson v R (2006) 162 A Crim R 88; [2006] NSWCCA 192 at [138]. In Robinson v R, the Court said at [140]: "… the judge's role in a criminal trial is to hold the balance between the contending parties without himself taking part in their disputations; the judge does not exercise an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side, nor is it part of the function of the trial judge to don the mantle of prosecution or defence counsel: Whitehorn at 682. The fundamental task of a trial judge is to ensure a fair trial: R v Meher [2004] NSWCCA 355 at paragraph 76. Trial judges should normally refrain from advancing an argument in support of the Crown case that was not put by the Crown. There are two reasons for the unacceptability of a judge using the summing up as a vehicle for strengthening the Crown case - first, it is inconsistent with judicial impartiality and secondly, to do so denies the prosecution and the defence the opportunity either to disavow, or to meet the argument: R v Meher at paragraphs 87-93." 1. Soon after, the Court said in Robinson v R at [146], [148]-[149]: "146 Unfairness to the accused in the conduct of the trial resulting from the trial judge's direction to the jury upon a basis for conviction not relied upon by the Crown may arise from a range of tactical disadvantages, including an inability to cross-examine Crown witnesses, adduce evidence in the defence case and make closing submissions to the jury on the matter: Solomon at 328, 336; GAS at 863; Carr at 285 [49]. Even if the prejudice to the accused was confined to the inability to address the jury upon the question, that itself is capable of being a most significant area of prejudice: R v RTB [2002] NSWCCA 104 at paragraphs 55-61; Meher at paragraphs 113-116, 130; Carr at 285 [49]. … 148 Fifthly, where the trial judge raises in the summing up a basis for conviction which was not relied upon by the Crown, there is the added difficulty that the direction carries particular force because it is coming from the judge and not the Crown: RTB at paragraphs 57, 60. It may produce positive mischief if the judge raises arguments which could have been, but which were not put or requested by counsel: R v Heuston (1995) 81 A Crim R 387 at 393. 149 Sixthly, the question to be considered by the Court of Criminal Appeal is whether there has been an unfairness to the accused which gives rise to a miscarriage of justice by reason of the conduct of the trial and which requires the Court's intervention: Solomon at 328, 336; R v King at 187; Carr at 285 [49]." Limits of Trial Judge's Summing Up to Jury 1. In Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317 at [36], the Court (Bathurst CJ, Simpson and Adamson JJ) summarised the duty of a trial Judge using propositions drawn from Alford v Magee (1952) 85 CLR 437 at 466; [1952] HCA 3: "The duty of a judge in a jury trial is: to explain to the jury the relevant law (without excursions into interesting but inapplicable legal principles); to place that explanation in the context of the facts of the case; to explain how the law applies to the facts of the particular case; to give these explanations in the context of the issues in the particular case; to identify the issues in the case as they have been fought between the parties; and to direct the jury on what those issues are." 1. These principles provide an important structure for a summing up by a trial Judge to a jury in a criminal trial with the Judge having the function referred to in Robinson v R (see [156]-[157] above) with an overriding duty to act fairly to the parties at the trial. 2. These considerations are of central importance where it is said that a trial Judge has introduced important concepts or arguments during a summing up which did not emanate from the evidence in the trial or the arguments of counsel who appeared for the Crown and the accused person. 3. The scope for a trial Judge to express opinions on the facts when summing up to a jury has been a topic of recurring consideration by appellate courts. In R v Heron [2000] NSWCCA 312 (at [77]-[87]), Priestley JA (Foster AJA and Simpson J agreeing) considered a number of decisions which identified a degree of tension in the proposition that a trial Judge can express an opinion to a jury whilst, at the same time, stating that the facts are for the jury and not the Judge. 4. In R v Taleb [2006] NSWCCA 119, Simpson J referred to this topic in the context of an appeal based upon a trial Judge advancing arguments to the jury which had not been advanced by counsel. Her Honour said at [68]-[71]: "68 … On a number of occasions the judge put what can only fairly be described as arguments, inimical to the defence case, that had not been the subject of address by the Crown Prosecutor. 69 The comments were frequently introduced by the words 'you might think'. These were frequently followed by a reminder, variously expressed, that determination of the issues posed was 'a matter for you'. 70 Both of these phrases are familiar in criminal trials. The first, in particular, is one frequently used by counsel. It usually signifies a proposition that counsel is urging the jury to adopt. That is, it is a term of advocacy. 71 In my experience the phrase is used less frequently by judges. When it is used by judges, it is usually in the context of a proposition that is uncontroversial – e.g. 