Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hanna v R [2023] NSWCCA 182 Hearing dates: 10 July 2023 Decision date: 26 July 2023 Before: Leeming JA at [1]; Yehia J at [106]; Weinstein J at [107] Decision: 1. Grant leave to appeal. 2. Appeal dismissed. Catchwords: CRIME – appeal – appeal against conviction – applicant stood trial on nine counts of sexual offending in respect of the same complainant many years ago – jury returned three guilty and six not guilty verdicts – whether convictions should be set aside on the basis of inconsistency – where there was a ready explanation for not guilty verdicts, in light of unclear evidence of complainant's age at the time – whether convictions were unreasonable – various inconsistencies in evidence – whether open to jury to be satisfied beyond reasonable doubt of applicant's guilt – appeal dismissed Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A Crimes Act 1900 (NSW), ss 66C, 61H, 61HA, 61M, 77, 80AE, 578A Criminal Appeal Act 1912 (NSW), ss 5, 6 Criminal Procedure Act 1986 (NSW), ss 159, 293, 294 Evidence Act 1995 (NSW), s 38 Surveillance Devices Act 2007 (NSW) Cases Cited: AJ v R [2022] NSWCCA 136 Chidian v The Queen (1991) 171 CLR 432; [1991] HCA 4 Collins v R [2020] NSWCCA 198 Dansie v The Queen [2022] HCA 25; 96 ALJR 728 Fairfax Media Publications Pty Ltd v Gayle (2019) 100 NSWLR 155; [2019] NSWCA 172 Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 NW v R [2023] NSWCCA 134 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 Walker v R [2019] NSWCCA 4 Category: Principal judgment Parties: Abdallah Hanna (Applicant) Crown (Respondent) Representation: Counsel: J Stratton SC and P Kondich (Applicant) E Nicholson (Respondent) Solicitors: King & York Lawyers (Applicant) C Hyland – Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2020/00343256 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 18 May 2022 Before: Beckett DCJ File Number(s): 2020/00343256 JUDGMENT 1. LEEMING JA: Mr Abdallah Hanna seeks leave to appeal, pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), from his convictions on counts 1, 2 and 3 of an indictment following his trial in the District Court constituted by a Judge and jury of 12. The jury returned verdicts of not guilty on counts 4-9. 2. The indictment charged the applicant with committing acts of indecency and sexual intercourse on three occasions. The first occasion gave rise to count 1, the second occasion gave rise to counts 2 and 3 while the third occasion gave rise to counts 4-9. All involved the same complainant arising from events many years ago. The first and second were two separate events said to have taken place in the applicant's home in St Marys in 2005, when the complainant was 12 or 13 years old, living nearby with her family. The third occasion was said to have taken place some two or three years later, in early 2008, at the Plumpton Hotel. 3. The first count was an act of indecency in circumstances of aggravation, namely that she was a child under the age of sixteen, contrary to (former) s 61M(1) of the Crimes Act 1900 (NSW). The second and third counts, which were said to have occurred on the second occasion, were charges of sexual intercourse with a child between the ages of 10 and 14, contrary to s 66C(1) of the Crimes Act, comprising digital-vaginal and penile-vaginal penetration. The definition of "sexual intercourse" at the relevant time was found in s 61H, and was slightly differently worded from the current s 61HA (which was introduced in 2007) but extended to digital penetration of a vagina. For all of these offences, (former) s 77 (which is now renumbered as s 80AE) provided that consent was not a defence. 4. The remaining counts alleged that the applicant had committed six acts of indecency and sexual intercourse on the third occasion, sometime between January and April 2008, shortly before the complainant's 16th birthday, after the applicant had picked her up after school and driven her to the Plumpton Hotel. The details of the counts in respect of which the jury returned verdicts of not guilty need not be summarised. 5. Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) prevents publication of the names of the complainant and of her friends who were children at the time of the events to which their evidence relates. Section 578A of the Crimes Act prevents publication of the complainant's name or any matter which would, or would likely, identify her. The result is that these reasons will not refer to the complainant and her mother and her two school friends by name, and will not disclose the addresses of the families' homes, nor will it identify the complainant's birthday any more precisely than that it was in April 1992. Overview of the trial 1. Broadly speaking, the Crown case turned upon the complainant's evidence of events which had occurred 17 and 14 years earlier. She gave evidence and was cross-examined over parts of three days. The second witness was the complainant's mother, who gave evidence through an interpreter. 