Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: JC v R [2021] NSWCCA 254 Hearing dates: 9 August 2021 Date of orders: 1 November 2021 Decision date: 01 November 2021 Before: Macfarlan JA at [1]; R A Hulme J at [74]; Wright J at [75] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIME – appeals – application for leave to appeal against conviction – whether alleged incompetence of defence trial counsel resulted in the applicant not receiving a fair trial – whether defence trial counsel erred in not raising the possibility of concoction with the complainants in cross-examination – defence trial counsel's conduct explicable as a rational forensic decision – applicant not denied a fair trial – no miscarriage of justice CRIME – appeals – application for leave to appeal against conviction – whether the Crown's closing address denied the applicant a fair trial – errors made by the Crown corrected by the trial judge in his summing up – no application by defence trial counsel for discharge of jury or for any further direction to be given – applicant not denied a fair trial – no miscarriage of justice CRIME – appeals – application for leave to appeal against conviction – whether verdicts inconsistent – verdicts able to be reconciled on a logical and reasonable basis – acquittal not attributable only or principally to doubt about the complainant's credibility – verdicts not inconsistent Legislation Cited: Crimes Act 1900 (NSW), ss 66A, 66C, 61M, 61O Criminal Appeal Act 1912 (NSW), s 5(1)(b) Criminal Appeal Rules (NSW), r 4 Evidence Act 1995 (NSW), ss 97, 101 Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15 Cases Cited: Alkhair v R [2016] NSWCCA 4 ARS v R [2011] NSWCCA 266 Bandao v R; Bruce v R [2018] NSWCCA 181 BF v R [2019] NSWCCA 321 Curran v R [2020] NSWCCA 171 DS v R [2021] NSWCCA 52 Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 Hamilton v R [2020] NSWCCA 80 Holloway v R [2017] NSWCCA 17 Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56 La Rocca v R [2021] NSWCCA 116 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 MG v R [2017] NSWCCA 14 Nguyen v R [2017] NSWCCA 145 OKS v Western Australia (2019) 265 CLR 268; [2019] HCA 10 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 R v Niehus [2017] NTSC 82 R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 Vasilevski v R [2019] NSWCCA 277 Xie v R [2021] NSWCCA 1 Category: Principal judgment Parties: JC (Applicant) Regina (Respondent) Representation: Counsel: F Coyne (Applicant) E Balodis (Respondent) Solicitors: Hammond Nguyen Turnbull (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2018/138574 Publication restriction: Statutory non-publication order on the identity of the complainants and the applicant under s 578A Crimes Act 1900 (NSW) and s 15A Children (Criminal Proceedings) Act 1987 (NSW). Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 30 January 2020 Before: Buscombe DCJ File Number(s): 2018/138574 Judgment 1. MACFARLAN JA: After an eight-day trial in the District Court in October 2019 before a judge and jury, the jury returned a verdict of guilty on 13 counts alleging sexual offences by the applicant against four children. It found the applicant not guilty of one charge (Count 11) and had earlier returned a directed verdict of not guilty of one charge (Count 1). 2. The offences of which the applicant was found guilty comprised: * Sexual intercourse with a child above the age of 10 and under the age of 14 years contrary to s 66C(1) of the Crimes Act 1900 (NSW) (Counts 3, 12-15); * Attempted sexual intercourse with a child above the age of 10 and under the age of 14 years contrary to s 66C(1) of the Crimes Act (Count 2); * Indecent assault of a child under the age of 16 years contrary to s 61M(2) of the Crimes Act (Counts 4-7); * Incite child under the age of 10 years to commit an indecent act, contrary to s 61O(2) of the Crimes Act (Count 8); * Sexual intercourse with a child under the age of 10 years contrary to s 66A(1) of the Crimes Act (Counts 9 and 10). 1. The applicant was found not guilty of the offences charged in Counts 1 and 11. Count 1 was of the same nature of those charged in Counts 3 and 12-15 and Count 11 was of the same nature of those charged in Counts 4-7. The trial judge subsequently imposed an aggregate sentence in respect of the offences of which the applicant was convicted of imprisonment for 6 years with a non-parole period of 3 years to date from 16 May 2019. 2. The applicant seeks leave to appeal against his convictions on the following grounds, as amended in the case of Ground 1 in the course of the appeal hearing: Ground 1: trial counsel erred in not raising the possibility of concoction with the complainants. Ground 2: the closing address of the Crown denied the applicant a fair trial with the result that a miscarriage of justice occurred. Ground 3: the verdict of not guilty on Count 11 is inconsistent with the finding of guilt on Count 12. 1. As originally formulated, the applicant's first ground of appeal asserted that "trial counsel erred in not challenging the tendency and coincidence notices and not seeking a severance of the indictment". At the appeal hearing the applicant's counsel indicated that this complaint about the trial was not pursued and that the only contention intended to be made by Ground 1 was that trial counsel erred in "not raising the possibility of concoction with the complainants". 2. The applicant needs leave because those grounds do not raise questions of law alone (s 5(1)(b) of the Criminal Appeal Act 1912 (NSW)). For the reasons given below, whilst the applicant should be granted leave to appeal, his appeal should be dismissed. The evidence at the trial 1. In light of the limited nature of the grounds of appeal, the following general observations concerning the evidence at the trial are sufficient at this stage. Further detail of aspects of the evidence will be provided when the grounds of appeal are addressed. 2. The applicant was fostered at a young age to the care of a husband and wife who have three children of their own including two daughters, one of whom has five children, three of whom, TD, SD and AD, were complainants in the trial. The other daughter has one child, KA, who was the other complainant at the trial. The foster mother had care of KA from when KA was aged 4. The applicant was born in late 1999, TD in 2001, SD in 2002, AD in 2007 and KA in 2007. 