'You might think that you can accept that piece of evidence because it was not challenged'. It is not, in my opinion, appropriately used by a judge when putting argumentative or controversial propositions. Its tenor is to suggest acceptance of the proposition it precedes." 1. In determining to allow the conviction appeal in R v Taleb, Simpson J said at [84]: "One difficulty as I perceive it in the present case is that the questioned passages in the summing up are not presented in clear terms as the judge's view. They are framed in terms of directions undermining facts and matters put in the defence case. In some passages the summing up reads rather like a Crown address. They would therefore not readily be perceived by the jury as the kind of comment to which the earlier direction, that the jury should discard any expression or view of the judge on the facts (unless it accorded with their own), applied. Even the time honoured direction (that the jury should discard the judge's view unless it happened to accord with their own) suffers from the logical flaw identified so eloquently and clearly in Pavlukoff. Why should the jury not ignore the judge's comment where it does accord with their own, independently arrived at, view? The direction, to me, implies that the jury might use the judge's view to support, or bolster, their own similar view." 1. The existence and scope of a trial Judge's discretion to comment on facts and submissions in a summing up to a jury in a criminal trial were considered in McKell v The Queen, where reference was made to authorities including Taleb v R and R v Pavlukoff (1953) 106 CCC 249. Bell, Keane, Gordon and Edelman JJ ("the plurality") commenced their judgment in the following way at [1]-[5] (footnotes omitted): "1 In RPS v The Queen [(2000) 199 CLR 620; [2000] HCA 3 at [41]-[42]], Gaudron A-CJ, Gummow, Kirby and Hayne JJ, while discussing 'the difficult task trial judges have in giving juries proper instructions', adverted to the view that 'has long been held that a trial judge may comment (and comment strongly) on factual issues'. Their Honours went on to say that: 'although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel.' (emphasis in original) 2 This statement in favour of judicial circumspection was made after their Honours had acknowledged that '[t]he fundamental task of a trial judge is ... to ensure a fair trial of the accused'. This fundamental task falls to be performed within a framework in which it is 'for the jury, and the jury alone, to decide the facts'. 3 A trial judge's 'broad discretion' to comment on the facts of the case in a criminal trial is an aspect of the power by which a trial judge discharges the fundamental task of ensuring a fair trial of the accused. The discretion is to be exercised judicially as part of ensuring that the facts of the case are put 'accurately and fairly' to the jury. It is not exercisable, at large, independently of the fundamental task described above. A fortiori, the trial judge's summing-up is not an occasion to address the jury in terms apt to add to the force of the case for the prosecution or the accused so as to sway the jury to either view. For that reason, as the plurality in RPS stated, judicial circumspection is required in the exercise of the discretion to comment. 4 In the present case, statements by the trial judge during the course of his summing-up were so lacking in balance as to be seen as an exercise in persuading the jury of the appellant's guilt. The statements were unfair to the appellant and gave rise to a miscarriage of justice. As a result, the appeal must be allowed and the appellant's conviction quashed. 5 In addition, it should be clearly understood that the risk of such unfairness is such that a trial judge should refrain from comments which convey his or her opinion as to the proper determination of a disputed issue of fact to be determined by the jury." 1. Later in McKell v The Queen, the plurality said at [35]: "A trial judge must sum up for the jury the case presented by each of the prosecution and the accused after each side has addressed the jury. In Domican v The Queen [(1992) 173 CLR 555 at 561; [1992] HCA 13], Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ observed that 'the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury'. In carrying out this task, it is no part of the trial judge's role to 'don[] the mantle of prosecution or defence counsel's. As Gibbs CJ said in Cleland v The Queen [(1982) 151 CLR 1 at 10; [1982] HCA 67], '[i]t is clear in principle that a trial judge, when directing a jury in a criminal trial, must hold an even balance between the cases of the prosecution and the accused'." 1. Their Honours emphasised the need to guard against comments by the trial Judge in the summing up becoming "a second address by the prosecution". The plurality said at [43]: "In B v The Queen [(1992) 175 CLR 599 at 605-666; [1992] HCA 68], Brennan J, with whom Deane J agreed, confirmed the 'broad discretion' of a trial judge to comment on the facts and to choose the language in which to do so, while emphasising that the 'comment must stop short of overawing the jury'. The risk identified by Brennan J is the risk that the jury might be overawed notwithstanding that they are told that the decision on the facts is for them because 'the language of the judge is so forceful that they may be under the impression that there is really nothing for them to decide or that they would be fatuous or disrespectful if they disagreed with the judge's views'. But there is a further risk, which is of particular concern in the present case, that the jury might be persuaded to convict by what was, functionally, a second address by the prosecution." 