2. The Crown called four witnesses who gave evidence of complaints from the complainant. Two were school friends who recollected being told by the complainant, many years earlier, of her sexual relations with the applicant. The other two (one a work colleague, the other a friend from her church) gave evidence of the complainant's accounts relatively shortly before she went to the police in early 2020, some fifteen years after the events. No real challenge was made to the reliability of the evidence of the school friends or the work colleague, but the evidence of the friend from church was at the forefront of the defence at trial and the submissions in this Court. 3. After making a statement to the police in 2020, a warrant was obtained for the complainant to initiate a recorded telephone conversation with the applicant. The conversation took place in the presence of a police officer. A recording of that call was played to the jury twice, once in the complainant's evidence in chief and once in the applicant's evidence in chief, and the applicant gave evidence in chief and was cross-examined about it. 4. The applicant gave evidence at trial denying that anything, save in one respect, sexual ever happened between him and the complainant. He gave evidence and was cross-examined over parts of two days. Some of his answers were given through an interpreter. Overview of the appeal 1. The applicant advances a single ground of appeal: That in all the circumstances, the verdicts of the jury on counts 1-3 of the indictment were unreasonable and unsupported having regard to the evidence and the verdicts of not guilty on counts 4-9. 1. The large majority of the submissions on appeal were directed to the first limb of this ground, rather than the limb based on the not guilty verdicts. That was appropriate, for reasons which are best exposed immediately in order to explain the way these reasons selectively summarise the evidence adduced at trial. 2. It was not an element of any of the counts of the indictment for the Crown to prove an absence of consent, but it was necessary for the Crown to establish that the complainant had not turned 16. There was no documentary evidence establishing whether and, if so, on precisely what date the applicant had checked into the hotel some 14 years earlier. Nor were there any mobile phone records or social media posts. The only evidence relied on by the Crown was the complainant's recollection. It is true that the complainant gave clear evidence that it occurred before her 16th birthday, but she did so by reference to it being "just after [the applicant's] son was born which as, I believed it was early April". But the applicant's youngest son was born two years before the time specified in the indictment, and his birthday was four days before hers. (In fact the applicant's wife gave inconsistent evidence about the birthday – at least as it appears in the transcript at T 372.15 cf T 392.40 – but a four day gap is the better reading of her evidence, as well as giving a longer gap between his birthday and that of the complainant.) Even if the complainant was wrong about it being just after the son was born, and meant to say that it was just after the son's birthday, that left (at best) only a three day window of time in which the third incident had to have taken place if it was to have occurred before she turned 16. All these points were made, succinctly and forcefully, in the defence closing address: [Y]ou will see that her reason for saying that this occurred before her birthday was because it was just after Joshua was born. That reason must be nonsense if she meant what she said, "Just after Joshua was born", because that would put it in 2006, but the Crown alleges this happened in 2008 between the dates in the indictment. That makes no sense at all. Her reason for saying it happened before her 16th birthday just is nonsense. This is the person upon whom the Crown relies for its only evidence as to when the Plumpton Hotel incident occurred. … She was bursting to say that it was before her birthday in 2008, but she fixed that by reference to the day Joshua was born, which was two years before. So that, in our respectful submission, is yet another reason why you would have reasonable doubt about whether the Crown has proved that the offences from four to nine in the indictment actually if they occurred, occurred before she turned 16 years of age. 1. The defence submissions were fairly summed up by the primary judge: He submitted that her evidence in respect of timing was not reliable at all, giving you the example of the reference of Joshua Hanna's date of birth, submitting that she was out by several years. He submitted that even if you found the asserted events took place, that you would not be satisfied beyond a reasonable doubt that she was under 16 at the relevant time. 1. In a context similar to the present, involving multiple sexual assaults against a single complainant, Spigelman CJ observed in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [34]: In the common case of multiple sexual assaults against a single complainant, often over a period of time, juries frequently acquit on some charges and convict on others. The issue raised by [Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56] is to determine when an acquittal so affects the credibility of the complainant that, in combination with other factors, a conviction was not open to the jury. A court of criminal appeal must perform this task whilst acknowledging the role of the jury… 1. Simpson J, speaking for this Court in TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [130], stated that the inquiry was whether there was "any rational explanation for the acquittals (not the convictions), other than doubts about the complainant's credibility". These principles have regularly been followed. Six decisions were collected in Collins v R [2020] NSWCCA 198 at [13]-[14], to which may be added NW v R [2023] NSWCCA 134 at [36]-[39] and Walker v R [2019] NSWCCA 4 at [110]. 