3. Prior to the trial the Crown served a Tendency Notice under s 97(1) of the Evidence Act 1995 (NSW) contending that the evidence in respect of each of the four complainants was cross-admissible as tendency evidence, the tendencies being as follows: "● The tendency of the accused to have a particular state of mind, namely, a sexual interest in his young female cousins between the ages of 7 and 13 years; and ● The tendency of the accused to act on that sexual interest, namely, a tendency to engage in sexual conduct with his cousins when they were staying at the home of their grandparents where the accused resides." 1. The common features of the allegations were said in the Notice to include: "● The allegations concern female cousins of the accused under the age of 14 years (7 to 13 years); ● The alleged victims were staying or residing at the premises of the accused; ● The alleged victims were on a bed within the premises; ● The alleged victims were dressed in sleeping attire which the accused partially removed (with the exception of counts 8 to 10); ● The alleged occasions of sexual contact occurred at night or in the early hours of the morning (with the exception of counts 8 to 10); ● The alleged occasions of sexual contact occurred whilst the victims were asleep (with the exception of counts 8 to 10); ● The occasions of sexual contact occurred whilst the alleged victims were laying down on a bed; ● The alleged occasions of sexual contact involve the accused attempting to place his penis in the alleged victims' vagina [SD, TD], attempting to or placing his penis or finger in the alleged victims' anus [SD, TD, KA], placing his fingers or other objects in the alleged victims' vagina [TD, KA], touching the alleged victim on the vagina [AD], touching the alleged victims' buttocks [AD, TD], touching the alleged victim's breasts [KA]." 1. The trial judge ruled that the Crown was entitled to rely upon the evidence in the manner described in the Notice and his Honour's subsequent summing up to the jury described the use that it could make of the evidence for tendency purposes. (The Crown also served a Coincidence Notice under s 98 of the Evidence Act but that did not assume any significance at the trial and may be disregarded.) 2. TD, who is the eldest of the complainants, was the first witness to give evidence at the trial. She gave evidence of two incidents of sexual abuse which occurred when the applicant was under the age of 14 years. Due to his age, the applicant was not charged in respect of these acts. 3. A third incident of which she gave evidence was the subject of Count 1 but, in the course of the trial, the Crown recognised that it could not establish beyond reasonable doubt that the applicant was 14 years of age by the time the act occurred (and presumably was not confident of being able to rebut the presumption of doli incapax applicable to persons aged 10 to 14). As a result, it did not oppose the trial judge directing the jury to acquit the applicant on Count 1. TD was cross-examined about the detail of her evidence and it was put to her that the sexual incidents had not occurred. 4. SD's evidence-in-chief was then received. It was principally constituted by the playing of a recording of an interview she had had with police. The same occurred with the evidence-in-chief of AD and KA. Each of these complainants was cross-examined in a similar fashion to TD. 5. Other witnesses included the foster parents who did not suggest that they knew of any sexual assaults by the applicant on the complainants. They gave evidence of the timing and occurrence of various events in the extended family's life and as to their home, and to some extent gave evidence contradicting that of the complainants. 6. The applicant's ERISP was tendered in the Crown case. In it, he denied all the charges against him. He did not give evidence at the trial. DISPOSITION OF THE APPEAL Ground 1: Whether trial counsel erred in "not raising the possibility of concoction with the complainants" 1. In his written submissions the applicant first submitted that the "evolution" of the complaints indicated that there was a possibility of concoction "between" the complainants, meaning thereby that they had combined together to invent the complaints. He relied in this regard on the chronology of the complaints which he summarised, based on the Crown's opening, as follows: "● None of the complainants made any complaints at the time of the allegations. ● Prior to Easter 2018 [TD] and her sister [SD] were at a medical appointment together when they each discussed allegations against the applicant. ● At Easter [TD] and [SD] told their grandmother of their complaints whilst in each others company. ● Shortly after Easter [TD] met with her sister [AD] and asked her if the applicant had done anything to her. [AD] did not reply. ● They later had a conversation on Instagram where [AD] made her complaint about the applicant. (The messages were not produced). ● [AD] told [TD] she had been talking to [KA] who made complaints about the applicant." 1. The applicant then submitted that "in these circumstances there was a high probability of concoction affecting the probative value of the evidence under s 97 of the Evidence Act and the threshold test under s 101 of the Evidence Act". Section 97 of the Evidence Act relevantly provides that tendency evidence is not admissible unless the Court considers that it has "significant probative value". 2. The applicant did not repeat this submission in his oral address to this Court (see [5] above), no doubt because, in light of the High Court's decision in The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40, it would clearly be without merit in the circumstances of the present case. Bauer held, contrary to the written submission in this case, that "unless the risk of contamination, concoction or collusion is so great that it would not be open to the jury rationally to accept the evidence, the determination of probative value" for the purpose of s 97 "excludes consideration of credibility and reliability". Subject to that exception, which is not contended to be applicable in the current case, the "risk of contamination, concoction or collusion goes only to the credibility and reliability of evidence and, therefore, is an assessment which must be left to the jury" (Bauer at [69]). The same reasoning applies to exclude the possibility of contamination, concoction or collusion from consideration when the Court determines whether the evidence satisfies the requirement in s 101 of the Evidence Act that its probative value "outweighs the danger of unfair prejudice to the defendant" (Bauer at [81]). 