Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: EC (a pseudonym) v R [2023] NSWCCA 66 Hearing dates: 7 September 2022 Date of orders: 24 March 2023 Decision date: 24 March 2023 Before: Mitchelmore JA at [1]; Button J at [77]; Wright J at [78]. Decision: (1) Appeal allowed. (2) Quash the conviction on Sequence 8 recorded in the Children's Court on 25 January 2016 (and confirmed in the District Court on 8 September 2016). (3) Remit the proceedings to the Children's Court for a retrial of Sequence 8. (4) List the proceedings before the Registrar of the Children's Court for directions as soon as reasonably practicable. Catchwords: CRIME – appeal and review – application for inquiry into conviction – referral to the Court of Criminal Appeal under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) – whether absence of evidence from trial and appeal to District Court resulted in miscarriage of justice – where miscarriage of justice has occurred – whether appropriate to direct entry of a verdict of acquittal or order retrial Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 15B, 33 Crimes Act 1900 (NSW), ss 61J, 66C, 80AG Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 78, 79, 86 Criminal Appeal Act 1912 (NSW), ss 6, 8, 12 Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW) Cases Cited: ALS v R [2013] NSWCCA 63 Application by Cartman (a pseudonym) pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2022] NSWSC 308 Carlton v R [2014] NSWCCA 14 Edwards v The Queen (2021) 393 ALR 368; [2021] HCA 28 Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26 Gilham v The Queen (2012) 224 A Crim R 22; [2012] NSWCCA 131 Goodwin v The Queen (1990) 51 A Crim R 328 Hofer v The Queen (2021) 395 ALR 1; [2021] HCA 36 Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14 Khoury v R [2011] NSWCCA 118 Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49 Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35 R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356 R v Taufahema (2007) 228 CLR 232; [2007] HCA 11 R v Thomas (No 3) (2006) 14 VR 512; [2006] VSCA 300 Ramsey v R [2022] NSWCCA 197 Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 State of NSW v Norstead [2019] NSWSC 1095 Stephens v The Queen (2022) 404 ALR 367; [2022] HCA 31 Xie v R (2021) 386 ALR 371; [2021] NSWCCA 1 Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16 WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142 Zhou v R [2021] NSWCCA 278 Category: Principal judgment Parties: EC (a pseudonym) (Appellant) Crown (Respondent) Representation: Counsel: Ms K Heath (Appellant) Mr G Newton SC (Respondent) Solicitors: Dowson Turco Lawyers (Appellant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2015/89814 Publication restriction: Statutory prohibition on the publication or broadcast of the appellant's name in a way that connects her with criminal proceedings: Children (Criminal Proceedings) Act 1987 (NSW), s 15A. Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: N/A Date of Decision: 08 September 2016 Before: Baly SC DCJ File Number(s): 2017/382749 HEADNOTE [This headnote is not to be read as part of the judgment] The appellant, EC (a pseudonym), was found guilty in the Children's Court on two of eight charges relating to sexual acts with another young person alleged to have been committed between January 2014 and January 2015, when the appellant was between 15 and 17 years old and the complainant was between 13 and 15 years old. The appellant appealed to the District Court in respect of her conviction on both charges, one of which was a charge of sexual intercourse with a child between the ages of 14 and 16, contrary to s 66C(3) of the Crimes Act 1900 (NSW). The Court confirmed the conviction on that charge and reduced the appellant's sentence, and quashed the other conviction. The appellant applied to the Supreme Court for an inquiry into her conviction on the s 66C(3) charge, pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) ("Appeal and Review Act"), on the basis that new evidence had come to light that was not available at either the trial or the appeal. That new evidence demonstrated that on the day that the offence was alleged to have occurred, the appellant was wearing a skirt, rather than jeans as had been alleged by the complainant. That the appellant had been wearing jeans was central to the complainant's version of events, and she was cross-examined on that basis. The case was referred to the Court of Criminal Appeal pursuant to s 79(1)(b) of the Appeal and Review Act. The appellant advanced a single ground of appeal in this Court: that a miscarriage of justice was occasioned due to the absence of evidence, from the trial and the appeal, that has since become available. She argued that the appeal should be allowed, the conviction quashed, and in lieu thereof a verdict of acquittal should be entered. The Crown accepted that the appeal should be allowed, but argued that the matter should be remitted to the Children's Court for rehearing. The Court (Mitchelmore JA, Button and Wright JJ agreeing), allowing the appeal, held: 1. In a case concerning new or fresh evidence, the question of miscarriage of justice is to be resolved by either quashing a verdict, or ordering a new trial: [8]. Ramsey v R [2022] NSWCCA 197; Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35; Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49; Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26; Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35 applied. 1. The unavailability of fresh evidence at the time of a trial will involve a miscarriage of justice if the Court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the new evidence had been before it at trial. To determine the impact of such evidence, it is necessary to first examine the evidence given at the trial: [9]-[10]. Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26; considered; Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35 applied. 1. The additional evidence that came to light was fresh evidence, which was credible and undermined a significant detail in the complainant's evidence as to the circumstances in which the sexual act the subject of the s 66C(3) charge occurred. There was a real chance that the absence of that evidence from the trial and appeal could have influenced the verdict of the tribunal of fact: [59], [61]-[62]. Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35; Goodwin v The Queen (1990) 51 A Crim R 328; R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356; Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16; Zhou v R [2021] NSWCCA 278 applied. 1. Although the fresh evidence was relevant to the credibility of the complainant and the reliability of her account, the impact of the evidence depended on the complainant's response. The complainant was not cross-examined on the basis of the fresh evidence, and there remained cogent evidence supporting her account, including tendency evidence and photographic evidence corroborating aspects of her account. In that context, an outright verdict of acquittal should not be entered: [63]-[66]. 