1. Their Honours said at [45]: "What has sometimes been described as the 'right' of the trial judge to comment on the facts of a case is not some form of entitlement standing free of constraints imposed by the judge's duty to give the jury accurate and fair instruction to enable them to arrive at a just determination of the matters of which they are the sole arbiters. Where a trial judge's summing-up so favours the prosecution as to deny the accused a fair trial, the miscarriage of justice that results cannot be justified or excused by invoking the judge's 'right' to comment on the facts." 1. The plurality made general observations concerning the scope for comment by a trial Judge during a summing up to a jury in a criminal trial. Their Honours said at [47]-[54]: "47 It is well settled that a trial judge's discretion to comment on the facts should be exercised with circumspection. The need for circumspection is not merely a matter of prudence or politeness. Recently, in Castle v The Queen [(2016) 259 CLR 449; [2016] HCA 46 at [61]], Kiefel, Bell, Keane and Nettle JJ, with whom Gageler J relevantly agreed, said, referring to the passages from RPS with which these reasons commenced: '[U]nless there is a need for comment – as, for example, in dealing with an extravagant submission by counsel – the wise course will often be not to do so. Where the judge chooses to comment, the following statement of Brennan J in B v The Queen is to be kept in mind: '[The comment] must exhibit a judicial balance so that the jury is not deprived 'of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence'.' (footnotes omitted) 48 In RPS and Castle, the discretion of the trial judge to comment on the facts was located squarely within the duty of a trial judge to assist the jury with a fair and accurate statement of the case presented by each party. That being so, little would be gained by a review of the practice of trial judges in earlier times, when the trial judge occupied a more dominant position in the conduct of criminal trials. The point made in the observations of the plurality in each of RPS and Castle is that there is a risk that comments that are unnecessary for the performance of the duty to give fair and accurate instructions to the jury may occasion a miscarriage of justice, and so a trial judge should be astute to avoid that risk by refraining from comment that is not so required. These points are most compelling in relation to expressions of opinion by a trial judge as to the determination of disputed issues of fact. 49 In the first place, given that the jury is the 'constitutional tribunal for deciding issues of fact', expressions of opinion by a trial judge as to the determination of a disputed issue of fact are hardly consistent with the function of the trial judge as it is now understood. It is difficult to conceive of a situation in which the performance of the trial judge's fundamental task of instructing the jury would be advanced, consistently with the role of the jury, by suggesting the determination of a disputed question of fact, the resolution of such questions being the exclusive province of the jury. Once, perhaps because of disparities in educational opportunities and attainment within the community, it might have been thought that juries would welcome judicial guidance as to the performance of their function that included indications of the judge's view of disputed facts, but it cannot be assumed that today's juries welcome such gratuitous solicitude on the part of the judiciary. Certainly, insofar as today's judiciary is concerned, the respect due to juries as the constitutional tribunal of fact strongly supports judicial reticence as to the determination of questions of fact. 50 Secondly, there is no little tension between suggesting to the jury what they 'might think' about an aspect of the facts of a case and then directing them that they should feel free to ignore the suggestion if they think differently. There is a risk that the jury may actually be swayed by the trial judge's suggested determination. It would be to maintain an altogether hollow and unconvincing distinction to say that, while a trial judge may not go so far in his or her comments as to create a risk that the jury may be 'overawed', it is nevertheless permissible for a judge to use language that 'makes him [or her] appear a decided partisan'. 51 In any event, the jury are likely to be bemused by the tension between the suggestion and the direction. It is difficult to see what good purpose is served by confronting citizens doing jury service with this complication in the due performance of their duty. In R v Pavlukoff [(1953) 106 CCC 249 at 266-267], in the British Columbia Court of Appeal, it was said that: 'It seems an absurdity for a Judge after telling the jury the facts are for them and not for him, then to volunteer his opinions of facts followed then or later by another caution to the jury that his own opinion cannot govern them and ought not to influence them. If his opinion ought not to govern or influence the jury then why give his opinion to the jury. To a person who is not a lawyer, but has some training in the science of correct thinking and some knowledge of the workings of the human mind, a Judge who expresses his own opinions to the jury is in effect unconsciously perhaps but nevertheless subtly and positively undermining the plain instruction he has given the jury that 'the facts are for them and not for him'; in reality he is in true effect attempting to persuade the jury not to exercise their own minds freely (as in law he has told them they must do) but instead to be guided by the factual conclusions he volunteers to them.' 52 There is much force in these observations. They were referred to with approval by Olsson J, with whom Millhouse and Williams JJ relevantly agreed, in R v Machin [(1996) 68 SASR 526 at 540-541], and by Simpson J in Taleb v The Queen [[2006] NSWCCA 119 at [76]]. 