3. For these reasons the applicant's oral contentions on appeal were directed as follows at the conduct of the trial by defence counsel, rather than the admission of evidence for tendency purposes. 4. The applicant submitted in this regard that the possibility of concoction was "a real issue" at the trial, referring in this respect to the apparent view of the trial judge. He referred to a comment made by the trial judge to defence counsel, in the absence of the jury after the completion of TD's cross-examination, that defence counsel had not suggested to TD that concoction had occurred. The trial judge said that this omission did not conform with an earlier indication given by the Crown to his Honour that it expected the applicant would allege that the complainants had concocted their allegations. Defence counsel acknowledged that that suggestion had not been made. He did not, and was not invited to, give any explanation for not making it. 5. On the next day, again in the absence of the jury, the trial judge made some observations concerning evidence given by AD in her then incomplete cross-examination, suggesting, in his Honour's view, that there had been some inappropriate communications between some of the complainants. 6. In these circumstances the applicant contended that the possibility of concoction was "not properly explored" with the complainants by his trial counsel. Although his counsel did not say it in terms on appeal, the effect of his submission was that this resulted in the applicant not having a fair trial and in a miscarriage of justice occurring. The Crown's submissions 1. In its written and oral submissions on appeal the Crown responded to this ground as follows. 2. First, the Crown submitted that the possibility of concoction between TD and SD at or about the time of the Easter 2018 medical appointment referred to in [17] above was diminished by SD's evidence that the previous year she had disclosed to her boyfriend at the time that she had been sexually abused by the applicant and also diminished by the boyfriend's corroborative evidence of that complaint. 3. Secondly, although AD and KA's first involvement in the chronology referred to in [17] above was when TD raised the possibility of abuse with AD, and KA complained to AD, KA's evidence was that the applicant had already admitted to her that he had abused TD and SD and, as well, AD said that she had already observed the applicant abuse KA. 4. Thirdly, it submitted that the jury might well have regarded the communications between the complainants referred to in the chronology set out in [17] above as just "a natural reaction to the problems that they all faced and the fact they were family members". The Crown relied in this respect on the observation of Southwood J in R v Niehus [2017] NTSC 82 at [27] that: "It is ordinarily to be expected that sisters would speak to each other about such matters [as sexual abuse]. Mere communication does not amount to concoction or collaboration." 1. Fourthly, whilst acknowledging that the applicant bore no onus at his trial to prove a motive or reason for the concoction of allegations against him, the Crown submitted that the absence of such a motive or reason in the present case diminished the force of any concoction allegation. The applicant's counsel pointed out in reply to this submission that in his ERISP the applicant said that "the whole side of the family besides JD [TD's brother] hated him" and that there was ill will between the maternal grandparents and some of the next generation. 2. Fifthly, the Crown's counsel submitted that "for the most part there is an answer in [the foster mother's or foster father's evidence or both] evidence given at trial as to why what each complainant [said] was not possible or [is] a denial of a particular incident". He continued: "And some of them are quite graphic in the sense that TD and SD, as my written submissions indicate, each gave an account of the applicant's foster mother coming into the bedroom at a particular crucial part of an incident in circumstances where she must have seen something untoward happening and yet she said that nothing like that occurred." 1. The Crown submitted that in these circumstances it was not unreasonable for defence counsel not to make an explicit allegation of concoction but rather to rely upon the evidence of the applicant in his ERISP and that of his foster parents. It submitted that it was "a legitimate and tactical decision" not to take "an uncertain road into allegations of concoction" but rather to rely on the evidence of the foster parents who were in close proximity to the alleged sexual abuse of their complainant grandchildren but did not give evidence of any knowledge of it. Rather, they gave evidence denying some matters of which the complainants gave evidence. The Crown submitted that in these circumstances the jury might well have come to the conclusion that in some way or another some or all of the complainants had "put their heads together" so as to conclude that there was a reasonable doubt about the applicant's guilt, without the need for defence counsel to have made an express concoction allegation. Relevant legal principles 1. In Alkhair v R [2016] NSWCCA 4 at [31] I set out, with the concurrence of Rothman and Bellew JJ, the following principles which I drew from various authorities to which I referred: "(1) To the extent possible, an appellate court should determine an appeal involving complaints about a trial counsel's conduct of a case by examining the record of the trial to determine from the objective circumstances whether the accused has had a fair trial. (2) Ordinarily, an affirmative answer to this question is required where the impugned conduct