2. In exercising the discretion to order a new trial under s 8(1) of the Criminal Appeal Act 1912 (NSW), the overriding consideration is whether such an order is required in the interests of justice. Unless a verdict of acquittal is necessary in the interests of justice, an appellate court should order a new trial where a conviction in respect of a charge has been set aside but there is evidence to support the charge: [67]. Gilham v The Queen (2012) 224 A Crim R 22; [2012] NSWCCA 131 considered; Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 applied. 1. Ordering an acquittal in circumstances where the appeal has succeeded on the basis of fresh evidence that the complainant has not been examined upon would usurp the function of the Director of Public Prosecutions, in whom the prosecutorial discretion is conferred. Having regard to that factor, the seriousness of the offence, and the public interest in prosecuting offenders charged with serious offences, a new trial should be ordered: [74]. ALS v R [2013] NSWCCA 63; WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142; R v Thomas (No 3) (2006) 14 VR 512; [2006] VSCA 300; R v Taufahema (2007) 228 CLR 232; [2007] HCA 11 considered. Judgment 1. MITCHELMORE JA: On 25 January 2016, the Children's Court found the appellant guilty on a charge of sexual intercourse with a child between the ages of 14 and 16, contrary to s 66C(3) of the Crimes Act 1900 (NSW). The charge was one of eight relating to sexual acts with another young person which were alleged to have been committed between January 2014 and January 2015, when the appellant was between 15 and 17 years old and the complainant was between 13 and 15 years old. 2. The appellant appealed her conviction, and her conviction on another of the charges, to the District Court, pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) ("Appeal and Review Act"). On 8 September 2016, the Court confirmed the conviction on the s 66C(3) charge, reducing the sentence from a suspended Control Order for a period of 10 months to a period of 6 months, pursuant to s 33(1B) of the Children (Criminal Proceedings) Act 1987 (NSW). The Court quashed the other conviction. 3. On 12 May 2021, the appellant applied for an inquiry into the conviction pursuant to s 78 of the Appeal and Review Act. The basis of the application was that evidence had come to light that was not available at the trial or the appeal. On 23 May 2022, Dhanji J directed that the case be referred to this Court pursuant to s 79(1)(b) of the Appeal and Review Act: Application by Cartman (a pseudonym) pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2022] NSWSC 308. 4. Section 86 of the Appeal and Review Act provides that upon receiving a reference under s 79(1)(b), this Court "is to deal with the case so referred in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912, and that Act applies accordingly". It is common ground that the appeal is as of right and no extension of time is required: Carlton v R [2014] NSWCCA 14 at [38] per RA Hulme J (Ward JA and Harrison J agreeing). 5. The appellant advanced a single ground of appeal, that a miscarriage of justice was occasioned due to the absence of evidence, from the trial and the appeal, that has since become available. The appellant submitted that the appeal should be allowed, the conviction quashed and in lieu thereof a verdict of acquittal should be entered. The Crown accepted that the appeal should be allowed, but argued against a verdict of acquittal, submitting that the matter should be remitted to the Children's Court for rehearing. 6. I accept that on the basis of the additional evidence, there has been a miscarriage of justice. The principal question for resolution is whether to direct entry of a verdict of acquittal pursuant to s 6(2) of the Criminal Appeal Act 1912 (NSW), or to order a new trial pursuant to s 8(1) of that Act. 7. Notwithstanding s 15B of the Children (Criminal Proceedings) Act, I have maintained a pseudonym for the appellant, having regard to s 15A of that Act: State of NSW v Norstead [2019] NSWSC 1095 at [2] per Button J. The ground of appeal: miscarriage of justice Introduction 1. In Ramsey v R [2022] NSWCCA 197 at [32], this Court (Beech-Jones CJ at CL, Wilson and Fagan JJ) observed that the question of miscarriage of justice in a case relying on evidence that is additional to that which was before the jury is to be resolved by considering the sequence of alternatives outlined by Barwick CJ (McTiernan, Stephen and Jacobs JJ agreeing) in Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35, subsequently endorsed in Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49; Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26 and Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35. In Ratten, Barwick CJ detailed that sequence at 518-520 and summarised it as follows at 520: "To sum up, if the new material, whether or not it is fresh evidence, convinces the court upon its own view of that material that there has been a miscarriage in the sense that a verdict of guilty could not be allowed to stand, the verdict will be quashed without more. But if the new material does not so convince the court, and the only basis put forward for a new trial is the production of new material, no miscarriage will be found if that new material is not fresh evidence. But if there is fresh evidence which in the court's view is properly capable of acceptance and likely to be accepted by a jury, and which is so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict, a new trial will be ordered as a remedy for the miscarriage which has occurred because of the absence at the trial of the fresh evidence." 1. In Gallagher v The Queen, Mason and Deane JJ suggested that the Court of Criminal Appeal would conclude that the unavailability of fresh evidence at the time of the trial will have involved a miscarriage of justice if the Court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the new evidence had been before it at the trial (at 402). Gibbs CJ (at 399) and Dawson J (at 421) substantially agreed with this formulation, although Gibbs CJ further observed that no form of words "can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred" (at 399). 2. The appellant in this case put her submissions on both of the bases to which Barwick CJ referred in Ratten. Her primary submission was that the additional evidence on which she relied should create for this Court a reasonable doubt about her guilt, such that the verdict should be quashed "without more". Alternatively, the appellant submitted that the additional evidence was "fresh evidence" which at least created a significant possibility that the appellant would have been acquitted if it had been available at trial, such that the appeal should be allowed and the verdict quashed. In considering, in the latter instance, whether to order a re-trial, the appellant called attention to a number of factors on the basis of which she submitted that the Court should not so order. 3. The Crown accepted that the additional evidence was of sufficient significance that it would be open to the Court to find that its absence from the hearings occasioned a miscarriage of justice. However, the Crown submitted that the Court would not be satisfied that the evidence was of such cogency that it proved the appellant's innocence, or that the Court would entertain a reasonable doubt as to the appellant's guilt so as to justify a verdict of acquittal. 