53 To accept the appellant's submission on this point is to say nothing that detracts from the duty of a trial judge to direct the jury as to the issues which arise on the evidence for their determination. Further, to accept the appellant's submission on this point is not to deny that there remains scope for comment by a trial judge. It is not difficult to imagine cases where judicial comment, but not an expression of opinion on the determination of a matter of disputed fact, may be necessary to maintain the balance of fairness between the parties. In Green v The Queen [(1971) 126 CLR 28 at 33; [1971] HCA 55], Barwick CJ, McTiernan and Owen JJ gave, as an example of a case where it would be 'proper and indeed necessary' for a trial judge to 'restore, but to do no more than restore, the balance', a case where: 'during the course of a trial, particularly in his address to the jury, counsel for the accused has laboured the emphasis on the onus of proof to such a degree as to suggest to the minds of the jury that possibilities which are in truth fantastic or completely unreal ought by them to be regarded as affording a reason for doubt'. 54 The present case affords another example of an appropriate occasion for judicial comment, in that fairness required that the trial judge correct the impression mistakenly left by the plainly untenable suggestion by the appellant's counsel to the jury that the appellant's online accounts were evidence that the appellant was a successful gambler. A correction of this kind, to correct errors of expression or errors that might otherwise adversely affect the jury's ability to decide the case fairly on the merits, is plainly not objectionable." 1. The plurality concluded (at [55]) with the following emphasis upon the limits of a trial Judge's capacity to comment on the facts of the case and the need for "practical fairness": "55 In the course of argument, it was said for the respondent that to accept the appellant's submission would tend to blur the 'bright line' around the 'right' of the trial judge to comment, and so introduce undesirable uncertainty in the conduct of criminal trials. In particular, it was said that there may be difficulties in identifying the point at which permissible comment crosses the line into impermissible expression of an opinion on the determination of a disputed question of fact. But there should be little difficulty in a trial judge refraining from expressions of opinion on the determination of disputed issues of fact. Once it is accepted that the trial judge's 'right' to comment is best understood as a judicial power or discretion to be exercised judicially for the purpose of ensuring that the jury have a fair and accurate understanding of what they need to know to do justice in deciding the issues of fact that arise for their determination, any concern about the blurring of what is said to have been previously a 'bright line' can be seen to be illusory. The provision by a trial judge of fair and accurate instruction to a jury is not always a matter of 'bright lines'. It is, however, always concerned with practical fairness to both sides, as has been recognised in statements of high authority such as the passages from RPS with which these reasons commenced." 1. It should be noted that the plurality in McKell v The Queen (at [50]-[52]) endorsed the approach of Simpson J in Taleb v R together with statements made by the British Columbia Court of Appeal in R v Pavlukoff. 2. The decision in McKell v The Queen has been understood to restrict or narrow the ability of trial Judges to express opinions or make comments to juries in criminal trials. The law has been tightened in this respect. The fact that McKell v The Queen has served to narrow the law in this way has been noted in several decisions of intermediate appellate courts: Pyliotis v Director of Public Prosecutions [2020] VSCA 134 at [63]; Decision Restricted [2020] NSWCCA 256 at [55]; Spurritt v R [2021] VSCA 7 at [187]. 3. As noted earlier (at [132]), the Crown referred to the decision of this Court in ABR (a pseudonym) v R. It should be noted that the applicant in that case was unrepresented and that no reference was made to McKell v The Queen in determining the ground which complained about the trial Judge's comments to the jury, with that ground being determined (at [61]-[70]) by reference to the principles in Galea v Galea (1990) 19 NSWLR 263 at 281. In those circumstances, caution is required in applying ABR (a pseudonym) v R in determining the present appeal. 4. The principles to be applied in determining the ground of appeal raised in the present case are those contained in McKell v The Queen. Comment by Trial Judge on the Evidence of Children 1. It is appropriate to refer next to the task of a trial Judge when summing up to a jury in a trial for child sexual assault offences. This is an area where statutory provisions have been enacted and where courts have been conscious of the need to fairly provide assistance to juries when considering the evidence of children. 