is capable of being rationally explained as a step taken, or not taken, in the interests of the accused. This is so even if the accused alleges on appeal that he or she did not authorise the conduct because the nature of the adversarial system means that the client is bound by the manner in which the trial is conducted on his or her behalf. (3) Only in exceptional circumstances will an appellate court find it necessary to resort to subjective evidence concerning the appellant's legal representatives' reasoning at trial or to evidence as to communications between the appellant and those representatives. (4) The ultimate question for an appellate court is whether the appellant has established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the appellant lost a chance of acquittal that was fairly open." 1. To that statement I add what was said by Bathurst CJ, R A Hulme and Beech-Jones JJ in Xie v R [2021] NSWCCA 1 at [415]: "As framed this ground of appeal seeks to invoke the third limb of s 6(1) of the Criminal Appeal Act. With this ground, the relevant inquiry is whether what occurred or did not occur at the trial occasioned a miscarriage of justice ([TKWJ v R (2002) 212 CLR 124; [2002] HCA 46] at [79] per McHugh J; Ali v R [2005] HCA 8; (2005) 214 ALR 1 at [18] per Hayne J; 'Ali'). In some cases the alleged failings of counsel are of such magnitude that they cause the trial to become unfair, such as a failure to cross‑examine a critical witness or a failure to address the jury (TKWJ at [76]; Nudd v R [2006] HCA 9; (2005) 225 ALR 161 at [19] per Gleeson CJ and [87] per Kirby J; 'Nudd'). The alleged failings in this case are not of that kind. Otherwise a determination of whether the alleged failings of counsel give rise to a miscarriage of justice requires a consideration of what ultimately did or did not occur at the trial, whether there was some material irregularity in the trial and whether there is a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial (Nudd at [24] per Gummow and Hayne JJ; TKWJ at [31]‑[33] per Gaudron J, at [79] and [97] per McHugh J, at [101] per Gummow J and at [103]-[108] per Hayne J). In assessing the conduct of counsel, the relevant standard is whether or not the conduct was 'incapable of rational explanation on forensic grounds' (Nudd at [16]; Hanna v R [2017] NSWCCA 168 at [17])." Consideration 1. In my view the matters relied upon by the applicant fall well short of establishing that he did not have a fair trial or otherwise was the subject of a miscarriage of justice. As indicated in [31] and [32] above, the test to be applied in this context is whether trial counsel's conduct can be explained by a rational forensic decision having been made by him or her. 2. A difficulty that the applicant's case on appeal immediately confronts is that it is clear from the transcript of the trial that defence counsel did not overlook the possibility of suggesting to the complainants in cross-examination that they had concocted their allegations. Whether or not that possibility was already in counsel's mind (as one would expect it to have been), it was specifically brought to counsel's attention by the trial judge. This is not therefore a case such as La Rocca v R [2021] NSWCCA 116 at [136]-[139] where there is a basis for alleging that defence counsel was incompetent in not having adverted to some important point favourable to his or her client. In these circumstances the clear inference to be drawn is that defence counsel in this case made a considered decision not to put concoction explicitly to the complainants. He did however leave it open to the jury to reason in the way suggested by the Crown (see [30] above), in particular by saying at one point in his closing address: "You must still look at the prosecution case or prosecution evidence to decide whether you're satisfied beyond reasonable doubt of the guilt of [the applicant]. Now, you might think that this case has a little bit of a Me Too syndrome and I'll illustrate that by looking at [AD's] evidence. At the start of her interview with police she said something about and the police said, 'What are you coming here for?' and I'm just paraphrasing. She said, 'I'm bringing justice to the surface' and she explained that by saying that her sisters had said that to her." 1. This less explicit approach, combined with reliance first on arguable contradictions by the foster parents of the Crown case, and secondly on the applicant's denials of it in his ERISP, cannot be described as an irrational or entirely unreasonable approach. It may not be the approach that would have been taken by many, if not most, counsel but as the Crown points out (see at [25]-[30] above) there were reasons why in the present case concoction might not have been as strong a possible response to the allegations as it is in many others. Counsel might well, not unreasonably, have taken the view that to mount unsuccessfully an explicit case of concoction might be to distract the jury from what he perceived to be his stronger points arising out of the foster parents' evidence, in particular the foster mother's adamant denial of TD's evidence that the foster mother on one occasion walked into a bedroom in which the applicant was sexually abusing her. 2. I add in conclusion on this ground of appeal that the applicant's interest in pursuing it on appeal seems to have been provoked by the trial judge's observations referred to in [21] and [22] above. His Honour however was doing no more than ensuring that the applicant's trial counsel was alive to points that might assist his client. There was particular reason for his Honour to raise the question of concoction because he had been told earlier by the Crown that that was likely to be raised by the defence. 3. His Honour did not express any concluded view on the subject matter of his observations. They are of limited, if any, relevance to the application to this Court which needs to be assessed by reference to the principles referred to in [31] and [32] above. 4. For these reasons, I would reject Ground 1. Ground 2: Whether the closing address of the Crown denied the applicant a fair trial with the result that a miscarriage of justice occurred 1. The applicant contended on appeal that by reason of the following circumstances he was denied a fair trial and a miscarriage of justice thereby occurred. 