4. It is necessary first to examine the evidence given at the trial, in order to assess contextually the impact of the additional evidence: Mickelberg v The Queen at 301. I will then address the additional evidence which the appellant tendered and its significance for the purposes of the ground of appeal. The trial in the Children's Court 1. As noted above, the conviction that is the subject of this appeal was one of eight offences with which the appellant was charged. The charge was sequence 8 on the Court Attendance Notice and was known as the "Haymarket Offence", with the particulars alleging that it was committed between 1 July 2014 and 31 October 2014 at Haymarket in New South Wales. 2. By way of background, in around April 2013, the complainant and the appellant met, and they became friends. By 2014, they had developed what the Magistrate described as "a close and highly intense relationship", and remained in contact with each other until the early months of 2015. His Honour considered that the complainant's perception for most of that time, "especially in 2014", was that the appellant was either her only friend or, at least, her best friend and, inferentially, the most important person in her life. 3. In the complainant's evidence in chief, which was given in the form of records of two interviews with the Joint Investigation Response Team, the sexual intercourse the subject of the offence occurred following a "mufti" day at the school that the appellant and the complainant both attended. The complainant's evidence was that after school, she and the appellant went to a bra shop in Haymarket. While they were in the shop, the complainant said that she wanted to try on a bra, and took a bra into a fitting room cubicle. 4. The appellant followed the complainant into the cubicle. The complainant said that she was trying on a pink bra when the appellant came in "and [the appellant] asked me to go down on her in the change room". The complainant subsequently clarified that this meant that the appellant wanted the complainant to lick her vagina. The complainant said she had done so. The complainant also remembered that the appellant scratched her back "because [the appellant] took a photo of my back and I've still, I've got that photo". A photograph of the complainant's back, marked with what appeared to be scratches, was admitted as Exhibit 7. 5. In response to a question as to what the complainant was wearing, the complainant said: "I was, had my jeans on, had jeans on because it was a mufty [sic] day at school, yeah, and I wasn't wearing anything on my top, so no bra and no T-shirt because I was trying on the pink bra. It was pink and black and I remember because her mum picked her up afterwards at Caps, which was the capital [sic] theatre which is a photo booth place and her mum saw the bra. …" 1. When asked what the appellant was wearing, the complainant said she was wearing "a T-Shirt and jeans because she took her T-shirt and bra off as well". The complainant then gave the following account of the conduct that was the subject of the charge: "Q250 Ok, so tell me more about from the time she has come in to that happening. A. Um, well, she sat on the floor from what I remember. We were both sitting on the floor against the mirror and, um, sorry - - - Q251 No. Are you feeling OK? A. Yeah, yeah, I just, it's just disgusting to think about. And she, she got me to go down on her. So she took, no, no, she didn't take off her jeans off and that's why it didn't go, I didn't do it properly. So she took her jeans and her underwear off but only to about here and then she asked me and she pushed my head down. She did push my head down. I remember that. Q252 Ah-huh. A. And what happened, and then I got up because I, I just didn't want to do it and she didn't take her jeans off so I couldn't do it anyway. …" 1. The appellant's case at trial was that no act of cunnilingus had occurred as alleged. As support for that case, she relied on the complainant's evidence that the appellant was wearing jeans. Counsel for the appellant in the trial cross-examined the complainant on that basis: "Q. You initially said, did you not … in these two pages that you didn't want to do it and 'she didn't take off her jeans off so I couldn't do it anyway'. That was one of your answers, was it not? A. It was. Q. Then you've gone on further to say that she's pushed your head down to her vagina and you didn't do anything to – 'And did you do anything to her vagina?', you answered, 'I licked it because she asked me to'. A. Yep. Q. But doesn't she still have her jeans on at that time? A. I, I did say that she did take her jeans and underwear down to about here. Q. Sorry, I didn't see. You'd have to do that slowly. A. Down to about here. His Honour: The witness is indicating about 5 centimetres above the knee, pointing to the left side of her thigh for the record." 1. The appellant's Counsel returned to this part of the record of interview shortly thereafter: "Q. When you conducted this interview [being the interview of 10 July 2015], I suggest to you that when you said 'I just didn't want to do it and she didn't take her jeans off so I couldn't do it anyway', that answer means that in fact you did not lick her vagina? A. I remember her pushing my head down and she did take her jeans and her underwear off to about there. Q. I suggest to you that when you said, 'I couldn't do it anyway', that means in fact you did not lick her vagina? A. I did." 1. Apart from the complainant's evidence, and the photograph of the complainant's back that was Exhibit 7, the Crown tendered SMS and other communications (such as on Facebook) between the complainant and the appellant as tendency evidence (on all of the charges). The Crown relied on those communications to prove that the appellant had a tendency to have a sexual interest in the complainant during the relevant period and to engage in sexual activity with the complainant. 2. On 25 January 2016, the Magistrate dismissed the charges in sequences 1 to 6 of the Court Attendance Notice, and found the sequence 7 charge (to which I will return) and the sequence 8 charge proven. 3. The Magistrate described the evidence, much of which was unchallenged and which was corroborated in a number of respects by other evidence, as establishing that: the appellant was the dominant person in the relationship; the complainant was fearful of her; and the complainant often felt a need to comply with many of her demands and expectations. The Magistrate found on the totality of the evidence that the complainant was enmeshed in a dependent and dysfunctional relationship with the appellant and was vulnerable to her influence. The Magistrate was also satisfied that from approximately mid-2013 until the early months of 2015, the appellant had a strong sexual interest in the complainant and acted on that sexual interest, that being the tendency the prosecution alleged. 