Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: SC v R [2023] NSWCCA 60 Hearing dates: 21 September 2022 Date of orders: 22 March 2023 Decision date: 22 March 2023 Before: Beech-Jones CJ at CL at [1] Price J at [71] Yehia J at [77] Decision: (1) Leave to appeal granted (2) The appeal is allowed (3) The conviction of the applicant in the District Court on 10 November 2020 in respect of counts 1, 3, 4, 6, 7 and 9 is quashed (4) In lieu thereof, enter a verdict of acquittal in respect of counts 1, 3, 4, 6, 7 and 9 Catchwords: CRIME – APPEALS – Appeal against conviction – Aggravated sexual and indecent assaults – Whether discrepancies, inconsistencies and other inadequacies in the evidence significantly undermined the complainant's credibility – Whether the jury ought to have entertained reasonable doubt as to proof of guilt – Unreasonable verdict – Appeal allowed – Convictions quashed – Verdicts of acquittal Legislation Cited: Crimes Act 1900 (NSW) ss 66C(2), 61J(1), 61O(1), Criminal Appeal Act 1912 (NSW) ss 6(1) Criminal Procedure Act 1986 (NSW), s 293 Evidence Act 1995 (NSW), s 32, 38 Cases Cited: AJ v R [2022] NSWCCA 136 Aouad and El-Zeyat v R [2011] NSWCCA 61 AS v R [2022] NSWCCA 291 AS v R [2022] NSWCCA 291 Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 Director of Public Prosecutions (NSW) v Presnell [2022] NSWCCA 146 Gallagher v The Queen (1986) 160 CLR 392 Green v The King (1939) 61 CLR 167; [1939] HCA 4 JN v R [2019] NSWCCA 287 JN v R [2019] NSWCCA 287 Khoury v R [2011] NSWCCA 118 Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49 Libke v The Queen (2007) 230 CLR 559; [2009] HCA 30 Ly v R; Ngo v R [2021] NSWCCA 272 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mickelberg v The Queen (1989) 167 CLR 259 MRW v R [2011] NSWCCA 260 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 R v Abou-Chabake [2004] NSWCCA 356 R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 Regina v Gillard (1999) 105 A Crim R 479 Reyne (a pseudonym) v R [2022] NSWCCA 201 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Xie v R [2021] NSWCCA 1 Xie v R [2022] NSWCCA 185 Category: Principal judgment Parties: SC (Applicant) Rex (Respondent) Representation: Counsel: P Boulton SC (Applicant) H Roberts SC with W Liu (Respondent) Solicitors: Jordan Djundja Lawyers (Applicant) Office of the Director of Public Prosecution (Respondent) File Number(s): 2017/00198473 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 10 November 2020 Before: Ingram SC DCJ File Number(s): 2017/00198473 Headnote [This headnote is not to be read as part of the judgement] On 26 October 2020 to 10 November 2020, the applicant, SC, stood trial by jury at Campbelltown District Court on nine counts of aggravated sexual assault and aggravated acts of indecency committed against RP, the applicant's biological daughter, contrary to ss 61J(1), 66C(2) and 61O(1) of the Crimes Act 1900 (NSW). On 10 November 2020, the jury returned verdicts of guilty on counts 1, 3, 4, 6, 7, and 9. No verdict was returned on counts 2, 5, and 8 (alternative counts). On 4 June 2021, Ingram SC DCJ imposed an aggregate sentence of imprisonment of eight years, with a non-parole period of five years' imprisonment. The Crown case at trial was that the nine offences committed by the applicant and the co-accused were part of a joint criminal enterprise. The applicant was the complainant's mother, and the co-accused was in a relationship with the applicant. The Crown case was that the applicant and the co-accused committed three instances of sexual assault against the complainant, which formed the basis of counts 1, 2, 4, 5, 7 and 8. Each count involved the co-accused having non-consensual penile-vaginal intercourse with the complainant, while the applicant was present, assisting and encouraging the co-accused. Following those sexual acts, the applicant and the co-accused immediately engaged in sexual intercourse with one another, and, in doing so, committed the acts of indecency that formed counts 3, 6 and 9. On 1 February 2021, the complainant gave evidence against the co-accused at a special hearing. The applicant submitted that the evidence given by the complainant in those proceedings was more favourable to the applicant than the evidence before the jury at the trial. The applicant sought leave to appeal against her conviction on two grounds: 1. the verdicts of guilty are unreasonable and not supported by the evidence; and 2. the trial miscarried in relation to counts 3, 6 and 9 because of the unavailability of the complainant's testimony in relation to the special hearing of the co-accused at the time of the applicant's trial. The majority held (granting leave to appeal against the conviction, allowing the appeal and entering a verdict of acquittal): As to issue (i), per Yehia J at [190] upholding ground 1 (Price J agreeing at [76]): 1. Central to the question of whether the verdicts were unreasonable were discrepancies, inconsistencies, and other inadequacies in the complainant's evidence of such significance that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt. Reyne (a pseudonym) v R [2022] NSWCCA 201, cited. Morris v The Queen 163 CLR 454; [1987] HCA 50; M v The Queen (1994) 181 CLR 487; [1994] HCA 63; applied. SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; Dansie v The Queen [2022] 96 ALJR 728; [2022] HCA 25, considered. As to issue (ii), per Yehia J at [203] rejecting ground 2 (Beech-Jones CJ at CL at [3] and Price J agreeing at [76]): 1. The complainant's evidence at the co-accused's special hearing was not "constructively" available to the applicant at trial. It was highly speculative to conclude that counsel at trial would have elicited the same, or similar, answers from the complainant as those given at the special hearing. It was not evidence that could have been discovered with reasonable diligence and was considered "fresh" evidence. The unavailability of the complainant's testimony, against the co-accused at trial, did not, however, occasion a miscarriage of justice. R v Abou-Chabake [2004] NSWCCA 356; Khoury v R [2011] NSWCCA 118; Xie v R [2021] NSWCCA 1; Xie v R [2021] NSWCCA 1; Director of Public Prosecutions (NSW) v Presnell [2022] NSWCCA 146; Regina v Gillard (1999) 105 A Crim R 479, considered. As to issue (i), per Beech-Jones CJ at CL (in dissent) granting leave to appeal, but dismissing ground 1 at [68]-[69]: 1. After examining the record of the trial, no relevant doubt was possessed in relation to the complainant's evidence. However, to the extent that any doubt arose as to the reliability and honesty of the complainant's evidence, it was a doubt that the "jury's advantage in seeing and hearing the evidence is capable of resolving". Accordingly, there was not a significant possibility that an innocent person had been convicted. The verdict was not unreasonable. AJ v R [2022] NSWCCA 136, cited. M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Dansie v The Queen (2022) 96 ALR 728; [2022] HCA 25, considered. Judgment 1. BEECH-JONES CJ at CL: This is an application for leave to appeal against convictions for six sexual offences that a jury found were committed by the applicant against her daughter, RP, during the indictment period of 1994−1997. 2. There are two grounds of appeal. The first is that the verdicts of guilty were unreasonable and not supported by the evidence (Criminal Appeal Act 1912 (NSW), s 6(1)). The second is that a miscarriage of justice was occasioned by the absence from the applicant's trial of evidence given by RP at the subsequent trial of her co-accused, DI. 3. For the reasons given by Yehia J, I agree that the applicant should be granted leave to raise her second ground of appeal but the ground should be dismissed. The balance of this judgment addresses the first ground of appeal. Crown Case Overview 1. The offences, the manner in which the Crown case was framed, the evidence adduced at the trial and the arguments made in support of, and in opposition to, ground 1 of the appeal are set out the judgment of Yehia J. What follows is a brief summary that is necessary to explain the balance of my reasoning on ground 1. 2. RP was born in December 1981. Sometime around 1994, the applicant commenced a relationship with the principal offender, DI. In 1995 the applicant and RP moved into premises in Hinchinbrook. Thereafter the applicant and RP often stayed at DI's premises. 3. The indictment contained nine counts. These related to three separate incidents when DI sexually assaulted RP in the presence of the applicant. With the first incident, the Crown alleged that the applicant assisted DI have sexual intercourse with RP by directing her to take off her clothes and lie down as DI had sex with RP and then with the applicant in the presence of RP. The counts on the indictment referable to this incident were initially averred as having occurred between 1 January 1995 and March 1997. In her evidence at the trial RP said this incident occurred in 1996 when she was in Year 7, 14 years of age and around the time of her mother's birthday. [1] Her mother's birthday was in March. In fact, RP was in Year 7 in 1994 and turned 13 that year. This led to the Crown obtaining leave to amend the indictment to extend the date back to 1 January 1994. 4. The second and third incidents involved similar allegations that were said to have occurred in 1996. It was established that RP had an abortion on 1 August 1996 when she was still 14 years old. The second incident was said to have occurred prior to the abortion and the third incident was said to have occurred after the abortion. 5. Each alleged incident corresponded with three counts on the indictment. The conduct of the applicant in assisting DI to rape RP was alleged to constitute the applicant's participation in a joint criminal enterprise to have sex with RP without her consent, knowing that she was not consenting and that she was under the age of 16 contrary to former s 61J(1) of the Crimes Act 1900 (NSW) (counts 1,4 and 7). In the alternative, the applicant's conduct was said to amount to an offence under former s 66C(2) of the Crimes Act (counts 2, 5 and 8). The conduct of the applicant in having sex with DI in the presence of RP immediately after she was raped was said to be the commission of an act of indecency towards RP (being a person under the age of 16) in circumstances of aggravation, namely that she was under the applicant's authority, contrary to former s 61O(1) of the Crimes Act (counts 3, 6 and 9). The applicant was found guilty of counts 1, 3, 4, 6, 7 and 9. 6. As further outlined below, in March 1997, when RP was just over 15 years of age, she made a complaint to the police and provided them with a statement. The statement was not tendered at the trial although parts of it were elicited in cross‑examination. RP retracted her allegations in April 1997. Later that year RP left the applicant's home. She again reported her allegations in 2013 and provided a statement to the police in January 2017. 7. The applicant's trial took place in October−November 2020 when RP was almost 39 years of age. The jury returned verdicts on 10 November 2020. On 4 June 2021, the applicant was sentenced to an aggregate term of imprisonment of 8 years with a non‑parole period of 5 years. The applicant was immediately granted bail pending this appeal. Unreasonable Verdict – Principles 1. The principles applicable to the first ground are set out in the judgment of Yehia J at [153] to [162]. Three further related matters should be noted. 2. First, the obligation imposed on this Court requires it to make an "independent assessment" of the sufficiency of the evidence adduced at the trial (see M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 494-495; "M"). Although the discussion below is focussed on a particular aspect of the Crown case and RP's evidence, I have reviewed the entirety of the evidence adduced at the trial. 3. Second, in undertaking the assessment required of this Court by this ground as enunciated in M, allowance must be made for the advantage enjoyed by the jury in "seeing and hearing the evidence" (M at 494-495). However, the scope of that allowance has its limits in that "[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced" (M at 494) and that "[i]t is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred" (M at 494) (emphasis added). That said, the scope of the advantage that the tribunal of fact had over a "court of criminal appeal by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial" (Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 at [17]; "Dansie"). 4. In this case, the "form" of the evidence was oral evidence from RP of her recollections of being sexual assault decades previously. The evidence was given over two days and punctuated by breaks, a matter I will return to. The principal issue at the trial for present purposes was the honesty and reliability of RP's evidence. It follows that the scope of the advantage that was enjoyed by the jury in "seeing and hearing" RP give evidence was relatively wide (AJ v R [2022] NSWCCA 136 at [105]). 5. Third, in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39] ("Pell") the High Court stated: "The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt." (emphasis added, citations omitted) 1. The reference to "a case such as the present" in this passage is to a case where the principal evidence against an accused person is given by a particular complainant or complainants. This is applicable to this case and the evidence of RP. It follows that this Court's assessment proceeds on the basis that the jury found her evidence to be credible and reliable. Further, the reference in the above passage from Pell (at [39]) to considering "inconsistencies, discrepancies, or other inadequacy; or in light of other evidence" must be read with the statement in M (at 494), that those matters must be "such… as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted" (emphasis added). 2. It follows that an assessment of whether "inconsistencies, discrepancies, or other inadequacy [in the complainant's evidence] or in light of other evidence" is such as to warrant the conclusion that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt is necessarily witness and trial dependent. For example, in Pell, the relevant doubt arose principally because a body of undisputed evidence rendered it relatively improbable that the offences could have been committed in the manner and time period testified to by the complainants (Pell at [119] and [127]). In Ly v R; Ngo v R [2021] NSWCCA 272, this Court upheld this ground of appeal because of glaring and material inconsistencies in the version of events of two adult witnesses who claimed to have witnessed the appellants participating in the execution of the two victims (at [133]−[134]). In both of those cases the advantage enjoyed by the jury in seeing and hearing the relevant witnesses could not resolve the doubts that the appellant court had about the reliability of their evidence. 3. As I will explain in this case, the principal concern with RP's evidence concerns the truthfulness of a statement she made to police in early 1997 when she was 15 years of age that she had not had sexual intercourse with anyone other than the principal offender, DI, prior to 1 August 1996 when she was either 13 or 14. At this point, it suffices to state that an assessment of the impact of a possible, or even probable, lie on that subject on an assessment of the honesty and reliability of RP's evidence about the sexual assaults given more than 20 years later is a matter which the jury enjoyed a very considerable advantage in assessing compared to this Court. RP's Evidence 1. As noted, the judgment of Yehia J surveys the evidence adduced at the trial. However, other than the suggested admission by the applicant (see [146] to [149]), the focus of the submissions on ground 1 concerned the honesty and reliability of the evidence of RP. Yehia J addresses and rejects many of those complaints at [165] to [166]. I agree with her Honour's assessment in relation to those matters. 