2. On the second last day of the trial (day seven) the Crown conceded to the trial judge that, because of its inability to prove that the applicant had reached the age of 14 at the time of the incident which was the subject of Count 1, the jury should be directed to return a verdict of not guilty on that Count. 3. After discussion with counsel in the absence of the jury, the trial judge indicated that, because it would be confusing to the jury, he would not direct it that it could nevertheless take the evidence in relation to Count 1 as evidence of an "uncharged" act for tendency purposes. His Honour however accepted that TD's evidence of two other uncharged acts could be put to the jury as tendency evidence, as the Crown's Tendency Notice had foreshadowed. 4. On its return, the trial judge directed the jury to return a verdict of not guilty on Count 1, which it did. His Honour then said to the jury: "Members of the jury, I'll be giving you a direction about the evidence that the Crown relied upon for count 1 in my summing up. It'll effectively be that you cannot have regard to that evidence in considering your verdicts on the other counts but it'll probably make more sense during the summing up so I won't say anything further than that at this point in time." 1. Following brief evidence from a witness called by the defence, the Crown prosecutor made her final address to the jury. In the course of doing that, she said that she would remind the jury of the evidence in support of each Count and deal first with the evidence of TD. She reminded the jury that it had already returned a verdict of not guilty in relation to Count 1 but nevertheless went on to describe TD's evidence concerning the act the subject of that Count. She then described TD's evidence concerning the two uncharged acts and said that the "purpose of outlining this [referring to the evidence of the three acts] again is to show that there is a large number of details that she can recall. And she recalls a large number of details because it actually happened". 2. Shortly after, in the absence of the jury, the following interchange occurred between the trial judge and the Crown prosecutor: "HIS HONOUR: …You went through the evidence in respect of count 1 which I said, I've already told them not to have regard to and… I was going to tell them that again in the summing up and the other thing was, you said that she described those offences, this is in relation to TD, in detail and therefore [elided] the evidence of the uncharged acts with the evidence of count 1 which I'm going to tell them to disregard, so I'm just drawing that to your attention because I thought I made it clear what my approach was going to be and however you wish to, if you don't want to go back to it, but you did in particular [elide]. You used the expression 'She described those offences in detail' and-- CROWN PROSECUTOR: That was an error and I should withdraw that. I'll withdraw that. I should refer to those as occasions. Do you want me to withdraw it or to draw attention to it or— HIS HONOUR: Well, look. CROWN PROSECUTOR: It was an error. HIS HONOUR: It's just - look, I've made a specific note but, look, I'm not being - I know it wasn't done on purpose, don't get me wrong but it's just so important that they understand that in relation to TD there is evidence of uncharged acts. They are not evidence of the offences on the indictment and I think that should be made clear to them because it was [elided] and that's why I made a note of it. CROWN PROSECUTOR: Yes. In relation to referring to the count 1 [evidence], it's still evidence that the jury have heard. It's still before them and it's relevant to her credit and I will not refer to it when I come to the topic of tendency but I thought it was relevant to her ability to recall and her truthfulness and in assessment of her. HIS HONOUR: Well, I thought I made it clear and I'm going to tell them they are to completely disregard that evidence in considering the verdicts they arrive at on the remaining counts." 1. The Crown prosecutor then continued her address without referring to the matters that had been raised by the trial judge. When referring to the use of evidence for tendency purposes, she said: "So the evidence that the Crown relies on to establish this tendency consists of the evidence in relation to each count on the indictment, so counts 1 through to 15; evidence of some of the specified uncharged acts - they include the two events where TD describes being in [the applicant's] bedroom playing Xbox with her brother, and the third occasion which she described last in her interview." 1. At the conclusion of this address, the following interchange occurred in the absence of the jury: "HIS HONOUR: Madam Crown, when you dealt with the tendency evidence, you said that they could have regard to the evidence that supported each count on the indictment, counts 1 to 15. CROWN PROSECUTOR: I'm sorry. I was just told that, I am - that's an honest mistake. I - do you wish me to correct that? I will. I know - I should have said the counts - did I say remaining on the indictment? HIS HONOUR: You said, the evidence in support of each count on the indictment, counts 1 to 15. CROWN PROSECUTOR: All right. Well, I'll correct that, perhaps. Or? HIS HONOUR: I think you should. Because, well I'm certainly going to tell them that that's not right. And they're not to have regard, any regard, to the evidence that the Crown relied upon for count 1, which they've returned a verdict of not guilt[y] on, in accordance with my direction. CROWN PROSECUTOR: Yes. Sorry. I wrote it last night. I should-- HIS HONOUR: No, no. Look, slips happen. But that's an important slip, in an important area of the analysis, which the jury has to undertake, and it was the second slip after our discussions." 