4. In relation to the complainant, the Magistrate found, having observed the two records of interview and observed her in the witness box, that she gave her evidence "as best as she could" and was not a witness who told lies to support her version of events. At the same time, his Honour noted that the complainant "was at times either unable to recall some events or was inaccurate in her recollection of events at time". Some of that could be explained by factors such as her age (both at the time of the interviews and when she gave evidence), her anxiety recalling some of the incidents, and the passage of time between the alleged events, telling the police, and the hearing. Additionally, there were a lot of incidents between the complainant and the appellant during the period of their involvement, such that "it would not be unusual for [the complainant] to either not remember or not remember accurately everything that did happen during that time". The Magistrate noted that there were also some inconsistencies in the complainant's evidence on events aside from the specific charges, which his Honour found that she had adequately explained. 5. In relation to the Haymarket Offence, the Magistrate accepted the complainant's version of what had occurred and concluded that he was satisfied beyond reasonable doubt that the offence had been made out. His Honour described the complainant as "unshaken in her version of the incident": "She was reasonably clear and consistent as to the details of what occurred. Mr Isaacs [counsel for the appellant] submits that the complainant's evidence was confused and inconsistent. I do not accept his submissions in this regard. When one considers the complainant's evidence as a whole the answer that she gives at question 252, page 28 of the record of interview, if looked at in isolation, may indicate that the complainant did not lick the [appellant's] vagina in the circumstances she outlined. However one needs to look at that answer in the context of the whole record of interview and the complainant's oral evidence in general. When one looks at for example the record of interview and the response of the [complainant] to questions 249, 251 and 255 it is clear in my view that the complainant indicated that she did lick the [appellant's] vagina but to quote the complainant, 'I didn't do it properly'. Further the complainant reaffirmed in cross-examination that she did lick the [appellant's] vagina despite the answer that was given at page 252 of the second record of interview. As I said, looked at in totality, that is the finding I made. But that is not the only reason for it." 1. There were two other reasons on which the Magistrate relied. The first was that the incident occurred "in a private fitting room" and would have been of short duration, "probably a matter of minutes". By contrast with incidents that were alleged to have occurred at the appellant's home (charges as to which the Magistrate dismissed), "the potential for the [appellant] and complainant to have been detected was in my view reasonably low". 2. The second reason was that there was "some corroborative evidence" to support aspects of the complainant's version, specifically, the photograph that was Exhibit 7. The Magistrate noted that the photograph placed the complainant and the appellant in the fitting room together, there being "no other explanation as to how the photograph of the complainant's back could have been taken otherwise". The photograph also showed a pink bra on the floor of the fitting room and showed the complainant was naked from the waist up. His Honour considered that "[t]he irresistible inference to be drawn is that some sexual activity must have taken place between the complainant and the [appellant] in the cubicle". Further, the photograph "clearly depicted" a number of marks on the complainant's back, which his Honour inferred "were inflicted by the [appellant] as the complainant alleges whilst the [appellant] was in a state of sexual arousal". 3. The Magistrate also found the sequence 7 charge proved. The conduct the subject of sequence 7, which charged that the appellant digitally penetrated the complainant without her consent, contrary to s 61J of the Crimes Act, was alleged to have occurred on 9 January 2015 at Event Cinemas on George Street, during the screening of a movie. The complainant's evidence was that she and the appellant were sitting in a private area at the back of the cinema. Halfway through the movie the appellant wanted to kiss the complainant. When the complainant told her to stop, the appellant began touching her and proceeded to place the fingers of her right hand in the complainant's vagina. The complainant said that she told the appellant to stop, and attempted to pull the appellant's hand away, but the appellant would not stop. 4. The complainant was cross-examined on photographs of her and the appellant which were taken in a photo booth machine on 9 January 2015, approximately one hour after the movie finished. The photographs showed the appellant and the complainant together with their arms around each other and smiling. There were also text messages between the complainant and her father in evidence showing that the complainant had stayed in the city for a period before going home, and had not told her father the truth about what time the movie ended. Notwithstanding this evidence, the Magistrate found that the complainant was clear and consistent in her evidence about what occurred during the course of the movie, and what she did after the movie did not significantly undermine her credibility such that his Honour would disbelieve that evidence. The appeal to the District Court 1. The appellant's appeal was heard in the District Court on 6 September 2016. On 8 September 2016 Judge Baly dismissed the appeal in relation to the Haymarket Offence but allowed the appeal in relation to sequence 7 and quashed that conviction. 2. Her Honour noted that she had read the complainant's records of interview and the other material presented in the prosecution case, "including the many text messages and Facebook exchanges". Having done so, her Honour expressed the view that "the relationship between the complainant and the [appellant] was complicated and entrenched". The appellant, who was older and physically larger, was "controlling and manipulative"; and the complainant was "vulnerable", on account of her age, smaller stature and mental fragility. Her Honour considered that the evidence comprising the various text and other messages exchanged between the complainant and the appellant was properly admitted as tendency evidence, and disclosed that the appellant had a sexual interest in the complainant. Her Honour also found that this evidence was compelling and made it more likely that the appellant committed the acts the subject of the offences for which she was convicted. 3. In relation to the Haymarket Offence, her Honour concluded that as a matter of law, the complainant committed an act of cunnilingus even though she was "unable to perform an act of cunnilingus, as that word is understood by lay persons". Her Honour did not accept the appellant's submission that the complainant's evidence was confusing and contradictory. Her Honour stated: "I note that there is no evidence that contradicts the complainant's account of what took place. I am satisfied beyond reasonable doubt that this act of cunnilingus took place. I base that finding on what the complainant said and how she described it, that is, with a certain amount of detail that, in my view, makes it unlikely to be the product of invention or fabrication. I also rely upon the magistrate's positive findings about the complainant's credit, namely, that she was unshaken and was clear and consistent." 