2. However, the principal argument advanced on behalf of the applicant, and accepted by her Honour, concerns the significance of a body of evidence rebutting so much of RP's denials that, prior to her abortion (and throughout 1996), she was not having sex with any person (other than being sexually assaulted by DI). The applicant contended, and Yehia J accepts, that "it was a central plank of [RP's] evidence… that she became pregnant as a result of the sexual assaults perpetrated by DI" and she could not have become pregnant otherwise "because she had not engaged in sexual intercourse with anyone else during the relevant period" (at [84]). While I accept there was a substantial body of evidence demonstrating that RP did have sex with another person during that period, I do not accept that it has the significance to RP's evidence and the Crown case that the applicant asserts. To explain this, it is necessary to describe an aspect of the pre-trial argument as well as RP's evidence and the related evidence on this topic as it unfolded during the trial. Pre-Trial Argument 1. In February 2020, his Honour Judge Colefax SC heard an application by both the Crown and applicant seeking leave under former s 293 (and now s 294CB) of the Criminal Procedure Act 1986 (NSW) to adduce evidence of RP's prior sexual experience. His Honour granted leave. [2] His Honour described the evidence the Crown sought to adduce as being that, when RP was 13 years of age, she was a virgin. [3] In the case of the applicant, the evidence sought to be adduced was evidence said to be capable of contradicting so much of RP's evidence that suggested DI had to be the father of the child that was aborted in August 1996 because she was not having sexual intercourse with anyone else. 2. These two bodies of evidence were distinct. The Crown's application did not relate to any assertion on the part of RP that DI had to be the father of the baby that was aborted. The Crown case statement was placed before Judge Colefax SC. It set out part of RP's statement which stated that in 1995, at the time of the commission of counts 1−3 (i.e. the first incident), DI "pushed [his penis] in with such force. It hurt so much. I was a virgin and had never had sex with anybody before." [4] In 1995, RP was 13 years of age. (In her evidence at the trial RP did not give evidence of making this statement.) 3. It was this aspect of RP's evidence that the Crown Prosecutor relied on before Judge Colefax SC as the basis for the Crown's application. [5] In the chronology of events set out in the Crown case statement and testified to by RP at the trial, the first incident (the subject of counts 1−3) occurred well before her abortion and before the time frame nominated by a former boyfriend, RS, as to when he had sexual intercourse with RP. Nothing in the Crown's conduct of the pre-trial application supports the contention that RP's assertion that around the time she became pregnant she was not having sex with anyone other than RP, was a central feature of the Crown case. The Crown Opening 1. In opening the Crown case to the jury, the Crown Prosecutor told the jury: "It is also the Crown case that in the period that these sexual assaults were occurring that [RP] became pregnant. I expect that [RP] will tell you that she thinks this was between the first time she was sexually assaulted by the accused and the second incident that she will describe in detail. Halfway through 1996, she had the pregnancy terminated and the dates of that termination are supported by Medicare records. It is the Crown case that that abortion was organised by [RP's] mother, the accused." [6] RP's Evidence-in-Chief 1. As noted by Yehia J, in her evidence RP described the three incidents summarised above. As stated, her description of the time of the first of these incidents led to the Crown obtaining leave to amend the indictment. After RP described this incident, she was asked and answered as follows: [7] "Q. Did anything else happen after that incident [i.e. the first incident]? A. It continued to happen a couple of times after. I then fell pregnant. Q. Do you remember when it was that you fell pregnant? A. End of 96, beginning of 97, or end of 96. Q. So you've said that it happened a few times after before you fell pregnant. Do you remember how many? A. By that point it could have been anywhere between ten and 15 times. It wasn't only at Shearwater Road; it then continued to happen at Whitford Road as well." 1. RP was then asked about the next "specific incident", [8] being the events the subject of counts 4−6. When asked what year this (second specific) incident occurred, RP replied "96, 97". [9] She said that she recalled there was a "school trip coming up" and that the trip was in "September 1996". She said she remembered the date of the school trip by reference to some altered lyrics to a song referable to the trip. [10] After describing the incident the subject of counts 4−6, RP was asked: [11] "Q. Did you notice anything at all after that incident? A. No, just that I started to become – I believe that is when – after I would have – I believe that is when I fell – would have fallen pregnant, and that is when I started to get sick, and my periods didn't come." 1. RP then described the applicant taking her to a doctor for an abortion which she recalled was in August 1996 before the school trip. [12] She recalled attending a doctor who administered a pregnancy test and made an appointment for the abortion. [13] She recounted an argument between the applicant and DI about the cost of the abortion where the applicant told him that RP's pregnancy was his fault. [14] 2. Three matters should be noted about the narrative to this point. First, the documents tendered at the trial indicate that RP saw a doctor on 23 July 1996 and undertook an abortion procedure on Thursday 1 August 1996. 3. Second, as explained by Yehia J, at the trial copies of a number of pages from an exercise book containing notes between RP and a school friend, RR, were tendered. Those notes were provided by the applicant to the police in 1997. One of the notes stated: "Dear [RR], do you know now I liked [RS], well about 8 weeks ago I done something with him and he wore no protection and I got pregnant ok now on Thursday, not this Thursday next Thursday, I'm going to have an abortion and I'm really scared. That's why I don't talk to him. [RP]. xx. Write back." [15] 1. RR was called to give evidence at the trial. She was asked what year these notes were written. She said, "I would say 1996." [16] She identified RS as a boy she met in 1996 through RP. 2. The Crown also called RS to give evidence. He said he met RP in 1996 through a friend known as "Jamie". In his evidence-in-chief, RS said that he and RP were not in a "relationship". However, in cross‑examination he agreed that they commenced having sex "[p]robably around April/March [of 1996]… [p]robably April" and on some occasions they used protection and others they did not. [17] He did not recall speaking to the police in early 1997 or advising them that he and other boys had had sex with RP. [18] RS also agreed that sometime in "1996/97" RP had knocked on his door. He said she was upset and told him she had been "hurt or assaulted" by her mother's boyfriend, although he could not remember the exact words. He said she appeared "[a]ll shook up". He said that soon after the applicant showed up at his door and said, "[w]hatever she's telling you it's not true, like, it's all lies". [19] 3. Third, in her evidence RP said that, prior to the argument between the applicant and DI over her pregnancy, the applicant told her to ring TL, the applicant's former partner, and tell him she was pregnant and had been sexually assaulted by DI. RP said, "I did that and he didn't want nothing to do with – he didn't want to hear that, he was hurt, disgusted he said, and he just hung up the phone." [20] For a period prior to the applicant's relationship with DI, the applicant and her daughters, including RP, lived with TL. In his evidence‑in‑chief, TL did not recall having a conversation with RP in which she complained about being sexually abused. [21] He did recall her coming to see him at the Marconi Club and that he would give her "some money sometimes". [22] In cross‑examination, TL agreed that when RP came to see him she said, "[n]o, I don't want to stay with my mother because [DI] put his hands on top of me and tries to take my shirt off and touch my breast" and that "[h]e watches me all the time when mum is not there". [23] As noted by Yehia J, throughout TL's evidence he appeared to be confused. [24] 4. In relation to the third incident (i.e. counts 7−9), RP said that DI "didn't sexually assault me until a couple of weeks later" after the abortion. [25] She then described the incident in terms similar to the other counts. [26] She said that all three incidents took place "[o]ver a period of a year." [27] RP said she started running away from home and eventually spoke to the police (in early March 2007). RP said that in the meantime she had started a relationship with a boy around her age, DG. RP said she told DG and his mother that "[m]y mother had allowed her boyfriend to sexually assault me while my mother laid there naked and watched. They advised me to go to the police station straight away." [28] 5. The evidence of DG and his mother is summarised in the judgment of Yehia J at [125] to [129]. DG recalled that RP told him that "her stepfather had raped her on occasion" and that "at one stage she was pregnant and had to have an abortion". [29] DG's mother did not recall RP complaining about her mother or being sexually abused, although she recalled two occasions when RP was upset. [30] 6. RP recalled attending the police (in 1997) and providing a statement that was recorded in a cassette. [31] RP said she received a cassette but her mother seized it. RP recalled that her mother was contacted by the police and returned home angry. [32] RP was taken back to the police station by her mother and retracted her statement. [33] RP said that a police officer told her she was lying and she signed the retraction statement because she was scared. [34] RP said she returned home and then ran away. RP said she stayed with friends and then went to a refuge. [35] RP said she ultimately returned home after the applicant promised they could live elsewhere without DI. [36] Despite being told that, RP said that DI came to their new home. RP said she left and lived in a caravan park. She formed a relationship and gave birth to her son in 1998. [37] The Police Complaint and Retraction Statement 1. The material tendered at the trial confirms that RP attended Green Valley Police Station on 4 March 1997 and informed police she wished to press charges against DI for sexual assault. She attended again on 12 March 1997 and made a statement. The statement was not tendered at the trial but parts of it were adduced in cross‑examination. 2. The applicant was interviewed by police on 6 April 1997 and denied the allegations against her. The applicant provided the police with 10 pages of notes from an exercise book that contained entries written by RP and RR when they were friends at school including the page containing the note set out above (at [29]). The material also indicates that on 16 April 1997, RP attended the police station and signed a statement retracting the allegations against DI and the applicant. The retraction statement was tendered at the trial. [38] 3. A "COPS" entry prepared in relation to RP's complaint was tendered at the trial. [39] It stated as follows in relation to her attendance on 16 April 1997: "ON 16.4.97 WITH S/C GREEN I SPOKE WITH [RP] AT THE GREEN VALLEY POLICE STATION. I INFORMED HER OF THE CONTENTS OF THE STATEMENT GIVEN BY [RS] IN WHICH HE STATED THAT HE AND A NUMBER OF OTHER YOUNG PERSONS HAD BEEN HAVING SEXUAL INTERCOURSE WITH HER SINCE MARCH LAST YEAR. AFTER INITIALLY DENYING THE CONTENTS OF THE STATEMENT, SHE EVENTUALLY CONFIRMED THAT SHE HAD HAD SEXUAL INTERCOURSE WITH [RS] AND THE OTHER 3 YOUNG BOYS MENTIONED IN THE STATEMENT AND STATED THAT THE COMPLAINT OF SEXUAL ASSAULT AGAINST [DI] AND HER MOTHER …. WAS NOT TRUE SHE WOULD NOT GIVE ANY REASON FOR HAVING MADE UP THE ALLEGATIONS." 1. The statement of RS referred to in this extract could not be located and RS could not recall providing it. Nevertheless, this entry provides contemperaneous support for that part of his evidence in which he said he had sex with RP in early 1996. 2. The COPS entry also included the following: "IT IS MY OPINION THAT [RP] MADE THE ALLEGATIONS AS SHE BLAMES [DI] FOR HER MOTHER BREAKING UP WITH HER PREVIOUS DE-FACTO WHO SHE LOOKED UP TO AS A FATHER FIGURE. IT ALSO GAVE HER A WAY TO LEAVE THE FAMILY HOME VIRTUALLY UNCHALLENGED AND WITH THE ASSISTANCE OF DOCS AND POLICE." 1. The author of these entries, former Detective Acting Superintendent Charles, was called at the trial. In the passages set out in the judgment of Yehia J at [138] he was cross‑examined about his opinion of the truthfulness of RP's complaint. It is unclear why this evidence was admitted. Regardless of whether his opinion was included in a business record, it was not admissible as to the truth of the opinion he held about RP's credit (Evidence Act 1995 (NSW), s 79; Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36). I do not attribute any weight to his opinions in my determination of this ground of appeal. The Cross‑Examination of RP 1. At no point during her evidence-in-chief did RP assert that she did not have sex with any other person before she had an abortion or recount her belief that DI made her pregnant. This was introduced into the trial at the commencement of her cross‑examination. Thus, early in her cross‑examination she was taken to her statement of 12 March 1997 and asked: [40] "Q. Now, it's your evidence, isn't it, that you fell pregnant to [DI] correct? A. Yes. Q. And it's your evidence that at that time that you fell pregnant to [DI] you had not had sexual intercourse with any other persons; correct? A. Correct. Q. And at paragraph 12 you say, 'When [DI] had sex with me, I had never had sex with anyone else before.' A. That's true. Q. That was true. A. That was true. Q. And then you go on to say, 'The only other person I have had sex with is my boyfriend which happened earlier this year.' Is that true? A. It's true. But I – since that – and that was after − Q. Just please. You will get an opportunity in a moment. Is that true? A. Yes, it's true. Q. Now, you say there that you had sex with your boyfriend 'which happened earlier this year'; correct? A. Yes. Q. And the statement is dated in 1997, 12 March 1997. A. Yes. Q. So when you said earlier that year, you're referring to 1997; correct? A. This is my second statement I'm referring to 1997, yes. Q. So -- A. The first time it happened is in 96. Q. Yes. But you told the police that you had not had sex with any other person until early 1997. A. That's right. Q. With you boyfriend; correct? A. The sexual assault started in 1996. Q. But do you agree that -- A. I agree, yes. But I consented to that. Q And that was with your then boyfriend -- A. Which was after the sexual assault. Q. -- [DG]. A. That I felt safe with. Q. And how old were you as at March of 97? A. 15. Q. So you are telling the police that you had not had sexual intercourse with any other person other than [DG] until early in 1997; correct? A. That's correct. Q. That was a lie, wasn't it? A. It would have been after [DG]. I never was seeing anybody while I was seeing [DG]. Q. I'll come back to it. But what about [RS]? A. That was after [DG], and by that point I was on the pill so that was after I had had the abortion. Q. What about [Jaime]? A. After [DG]." 