1. After a short adjournment, the Crown prosecutor said in the presence of the jury that she wished to correct something and proceeded to say: "Members of the jury, I listed to you evidence that you can use when you come to consider tendency evidence and you will be given directions from his Honour about the use of tendency evidence. I made an error when I said that the counts on the indictment and referred to 1 to 15. There are 14 counts on the indictment. I meant counts 2 to 15. Those are the matters that you can take into account when you come to consider whether the Crown has proved a tendency. As you know, there's been a not guilty verdict in relation to count 1 and you should put that to one side. Thank you." 1. After defence counsel gave his final address, the Crown prosecutor indicated that, subject to one minor matter, she had no points to raise concerning a draft tendency direction that his Honour had supplied to counsel. Nor did defence counsel raise any issue concerning its terms. The draft referred to the use of evidence relating to Counts in the indictment for tendency purposes (without explicitly excluding Count 1 on which a verdict had already been returned) and referred to the use of other uncharged acts for tendency purposes. In that regard the draft included reference to TD's evidence concerning the two uncharged acts described in the Tendency Notice. 2. In his summing up, the trial judge referred as follows to TD's evidence concerning the Count 1 act: "I just want to move to another topic. And it's to do with what occurred at the end of the prosecution case yesterday. And you will no doubt recall yesterday, in accordance with the direction I gave you, you returned a verdict of not guilty on count 1 on the indictment, which was the only count on the indictment concerning [TD]. In determining your verdicts on the remaining 14 counts on the indictment, you must have no regard to the evidence the Crown called from [TD], which the Crown relied upon for count 1 on the indictment. You must not use it in your determination of the verdicts on the remaining 14 counts. That evidence was the evidence that [TD] gave of an incident which she claimed occurred in 2012 or 2013, in which she claimed the accused said he wanted to play doctors and nurses and during which she said the accused touched her on the vagina. You must not have any regard to the evidence [TD] gave in relation to that incident when determining your verdicts on the remaining 14 counts." 1. By reference to authority to which I will refer below, the Crown submitted on appeal that Ground 2 should be rejected because the trial judge's clear direction avoided any possibility that the jury relied upon the evidence called in support of Count 1. As well, the Crown relied on appeal upon the absence of any application by defence counsel at trial for the jury to be discharged or for some further or different direction to be given to the jury. Relevant legal principles 1. The consequence of inappropriate conduct by a prosecutor at a criminal trial was addressed by the High Court in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30. In that case the prosecutor's cross-examination of the accused was marked by a range of comments on, and interruptions of, the accused's responsive answers in relation to which the trial judge did not intervene. By majority (Gleeson CJ, Hayne and Heydon JJ), the Court held that, whilst the prosecutor's conduct was inappropriate, it did not cause any miscarriage of justice. 2. Gleeson CJ at [2] indicated that whether the inappropriate conduct rendered the trial unfair, and therefore a miscarriage of justice, involved a question of degree. Having read the whole of the accused's evidence, his Honour concluded that it did not. At [81] Hayne J said: "The comments the trial prosecutor made, in the course of cross-examining the appellant, departed from the rules that ensure the orderly conduct of a trial. But that observation does not answer the critical question presented by the appeal provision of the Criminal Code, which is said to be engaged. That question is whether there was a 'miscarriage of justice'. More particularly, did the making of these comments, either standing alone, or in conjunction with other aspects of the prosecutor's cross-examination of the appellant, make the trial unfair?" 1. To similar effect Heydon J said at [134]: "While the breaches of exclusionary rules discussed above were capable of placing the accused in an unfair position, taken as a whole the breaches generated neither unfairness nor a miscarriage of justice." 1. In Bandao v R; Bruce v R [2018] NSWCCA 181, this Court dismissed an appeal based on an allegation of inappropriate conduct by the Crown prosecutor during the course of the defence's cross-examination of the complainant. At [117]-[118] Hoeben CJ at CL (with the concurrence of Price and Wilson JJ) stated that: "…there is clear authority that the conduct of a Crown Prosecutor in a criminal trial can of itself lead to a miscarriage of justice that can found a successful appeal against conviction (Beazley P, Schmidt and Button JJ in Hughes v R [2015] NSWCCA 330; 93 NSWLR 474 at [272]). As Deane J noted in Whitehorn v R [1983] HCA 42; 152 CLR 657 at pp 663-664 whether there was a miscarriage of justice depends on whether, in the circumstances of the case, the applicant was denied a fair trial. What needs to be considered is the degree of the departure from proper process and the resulting unfairness." See also Curran v R [2020] NSWCCA 171 at [122] and [148]. 1. Also relevant in the present context is the principle that a fundamental assumption that must be made concerning a criminal jury trial is that "the jury acted… on the evidence and in accordance with the trial judge's directions…" (Gilbert v The Queen (2000) 201 CLR 414; [2010] HCA 15 at [31] and [32]; Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 at [28] and [29]; OKS v Western Australia (2019) 265 CLR 268; [2019] HCA 10 at [28]). Consideration 1. It is necessary first to summarise the sequence of events that occurred: 1. The prosecutor's description to the jury of TD's evidence concerning the incident the subject of Count 1 (see [43] above) was contrary to the trial judge's ruling that that evidence had to be disregarded ([42] above). Reliance on it even for the limited purpose, stated by the prosecutor, of indicating the extent of TD's recollection contravened the trial judge's ruling. The trial judge made this clear in the exchange set out at [44] above. 