1. The Exhibit 7 image supported the complainant's version of what took place "to some extent". Her Honour also relied on the tendency evidence in the form of the exchange of text and other messages. 2. In relation to the sequence 7 offence, her Honour found that the complainant's account of that offence, specifically that she left the movie straight after it finished because she was upset, was contradicted by evidence of the timestamped photobooth photograph from later the same day, which showed her and the appellant "relaxed and happy, smiling with their arms around each other". Her Honour stated: "For my part, I am troubled by the evidence. There is force in submissions made about it by the defence. It seems to me that if the complainant felt she had to stay with the [appellant] and pretend she was not upset, she could readily have said so from the outset. She did not admit that she had stayed, until directly confronted with Exhibit 10, I find this troubling." 1. Her Honour agreed with the appellant's submission that this lie was not immaterial "in part because of the way that it was exposed". Her Honour described the complainant's explanation that she was just pretending to be happy because she was around the appellant to be "somewhat unconvincing". 2. Judge Baly allowed the severity appeal in relation to the Haymarket Offence and re-sentenced the appellant to a suspended Control Order for 6 months, which represented a reduction from the 10 month suspended Control Order to which she was sentenced in the Children's Court. The additional evidence 1. The appellant relied on two affidavits, the Crown's objections to which were resolved by agreement. There was no cross-examination. 2. The first affidavit was affirmed by the appellant's solicitor, Nicholas William Stewart, on 8 July 2022. Mr Stewart acted for the appellant in the Children's Court and the District Court. He annexed to his affidavit a number of documents, some of which were not in existence and others of which he was not aware when the appellant's criminal proceedings were ongoing during 2015 and 2016. 3. The first document Mr Stewart annexed was a report prepared by Mr Jason Fonseca, dated 20 May 2022. According to his report, Mr Fonseca holds a qualification in Information Technology and has significant experience in data, web development and web-focused technologies. In response to a letter of instruction from Mr Stewart (which was also annexed), Mr Fonseca analysed the Exchangeable Image File Format (EXIF) and Global Positioning System (GPS) data that was embedded in the image that was tendered as Exhibit 7 in the trial. In his report, Mr Fonseca: 1. explained that EXIF data is embedded in an image file, and may include the date and time the image was captured, the GPS location of where the image was captured, and information about other camera settings; 2. explained that GPS data that is enclosed in a captured image and saved in EXIF data can be converted to a location on a map, by pasting the GPS coordinates into Google Maps; 3. analysed the EXIF and GPS data in the image that was provided to him and determined that: 1. the date and time the photograph was taken was 15 August 2014 at 4:27:12 pm; and 2. the photograph was taken at latitude and longitude points that corresponded to Haymarket, Sydney. 1. The other document of significance to the appeal that Mr Stewart annexed to his affidavit was a letter from the appellant's former school, dated 6 August 2014, which was produced in answer to an Order to Produce requesting any documents recording the day or days that were designated as a "mufti day" in the period 1 January 2014 and 31 December 2014. The letter from the school referred to a mufti day taking place on 15 August 2014. 2. The second affidavit that the appellant read on the appeal was one that she affirmed on 11 May 2021. The appellant stated in her affidavit that she and the complainant were "friends" on Facebook, which meant that they could see photographs and posts on each other's "Timeline" and send direct messages to each other on Facebook Messenger. At some point in 2015, the complainant "blocked" the appellant on Facebook, which meant that the appellant could not access the Facebook Messenger messages or photos that they had sent to each other. The appellant remained "blocked" during 2015 and 2016. In about October 2017, the appellant noticed that the complainant had "unblocked" her on Facebook, which meant that she could view past messages on Facebook Messenger. 3. Although the appellant checked a few of the recent messages at that time, she did not check the messages again that year; and when she checked on a few occasions in 2018 she was sometimes blocked and sometimes not blocked. In 2019, when the appellant checked Facebook Messenger, she noticed that the messages were available even though the complainant's identity was not revealed and she was described only as "Facebook User". The appellant annexed to her affidavit: 1. a screenshot of a Facebook conversation between the appellant and the complainant from 15 August 2014, in which the appellant asked the complainant, "Where's the photos you took of me??", and the complainant responded by sending four photographs; 2. four photographs that the complainant sent to the appellant on 15 August 2014, in three of which the appellant said that she could be seen, in areas she recognised as the school grounds, wearing a black singlet, a knee-length skirt, and an oversized denim jacket; 3. a screenshot of a Facebook conversation between the appellant and the complainant, dated 14 August 2014, in which the appellant wrote that: she had shown the outfit to her Mum "and she was like it looks good!"; that they were going to "pin it tomorrow"; and that her Mum was going to "iron the skirt"; 4. copies of two newsletters from the appellant's former school respectively dated 8 August 2014 and 22 August 2014, both of which identified 15 August 2014 as the day which the appellant recalled being a "mufti" day; 5. a printout of photographs produced by a photobooth machine located at the Capitol Theatre in Haymarket, which bore the date stamp of "2014.08.15" and the time stamp "18:18" and in which the appellant appeared to be wearing the same outfit as in the photographs the complainant sent to her on 15 August 2014; and 6. a photograph that the appellant said that she took of herself and the complainant on 15 August 2014 and sent to the complainant on Facebook Messenger that day. 1. A further affidavit of the appellant, affirmed on 5 September 2022, was read. As it was directed to matters relevant to the relief sought, I will address it in that context. The submissions on the significance of the additional evidence 1. The appellant submitted that the evidence in Mr Stewart's affidavit and the appellant's first affidavit established two facts bearing on the evidence the complainant gave at the trial. 