1. The cross‑examiner then took RP to the retraction statement before having her confirm that she had not had a relationship of a sexual nature with RS in 1996. [41] She was then cross‑examined about her evidence that she was sexually assaulted by DI and the applicant before again returning to the topic of her being sexually active in 1996 as follows: "Q. … and let's get this accurate, you assert that the reason you fell pregnant was because DI had sexual intercourse with you, correct? A. The only person I was having − that had sexual intercourse with me at the time, yes. I wasn't sexually active at that time. Q. You are not sexually active at that time? A. Nope. Q. Well, I want to suggest to you that prior to your abortion on 1 August 96, you were sexually active with [RS] and a boy called Jamie? A. In that note it states that I was on the pill. I didn't take the pill until after I had the abortion. Q. So is your answer, 'no'? A. I don't believe that I did, no." [42] (emphasis added) 1. RP was then asked about what she told the police about the timing of her abortion and being sexually assaulted by DI. She asked for a break ("Your Honour, may I please have a break, I can't – can't do this"). [43] During the break, the Crown Prosecutor told the Court that "I have received information that the witness is quite emotional and has asked if she could proceed tomorrow." [44] The application to adjourn to the following day was opposed by counsel for the applicant. The trial judge determined that RP was to return to the witness box for 10 minutes so counsel for the applicant could complete his questioning on a particular topic. [45] 2. It is not possible on an appeal to this Court to recreate the precise atmosphere of a trial especially during exchanges such as this. During the hearing of the appeal it was submitted on behalf of the applicant that this Court should conclude or infer that the conduct of RP in requesting a break was a tactic designed to avoid questioning that had become difficult ("because it happened more than once when the cross-examiner started to pin her down on a point"). [46] If anything, this submission highlights the advantages enjoyed by the jury in seeing and observing RP give evidence. In 2020, RP was being cross‑examined about being sexually active when she was 14, around the time when she had an abortion and when she claimed to have been sexually assaulted. A determination of whether she requested a break because she was upset by the subject matter of the questions and their effect on her life since or because her narrative was unravelling was quintessentially a matter that the jury had a (significant) advantage over this Court in determining. 3. When RP returned from the break, counsel for the applicant asked her about a statement she made to the police just prior to the trial before returning to the retraction statement and what the police told her on 16 April 1997 that they had learnt from RS: [47] "Q. And they told you that [RS] had given them a statement indicating that he and some other young men had been having sexual intercourse with you from March of 1996. A. I don't recall it. Q. And I want to suggest to you that you said to those police that you denied having sexual intercourse with [RS] and these other boys to these police officers; do you remember that? A. I've told you about three times, I don't remember any of this. I don't remember them coming to me and speaking to me about [RS]. None of that. Q. Well, I want to suggest that at that meeting with these police in Green Valley Police Station on 16 April 1997 you then confirmed to the police that you had been having sexual relationships and sexual intercourse with [RS] and these other boys. A. I might have. I very well might have been having sexual intercourse with them but it still doen't take away the fact that my mother and [DI] did what they did to me. It still doesn't take away the fact that my mother didn't defend me in the abortion clinic. She had no concern whatsoever about me falling pregnant. Q. Please just answer the question. A. I am. Q. Rather than commenting. A. You're trying to tell me that I'm lying when I'm not. Q. Are you now saying that you might have had sexual intercourse with these boys? A. I'm not saying nothing. No. Q. But isn't that what you just said then in your evidence. A. I said I very well might have; I'm not sure, okay. But I know in here I am not lying. Q. What makes you think now that you might have had sexual intercourse -- A. I said I very well might have. I do not know It's your word against mine; it's their word against mine; I do not remember. Q. Because your evidence in this Court is that the only person that you had had sexual intercourse with was your then boytfriend [DG] and that was from about March of 97; correct? Is that correct? A. Yes, it's correct. Q. So what is it now that makes you think that you might have had sexual intercourse with [RS] and other boys in 1996? HIS HONOUR Q. Do you understand the question that's being asked of you, [RP]? A. Yes. It's just too much, your Honour. It's -- Q. Do you understand the question? A. I understand the question. I do not -- Q. Are you able to answer the question? A. I do not remember any of that with [RS]. You're going over it and over it and over it again and trying to drum it in my head. I'm telling you I don't remember. You can keep on going over it and trying to make me recall. I do not remember. I don't know what you want me to say." (emphasis added) 1. At this point RP asked for a break and the proceedings were adjourned to the following day. 2. The cross‑examiner returned to the topic of when RP commenced being sexually active the following day as follows: [48] "Q. I'm putting to you that you were having a sexual relationship with Jamie at that time. What do you say about that? A. Maybe on and off, yeah, but I wasn't in no relationship with him whatsoever. Q. Let me clarify this. I'm talking about prior to August 1996. A. I never was in any relationship with anybody except [DG]. That's the only one that I will claim that I was in a relationship with. Q. I'm not talking about a relationship; I'm talking about having sexual intercourse with. And I'm putting to you that prior to 1 August 1996 you had sexual intercourse with Jamie. A. I've got no recollection. Only times that I remember is after I had my abortion. I was on the pill." (emphasis added) 1. The applicant's written submissions seized upon the first highlighted portion of the extract in [46] above as well as this paragraph as demonstrating that there were "significant and material inconsistenc[ies] in [RP's] evidence". [49] The Crown submitted that in the first of these extracts, RP was expressing frustration at being asked the same question repeatedly and that the topic of the questioning was around whether she had told police in April 1997 that she was having sex with other people, which she said she did not recall. [50] With the second of these extracts, the Crown submitted that RP was seeking to convey that she did not remember whether she had sexual with RS (or Jamie) before 1 August 1996 and her recollection was that she only had sex with them after that time. [51] 2. The debate over these portions of RP's evidence only highlights that the jury enjoyed a significant advantage over this Court in evaluating these answers in the context and (most likely tense) atmosphere of the trial. As noted, at this point RP was grilled about her sexual history when she was 14, around the time when she had an abortion and when she said she was sexually assaulted by her stepfather (DI) with the assistance of her mother (i.e. the applicant). It was certainly open to the jury to regard the effect of RP's evidence as being that, while as at 2020 she believed that she did not have sex with anyone other than DI prior to her abortion, she accepted she may be wrong but nevertheless reaffirmed her evidence that she was sexually assaulted by DI with the assistance of the applicant. 3. This still leaves the realistic possibility, perhaps even likelihood, that RP lied to the police in March 1997 about her sexual history. The circumstance that a 15 year old girl might lie to the police about being sexually active with boys when she was aged 13 or 14 is not something that I regard as necessarily affecting the credibility of evidence given by that same person 23 years later. Whether or not it is so is a matter quintessentially within the scope of the advantage enjoyed by the jury. In terms of the applicant's submission, it seems there was a movement in RP's evidence from a denial that she had sex with anyone other than RP prior to August 1996 to an acceptance that it was possible but she could not recall. In the context of this trial, I do not attribute to that movement the significance the applicant seeks and, in any event, an assessment of its significance was a matter in respect of which the jury enjoyed a considerable advantage in determining compared to this Court. 4. Later in the cross-examination that day, RP was asked about the diary notes provided by the applicant to the police in early 1997. RP described the diary as "just a random diary me and [RR] had just to talk about anything and everything … [which] may be true, it may not be true". RP added that it was "an image thing back then at school. You know, you had to fit into the group to be one of the cool kids." [52] 5. RP agreed that the diary notes record that she had sex with Jamie as well as RS. [53] She was cross‑examined on the note set out the judgment of Yehia J at [179] [54] and then the note set out above (at [28]) with a view to establishing that they were referring to an upcoming appointment for an abortion on 1 August 1996: [55] "Q. It was a Thursday. So you're telling [RR] – my point is, this note was created by you prior to the abortion on 1 August 1996, wasn't it? A. Okay. Yes, this was written by me, yes. But as if I'm going to go to school and tell my mates that I was sexually assaulted by my mother's boyfriend while my mother lay there and watched the whole thing happen and I fell pregnant and I had to have an abortion. Why would I do that to myself? Q. Do you agree with me-- A. And I agree that the story that I just said then is the story that I've told everybody else. I was – at school I was a short little fat girl, okay. Yeah, I may have slept with [RS] and Jamie and this and that but--" 1. RP then requested a break. After the break, the cross‑examination resumed with RP not accepting that the notes were written in 1996. It was again put to her that in 1996 she was having sex with RS and Jamie, "at least those two?". She replied, "No, I don't agree." [56] At one point she stated: [57] "A. Only reason I can suggest is that youse are trying to make out to me to be lying once again, which I know in my heart that I'm not because of the first part of it, that I claimed to be pregnant to [RS]'s child. I was not going to go to school and brag about my mother allowing her boyfriend to rape me and me falling pregnant. How shameful of me. Why would I go to school and brag about that. Every one of my mates had boyfriends, all of them. I was the only one that didn't. Okay, I used to stay at home with my mate, [CG], me and her. I never went out. So whatever you're stating that I was, I wasn't. I only become that sort of child when they started tampering with me and I started running away. Q. So do I take it your answer to my question is that you don't know why that document wasn't shown to you? A. It was shown to me because of what's in it, the first sentence, of course I understand but I can tell you now I'm not lying. This was just a made up story to make me look good with all my mates. I had to fit in, didn't it? I didn't want to be the odd one out. I made up a story as kids do." (emphasis added) 1. In her judgment (at [180]), Yehia J suggests that the entirety of the notes passing between RP and RR in which RP boasts of having sex with RS and Jamie were inconsistent with the suggestion that RP "simply attributed the pregnancy to RS because she was too ashamed or embarassed to tell her friend that she had been sexually assaulted by DI and the applicant". No such suggestion was ever put to RP in cross‑examination. In any event, with respect I do not agree that this accurately characterises RP's evidence. RP did not say that she disclosed her pregnancy and referred to RS as the likely father "simply" because she was ashamed to describe being sexually assaulted by her stepfather. Instead, she said that she did not refer to being sexually assaulted by DI because that would be a shameful disclosure to a school friend in notes like this; ie in these notes she was bragging about having sex to "fit in" and not disclosing something shameful that might make her stand out. Her evidence and the contents of the notes suggests that the diary was not a repository of RP's truly shameful secrets but a collection of (immature) teenage boasts. 2. RP's evidence was that in 1996 and 1997 she lacked self-esteem (as a "short fat little girl"), a circumstance not unknown to teenagers, especially ones as vulnerable as RP was at that time. The diary notes involves her boasting about sexual activity with a school friend in an immature manner that a vulnerable teenager seriously lacking in self-esteem might very well do. The entries stand in contrast to the evidence of both DG and RS as to how upset RP was when she discussed being sexually assaulted by DI. 3. After giving the above answer, RP became upset when she was shown some photographs of her as a child. There was a further break. [58] After the break she was cross‑exaimined briefly and then re-examined by the Crown Prosecutor. Closing Addresses 1. As might be expected, the Crown Prosecutor addressed a variety of anticipated attacks on RP's credit. In relation to RP's evidence, the Crown Prosecutor submitted: [59] "Third, [counsel for the applicant] might say that you cannot accept [RP] as a witness of truth because she told police at the time she fell pregnant to [DI] that she had not had sex with any other person and we have [RS] saying that she was sexually active in March 1996 and the extracts of the conversation with [RR] which suggests that she was pregnant to someone else. Members of the jury the complainant's response to one of [counsel's] questions, perhaps answers this purported criticism best. She said at p 90 of the transcript, 'I might very well have been having sexual intercourse with them, but it still doesn't take away from the fact that my mother and [DI] did what they did to me'. Members of the jury, these are two very different things; whether the complainant remembers precisely when she had consensual intercourse with other boys is a very different thing to remembering the offences we have here, being sexually assaulted by your mother's boyfriend, with your mother instigating it, and being present, lying next to you naked whilst it was occurring." 