2. The prosecutor did not correct that error when the jury returned but made another error in inadvertently telling the jury that the evidence in relation to "Counts 1 through to 15" could be used for tendency purposes (see [45] above). 3. After this error was brought to her attention, the prosecutor corrected it in the presence of the jury. She did not however correct the earlier error in seeking to use the Count 1 evidence as support for TD's reliability although arguably what she said went some way towards doing that, in that she said in relation to Count 1 that "you should put that to one side" (see [47] above). 4. In his summing up the trial judge instructed the jury in clear terms that it could not have regard to the evidence concerning Count 1 in relation to its determination of verdicts on the remaining Counts. His Honour said this twice (see [49] above). What he said was not limited to use of the evidence for tendency purposes. Instead he made it clear that any use of that evidence was not permitted. What he said had been foreshadowed by the observation he made to the jury (see [42] above) prior to the defence witness being called. 1. Whilst the Crown prosecutor made two errors that were significant because, standing alone, they misled the jury (albeit innocently on her part) as to the evidence available to be used by it in its deliberations, the errors were clearly and firmly corrected by the judge in his summing up. In my view the summing up (as supplemented by his Honour's earlier indication to the jury to the same effect) ensured that the jury could have been under no misunderstanding as to the use that it could make of the evidence in question. The point made by the judge to the jury was a simple one. There was no complexity about it which might have led the jury to be confused about the position in light of what the Crown prosecutor had said in her address. 2. I am fortified in this conclusion by the absence of any application by defence trial counsel for discharge of the jury or for any further or different direction to be given to it. It is unnecessary to rely upon r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the successor to r 4 of the Criminal Appeal Rules) to preclude the applicant relying on this ground of appeal. It is sufficient to say that the absence of any such application provides significant support for the conclusion that, in the atmosphere of the trial, there was no unfairness to the applicant (see Hamilton v R [2020] NSWCCA 80 at [52] and ARS v R [2011] NSWCCA 266 at [148]). 3. For these reasons, I would reject Ground 2. Ground 3: Whether the verdict of not guilty on Count 11 is inconsistent with the finding of guilt on Count 12 1. In Nguyen v R [2017] NSWCCA 145 at [34]-[48], I reviewed relevant authorities concerning the principles applicable to an unreasonable verdict ground of appeal where the ground is sought to be supported by a contention that there is an inconsistency between verdicts returned at trial (see MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56; R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290; R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151; MG v R [2017] NSWCCA 14 and Holloway v R [2017] NSWCCA 17). With the concurrence of Campbell J, I stated the following conclusions (at [48]): "These authorities establish that a complaint of inconsistency between verdicts will fail if the verdicts can be reconciled (see [MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35]…), that is, if there is 'a logical and reasonable basis for sustaining the differentiation that the jury drew' (see [MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53]…). Such a basis may exist if the quality of the complainant's evidence in a case involving sexual offences varied between counts (compare [Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12]…). There are many reasons why this may occur. One is that in some respects a complainant may have resorted 'to a degree of exaggeration in order to reinforce his or her account' (see [R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290]…; [R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151]…). Alternatively, the complainant's account of events concerning a particular count may be implausible because of the nature of the events described (see [MG v R [2017] NSWCCA 14]…). Further, if parts of a complainant's evidence are corroborated by other evidence, this may give the jury greater confidence in the reliability of that part of the complainant's evidence as compared to other parts (see MG…). Such considerations may lead the court to the conclusion that a jury's differential verdicts are the product of its conscientious attention to the trial judge's directions and to the evidence applicable to each count (see [Holloway v R [2017] NSWCCA 17]…)." See also BF v R [2019] NSWCCA 321 at [9] and [10]. 1. Further elaboration of these principles is to be found in this Court's judgment in Vasilevski v R [2019] NSWCCA 277 at [115] and [117] as follows: "In [R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151], Simpson J (as her Honour then was), with whom McClellan CJ at CL and Latham J agreed, described the approach to be taken as follows. At [128] and [130], she said: '…In determining whether convictions are unreasonable, in these circumstances, the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant's credibility, the verdicts of guilty may not be unreasonable, at least not on that basis… [Before] an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant's credibility… The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant's credibility' [emphasis in original]. … Finally, a verdict of acquittal on one or more counts involving the same complainant does not mandate a conclusion that the jury regarded the complainant as untruthful generally. As explained in MFA v R (2002) 213 CLR 606; [2002] HCA 53 at [34]: '…In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others…'" See also DS v R [2021] NSWCCA 52 at [23]-[24]. 1. In the present case, Count 11 alleged an indecent assault by the applicant on KA whilst Count 12 alleged unlawful sexual intercourse with her. As summarised by the applicant, Count 11 alleged that the applicant touched KA's breast whilst in her grandparents' bed and Count 12 alleged digital penetration by the applicant of her vagina. Both acts were alleged to have occurred on the same occasion. 