2. First, the date of the alleged offence was 15 August 2014. On the complainant's evidence, the offence took place on the afternoon of a school mufti day; the photograph tendered as Exhibit 7 was taken in the fitting room cubicle; and the appellant's mother subsequently collected the appellant from a photobooth at the Capitol Theatre. Mr Fonseca's analysis of the EXIF data from Exhibit 7 established that the photograph was taken on 15 August 2014 at 4.27pm. His evidence in this regard was supported by the material from the school that Mr Stewart and the appellant annexed to their respective affidavits, which confirmed that 15 August 2014 was a mufti day; and by the date and time stamp on the photobooth printout that the appellant annexed to her affidavit. 3. Second, on 15 August 2014 the appellant was not wearing jeans but, rather, a knee-length skirt. The photographs of the appellant on the school grounds could be dated to 15 August 2014 on the basis of the dates and content of the two Facebook Messenger exchanges with the complainant. The first exchange, dated 14 August 2014, included the appellant stating that she had shown her Mum the outfit, that they were going to pin it tomorrow, and that her Mum was going to iron the skirt. The second exchange, on the evening of 15 August 2014, included at least two of the photos that the appellant annexed to her affidavit, sent in response to her asking the complainant for the photos she had taken. The photobooth printout, which bore the date stamp 15 August 2014, also supported that the appellant was wearing a black singlet and knee-length skirt. 4. The appellant submitted that the evidence provided cogent and compelling support for a finding that the appellant was wearing a knee-length skirt at the time of the alleged offence, and not jeans. This inaccuracy in the complainant's evidence undermined her version of events and should, the appellant submitted, create a reasonable doubt in the Court's mind about her guilt. 5. The appellant emphasised in this respect the centrality of the jeans to the complainant's account of what occurred, with her difficulty in "doing it [that is, the act of cunnilingus] properly" explained on the basis that the appellant was wearing jeans. The mistake, as shown by the additional evidence, undermined the force of the complainant's account, which both the Magistrate and Judge Baly had found to be clear and consistent and unlikely to be the product of invention or fabrication. 6. The appellant emphasised in this context the acquittals that the Children's Court had entered in respect of six of the eight charges, and the District Court's quashing of the conviction on the sequence 7 charge. In respect of the latter, the appellant emphasised Judge Baly's finding that the complainant had lied about a critical aspect of that charge, only altering her evidence when confronted in cross-examination with objective evidence to the contrary. 7. The appellant's alternative submission, if the Court did not accept her primary argument for outright acquittal, was that the appeal should be allowed on the basis that the additional evidence was "fresh evidence" which was credible and created a significant possibility that the appellant would have been acquitted if it was available at the trial. 8. The critical additional evidence in this respect was the photographs of the appellant at school and the photobooth printout, showing that the appellant was wearing an outfit on the day of the alleged offending that contradicted the complainant's account. Although the photobooth printout was in the appellant's possession at the time of the trial, there was nothing to connect the printout with the date of the offence, and the appellant did not have the school photographs to indicate what the appellant had worn to school on a mufti day. The school photographs only became available to the appellant when the complainant "unblocked" her on Facebook (or there was a glitch in the Facebook program allowing her to access the Messenger thread). In circumstances where the offence was particularised over a date range, the appellant submitted that the date of the offending was, justifiably, not considered material to any issue by the appellant's legal representatives. 9. The Crown accepted that the prosecution was required to prove, specifically, an act of cunnilingus in the circumstances alleged. If, as the expert evidence demonstrated, the offence took place on 15 August 2014 and, as the additional evidence suggested, the appellant was wearing a skirt and not jeans, the Crown also accepted that "the complainant's description of the appellant wearing jeans (and the role that the jeans played) cannot be correct, at least insofar as it refers to an incident that occurred in the bra shop at Haymarket on 15 August 2014". It followed that: 1. the additional evidence was of sufficient significance that it would be open to the Court to find that its absence from the hearings in the Children's Court and the District Court occasioned a miscarriage of justice; and 2. it would be open to the Court to admit the additional evidence and allow the appeal. 1. Contrary to the appellant's primary submission, the Crown submitted that the appeal should be determined by reference to the principles applicable to "fresh evidence", and that the Court should make an order for a retrial. The evidence was not so cogent or compelling to give rise to a reasonable doubt as to the appellant's guilt, particularly in circumstances where the complainant had not been confronted with it. 2. In support of a retrial, the Crown sought to rely on an affidavit of Adrienne Ey, a solicitor, affirmed on 2 September 2022. The appellant objected to the affidavit. Both parties made oral submissions on the objection and filed brief written submissions shortly after the hearing. However, the parties agreed that the affidavit could be read on a provisional basis for the purpose of argument and the objection could be dealt with in the judgment. 3. Ms Ey is the solicitor with carriage of this matter on behalf of the Director of Public Prosecutions. On 1 September 2022, Ms Ey searched the cellebrite download of the complainant's mobile phone and identified text messages sent and received by the complainant between 14 and 16 August 2014 which appeared, on her view, to be relevant to the circumstances of the offence that is the subject of this appeal. She annexed three sets of text messages to her affidavit, between which there was a degree of overlap. Although a disc containing the full cellebrite download had been disclosed to the appellant in June 2015, the text messages annexed were not tendered in the Children's Court or in the District Court. 4. Counsel for the Crown identified the critical text message as one that the complainant sent on 15 August 2014 at 7.02pm to a person whose identity was not in evidence before this Court. The message read as follows: "So uh, We went bra shopping She felt my boobs a lot in the changing room and they hurt. Then we were making out against the wall and I ended up fingering her and I went down on her. She unzipped my jeans and just fingered me. Left a hickey on my arm and bite marks on my back so I'm hurting a lot. I think she's sus because she spent a good hour explaining your family to me in ways I would be scared of. It's fine. She didn't scare me. It was just shit like 'oh they really loved and accepted me.. Not sure how they'd feel about you' 'your eating thing is going to make them hate you' and I asked why I would even meet them and she just said who knows." 