1. The Crown Prosecutor then addressed the diary notes pointing out, inter alia, RP's description of them as something one to "be one of the cool kids" and her reference to not bragging about being sexually assaulted by DI. The Crown submitted that her answers had a "ring of truth" about them. [60] 2. On behalf of the applicant, it was submitted that RP had "woven the frayed threads of these allegations, gathering them into an incohent narrative of improbability and lies". [61] Various matters were identified as supporting that submission, including what RP told the police about her sexual history in March 1997, her retraction statement and her diary notes [62] (as well as the opinion of Retired Detective Acting Superintendent Charles). [63] The Summing Up 1. The summing up was comprehensive and fair. The trial judge directed the jury that, if they believed that the applicant's denials or thought they might be true, then she had to be acquitted, but even if her version was rejected it was necessary to consider whether the Crown had proven her guilt beyond reasonable doubt. [64] His Honour also directed the jury that, unless they found RP to be "both an honest and accurate witness in her account that she has given", then the applicant could not be found guilty of any of the charges. [65] Verdict was Not Unreasonable 1. Senior Counsel for the applicant attacked both the honesty and reliability of RP's evidence. The principal matters relied on in oral submissions was the uncontested evidence of RS as to the time he had sex with RP, the support which that evidence derived from the portion of the COPS report noted above (at [37]), the chronology of events surrounding the making of the retraction statement in April 1997, the contents of the retraction statement itself and the contents of the notes written by RS to RR. [66] Consistent with the above analysis, I accept that this material is reasonably capable of demonstrating that RP was sexually active with at least RS in 1996 prior to her abortion. I also accept that this evidence is reasonably capable of demonstrating that RP falsely told the police in early 1997 that, prior to her abortion in August 1996, she had only had sex with DI. 2. However, the critical issue for the jury was not the honesty and reliability of what RP told the police in early 1997, but the honesty and reliability of the evidence she gave in 2020. The effect of the evidence was that, while RP believed she was not sexually active with RS (or Jamie) in 1996, she accepted it was possible that she was. I do not regard that "change" in her evidence as materially undermining her honesty or reliability. More importantly, the jury had a distinct advantage over this Court in assessing that matter. Further, I do not regard the fact that RP may have (or did) make a false statement on that topic at 15 years of age as materially undermining the honesty and reliability of evidence she gave in 2020 when she was 39 years of age. Again, most importantly the jury had a distinct advantage of this Court in assessing that matter as well. 3. Two further matters about the attack on RP's evidence should be noted. 4. First, as noted, RS and DG gave evidence of RP making complaints to them sometime in 1996 or 1997 about being sexually assaulted by DI. One point made on behalf of the applicant was that the form of complaint recorded by those witnesses did not implicate the applicant. I do not attribute any significance to this matter. The complaints, as recounted by RS and DG, were not inconsistent with the allegations that were ultimately made against the applicant, namely that she was present when DI sexually assaulted RP. RP could not be attributed with some understanding that the conduct of the applicant in being present and encouraging DI to sexually assault her would make the applicant criminally liable. It is clear that RP was angry at her mother during this time, which is consistent with her attributing some form of blame to her mother. 5. Otherwise, it is notable that at no time was it suggested to RP in cross‑examination that she did not assert in 1997 that her mother was present when she was sexually assaulted by DI and encouraged her to submit. If such a suggestion had been made, it is likely that the Crown would have re-examined her and, if necessary, tendered those parts of RP's statement dated 12 March 1997 which implicated the applicant. [67] 6. Second, the applicant's written submissions relied on passages from the judgment of the trial judge when granting the applicant bail pending appeal as supportive of the attack on the honesty and reliability of RP's evidence. While those observations were no doubt relevant to the function his Honour was performing, they are irrelevant to this Court's function. In Pell, the High Court described M as "remarking upon the functional or 'constitutional' demarcation between the province of the jury and the province of the appellate court… which has not been superseded" (at [38]). There is no room for the views of the trial judge in that demarcation. 7. I have examined the record of the trial with a view to determining whether or not, notwithstanding the jury's assessment of RP's evidence (and that of other witness), I am satisfied that the "jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of [the applicant's] guilt" (Pell, [39]). I am not so satisfied. I do not possess the relevant doubt in relation to RP's evidence but, in any event, to the extent that any doubt arises as to the reliability and honesty of RP's evidence from the matters identified by the applicant, then it is a doubt that a "jury's advantage in seeing and hearing the evidence is capable of resolving" (M, 494). I am satisfied that there is not a significant possibility that an innocent person has been convicted (M, ibid). 8. I would grant leave to raise ground 1 of the appeal but reject the ground. Proposed Orders 1. I would grant the applicant leave to appeal but dismiss the appeal against conviction. On the approach I would take it would be necessary to vary the commencement date of the applicant's sentence to the date this judgment is published to accommodate the applicant having been on bail since the time she was sentenced. However, as mine is a minority view, it is not necessary to specify the formal orders that I suggest should be entered. 2. PRICE J: I have had the considerable advantage of reading the judgments in draft of Beech Jones CJ at CL and Yehia J. Their Honours disagree as to the outcome of Ground 1. It is incumbent upon me to make my own independent assessment of the sufficiency and quality of the evidence, which I have not found to be an easy task. 3. In this appeal, the central issue is the credibility and reliability of RP's evidence, which has been canvassed at some length in the judgments of the Chief Judge and Yehia J. 4. Of importance, in that assessment was RP's maintenance on several occasions in cross-examination that she had not engaged in consensual sexual intercourse with anyone before the abortion on 1 August 1996. Although there is some disagreement between the Chief Judge and Yehia J of the significance of that evidence and the Crown case, it was, in my opinion, fundamental to an assessment of RP's credibility. 5. RP's evidence on this issue cannot be explained by difficulties with memory and was untrue. RP's credibility was irreparably damaged and her evidence of the commission of the offences by the applicant could not be accepted by the jury beyond reasonable doubt. I have concluded that it is a significant possibility that an innocent person has been found guilty by the jury. 6. The jury, acting rationally, ought to have entertained a reasonable doubt of the applicant's guilt, notwithstanding the advantage the jury enjoyed in seeing and hearing RP's evidence. 7. I agree with the orders proposed by Yehia J for the reasons given by her Honour. 8. YEHIA J: On 16 October 2020, SC (the applicant) entered pleas of not guilty before Ingram SC DCJ (the trial Judge) and a jury of 12 at Campbelltown District Court to nine counts of aggravated sexual assaults and aggravated acts of indecency alleged to have been committed upon the applicant's biological daughter (the complainant or RP). After standing trial between 26 October 2020 and 10 November 2020, the applicant was found guilty of six counts (counts 1, 3, 4, 6, 7 and 9); no verdict was returned as to counts 2, 5 and 8 (alternative counts). The Crown Case at Trial 1. The Crown case related to nine counts of offences of a sexual nature alleged to have been committed by the applicant and a co-accused (DI) as part of a joint criminal enterprise (JCE) against the complainant who was, at that time, between the ages of 12 and 15. The Crown alleged the applicant and DI committed three "specific" instances of sexual assault against the complainant and, following those sexual assaults, immediately engaged in sexual activity with one another and, in doing so, committed acts of indecency towards the complainant. Evidence was adduced, in a more general way, about repeated acts of sexual assault. These were uncharged acts but admitted as context evidence. 2. The counts, verdicts, and indicative sentences are set out in the following table: Count Offence Jury Verdict Indicative Sentence 1 Aggravated sexual intercourse without consent, between 01/01/1994 and 04/03/1997 Guilty 5 years' imprisonment 2 Aggravated sexual intercourse with a child, between 01/01/1994 and 04/03/1997 (alternative to count 1) No verdict returned N/A 3 Aggravated act of indecency towards the complainant, between 01/01/1994 and 04/03/1997 Guilty 12 months' imprisonment 4 Aggravated sexual intercourse without consent, between 01/01/1994 and 04/03/1997 Guilty 5 years' imprisonment 5 Aggravated sexual intercourse with a child, between 01/01/1994 and 04/03/1997 (alternative to count 4) No verdict returned N/A 6 Aggravated act of indecency towards the complainant, between 01/01/1994 and 04/03/1997 Guilty 12 months' imprisonment 7 Aggravated sexual intercourse without consent, between 01/01/1994 and 04/03/1997 Guilty 5 years' imprisonment 8 Aggravated sexual intercourse with a child, between 01/01/1994 and 04/03/1997 (alternative to count 7) No verdict returned N/A 9 Aggravated act of indecency towards the complainant, between 01/01/1994 and 04/03/1997 Guilty 12 months' imprisonment 1. The trial Judge imposed an aggregate sentence of imprisonment of eight years, commencing on 10 November 2020, with a non-parole period of five years' imprisonment. There is no appeal in relation to the sentence. 2. The applicant relies on the following two grounds of appeal: 1. The verdicts of guilty are unreasonable and not supported by the evidence; and 2. The trial miscarried in relation to counts 3, 6 and 9 because of the unavailability of the complainant's testimony in the special hearing of DI at the time of the applicant's trial. Application Pursuant to s 293 of the Criminal Procedure Act 1986 (NSW) 1. The proceedings were listed for trial previously before Colefax SC DCJ. His Honour heard what was described as a "combined application" by the Crown and the applicant, for leave to adduce evidence which would otherwise be captured by the prohibition in s 293 of the Criminal Procedure Act 1986 (NSW) (CPA). The Crown sought leave to adduce evidence that when the complainant was 13, she was a virgin and that from about the age of 13, she was repeatedly subject to penile-vaginal intercourse with DI, who was in a "quasi-stepfather relationship with the complainant". [68] 2. His Honour also had regard to the complainant's version that it was with DI alone that she was having penile-vaginal intercourse (without her consent) and that, as a consequence of a specific act of intercourse with DI, she became pregnant and had an abortion. His Honour granted the Crown leave to adduce evidence that the complainant was a virgin at the relevant time and allowed cross-examination in relation to that issue. 3. Although the Crown did not have to establish, as a fact, that the pregnancy was a result of the sexual assaults, it was part of the Crown case that the complainant was a virgin at the time she was sexually assaulted by DI and the applicant. Furthermore, it was a central plank of the complainant's evidence, supporting her allegations, that she became pregnant as a result of the sexual assaults perpetrated by DI in the presence of, and with the assistance and encouragement of, the applicant. She could not have become pregnant otherwise because she had not engaged in sexual intercourse with anyone else during the relevant period. Evidence at Trial 1. It is necessary, in light of the unreasonable verdict ground of appeal, to summarise in some detail the evidence adduced at the trial. A chronology is also provided for ease of reference. The Complainant's Relationship with the Applicant and the Co-accused (DI) 1. RP was born on 11 December 1981. Her mother is the applicant in these proceedings, and she has two older sisters. In 1995 or 1996, the complainant resided at Whitford Road, Hinchinbrook. For several months in 1992 or 1993, when she was aged about 12, the complainant lived in Bossley Park with a foster mother, a lady named "Thea". 2. When the complainant was approximately 12 or 13, the applicant was in a relationship with a man named "TL". He resided with the applicant and complainant in Dee Why for a short period before moving to Bonnyrigg. The complainant had a good relationship with TL. 3. The relationship between the applicant and TL ended while the complainant was residing with Thea. The complainant reported that after the relationship ended, "everything just went weird". [69] During the placement with Thea, the complainant had no contact with the applicant and the applicant did not visit her at Thea's home. 4. In 1994, the complainant returned to live with the applicant, who was now in a relationship with DI. The applicant and the complainant resided at a premises in Mount Druitt with DI. The complainant reported that the relationship between her and her mother was strained. It was not "a mother-daughter relationship". [70] 5. After living in Mount Druitt, the complainant, the applicant and DI moved to Whitford Road, Hinchinbrook. They resided there together for a couple of years until the complainant and applicant moved out in February 1996 to Shearwater Road, Hinchinbrook. The relationship between the applicant and DI continued, with the applicant visiting DI on occasion. 6. Initially, the relationship between the complainant and DI was "okay", although the applicant and DI were preoccupied with each other. The complainant said that sometimes she could hear the applicant and DI having sex in the bedroom. 7. The complainant witnessed an altercation between TL and DI, which took place when TL discovered the applicant in bed with DI. TL threatened DI with a bat and DI bit TL's nose off. This incident occurred when the complainant first moved to Bossley Park. 8. The case against the applicant was one of JCE, namely, that the applicant allowed DI to have sex with the complainant while the applicant lay naked and watched, as well as encouraging and assisting DI. The complainant said that the sexual assaults happened "over 20 to 30 times, maybe more". [71] The counts on the indictment related to three specific incidents in which the applicant allowed the co-accused to have sex with the complainant. The uncharged acts were relied upon as context evidence. Evidence Given by the Complainant Regarding Counts 1, 2, and 3 (First Incident) 1. Counts 1, 2 and 3 relate to the first specific incident which occurred in the house at Shearwater Road, Hinchinbrook. The complainant said that this incident occurred in about March or April 1996, when she was aged 14. She was residing with the applicant at the time and is "pretty sure" the incident occurred on a weekday after school, as she and the applicant would visit DI on weekends. 2. Although the complainant was certain that the first incident took place in about March or April 1996, when she was 14, she also said that at that time, she was attending Hoxton Park High School and was in Year 7. The evidence established that she was in Year 7 in 1994 and did not turn 14 until December 1995. As a result, an application was made to expand the date range on the indictment to a period before 1 January 1995. That application was successful. [72] However, the complainant's earliest account to police, and her repeated assertions during evidence, disclosed a limited period of the commission of the offences on and from March or April 1996. 