2. KA's evidence in support of the Counts was contained in the following answers to questions asked by police in her interview with them: "Q Explain to me what he was doing on this day. A He was trying to touch my frontal, like this, my chest part and then he, like, went up to my mouth but then I just quickly closed my mouth. Q O.K. So where were you at the time? A In nan's bed. … Q O.K. So tell me what happened before pop walked in. A I can't really remember. He was like, [the applicant] was standing there the same way that he did at the beginning with his knees but the other side, he only had his knees right there next to me and the he started, and then I --- Q Started what? A Like, started with my frontal area, the same thing. Q When you say frontal are you talking about your breasts or boobs? A Both Q Both what? A Both, like my vagina and breasts, and then he started, went upward to my mouth. Q Started with your vagina. A Mmm hmm. Q And then went to your breasts. A Mmm hmm. Q And then your mouth. A Mmm hmm. … Q O.K. O.K. So frontal area, what was he doing with your, I think you called them boobs or breasts. A Mmm hmm. Q What did he do there? A He was just, like, I don't, I can't really, like, touching them really and then, like --- Q One hand or both hands? A One. One. Q So you say touching. A Mmm hmm. Q … What sort of touching? A I can't really remember. Q Was it under the top? Under your clothing or on the top of your clothing? A Under. Q Under. A Mmm hmm. Q O.K. So he touched one breast or both breasts? A Middle. Q Middle of what? A Like, both sort of. Q Parts of both of your breasts. A Like, both sort of. Q Parts of both of your breasts. A Mmm hmm. Q O.K. And how long did that happen, go for? A Only a few seconds and then he --- Q Few seconds. A And then he swapped, and then --- Q So he swapped, and what did he do then? A The same things he usually did. Q What was that on this occasion? A Um, the same things, like, with his finger and then he went up to my mouth and then pop --- Q … Before you go up to your mouth what did he do with his finger? A He stuck it up my vagina and then he wiggled it around again." 1. On appeal, the applicant submitted that there is "no acceptable explanation" for the different verdicts on the two Counts. In response, the Crown submitted that there was a rational explanation for the acquittal on Count 11 other than that the jury had doubts about KA's credibility. That being the case, it submitted that it could not be concluded that, as the jury acquitted on Count 11, it should have acquitted on Count 12. 2. The Crown described the "rational explanation" as follows: "Count 11 alleged that the applicant had indecently assaulted KA by touching what KA described as her 'frontal' or 'chest area'. The interviewer understood her to mean he was touching her breasts. KA's description of what the [applicant] was doing to her breasts was not fulsome. She described the applicant touching between her breasts for only a few seconds. The applicant's assault needed to be in circumstances of indecency. It was open for the jury to not be satisfied of the indecency of the assault given that the touching was between her breasts and therefore lacked the obvious sexual connotation that was necessary to make out that element. In any event, the limited detail in the description given by KA would also explain the acquittal on Count 11." (Footnotes omitted). 1. In oral address on appeal the Crown summarised these contentions by submitting that "the touching between the breasts of KA was firstly not fulsome, was seemingly fleeting and thirdly was… in circumstances where the sexual connotation would not have been made out". 2. It supplemented these submissions by referring to the common features of the complainants' allegations as summarised in the Tendency Notice (see [10] above) and submitting that the Count 11 act (referred to at the very end of the list of common features) was different in character and the jury may have been reluctant to use evidence of the other, different sexual acts as tendency evidence supporting the commission of the Count 11 act. 3. In my view this ground of appeal should be rejected for the reasons stated by the Crown. KA's evidence relevant to that Count was particularly indistinct. When asked what the applicant did in relation to her "boobs or breasts", she said "[h]e was just, like, I don't, I can't really, like, touching them really and then, like…". When asked "What sort of touching", she said "I can't really remember". Moreover, in answer to the question "So he touched one breast or both breasts?" she replied "Middle" and when asked "Middle of what?" she said "Like, both sort of". 4. This evidence may well not have satisfied the jury as to what KA said that the applicant did in relation to her breasts and the jury may have concluded that there was a reasonable possibility that he only touched between them. Moreover, as the Crown submitted, the jury may not have been satisfied that the act had the required characteristic of indecency. 5. The vagueness of this evidence in relation to Count 11 contrasts with the clarity of KA's evidence concerning Count 12. When she was asked "… what did he do with his finger?" she answered "[h]e stuck it up my vagina and then he wiggled it around again" (see the last question and answer quoted in [63] above). 6. In these circumstances, what Simpson J (as her Honour then was) described in TK as the "central question" (see [61] above) cannot in this case be answered in the affirmative, that is, it cannot be said that the acquittal is "attributable only, or principally, to doubt about the complainant's credibility". 7. For these reasons, I do not consider that the verdict of acquittal on Count 11 is inconsistent with the verdict of guilty on Ground 12. As a result, Ground 3 should be rejected. Orders 1. For the reasons given above, each of the grounds of appeal should be rejected. Whilst leave to appeal should be granted, the appeal should be dismissed. 2. R A HULME J: I agree with Macfarlan JA. 3. WRIGHT J: I agree with the orders proposed by Macfarlan JA for the reasons his Honour has given. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 November 2021