1. The Crown submitted that the text messages were relevant to the question of remittal in circumstances where the appellant was attempting to bring a "wholly different case on appeal" which sought to impugn the complainant's evidence rather than relying on her evidence as to what the appellant was wearing. As the evidence was not being adduced to contradict the verdict in the court below, the Crown submitted that the evidence was not subject to the rules pertaining to fresh or new evidence: Xie v R (2021) 386 ALR 371; [2021] NSWCCA 1 at [438]. Although the Crown submitted that this analysis held true regardless of whether the Court's power to receive the evidence was under s 12(1) of the Criminal Appeal Act or was incidental to its authority to determine an appeal under s 6, the Crown also submitted that Ms Ey's affidavit could be admitted pursuant to s 12(1) on the basis that it was in the interests of justice, so that the Court may "properly [determine] the relevant ground of appeal according to law". 2. The appellant accepted that Ms Ey's evidence was relevant but contended that relevance was not the only factor which the Court must consider. Referring to the terms of s 12(1) of the Criminal Appeal Act, the appellant submitted that the "interests of justice" should encompass the principle that parties to litigation are bound by the manner in which their cases are presented at first instance: Khoury v R [2011] NSWCCA 118 at [104]. Counsel for the appellant emphasised that the Crown had not explained why the text messages were not tendered in the Children's Court or the District Court, despite the Crown being in possession of that evidence at all times. It could not be said that what the Crown described as the critical text message only became relevant in response to the appellant's additional evidence: it was evidence of complaint, which may be said to bolster the credibility of the complainant and make it more probable that an act of cunnilingus occurred in the fitting room. The appellant submitted that it would have played the same forensic role in the first trial, where she was putting the Crown to proof on the act of cunnilingus, as it would in any retrial. The text message did not explain, contextualise, qualify, or contradict the further evidence adduced by the appellant on the appeal. Disposition Should the appellant be acquitted outright? 1. Consistently with the approach formulated by Barwick CJ in Ratten, the appellant's primary submission did not depend upon the characterisation of additional material as "fresh evidence". Nonetheless, it was common ground that the appellant's additional evidence met that description. The significance of the data embedded in the Exhibit 7 image, and of the photobooth printout, only became apparent when the appellant obtained access to the Facebook Messenger exchanges from 2014 between her and the complainant. Access to that material triggered the further inquiries, and led to the evidence that was before Dhanji J on the Part 7 application, supplemented in this Court by Mr Fonseca's report. The evidence was not available to the appellant at the time of the trial, actually or constructively: Ratten at 517; Goodwin v The Queen (1990) 51 A Crim R 328; R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356 at [63]. 2. The Crown case on the Haymarket Offence rested predominantly on the complainant's evidence of what occurred in the changeroom. Her evidence in the relevant record of interview, and in cross-examination, involved as a central part of the circumstances that the appellant was wearing jeans. The reason the complainant was unable to perform the act of cunnilingus "properly" was because the appellant was wearing jeans, with the complainant demonstrating on her legs in cross-examination the level down to which the appellant had pushed her jeans. 3. The additional evidence is credible. It establishes, through Mr Fonseca's report, that the date of the Exhibit 7 photograph, which the complainant alleged was taken in the fitting room cubicle where the offence occurred, was 15 August 2014. It establishes that the only mufti day at the school in the second half of 2014 was 15 August 2014. The photographs that the appellant annexed to her affidavit, as to which the inference is available that they were taken on 15 August 2014, showed the appellant wearing a skirt to school that day. The photobooth printout suggests that the appellant was still wearing a skirt later that day, before her mother picked her up from the Capitol Theatre where the photobooth was located. 4. The additional evidence undermines a significant detail in the complainant's evidence as to the circumstances in which she performed the act of cunnilingus on the appellant that was the subject of the Haymarket Offence. If the appellant was wearing a skirt, the complainant could not be correct either in her description of the appellant wearing jeans, or as to the role that the jeans played in relation to the alleged events in the fitting room cubicle. There was a real chance that the absence of that evidence from the appellant's trial in the Children's Court and appeal to the District Court could have influenced the verdict of the tribunal of fact: Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16 at [139] per N Adams J, citing Zhou v R [2021] NSWCCA 278 at [22]; referring to Hofer v The Queen (2021) 395 ALR 1; [2021] HCA 36 at [41] and [47], [118]; Edwards v The Queen (2021) 393 ALR 368; [2021] HCA 28 at [74]. 5. In considering the cogency of the evidence in the context of the primary relief for which the appellant contends, it does not follow from the additional evidence (and the appellant did not suggest) that the act of cunnilingus could not have occurred in the fitting room of a bra shop in Haymarket after school on 15 August 2014. However, the additional evidence is relevant to the credibility of the complainant, and the reliability of her account of what happened. The degree of impact that the additional evidence may have in either respect depends, inexorably, on the complainant's response to that evidence. Counsel for the appellant submitted that the complainant had "locked herself into a position", such that the Court should be satisfied on the additional evidence that there was a reasonable doubt as to the appellant's guilt. However, Counsel also acknowledged that the complainant may make a number of different responses to the additional evidence if and when it was put to her. 6. Self-evidently, the complainant has as yet made no response to the evidence, in particular the photographs showing the appellant wearing a skirt on the day that the additional evidence demonstrates that the Haymarket Offence allegedly occurred. To the contrary, and as noted above, the cross-examination of the complainant in the Children's Court proceeded on the basis that the appellant was wearing jeans. Although the appellant relied upon the District Court quashing the conviction on the sequence 7 charge, this Court does not have the benefit of the very type of evidence that Judge Baly found troubling, namely, the complainant's response when confronted with objective evidence which did not support her account. This rather highlights the difficulty in reaching the level of satisfaction that would be required for this Court to enter a verdict of acquittal on the basis of the additional evidence alone. 