3. The applicant called the complainant into the bedroom where she was told to sit on the bed and take her clothes off, following which DI had sexual intercourse with her without her consent. The sexual intercourse was by way of penile-vaginal intercourse. The complainant said: "I don't want to do this". [73] The complainant gave evidence that during the assault, the applicant was telling her to "shoosh", saying "everything's going to be all right", while also speaking to DI in Italian. [74] The applicant instructed DI in English not to ejaculate inside of her daughter. 4. DI then "jumped off" the complainant and "onto" the applicant, where he commenced having sexual intercourse with the applicant and "finished off". [75] This conduct took place on each of the specific occasions and constitutes the criminal conduct alleged in counts 3, 6 and 9. 5. The complainant went to the bathroom where she realised that she was bleeding. She gave evidence that she had not had sexual intercourse before this incident. She did not report the assault because she felt ashamed. After she left the bedroom, she could hear the applicant and DI having sex for about 20 minutes. Following the first incident, the applicant and DI took her shopping and bought her a teddy bear. Evidence Given by the Complainant Regarding Counts 4, 5, and 6 (Second Incident) 1. Counts 4, 5 and 6 relate to the second specific incident that the complainant gave evidence about. It occurred at DI's home in June or July of 1996. The complainant was able to nominate the time by reference to a school trip which was to take place in September 1996. 2. In the same way as the first incident, the applicant called out to the complainant and told her to come into the bedroom. The complainant complied and was told to lie down on the bed and remove her clothes. She lay on the bed but did not remove her clothes. DI removed his shorts and then removed the complainant's pants. He inserted his penis into the complainant's vagina and had sexual intercourse with her for approximately 10 to 15 minutes. 3. The applicant did not touch the complainant whilst the sexual intercourse took place but was laying down beside the complainant and DI at the time. The applicant was naked. During the incident, the complainant was sobbing and asked the applicant and DI to stop. They did not. After the sexual intercourse with the complainant, DI immediately commenced having sexual intercourse with the applicant. The complainant went to the bathroom and had a shower while the applicant and DI were in the room for 20 to 30 minutes. 4. Following this incident, the complainant started to get sick and missed her period. She believed that this is when she fell pregnant. She contacted TL and disclosed that she was pregnant and that she had been sexually assaulted by DI. She said that TL did not want anything to do with the situation and hung up the phone. 5. The applicant took the complainant to see Dr Paul in Green Valley where a urine pregnancy test returned a positive result. She had an abortion on Thursday, 1 August 1996. Following the abortion, the applicant took the complainant to Roselands Shopping Centre as she had $1100 to spend on her. The complainant gave evidence that the money came from DI who was led to believe by the applicant that the abortion would cost that amount of money. Evidence Given by the Complainant Regarding Counts 7, 8, and 9 (Third Incident) 1. Counts 7, 8 and 9 relate to the third specific incident that is said to have occurred after the complainant had an abortion, and just before the complainant turned 15. The complainant was watching television in her pyjamas at DI's house. She was called to the bedroom by the applicant and told to lie down beside her. The applicant was naked. DI was in bed wearing shorts and a t-shirt. DI inserted his penis into the complainant's vagina. The assault lasted 5 to 10 minutes. 2. As DI was having sexual intercourse with the complainant, he kissed the applicant and attempted to kiss the complainant, but she blocked her face with her hands. Immediately following this, DI commenced having sexual intercourse with the applicant. The complainant was present for two to three minutes and then went to the bathroom. 3. The complainant said the assaults continued at DI's house and that she would avoid going there where possible, although she was made to accompany the applicant. The assaults stopped because the complainant began running away from home. During the period the complainant was being sexually assaulted, she was given sums of money, namely, $200. DI gave the applicant cheques and she in turn gave the complainant $200 on the weekends. 4. The complainant made a statement to police on 12 March 1997. Her account was taken by way of a recorded statement using a cassette tape. She was given a copy of the recording. The applicant found the tape and became angry. 5. On 16 April 1997, the complainant returned to the police station and signed a retraction statement. She then returned home with her mother, but subsequently ran away again. The complainant spent about three to four weeks at a refuge. She subsequently returned to live with the applicant at a new address in Hoxton Park. The applicant promised the complainant that DI would not be living at that address. The complainant gave evidence that things were good at first, but, after a couple of months, DI commenced visiting and entering her room. She was scared and after approximately one or two months, she ran away again, temporarily renting a caravan at Lansvale Caravan Park. Following this, the complainant only returned to her mother's home on a couple of occasions, including when she had a confrontation with someone at the Caravan Park and when her son was born on 21 December 1998. 6. In approximately 2013, she attended Merrylands Police Station where she raised the allegations of sexual assault again. She was advised to write the details down. No action was taken at that time. The complainant did not speak to police again until 2017 when she made her third statement and an investigation commenced. Evidence at Trial when the Complainant First Had Sexual Intercourse 1. In cross-examination, the complainant confirmed that she had not had sexual intercourse with anyone before she was sexually assaulted by DI in the presence of the applicant. Following the second specific incident of sexual assault, she became pregnant, had an abortion, and was subsequently prescribed the contraceptive pill. The complainant said that the first time she had consensual sexual intercourse, was with DG when she started dating him in 1997. She said that she did have a sexual relationship with RS, but not until after her relationship with DG. Although, at one point in cross-examination, the complainant said that she could not remember if she was having sexual intercourse with RS and Jamie prior to August 1996. Overall, she was adamant that her first consensual sexual experience was with DG after they started dating sometime in early 1997.The complainant did not remember the police putting to her in 1997 that RS told police that he had been in a sexual relationship with the complainant from March 1996. 2. She was questioned about entries on pages from an exercise book in which she wrote notes to a friend, RR (Exhibits B, C and D). The pages shown to the complainant constituted only a small part of the book that was referred to as either an "exercise book" or "diary". The complainant explained that the diary was a way of communicating with RR. Each girl would write an entry as a way of communicating with the other about "anything and everything". [76] The complainant stated: "It may be true, it may not be true. We just wrote it". [77] 3. She agreed that she wrote the following entry: "Dear RR, do you know now I liked RS, well about eight weeks ago I done something with him and he wore no protection and I got pregnant. Okay. Now on Thursday, not this Thursday next Thursday, I'm going to have an abortion and I'm really scared. That's why I don't talk to him. R. Xx. write back." [78] 1. The complainant agreed that some of the entries were written by her, others written by RR. She pointed out on several occasions that none of the entries were dated. The complainant was pressed on this point in cross-examination. Trial counsel put to the complainant that the above entry was created by her prior to the abortion on 1 August 1996. The complainant responded as follows: "Okay. Yes this was written by me, yes. But as if I'm going to go to school and tell my mates that I was sexually assaulted by my mother's boyfriend while my mother lay there and watched the whole thing happen and I fell pregnant and I had to have an abortion. Why would I do that to myself?" [79] 1. The complainant explained that she ascribed responsibility for the pregnancy to RS because she was embarrassed or ashamed to tell her friends that she had been sexually assaulted by her mother's boyfriend while her mother was present and watching. She was again pressed about the timing of the entry being within a few weeks before 1 August 1996. The complainant denied that proposition and repeated that the entry was undated. 2. In response to the entry set out above, RR wrote asking the complainant: "does your mum know?" The complainant responded in a further entry: "mum doesn't know whos but she is taking me in to have it done. I haven't told him. I don't know how". [80] 3. On Monday, 10 March 1997, the complainant attended Campbelltown Police Station and made a report about the alleged sexual assaults. The complainant returned on 12 March 1997 and made a statement to police outlining the allegations. She agreed, in cross examination, that in her statement to the police she said: "When [DI] had sex with me, I had never had sex with anyone else before". [81] 4. Mr Charles gave evidence in the trial confirming that in her statement, the complainant said: "When [DI] had sex with me I had never had sex with anyone else before." [82] 1. Mr Charles confirmed that the complainant went on to say that the only person she had sex with was her then boyfriend [DG] and that it was earlier in 1997. [83] 2. The account provided to police was recorded by way of audio only. The applicant found the tape containing the complainant's account. She became angry with the complainant. On 6 April 1997, the applicant was interviewed by police. She denied the allegations. She provided the police with 10 pages from the diary, which subsequently became exhibits in the trial. In light of the contents of those pages, and in particular the entries relating to the complainant having had sexual relations with two young men, "RS" and "Jamie", the police asked her to attend so that they could speak to her about the account she had given them on 12 March 1997. By the time the complainant returned to see the police, a statement had been obtained from RS, the contents of which included an account that he and other boys had sexual intercourse with the complainant in 1996. 3. The complainant gave evidence that although she had told the truth in the interview, the police did not believe her. She was scared and did not know what to do. She gave evidence that police told her to sign a new statement retracting the allegations. She was also scared because she had been threatened by the applicant that she would be sent to boarding school. She signed the retraction statement but maintained that her original account about the allegations were true. 4. The retraction statement (Exhibit A) is a one-page document that states, in part: "On 12 March 1997, I made a statement to Detective Feher at Campbelltown Police Station about my mother's boyfriend, DI, sexually assaulting me in the presence of my mother. I now wish to withdraw the statement that I made on this day as what I said in the statement was not true." [84] Chronology 1. Some of the evidence summarised above is set out in the following chronology for ease of reference. Date Event 11 December 1982 The complainant was born. 1992/1993 The complainant spent several months living with a foster mother. 1994 The complainant returned to live with the applicant and DI at an address in Mount Druitt. February 1996 The applicant and the complainant moved the premises at Shearwater Road, Hinchinbrook. Early 1996 The complainant met RS. March or April 1996 According to RS, he and the complainant commenced a sexual relationship. March or April 1996 The first specific incident of sexual intercourse without consent. The complainant's account is that she was a virgin. June or July 1996 The second specific incident of sexual assault. Following this incident, the complainant became pregnant. 23 July 1996 The complainant saw Dr Simcock. 1 August 1996 The complainant had an abortion performed by Dr Simcock. A couple of weeks after abortion and sometime before the complainant's 15th birthday (before 11 December 1996) The third specific incident of sexual assault. February 1997 The complainant commenced a relationship with DG. 4 March 1997 The complainant attended Green Valley Police Station and informed police she wished to press charges against DI for sexual assault. 10 March 1997 The complainant attended Campbelltown Police Station and made a report of sexual assault against DI. 12 March 1997 The first statement made by the complainant to the police. 6 April 1997 The applicant, in an interview with police, denied the allegations. She provided police with 10 pages of notes from an exercise book that contained entries written by the complainant and RR when they were friends at school. 16 April 1997 The complainant attended the Police Station and was informed of RS's statement that he and the complainant were engaged in sexual relations from early 1996. The complainant signed a retraction statement claiming that the allegations against the applicant and DI were untrue. 18 April 1997 The complainant returned to live with the applicant at a new address in Hoxton Park. Mid-1997 DI started visiting the home of the applicant and complainant, causing the complainant to run away and rent a caravan. 2013 The complainant attended Merrylands Police Station and reported historical sexual assaults to police. No action was taken at that time. 10 January 2017 The complainant attended Merrylands Police Station, indicating that she wanted to pursue the matter. An investigation commenced. 20 January 2017 The complainant made a further statement to police. 3 May 2018 The complainant made a further 2-page statement of complaint to police. 1 July 2017 The applicant was arrested and participated in an electronically recorded interview. The Complaint Evidence 1. The complainant said that she had reported the sexual assaults to several people. She told TL that she had been sexually assaulted by DI and, as a result, became pregnant. 2. The complainant gave evidence that she reported the sexual assaults to DG and his mother. She had commenced seeing DG sometime after her abortion and later clarified that she commenced seeing him in February 1997. She said she told DG and his mother "exactly what had happened", and further told them that: "my mother had allowed her boyfriend to sexually assault me while my mother laid there naked and watched. They advised me to go to the police station straightaway". [85] They dropped the complainant off at Miller Police Station to make a complaint. DG's Evidence 1. DG gave evidence that he knew the complainant for about 12 months and that they were "boyfriend and girlfriend for a time". [86] They would see each other several times a week, usually at his place. He was aged 16 or 17. The complainant was aged 15 or 16. DG met the applicant on numerous occasions. He described her as having a "very dominating" and "authoritative-type personality". [87] 2. During the time that they were in a relationship, the complainant informed DG that "her stepfather had raped her on occasion" and that "at one stage she was pregnant and had to have an abortion". [88] He told her that she must speak to his mother about the allegations. DG remembered walking the complainant out and saying: "Mum, Rosie's got something to tell you". [89] He left the room and was not present for any further conversation. [90] He did not recall discussing the complaint with his mother after he left the room. He did not have a further conversation with the applicant about the allegations. 