2. In the present case, the expert evidence concerning child witnesses in general was confined to the report of Dr Shackel which was tendered as an exhibit and read to the jury (see [38] above). Apart from that evidence, the jury observed the recordings of the two complainants giving evidence on an earlier occasion, in accordance with the provisions contained in Part 29 of Schedule 2 of the Criminal Procedure Act 1986. The Crown and Senior Counsel for the Applicant at trial addressed the jury by reference to the evidence adduced at the trial. 3. There are certain statutory restrictions upon warnings which may be given in relation to children's evidence. 4. Section 165(6) Evidence Act 1995 made clear that s.165(2) did not permit a Judge to warn or inform a jury, in proceedings where a child had given evidence, that the reliability of the child's evidence may be affected by the age of the child, with any such warning or information to be given only in accordance with s.165A(2) and (3) of that Act. 5. Section 165A Evidence Act 1995 provides as follows: "165A Warnings in relation to children's evidence (1) A judge in any proceeding in which evidence is given by a child before a jury must not do any of the following - (a) warn the jury, or suggest to the jury, that children as a class are unreliable witnesses, (b) warn the jury, or suggest to the jury, that the evidence of children as a class is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults, (c) give a warning, or suggestion to the jury, about the unreliability of the particular child's evidence solely on account of the age of the child, (d) in the case of a criminal proceeding - give a general warning to the jury of the danger of convicting on the uncorroborated evidence of a witness who is a child. (2) Subsection (1) does not prevent the judge, at the request of a party, from - (a) informing the jury that the evidence of the particular child may be unreliable and the reasons why it may be unreliable, and (b) warning or informing the jury of the need for caution in determining whether to accept the evidence of the particular child and the weight to be given to it, if the party has satisfied the court that there are circumstances (other than solely the age of the child) particular to the child that affect the reliability of the child's evidence and that warrant the giving of a warning or the information. (3) This section does not affect any other power of a judge to give a warning to, or to inform, the jury." 1. At the time of the Applicant's trial in February 2018, s.293A Criminal Procedure Act 1986 had not come into force. That provision commenced on 1 December 2018. 2. Section 293A Criminal Procedure Act 1986 provides as follows: "293A Warning may be given by Judge if differences in complainant's account (1) This section applies if, on the trial of a person for a prescribed sexual offence, the Judge, after hearing submissions from the prosecution and the accused person, considers that there is evidence that suggests a difference in the complainant's account that may be relevant to the complainant's truthfulness or reliability. (2) In circumstances to which this section applies, the Judge may inform the jury - (a) that experience shows - (i) people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time, and (ii) trauma may affect people differently, including affecting how they recall events, and (iii) it is common for there to be differences in accounts of a sexual offence, and (iv) both truthful and untruthful accounts of a sexual offence may contain differences, and (b) that it is up to the jury to decide whether or not any differences in the complainant's account are important in assessing the complainant's truthfulness and reliability. (3) In this section - difference in an account includes - (a) a gap in the account, and (b) an inconsistency in the account, and (c) a difference between the account and another account." 1. It may be seen that s.293A permits a trial Judge to give directions to a jury concerning differences in the account given by a complainant at a trial for a prescribed sexual offence. However, this provision did not apply to the trial of the Applicant. Section 293A is not confined, in any event, to the evidence of child witnesses. The provision applies to all complainants in trials for prescribed sexual offences generally. It may be observed that s.293A would apply to any retrial of the Applicant if this Court allowed the appeal and ordered a retrial. 2. It is appropriate to refer to authorities concerning the scope of a trial Judge to comment with respect to children's evidence in summing up to a jury, all of which were decided before McKell v The Queen. 3. In the 2012 decision in RGM v R, this Court (Fullerton J, McClellan CJ at CL and myself agreeing) referred (at [94]) to a lengthy extract from the summing up of the trial Judge in a child sexual assault trial. Fullerton J then said at [95]-[97]: "95 The complaint is not that his Honour's remarks breached the prohibition in s 165A of the Evidence Act although parts of the extract above are, in my view, capable of such a reading. That section operates to prohibit a trial judge from warning a jury that children as a class, or by reason of their immaturity, are unreliable witnesses, or that their evidence is less credible or reliable or that it requires more careful scrutiny than the evidence of adults. The complaint is that the trial judge's commentary had the potential to deflect the jury from their task of assessing the complainant's credibility. 