7. Additionally, the cogency of the complainant's evidence that the conduct the subject of the Haymarket Offence occurred remains supported by Exhibit 7, which located the complainant and the appellant together in a fitting room in Haymarket, and showed the complainant with scratches on her back, consistently with her evidence that the appellant had scratched her before the act of cunnilingus occurred. There is also the tendency evidence to which I have referred above, in the form of text and other messages exchanged between the appellant and the complainant, although that evidence could not prove that the act the subject of the offence occurred (and the Crown did not so advance it). 8. It follows from the above that I do not accept the appellant's primary submission. In reaching this conclusion I have not considered the text messages annexed to the affidavit of Ms Ey. The Crown did not seek to rely on that evidence by way of response to entry of an acquittal outright, but rather on the issue of the Court's discretion in s 8(1) of the Criminal Appeal Act to order a re-trial on the basis of the fresh evidence. Should there be a new trial? 1. Section 8(1) of the Criminal Appeal Act provides the power for this Court to order a new trial. The provision confers a discretion which is to be exercised in accordance with settled principles, which McClellan CJ at CL distilled in Gilham v The Queen (2012) 224 A Crim R 22; [2012] NSWCCA 131 at [648]-[649]. As his Honour there stated, the "overriding consideration" is whether the interests of justice require a new trial. Unless the interests of justice require the entry of a verdict of acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of that charge has been set aside but there is evidence to support the charge: Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 at [104]. 2. The appellant and the Crown presented powerful arguments respectively in favour of and against acquittal. In light of those arguments I have not found the question of the appropriate order an easy issue to resolve. 3. At the time of the conduct the subject of the sequence 8 charge, the appellant was 17 years old (she is now 25). The alleged offending conduct took place in 2014, and the appellant has served the full sentence that the District Court imposed after allowing the severity appeal: Jiminez v The Queen (1992) 173 CLR 572 at 590; [1992] HCA 14. 4. According to an affidavit that the appellant affirmed on 5 September 2022, she is now in her final year of university studies. Counsel for the appellant emphasised the impact of the charges and the proceedings on her mental health and education, as well as the financial impact on her family in circumstances where she had not received a grant of legal aid for any of the proceedings. 5. A further matter to which Counsel for the appellant drew the Court's attention was an amendment to the Crimes Act which was inserted pursuant to the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW). Relevantly, the Amendment Act inserted s 80AG into the Crimes Act, which provides: 80AG Defence of a similar age (1) It is a defence to a prosecution for an offence under section 66C(3) … if the alleged victim is of or above the age of 14 years and the age difference between the alleged victim and the accused person is no more than 2 years. (2) In any criminal proceedings in which the application of this section is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the alleged victim was less than 14 years of age or that the difference in age between the alleged victim and the accused person is more than 2 years. 1. Counsel for the appellant did not seek finally to resolve the question of whether this defence would be available to her on a retrial for the alleged conduct, which predates the introduction of the defence, which would involve application of the principles Keane, Gordon, Edelman and Gleeson JJ recently elucidated in Stephens v The Queen (2022) 404 ALR 367; [2022] HCA 31 at [29]-[36]. Rather, Counsel emphasised that the fact that the appellant would have a complete defence if she were charged with the offence today represented a legislative judgment as to the seriousness of the offence allegedly committed. The Crown properly accepted the force of this submission in respect of a charge pursuant to s 66C(3), but submitted that this was a matter that the Director of Public Prosecutions could properly take into account. The Director could also take into account the fact that the appellant has served her sentence and the impact on her mental health and education of any further proceedings, along with the associated financial impact on her family. 2. The messages that Ms Ey annexed to her affidavit have some bearing on the strength of the Crown case. Noting the arguments of the parties in relation to the admission of Ms Ey's affidavit which I have summarised above, I consider that it is in the interests of justice to admit that evidence on the question of the exercise of the Court's discretion in s 8(1) of the Criminal Appeal Act. The critical message on which the Crown relied was evidence of early complaint as to the particular kind of sexual intercourse that the complainant subsequently reported. It thus adds to the body of evidence in support of the Crown case, although, as the appellant submitted, it says nothing about the specifics of the offence as recounted by the complainant in her evidence. 3. A critical consideration against acquittal is that the appeal has succeeded on the basis of fresh evidence that the complainant has not been examined upon: ALS v R [2013] NSWCCA 63 at [115], cited in WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142 at [96]. Ordering an acquittal in those circumstances would "usurp the functions of the properly constituted prosecutorial authorities which are entrusted with responsibilities and discretions to act in the public interest in the initiation and conduct of criminal prosecutions": R v Thomas (No 3) (2006) 14 VR 512; [2006] VSCA 300 at [27]. Having regard to the role of the Director of Public Prosecutions in whom the prosecutorial discretion is conferred, the seriousness of the offence, and the well-recognised public interest in the due prosecution of offenders charged with serious offences (see R v Taufahema (2007) 228 CLR 232; [2007] HCA 11 at [49]), I consider that a new trial should be ordered. 4. As Beech-Jones J observed in ALS at [116], "[m]erely because this court orders a new trial does not mean that the respondent must proceed with one". That issue "will no doubt depend on a careful assessment by it of various factors". Conclusion 1. I propose the following orders: 1. Appeal allowed. 2. Quash the conviction on Sequence 8 recorded in the Children's Court on 25 January 2016 (and confirmed in the District Court on 8 September 2016). 3. Remit the proceedings to the Children's Court for a retrial of Sequence 8. 4. List the proceedings before the Registrar of the Children's Court for directions as soon as reasonably practicable. 1. BUTTON J: I agree with Mitchelmore JA. 2. WRIGHT J: I agree with Mitchelmore JA. ********** Amendments 24 March 2023 - Error in date of decision amended 24 March 2023 - Error in date of decision amended 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: 24 March 2023