3. DG also gave evidence that there was an occasion when he was in the company of the complainant and tried to break the window of DI's car. He agreed that the purpose of breaking the window was to steal DI's credit card. The witness also agreed that he told police that the complainant had stolen her mother's and stepdad's credit cards "several times". [91] MR's Evidence 1. DG's mother, MR, gave evidence that her son was friends with the complainant in around the "mid-90s". She was unsure of the precise nature of their relationship, but thought they were good friends, or could have been in a relationship. The complainant would be at their house regularly (four to six times per week for several months). The complainant was often dropped off and picked up by the applicant. 2. MR did not recall the complainant ever speaking to her about her mother and does not recall the complainant ever telling her about the allegations of abuse. [92] MR recalled that the complainant was always bubbly and happy, but on two occasions she was upset. She gave no further detail as to the circumstances surrounding those two occasions. She remembered that she made these observations "towards the end of the time that we started seeing RR and they were not far apart from what I remember". [93] RS's Evidence 1. RS gave evidence that on one occasion, the complainant attended his house and was highly distressed. She told him that she had been "hurt or assaulted" by her mother's partner. [94] She was shaking and crying. The complainant did not give any details. She appeared to be panicked and said: "they're looking for me, they're driving around looking for me", a reference to the applicant and DI. [95] TL's Evidence 1. TL's evidence was given through an interpreter. On occasion, his answers were confused and reflected a misunderstanding of the questions. An application was made pursuant to s 32 of the Evidence Act 1995 (NSW) ('Evidence Act') to refresh his memory from his statement. TL confirmed the account that he had an altercation with DI. 2. TL gave evidence that the complainant had attended Marconi Club twice when she was 12 or 13 to ask him for money. Prior to refreshing his memory from his statement, he could not recall any occasion where the complainant had reported sexual misconduct perpetrated against her. He was taken back to his statement and agreed that he told police that when the complainant came to visit him at Marconi Club requesting money, she said words to the effect: "Dominic put his hands on top of me and tries to take my shirt off and touch my breasts". [96] 3. He also agreed that he told police that when the complainant came to see him, she reported that DI "tries to kiss me and I don't want it", "he watches me all the time when mum is not there", "I told mum and she doesn't believe me". [97] 4. TL's account of the conversation with the complainant suggests that the applicant was not present during the sexual assaults, given that the complainant is reported saying: "I told mum. She doesn't believe me". [98] That said, TL's reliability may well have been questioned by the jury given the difficulties he had understanding and responding to questions. 5. None of the complaint witnesses, however, gave an account that the complainant had reported that the applicant was present and/or participating in any way during the sexual assaults. Evidence of Mr Paul Charles (Former Detective Acting Superintendent) 1. Paul Charles was the police officer in charge of the investigation in 1997. He is a retired Detective Acting Superintendent. In examination-in-chief, he was shown a COPS entry (event E25344225) and was asked several questions about the contents of that entry. The COPS entry became MFI 3 in the trial. 2. Mr Charles agreed that the document outlined the investigation in relation to a complaint made by the complainant in early 1997. He recalled that subsequently, the complainant attended Green Valley Police Station where she told police she was withdrawing her complaint. The COPS entry indicates a DOCS caseworker was consulted about whether action should be taken against the complainant for making false allegations. A decision was taken not to bring charges. 3. In cross-examination, Mr Charles was asked about his interaction with the complainant and any view he formed that she was not a witness of truth: "A. At what point? Q. When you were conducting your investigation in 1997? A. That's right. I've been given a statement that was taken by another officer. At that time I conducted the investigation as I would any other investigation and attempted to verify or otherwise the contents in support what she asserted in that statement. Q. And you did that impartially didn't you? A. Yes. Q. You came to the view that she was not telling you the truth didn't you? A. She came to me and told me she was not telling me the truth." [99] 1. Mr Charles agreed that, as reflected in the COPS entry, he had informed the complainant that RS had given a statement stating that he and other boys were having sexual intercourse with the complainant since March 1996. It was during that interaction that the complainant said she wanted to withdraw the allegations. [100] Mr Charles denied any suggestion that he forced the complainant to retract her statement and agreed that he had conducted his investigations impartially. He gave evidence that he formed the following opinion, which he confirmed was recorded in the COPS entry: "It is my opinion that RC made the allegations that she blames DI for her mother breaking up with her previous de facto who she looked up to as a father figure" [101] and "It also gave her a way to leave the family home, virtually unchallenged and with the assistance of DOCS and police". [102] ERISPs 1. The applicant gave two electronically recorded interviews on 6 April 1997 and 1 July 2017 respectively. It is imperative to provide a summary of the account given by the applicant during these interviews. First ERISP – 6 April 1997 1. In her interview to police on 6 April 1997, the applicant confirmed that she was in a relationship with DI for approximately three years. During this time, there was a short period where the applicant and the complainant lived with DI. Overall, she lived alone with the complainant and DI would come over "two, three nights a week". [103] The applicant denied the allegations and denied DI ever having sex with the complainant. She agreed that there were occasions when she argued with DI. She also agreed that there was a specific incident on 4 August 1995, where they argued, and the following conversation took place: "Q33. Yeah. In one of the conversations that you had on the phone, uh, Dominic's told the police that you said to him, if you don't take me back, I will contact the police and say that you have raped my daughter. A. uh-huh Q34. Do you recall saying that? A. Yeah. Q35. Can you tell me why you said that? A. A moment of anger, to try and get my way. Q36. All right. Why would you say that? A. It's just, like I said, it was a moment of anger, and, to try and get my way, because I really loved Dominic and I didn't want to lose him and I knew I was because of this money business." [104] 1. The applicant recalled two occasions where the complainant ran away from home. On one occasion in July, upon the complainant's return, the applicant caught RS in the complainant's bedroom. Following this incident, she took the complainant to her doctor who administered a pregnancy test that returned a positive result. The applicant confirmed that the doctor at Westmead Hospital prescribed the complainant the contraceptive pill, which she purchased for the complainant on one occasion. Second ERISP – 1 July 2017 1. In her interview to police on 1 July 2017, the applicant confirmed that her relationship with the complainant was troubled. Following the complainant's allegations, they had "on-and-off" contact. The last contact they had was in 2006, and much later when the complainant had her first child and the applicant look after the child on some occasions. [105] 2. The applicant told police that the complainant was using drugs and often had people sneak into her bedroom during night whilst she was still in high school. She showed police pages from a notebook that belonged to the complainant. The applicant told police that the notebook contained "very rude things and things she did with boys". [106] She burned the book. 3. In her second interview, the applicant said that she could not remember the telephone conversation with DI in which she threatened him that if he left, she would tell police that he raped her daughter. The Admission 1. An objection was taken to Qs & As 28 to 43 in the first record of interview conducted on 6 April 1997, and Qs & As 617 to 636 of the record of interview conducted on 1 July 2017. Each of those tranches of questions involved police asking the applicant about the report that DI made on 4 August 1995, in which he alleged that on that day, he had a conversation with the applicant who threatened to falsely accuse him of sexually assaulting the complainant. 2. The Crown sought to rely upon the applicant's representations, which she admitted making, as admissions. The objection was taken on the grounds that the representations were made on 4 August 1995, that is, before the first incident of alleged sexual assault and, therefore, could not constitute an admission. 3. The representation made by the applicant was admitted because in answer to a question at trial, the complainant said that the sexual assaults took place when she was attending Hoxton Park High School in Year 7. That is a reference to 1994. As a result, it was open for the Crown to rely upon the representation made by the applicant as an admission if the jury accepted that the allegations arose in 1994. 4. However, the complainant's first account to police, and her evidence overall, limited the period of the commission of the offences on and from March or April 1996, when she was 14 years old; that is, a period that post-dated the making of the representation by the applicant which was relied upon as an admission. In these circumstances, it is highly unlikely that the jury placed any weight on that evidence. Ground 1 – The Verdicts of Guilty were Unreasonable and Not Supported by the Evidence 1. The applicant submitted that the evidence of the complainant contained "inconsistencies, discrepancies and inadequacies of such significance that the jury ought to have been left with a reasonable doubt as to the applicant's guilt". [107] Mr Boulten SC identified several inconsistencies in the evidence of the complainant and the evidence of other witnesses in support of the contention that the only reasonable verdicts were acquittals. 2. The respondent submitted that the jury verdicts are indeed supported by the evidence given at trial. In particular, the respondent relies upon the following: "(i) the complainant's recall, description and detail of the circumstances of the offences possessed the "ring of truth" and was capable of acceptance by the jury beyond reasonable doubt; (ii) despite her circumstances, namely that she was desperate to remain living with her mother, and had no other obvious source of support, the complainant nevertheless did make a contemporaneous complaint to her boyfriend, DR/DG, and followed this with a statement to police; (iii) the complainant's explanation for participating in the 'retraction' statement (namely that the police had told her they did not believe her, and she was scared of the consequences with her mother) is compelling; (iv) contrary to the applicant's contention (AS [17]), it was not "demonstrated" that the complainant had sexual relationships with RS or any other boy in early 1996. The jury was entitled to prefer the complainant's evidence on this subject; and (v) it was not essential to the jury verdicts that the jury be satisfied either that the complainant was a virgin at the time of the first sexual assault, that it was a fact that the complainant's pregnancy was a result of the sexual intercourse with DI: cf AS [13]." 1. As to other inconsistencies in the complainant's evidence, the respondent asserted that given that it has been over 20 years since the events in question occurred, it is to be expected that "minor inconsistencies" would arise. Consideration – Ground 1 1. In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act 1912 (NSW), the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". Having conducted an independent assessment of the evidence, if the Court entertains a reasonable doubt as to the guilt of the applicant, a determination must be made as to whether the jury's advantage in seeing and hearing the evidence, is capable of resolving that doubt such as to conclude that no miscarriage of justice has occurred. 2. The advantages enjoyed by the jury are not confined to assessments of the demeanour of witnesses and can extend to an assessment of the plausibility of a witness's account in the context of considering how the witness presented: see Reyne (a pseudonym) v R [2022] NSWCCA 201, per Beech-Jones CJ at CL, at [5]. 3. The principles that are applicable to an appeal on the ground that a verdict is unreasonable, or cannot be supported, having regard to the evidence, have been considered by the High Court on many occasions: see Morris v The Queen 163 CLR 454; [1987] HCA 50; M v The Queen (1994) 181 CLR 487; [1994] HCA 63 (M); SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 (SKA); The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 (Baden-Clay); Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell); Dansie v The Queen [2022] 96 ALJR 728; [2022] HCA 25 (Dansie). 4. The High Court in M, at 494-495, Mason CJ, Deane, Dawson and Toohey JJ, stated: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. … If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the Court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that innocent person has been convicted, and the court is bound to act and to set aside the verdict based upon that evidence. … In this case the anxiety and discomfort experienced by Sully J must necessarily have been caused by a doubt he held about the guilt of the applicant. That doubt appears to have been engendered by shortcomings in the evidence which are not met by reference to the jury's advantage in seeing and hearing the witnesses. Sully J was, therefore, in error in concluding that the appeal should be dismissed. Applying the principles to which we have referred, we consider the jury should have had a reasonable doubt in relation to the charges against the applicant and accordingly are of the view that the verdict against the applicant ought not be allowed to stand". 1. The principles were reiterated by the High Court in SKA. French CJ, Gummow and Kiefel JJ, in their joint judgment, stated: "[13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. [1] However, the joint judgment in M went on to say: [2] "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred." [14] In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". [3] In M, Mason CJ, Deane, Dawson and Toohey JJ stated: [4] "In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'." 1. More recently, in Baden-Clay, at [65], the High Court has emphasised the central place of the jury trial in the administration of criminal justice and, thus, the stringency of the unreasonable verdict test: "It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact". Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial." 1. The function to be performed by a Court of Criminal Appeal in determining an appeal relating to an unreasonable verdict ground was again considered in Dansie, in the context of an appeal from a guilty verdict in a judge alone trial. The High Court cautioned that prior formulations of principle to be found in cases that preceded M, must be approached with caution. In Dansie, the High Court upheld the appeal, emphasising the critical nature of an appellate court's independent review of the record of trial, at [7]: "The function to be performed by the Court of Criminal Appeal is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence." 1. In Pell, the Court emphasised, at [39], that this assessment is made "upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable", but: "The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence-the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained reasonable doubt as to proof of guilt". 1. For a Court to conclude that there was no miscarriage, it is not sufficient that there was evidence on which a jury could convict. If after giving full primacy to the jury, the Court is left in reasonable doubt as to the verdict, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving the doubt, that the Court can conclude that there was no miscarriage of justice: see Xie v R [2022] NSWCCA 185, noting what was said in Libke v The Queen (2007) 230 CLR 559; [2009] HCA 30 at [113]. 2. While the constitutional importance of the jury as the arbiter of fact must be borne in mind in determining a complaint about an asserted unreasonable verdict, that does not absolve this Court from undertaking its own assessment of the credibility and reliability of all the complainant's evidence in the case to determine whether it was open to the jury to convict the applicant on the charges on which it returned a guilty verdict: see JN v R [2019] NSWCCA 287 at [39]; AS v R [2022] NSWCCA 291 at [148]. This Case 1. The complainant commenced her evidence-in-chief on the morning of 29 October 2020. The cross-examination commenced just before lunch on that day. Cross-examination recommenced on 30 October 2020, at about 10:26am. The re-examination of the complainant ended just before 1:00pm, on 30 October 2020. I bear in mind that the jury had the opportunity to observe the complainant give evidence over a period of one and a half days. 2. However, having conducted my own assessment of the quality and sufficiency of the evidence, I entertain a reasonable doubt as to the guilt of the applicant. I am not of the view that the advantage enjoyed by the jury in seeing and hearing the evidence displaces that doubt. Put another way, I am persuaded that the jury ought to have entertained a reasonable doubt as to the guilt of the applicant. 3. This view is not premised on minor inconsistencies in the evidence of the complainant, or discrepancies between her evidence and the evidence of complaint witnesses. Several inconsistencies and discrepancies relied upon by the applicant do not, either alone or in combination, give rise to a finding that the verdict was unreasonable. For instance, the following inconsistencies were identified: 1. Inconsistencies in the complainant's evidence about whether sexual assaults took place after the abortion in August 1997. In her evidence, the complainant gave an account of sexual assaults occurring after the abortion. In conference with authorities in October 2020, she denied occasions of sexual assault after the abortion. 2. Whether the first specific incident occurred on a weekend or weekday. 3. Whether the complainant was in the lounge room watching television, or in her bedroom, when called to the applicant's bedroom. 4. Whether the applicant was in the kitchen or bedroom at the time of summoning the complainant to the bedroom; whether the applicant was sitting or standing in the bedroom; whether the complainant returned to her bedroom and remained there until DI left or went out with the applicant and DI. 5. Whether DI took the complainant's clothes off or she did so herself. 6. Whether the applicant held the complainant down during the sexual assaults. 7. Inconsistencies in the complainant's evidence about how well she got on with DI when she first met him. 8. The absence, in the complainant's first police statement, of an account of being gifted a teddy bear or receiving $200 each weekend from the applicant. 9. The discrepancy between the complainant's account of what she told others and the evidence of the complaint witnesses. None of those witnesses gave evidence that the complainant had reported that the applicant was present and/or participated in the sexual assaults. 1. Such inconsistencies and discrepancies do not, in my view, warrant a finding that the verdicts were unreasonable. It is hardly surprising that minor inconsistencies will exist in accounts given about events that allegedly took place many years before. An expectation that witnesses in a criminal trial will give completely consistent accounts of events is unrealistic and demands more of such witnesses than human memory allows. If the inconsistencies and discrepancies were limited to those listed above, ground 1 would fail. 2. The applicant's contention that the verdicts of guilty were unreasonable and not supported by the evidence is, however, based upon inconsistencies, discrepancies, or other inadequacies in the evidence that go far beyond those listed above. Central to the question of whether the verdicts are unreasonable, is the credibility of the complainant. Her evidence about her lack of sexual experience, her pregnancy, and the circumstances in which she became pregnant, constituted an important and substantial part of her testimony. 3. While the Crown was not required to establish as a fact that the complainant's pregnancy was a result of the sexual assaults committed by DI and the applicant, it was part of the Crown case that the complainant was a virgin at the time she was sexually assaulted. Indeed, the Crown sought leave, pursuant to s 293 of the CPA, to adduce evidence of lack of sexual experience. That application was in effect a "combined application" made by the Crown and the applicant. The granting of the application resulted in a focus on the complainant's lack of sexual experience and the circumstances in which she became pregnant. A significant portion of the complainant's evidence at trial involved questions on those topics. 4. The complainant gave evidence that she "fell pregnant" to DI following the sexual assaults upon her. She maintained again and again that she had not engaged in consensual sexual intercourse with anyone until after the sexual assaults, sometime in early 1997 when she commenced a relationship with DG. In cross-examination, she was asked: "Q. And it's your evidence that at the time that you fell pregnant to DI you had not had sexual intercourse with any other person? A. Correct." [108] 1. The complainant was taken back to her police statement, dated 12 March 1987 (MFI A), and asked: "Q. And at paragraph 12 you say, "when Dominic had sex with me, I had never had sex with anyone else before? A. That's true. Q. That was true? A. That was true." [109] 1. The complainant went on to give evidence that the first consensual sexual intercourse she engaged in was with DG because she felt safe with him. This took place in early 1997, after the sexual assaults. She said she engaged in sexual intercourse with RS and Jamie at a time after her relationship with DG, and after the abortion, because that was when she was prescribed the pill. 2. Trial counsel sought clarification about the complainant's prior sexual experience because it was highly relevant to her evidence about the pregnancy: "Q. …. and let's get this accurate, you assert that the reason you fell pregnant was DI had sexual intercourse with you, correct? A. The only person I was having-that had sexual intercourse with me at the time, yes. I wasn't sexually active at that time. Q. You are not sexually active at that time? A. Nope. Q. Well, I want to suggest to you that prior to your abortion on 1 August 1996, you were sexually active with RS and a boy called Jamie? A. In that note it states that I was on the pill. I didn't take the pill until after I had the abortion. Q. So is your answer, 'no'? A. I don't believe that I did, no." [110] 1. Later in cross examination, trial counsel put the proposition that the complainant was sexually active, having sexual intercourse with RS and other boys from early 1996. The complainant again denied the proposition. [111] 2. There was no issue that the complainant did become pregnant and there was objective evidence that she had an abortion on Thursday, 1 August 1997. In those circumstances, the complainant's evidence about her lack of sexual experience at the relevant time was powerful evidence supporting the allegation that DI had sexually assaulted her, and that the applicant had participated in those sexual assaults. The primary plank of the complainant's evidence was that she could not have become pregnant but for the sexual assaults committed against her because she was not engaged in sexual intercourse with anyone else at the relevant time. 3. The objective evidence does not support the complainant in that regard. Although the diary entries are not dated, there is no doubt in my mind that the following entry pre-dated the abortion which took place on 1 August 1996: "Do you know I liked RS well about eight weeks ago, I done something with him and he wore no protection and I got pregnant okay now on Thursday, not this Thursday, next Thursday I'm going to have an abortion and I'm really scared. That's why I don't talk to him." [112] 1. The objective evidence establishes that the complainant had an abortion on Thursday, 1 August 1996. The only available inference as to the date of the entry, is that it was made before Thursday, 1 August 1996. The complainant explained that she nominated the name "RS" because she was too embarrassed and ashamed to tell her friend that she had become pregnant as a result of sexual assaults perpetrated against her by her mother's boyfriend. That explanation lacks credibility when the diary entries are considered as a whole. 2. When asked by RR in the following entry whether her mother knows about the pregnancy, the applicant wrote: "mum doesn't know who's but she is taking me to have it done". [113] 3. Further entries reveal the following communication between the complainant and RR: "Complainant: "okay I trust you. I don't know if I should tell RS." RR: "I think you should… Seriously". Complainant: "but why and what" RR: "tell him about the abortion and maybe he'll talk to you. Are you sure this is the right decision?"" [114] 1. In a further entry, the complainant writes: "Dear RR - hello buddie anyway to tell you in full detail I fucked RS. Oh yes I did three times- no once nearly in the tent once in Sarah's room and twice at his house. So 4 times. 2 we used protection banana and strawberry that's why I said- Yum strawberry was the yacky-est. because he goes smell this and he stuck it in my mouth. So yeah Jamie is a sly cunt. I was at the party the night before I fucked him I asked him do you have [a] condom. He goes no do you what you expect me to keep a condom in my wallet all the time. No. So fucking hell man. He fucked me 3 times with no protection so too bad if I'm pregnant. Hey what do I tell my mum. I'm supposed to be on the pill so I can't fall pregnant but I stop taking them because they made me sick. With RS I'd done it twice with no protection so help me… I don't know who's it will be. Shit man. Because it could be Jamie's or RS's…" [115] 1. Although the entries are undated, they contain a consistent theme in that the complainant and RR engaged in communication with each other about boys they like and details about their sexual experiences. The boys are named. The entries consistently refer to "RS" and "Jamie". When considered as a whole, the entries provide powerful objective evidence undermining the believability of the complainant's explanation that she simply attributed the pregnancy to RS because she was too ashamed or embarrassed to tell her friend that she had been sexually assaulted by DI and the applicant. 2. The evidence of RS is also at odds with that of the complainant. He gave evidence of his involvement in a sexual relationship with the complainant in early 1996. This discrepancy, in the circumstances of this case, also significantly undermines the credibility of the complainant. 3. RS gave evidence that he met the complainant in early 1996. She was 14 years old. He knew her for about 18 months. In cross-examination, RS said that the sexual relationship between him and the complainant commenced in about "April or March 1996". [116] He was introduced to the complainant by "Jamie". He had unprotected sexual intercourse with the complainant more than once. On one occasion he was in the complainant's bedroom when they "heard people come home and I tried to hide under the bed and her mum caught me". [117] He said: "Q. I want to suggest to you that there were occasions where you climbed into the premises through RP's bedroom window? A. Yeah, I would have, I did, sorry, I was just thinking then. I thought I come through the front door but I did, around the backside, up the side, she lived inside the bedroom. Q. The purpose for doing that was to try and conceal your movements from any other person such as a parent, correct? A. And her sister. Her sister's, she goes, "I don't want no one to know you're here," so I went through the‑‑ Q. Is this the case, RP was telling you to in effect, sneak in through the bedroom window? A. That's how it was." [118] 1. Mr Charles confirmed the contents of the COPS entry, which included a reference to a statement taken from RS in 1997, sometime before April of that year, in which he told police that he was involved in a sexual relationship with the complainant in early 1996. RS's evidence at trial was consistent with his account given to police in 1997. 2. It was not "well open" to the jury to prefer the complainant's account of the timing of the commencement of a sexual relationship with RS, over the evidence of RS. Although RS's statement to police, taken in 1997, was not available at trial, the COPS entry clearly refers to the contents of the statement in which he stated that he and several other young persons had been having sexual intercourse with the complainant since March 1996. 3. RS gave evidence at trial that he did have sexual intercourse with the complainant on more than one occasion in early 1996. He was not challenged about that evidence, nor was there any application by the Crown to cross-examine him pursuant to s 38 of the Evidence Act. Furthermore, RS's evidence of being discovered in the complainant's bedroom is supported by the applicant's account. 4. This discrepancy in the evidence is crucial, in my view, to the credibility of the complainant. Her lack of sexual experience was an important part of her evidence at trial. The Crown made an application to adduce evidence of the complainant's lack of sexual experience and it was part of the Crown case that the complainant was a virgin at the time of the sexual assaults. The heavy emphasis on the complainant's lack of sexual experience bolstered the claim that she became pregnant as a result of the sexual assaults perpetrated against her. 5. Evidence was adduced at trial that the complainant made a second statement retracting the allegations on 16 April 1997. That statement became Exhibit A in the trial. The fact that the complainant retracted the allegations does not, of itself, undermine her credibility, or support a finding that the verdicts were unreasonable. She was a young teenager. She had little support other than her mother. She gave evidence that she was scared and felt she had no choice other than to retract her previous statement. 