96 In my view that complaint is well founded. Despite defence counsel's failure to ask his Honour to make clear to the jury that his views about child witnesses were by way of comment only and that they were not obliged to assess the complainant's evidence by reference to them, the extent of his Honour's commentary and its content, coupled with the real risk that the jury might have been inclined to a view adverse to the accused because of it, satisfies me that leave should be granted to permit this ground of appeal to be argued. 97 A trial judge has a wide discretion to offer guidance to a jury as to how to approach the evidence of a child witness which should be tailored to meet the particular circumstances of the case and the issues that the jury are likely to encounter in their deliberations. Save only where a trial judge is satisfied that the evidence of a particular child may be unreliable in a particular respect, and that there is a need for the jury to exercise caution in assessing the evidence thereby invoking the exception in s 165A(2) of the Evidence Act, it is important that a trial judge refrain from suggesting an approach to the assessment of a child's evidence in such a way that it has the appearance of a direction of law." 1. Any permissible warning under s.165A can only focus on matters relative to the particular child complainant in the particular circumstances of the case and not upon the mere fact that the witness is a child or an inherent feature of children more generally: AL v R (2017) 266 A Crim R 1; [2017] NSWCCA 34 at [77]. A warning of the latter kind contravenes ss.165A and 294AA Criminal Procedure Act 1986: AL v R at [78]. 2. It is within the trial Judge's discretion to decline to give a warning for matters evident to the jury which the jury can assess without assistance: AL v R at [81]. There is a distinction between the need for a warning about matters of which the jury have little understanding or appreciation, but where the Court would have such an understanding, and matters which the jury are able to assess without particular assistance: AL v R at [81]. 3. In RGM v R Fullerton J (at [102]) said with respect to the trial Judge's summing up: "While in the present case his Honour's observations about children speaking and thinking differently from adults might have been classed as legitimate comment, I am satisfied they were overtaken by other observations sourcing from his Honour's personal experience and personal views about children such that there was a blurring of the essential distinction between a judicial direction and a comment. Some of his Honour's remarks could only have been understood as directions given the imperative language in which they were expressed. The most serious of these being the requirement that the jury were to assess the complainant's evidence against the background that if she was being truthful she might find difficulty giving her evidence because she was reliving the assaultive experience in the process. This direction had the effect of inviting the jury to find that defence counsel's submissions about her demeanour in the witness box were of no weight in undermining her credibility. Other observations were nothing more than his Honour's personal views about the complainant but which were again cast in terms that would have signalled to the jury in unmistakeable terms that his Honour regarded her as a reliable witness. To describe her as someone who was in fact in control of her emotions while giving evidence (in effect despite her inner turmoil as a victim of the assaults) far exceeded the bounds of permissible comment in a case where the credibility of the complainant was a significant and contentious issue." Addressing the Summing Up in the Present Case 1. In determining the present appeal, it is necessary to keep in mind the proper limits of a summing up in the adversarial and accusatorial process which constitutes a criminal trial. There are limits upon what a trial Judge can say to a jury in the proper exercise of summing up to the jury. 2. It is the task of counsel for the Crown and the accused person, in the adversarial process of a criminal trial, to advance arguments to the jury in their respective closing addresses. It is not the task of a trial Judge to give a "second address" for the Crown or the accused person. 3. If the trial Judge has in mind raising matters which were not mentioned in closing addresses, it is necessary for the Judge to raise those topics with counsel in the absence of the jury so that submissions can be made as to the appropriateness or otherwise of that proposed course. It is not sufficient for the trial Judge to say generally that he has in mind referring to some unparticularised matters in the summing up. 4. Compliance with this approach will guard against the prospect of counsel and the jury hearing, for the first time, what the trial Judge says on particular topics when the Judge is saying it to the jury. 5. With these principles in mind, it is appropriate to consider the impugned parts of the summing up to determine whether what was said may be characterised as permissible comment (or a direction) to the jury emerging for the first time during the summing up by the trial Judge. It will then be necessary to consider, as well, the cumulative effect of the matters in relation to which complaint is made for the Applicant. 