6. However, the discrepancy in the accounts relating to the complainant's sexual experience in 1996 is relevant to the circumstances in which the complainant retracted her allegations. On 16 April 1997, Mr Charles informed the complainant of the contents of RS's statement which included that he and several other young persons were having sexual intercourse with her from March 1996. That account was clearly inconsistent with the account the complainant had given police about her sexual experience when she made her statement, about a month earlier, in March 1997. 7. Faced with this discrepancy, the complainant retracted the allegations. Retracting the allegations does not, of itself, prove fatal to the credibility of the complainant. However, the circumstances in which she retracted the allegations relate to the very issue about which a major discrepancy arose in the trial, namely, being confronted with the contents of the statement of RS and his account that he had been in a sexual relationship with her the year before. 8. Central to the question of whether the verdicts were unreasonable, were discrepancies, inconsistencies, and other inadequacies in the complainant's evidence of such significance that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt. Even making full allowance for the advantages enjoyed by the jury, I am of the view that this ground has been made out and the verdicts are consequently unreasonable. Ground 2 – The trial miscarried in relation to Counts 3, 6 and 9 because of the unavailability to the applicant, at the time of her trial, the complainant's testimony in the Special Hearing of DI 1. The complainant gave evidence against DI at a special hearing on 1 February 2021, which post-dated the applicant's trial. Her evidence related to allegations for which DI was jointly charged with the applicant. The applicant contended that the evidence given by the complainant in those proceedings was more favourable to the applicant than the evidence before the jury at the trial. DI was acquitted of the counts which corresponded to the applicant's counts 3, 6 and 9, because Baly SC DCJ had a reasonable doubt as to his guilt. The applicant submitted that the unavailability at the time of the trial of the complainant's testimony in the special hearing occasioned a miscarriage of justice. 2. In the trial, in relation to the first incident, the complainant gave evidence that after DI had sex with her, he "jumped off me and he jumped straight on my mother. I ran straight to the bathroom". [119] In relation to the second and third incidents, the complainant gave evidence that she remained in the room for two to three minutes before leaving the room as the co-accused and applicant had sexual intercourse. [120] 3. However, in the special hearing, the complainant gave evidence she ran out of the room straight away (count 3) [121] , put her clothes on and walked out to use the bathroom (count 6) [122] and "was only in there for a split minute" after the sexual assault concluded (count 9) [123] . 4. The applicant submitted that "there is significant possibility that the jury in the instant trial, acting reasonably, would have acquitted the applicant if this cogent fresh evidence had been before it". 5. The respondent does not concede that the complainant's evidence at the special hearing constitutes "fresh" evidence. Alternatively, the respondent submitted that the absence of that evidence in the applicant's trial does not give rise to a miscarriage of justice. Consideration – Ground 2 1. In R v Abou-Chabake [2004] NSWCCA 356, the Court considered the definition of "fresh" evidence, as well as the question of whether evidence sought to be adduced on appeal had not been called previously for tactical reasons. The first ground of appeal involved the applicant seeking leave to rely on fresh evidence he contended had a significant possibility of leading to his acquittal had it been before the jury. 2. Kirby J summarised six principles with respect to the ground that a miscarriage of justice resulted from the absence at trial of fresh evidence at [63]: "First, a distinction is made between "new evidence" and "fresh evidence". Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence. Second, great latitude must be extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial (Ratten v The Queen (supra) per Barwick CJ at 512). Third, the Court is ultimately concerned with whether there has been a miscarriage of justice. The rationale for setting aside a conviction on the basis of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. That evidence must be examined in the context of the evidence given at the trial (Mickelberg v The Queen (1989) 167 CLR 259, per Toohey and Gaudron JJ at 301). Fourth, the issue of whether there has been a miscarriage is to be approached on a number of levels, depending upon the order sought (whether a verdict of acquittal or a new trial), and the capacity of the new or fresh evidence to sustain the order sought. Fifth, where a verdict of acquittal is sought and the new evidence is of such cogency that innocence is shown to the Court's satisfaction, or the Court entertains a reasonable doubt as to guilt, the guilty verdict will be quashed and the applicant discharged. In such circumstances, it does not matter whether the evidence is fresh or simply new (Ratten v The Queen (supra) Barwick CJ at 518/519; cf Gibbs CJ in Gallagher v The Queen (1986) 160 CLR 392 at 398/399). Sixth, where the evidence does not have that quality, or where a new trial is sought, a number of issues arise. The verdict will be quashed and a new trial ordered only where the following questions are answered affirmatively: Is the evidence fresh? If it is, is it "credible" or at least capable of belief (Gallagher v The Queen (supra) per Gibbs CJ at 395), or "plausible" (Mickelberg v The Queen (supra) per Toohey and Gaudron JJ at 301)? If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused (Gallagher v The Queen (supra) per Brennan J at 410) or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused (Gallagher v The Queen (supra) per Mason and Deane JJ at 402)? See Mickelberg v The Queen (supra) per Toohey & Gaudron JJ at 301-302. Seventh, the concept of a miscarriage of justice is not an abstract investigation of truth (cf an Inquiry under s474D Crimes Act 1900). It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better (Ratten v The Queen (supra) at 517)." 1. In Khoury v R [2011] NSWCCA 118, Simpson J addressed in detail the principles applicable to the admission of fresh or new evidence on appeal at [104]-[108]: "[104] The general principle is that parties to litigation, including criminal litigation, are bound by the manner in which their cases are presented at first instance and will not be permitted to enhance their cases on appeal by producing fresh, or new, evidence: R v Birks (1990) 19 NSWLR 677; R v Fordham (1997) 98 A Crim R 359 at p 377. That applies no less to applications for leave to appeal against sentence than it does to conviction appeals [105] The rule is far from absolute, and has been diluted over the years. In criminal cases it has long been recognised that the rigour with which it is applied must be tempered in order to accommodate the interests of justice: Green v The King [1939] HCA 4; 61 CLR 167, per Latham CJ; Ratten v The Queen [1974] HCA 35; 131 CLR 510 per Barwick CJ. In criminal cases, two important but competing policy considerations collide: (1) that the administration of justice requires finality in litigation; in general, parties to litigation (including criminal litigation) have one, and one only, opportunity to present their cases in the best light they can, and are bound by the conduct of their cases at first instance; and (2) that error in the sentencing process, however caused, that is the occasion of injustice, ought to be remedied. But there are limits as to the extent to which the court may legitimately accept additional evidence. There is no call here to consider the application of the principles in appeals against conviction: these have most recently been considered in R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 and Aouad and El-Zeyat v R [2011] NSWCCA 61 at [282] and following. These remarks are confined to the circumstances in which this Court may properly, and will, admit and take account of additional evidence on applications for leave to appeal against sentence, in respect of which a distinct sub-set of principles has evolved. [106] I say "additional evidence" because a distinction has been drawn between "fresh" evidence and "new" evidence: see Abou-Chabake , per Kirby J, at [63]. [107] "Fresh" evidence has been defined by Mason J (as he then was) in Lawless v The Queen [1979] HCA 49; 142 CLR 659 at p 675 as: "... evidence of which the accused was unaware at the time of his trial and ... evidence which he could not have discovered with reasonable diligence." "New" evidence, on the other hand, is evidence that does not qualify as "fresh", either because it was available, but not used, at first instance, or because, in the exercise of reasonable diligence it could have been obtained. The distinction is important in the present case. [108] If evidence qualifies as fresh evidence, its admission may depend upon a further criterion - the evaluation of its capacity to have affected the outcome of the proceedings at first instance. If it is not judged to have that capacity, its admission is pointless, and, while it has to be considered in order for that evaluation to be made, the evidence may not, in the result, be acted upon: see, for example, Fordham." 1. In Xie v R [2021] NSWCCA 1, the Court again considered the question of 'fresh' as opposed to 'new' evidence, at [433]-[434]: "[434] The Crown contended that none of that evidence answered the description of 'fresh' or 'new' evidence and it was all therefore inadmissible. In MRW v R [2011] NSWCCA 260 at [46] ('MRW'), Bathurst CJ identified the three questions that need to be considered where a conviction is sought to be quashed and a new trial ordered on the basis of fresh evidence, namely: "First, is the evidence fresh evidence in the sense that it was not available to the applicant at the time of trial …; second, was it credible or capable of belief and third, was there a significant possibility that the jury acting reasonably would have acquitted the applicant." [444] With the first question, where the material in question is evidence that was in existence as at the time of the trial, the relevant issue is whether that material 'could not then have been available to the applicant by the exercise on his part of reasonable diligence in the preparation of his case' (Ratten at 516 per Barwick CJ). If the material does not meet the first of the above tests, that is, if it is not fresh evidence but only new evidence, then there would only be a miscarriage of justice if the applicant satisfies this Court that the new evidence is such that, taken with the evidence at the trial, the conclusion should be drawn that he was innocent or that his guilt was not established beyond reasonable doubt (Ratten at 518 and 520)." 1. Although it was open to cross-examine the complainant at trial about her actions immediately after DI stopped having sexual intercourse with her on each occasion, I am not persuaded that the complainant's evidence at the special hearing was "constructively" available to the applicant at trial. It is highly speculative to conclude that counsel at trial would have elicited the same, or similar, answers as those given at the special hearing. The evidence given by the complainant during the special hearing was not available to the applicant at the time of the trial. It was not evidence that could have been discovered with reasonable diligence. I am satisfied that it is "fresh" evidence. 2. However, the difference in the evidence given by the complainant as to how long she remained in the bedroom while DI and the applicant engaged in sexual intercourse cannot be properly categorised as giving rise to a material inconsistency. While the complainant gave slight variations between time estimates in the special hearing, it was consistently her overall position that she left the bedroom as soon as possible after DI stopped having sexual intercourse with her. Furthermore, the variation in estimates assumes little significance in the context of what the complainant described had taken place. On her account, she was instructed to come into the bedroom and take off her clothes and lie down on the bed. She was sexually assaulted by DI whereupon he immediately "jumped on" the applicant to have sexual intercourse with her. 3. In these circumstances, it was open to the jury to find that the sexual intercourse between DI and the applicant was an act which had "an intention to engage", at some level, the complainant: see Director of Public Prosecutions (NSW) v Presnell [2022] NSWCCA 146 at [92] (Dhanji J, Hamill J agreeing; Basten AJA dissenting); Regina v Gillard (1999) 105 A Crim R 479 at [62]-[63]. 4. I would reject ground 2. 5. Accordingly, I propose the following orders: 1. Leave to appeal granted. 2. The appeal is allowed. 3. The conviction of the applicant in the District Court on 10 November 2020 in respect of counts 1, 3, 4, 6, 7 and 9 is quashed. 4. In lieu thereof, enter a verdict of acquittal in respect of counts 1, 3, 4, 6, 7 and 9. ********** Endnotes 1. Appeal Book ("AB") 395. 2. AB 1152 to 1154. 3. AB 1153. 4. AB 1158.5. 5. AB 1115.35. 6. AB 375.9. 7. AB 401.37. 8. AB 402.31. 9. AB 403.1. 10. AB 403.3. 11. AB 412. 12. AB 412.43. 13. AB 413. 14. AB 414.1. 15. Exhibit B; AB 1541. 16. AB 723. 17. AB 609 to 610. 18. AB 612 to 614. 19. AB 607.45. 20. AB 414.12. 21. AB 584. 22. AB 585.11. 23. AB 601. 24. at [126]. 25. AB 415.35. 26. AB 415 to 419. 27. AB 419.1. 28. AB 421. 29. AB 570: 11 – 15. 30. AB 526. 31. AB 421. 32. AB 421.9. 33. AB 422 to 424. 34. AB 424. 35. AB 426 to 427. 36. AB 429.2. 37. AB 431. 38. AB 1539. 39. AB 1585. 40. AB 438 to 439. 41. AB 445.25. 42. AB 452: 28 – 43. 43. AB 453.40. 44. AB 455.23. 45. AB 457–459. 46. Tr 21/09/22 at p 12.15. 47. AB 461. 48. AB 478. 49. Applicant's subs at p 10.2. 50. Crown subs at [55]. 51. Crown subs at [56]. 52. AB 483.40. 53. AB 485.27. 54. AB 485 to 493. 55. AB 493 to 494. 56. AB 499.6. 57. AB 499. 58. AB 501. 59. AB 763. 60. AB 763. 61. AB 769.30. 62. AB 771 to 773. 63. AB 773.23. 64. AB 814.1. 65. AB 815. 66. Tr 21/02/22 at p21. 67. AB 1593 to 1595. 68. Appeal Book (AB) 1153. 69. AB 390: 30. 70. AB 235. 71. AB 395: 6. 72. AB 645. 73. AB 754: 27 – 29. 74. Ibid: 25 – 26. 75. AB 402: 35 – 37. 76. AB 483: 36 – 38. 77. Ibid. 78. Exhibit B; AB 1541. 79. AB 493: 45 – 49. 80. Exhibit B; AB 1541. 81. AB 439: 5-7. 82. AB 625: 1 – 5. 83. Ibid. 84. AB 1539. 85. AB 421: 1 – 3. 86. AB 567: 28 – 29. 87. AB 568: 21 – 22. 88. AB 570: 11 – 15. 89. Ibid: 31 – 34. 90. Ibid: 36 – 37. 91. AB 572: 37 – 43. 92. AB 526: 4 – 7. 93. Ibid: 17 – 18. 94. AB 606: 46 – 49. 95. AB 607: 34 – 35. 96. AB 599: 26 – 28. 97. AB 601: 25 – 40. 98. AB 481: 5 – 6. 99. AB 618: 46 – 50; AB 619: 1 – 9. 100. AB 620: 40 – 46. 101. AB 621: 33 – 36. 102. Ibid: 46 – 47. 103. AB 1205. 104. AB 1209. 105. AB 1234. 106. AB 1253. 107. AB 1077. 108. AB 439: 1 – 3. 109. Ibid: 5 – 10. 110. AB 452: 28 – 43. 111. AB 487: 23. 112. Exhibit B; AB 1541. 113. Exhibit B; AB 1541. 114. Exhibit C; AB 1552. 115. Exhibit D; AB 1556. 116. AB 609: 49. 117. AB 610: 26. 118. AB 610: 33 – 46. 119. AB 396: 19 – 20. 120. AB 412: 21; AB 417: 17. 121. Special Hearing T 1.02.21 p 33: 10; p 33: 13 – 20. 122. Special Hearing T 1.02.21 p 42: 8 – 24. 123. Special Hearing T 1.02.21 p 51: 40 – 48. Amendments 22 March 2023 - Anonymisation of names 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: 22 March 2023