6. That part of the summing up in which his Honour stated to the jury that "children are not little adults" (SU10-12 at [61], [63]) above is permissible comment. Statements to a similar effect were accepted as being open to a trial Judge in CMG v R at [10]-[11]. These paragraphs in CMG v R were also referred to by this Court in RGM v R at [100]-[101]. 7. Likewise, statements to the jury concerning children's logic (or how they think and speak) have been said to be permissible: RGM v R at [102]; ABR (a pseudonym) v R at [75]-[76]. 8. In the present case, the trial Judge referred to these aspects of children and their evidence (see SU7, SU10, SU57 and SU62). On their own, these statements do not give rise to error. 9. As observed in RGM v R at [102] (see [186] above), an area of particular difficulty is where the trial Judge recites his or her personal experiences and views with this being said to be impermissible. 10. In this case, the trial Judge made comments which may be so interpreted. There are problems with these aspects of the summing up. 11. A particular difficulty arises where the Judge uses imperative language so that comments or remarks may be treated by the jury as directions. This is impermissible: RGM v R at [102]; NJB v R at [12]; McKell v The Queen. 12. By way of example, in the present case, the trial Judge used language in the nature of a direction when saying to the jury (SU56 at [78] above): "… there are a lot of criticisms and I will come to those shortly, but you do have to look at the reality of what you are dealing with, a child who is not a lawyer, not a wordsmith, being tested on a subject upon which they might be quite emotional about if they are telling the truth." 1. In determining the extent of permissible comment by a trial Judge, it is necessary to keep in mind the statements made in February 2019 by the High Court of Australia in McKell v The Queen which serve to confine permissible comment in the context of a jury trial. 2. Even before McKell v The Queen, however, and certainly since the decision of this Court in RGM v R in 2012, trial Judges have needed to be especially careful in what is said to a jury in a criminal trial by reference to the evidence of children who have testified at the trial. Apart from the need to comply with statutory provisions such as s.165A Evidence Act 1995, a number of cases, including RGM v R, have identified principles which necessitate caution before a trial Judge volunteers comments to the jury on this topic, in particular where the comments to be made have not been the subject of addresses by counsel and where the trial Judge did not put counsel on notice of precisely what was intended to be said to the jury. 3. Ground 1(a) asserts that the trial Judge erred in giving directions to the jury that the credibility of the complainants was to be assessed having regard to generalisations as to the quality of the evidence of children to retain, recall and recount sexual abuse. 4. Some of the matters complained of under Ground 1(a) involve a form of permissible comment. However, the accumulation of these matters gives rise to difficulty with respect to the summing up. 5. Ground 1(b) asserts that the trial Judge erred in directing the jury that the credibility of the complainants was to be assessed having regard to his Honour's observations as to how witnesses generally react to cross-examination. 6. The matters complained of under this subground are more problematic again. The summing up should relate to the evidence in the trial and the addresses of the parties with any additional statements, comments or directions to be made as authorised by law. The trial Judge is not entitled, in effect, to give evidence or express expert opinion on issues in the trial. An accumulation of the matters complained of under Ground 1(b) with Ground 1(a) fortifies a conclusion that irregularity occurred in the summing up in this trial. 7. Ground 1(c) asserts that the trial Judge erred in directions to the jury that the credibility of the complainants is to be assessed having regard to arguments raised in the summing up which were not advanced by the Crown and/or were not supported by the evidence. 8. I am satisfied that the trial Judge attributed to the Crown in the summing up, arguments which had not been raised by the Crown. It was not sufficient to inform counsel that this may happen without (at the very least) indicating, in the absence of the jury, what his Honour had in mind saying. 9. I am satisfied that a combination of matters referred to in Ground 1(a), (b) and (c) meant that the summing up in this trial did not comply with the proper limits of a summing up as required by law as identified in cases including RGM v R and McKell v The Queen. 10. In my view, as in RGM v R, the cumulative effect of what the trial Judge said in this case crossed the line in a number of respects so as to infringe the approach identified in RGM v R and the demanding principles stated more recently by the High Court in McKell v The Queen. 11. There is a very real prospect that the jury at this trial would have taken a number of statements volunteered by the trial Judge as directions rather than mere comments. I am satisfied, in the circumstances of the case, that the matters complained of by the Applicant in his ground of appeal have merit. It is necessary to consider next what flows from the absence of any objection by Senior Counsel who appeared for the Applicant at trial. The Rule 4 Issue 1. As in RGM v R, defence counsel at the trial raised no objection to the matters volunteered by the trial Judge nor was any application made for the withdrawal of the comments nor for the discharge of the jury. No evidence has been placed before this Court to explain why counsel did not object to the impugned parts of the summing up. 2. In these circumstances, the Applicant is obliged under Rule 4 Criminal Appeal Rules to establish that the particular ground of appeal under consideration is arguable and that a miscarriage of justice has resulted from either the trial Judge's misdirection or a failure to direct the jury in accordance with law in the sense that a real chance (fairly open) of acquittal has been lost: R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20 at [20]-[24]; RGM v R at [19]. 3. It is difficult to see that there was any forensic advantage to the Applicant by any decision not to object to the volunteered comments made by the trial Judge in the context of this trial. The likely impact of the trial Judge's comments was to operate adversely to the Applicant concerning the approach which the jury may take to an assessment of the credibility and reliability of the evidence of the child witnesses. 4. In my view, the extent of the trial Judge's commentary and its content, taken with the real risk that the jury might have been inclined to a view adverse to the Applicant because of it, warrants a grant of leave under Rule 4 for the Applicant to advance the ground of appeal. In RGM v R, the Court said at [96]: "… Despite defence counsel's failure to ask his Honour to make clear to the jury that his views about child witnesses were by way of comment only and that they were not obliged to assess the complainant's evidence by reference to them, the extent of his Honour's commentary and its content, coupled with the real risk that the jury might have been inclined to a view adverse to the accused because of it, satisfies me that leave should be granted to permit this ground of appeal to be argued." 1. Similar considerations apply here so that the Applicant should have leave under Rule 4 to rely upon the ground of appeal. 2. Having considered the evidence adduced at the trial and the summing up as a whole, I am satisfied that a miscarriage of justice has resulted from the trial Judge's volunteered comments made on several occasions to the jury concerning the evidence of the child witnesses. The approach adopted by the trial Judge was not consistent with what this Court said in RGM v R and did not accord with the more recent and emphatic statements by the High Court of Australia in McKell v The Queen concerning the limits of permissible comment by a trial Judge to a jury in a criminal trial. 3. In fairness to Senior Counsel who appeared for the Applicant at trial, it is necessary to keep in mind that the trial of the Applicant predated the decision in McKell v The Queen. 4. I would uphold the Applicant's ground of appeal. Order for New Trial 1. If the Court determined to uphold the ground of appeal and quash the convictions, it was submitted by Mr Carroll that a retrial may be ordered with respect to Donna (Counts 1 to 4), but that the Court should direct an acquittal with respect to Gail (Counts 7 and 8). It was submitted that the Crown should not have an opportunity to proceed further against the Applicant on those counts. 2. The Crown submitted that, if the appeal was allowed and the convictions were quashed, a new trial should be ordered with respect to all counts. 3. I am satisfied that an order should be made for a new trial on each count with respect to which the Applicant was convicted. Concerning Counts 7 and 8, serious offences are charged against the Applicant and there is a public interest in prosecutions for such matters being determined at trial, together with a public interest in not usurping the role of the Director of Public Prosecutions in deciding to prosecute and the role of the jury in determining the guilt of an accused person, with these being powerful factors in favour of an order for a new trial: WX v R at [95]. 4. In addition to these considerations, it is relevant that the errors which have been demonstrated in this trial did not relate to the nature or quality of the evidence, but rather to aspects of the summing up by the trial Judge: WX v R at [100]. Orders 1. I propose the following orders: 1. grant the Applicant leave under Rule 4 Criminal Appeal Rules to rely upon the ground of appeal; 2. grant the Applicant leave to appeal against conviction; 3. allow the appeal and quash the convictions at the Newcastle District Court on 23 February 2018; 4. quash the aggregate sentence passed at the Newcastle District Court on 10 August 2018; 5. order a new trial of the Applicant on each of Counts 1, 2, 3, 4, 7 and 8 of the indictment dated 5 February 2018; 6. list the matter in the Arraignments List at the Sydney District Court at 9.30 am on 9 April 2021. 1. GARLING J: I agree with Johnson J. 2. WRIGHT J: I agree with Johnson J. ********** Amendments 26 March 2021 - Amendment to catchwords 12 August 2022 - Restriction removed - District Court trial completed on 11 August 2022. 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: 12 August 2022