2. It was common ground when the appeal was heard that one explanation for the acquittals was that the jury was not satisfied beyond reasonable doubt that the third incident occurred before the complainant's 16th birthday. That was an appropriate approach to take. Indeed, it is an "obvious explanation" (cf MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [36]). It may be doubted that even if the complainant were regarded as wholly reliable, her inconsistent and imprecise evidence of when the third incident occurred 14 years earlier would have sufficed to establish this element of the Crown case. But that is not to the point in light of the not guilty verdicts on this count. All that matters is that the verdicts on counts 4-9 fall far short of any "affront to logic and commonsense" to which Gaudron, Gummow and Kirby JJ referred in MacKenzie v The Queen (1996) 190 CLR 348 at 368; [1996] HCA 35. 3. The gravamen of this appeal, then, is whether the verdicts on the first three counts were unreasonable. That requires an analysis of the evidence in a nine day trial, including the evidence directed to counts 4-9, insofar as it bears upon the guilty verdicts. However, it will not be necessary to summarise much of the evidence which bore upon counts 4-9. Applicable legal principles 1. There was no dispute as to the applicable legal principles. If the verdict of the jury is "unreasonable", or "cannot be supported, having regard to the evidence" within the meaning of s 6(1) of the Criminal Appeal Act then it may be quashed. It is necessary to adhere to the statutory language, rather than to phrases ultimately derived from statutes in other jurisdictions, such as "unsafe and unsatisfactory": Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [12]. The words "unreasonable" and "[un]supported" in s 6(1) are construed in the context where the verdict is that of a jury, which particularly in a serious criminal case is accepted as "attracting to decisions concerning the liberty and reputation of accused persons a special authority and legitimacy and hence finality" (MFA at [48]), with the result that they have "a strictness of meaning that, in isolation or in other contexts, those words might not enjoy" (MFA at [49]). That approach is confirmed by reference to a miscarriage of justice being made out "on any other ground whatsoever" (MFA at [50]). 2. The critical decision on how s 6(1) applies to the task undertaken by a court of criminal appeal is M v The Queen (1994) 181 CLR 487; [1994] HCA 63. That decision resolved an inconsistency in approach, associated with Dawson J's judgment in Chidian v The Queen (1991) 171 CLR 432; [1991] HCA 4 and indeed reflected in McHugh J's dissenting judgment in M v The Queen itself, in favour of what McHugh, Gummow and Kirby JJ later described in MFA at [55] as a "broader" test for unreasonableness. After M v The Queen, in Jones v The Queen (1997) 191 CLR 439 at 452; [1997] HCA 56, McHugh J participated in the joint reasons that said that "the test formulated by the majority in M must now be accepted as the appropriate test for determining whether a verdict is unsafe or unsatisfactory". Subsequently, the approach in M v The Queen has been repeatedly confirmed by the High Court: see MFA at [25] and [56]-[59]; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66]. Most recently, the joint judgment in Dansie v The Queen [2022] HCA 25; 96 ALJR 728 at [7]-[8]: 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. That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that "the question which the court must ask itself" when performing that function is "whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty", that question being "one of fact which the court must decide by making its own independent assessment of the evidence". (Footnotes omitted.) 1. Broadly speaking, the "independent assessment" required to be undertaken by the appellate court involves asking whether the appellate court having reviewed the whole of the evidence considers there is doubt. But that is not the end of the matter; otherwise no deference would be given to the role of the jury and the advantages it enjoyed in seeing the trial unfold. The joint judgment said in M v The Queen at 494 that: 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. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. 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 an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. (Footnotes omitted.) 1. However, the joint judgment confirmed that "the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty". 2. Some further points applicable to the present appeal may be made immediately. First, consistently with those statements of principle, the applicant's written and oral submissions focussed upon the discrepancies, inadequacies and other defects in the evidence at trial. 3. Secondly, also consistently with those statements of principle, there are aspects of the evidence (for example, the complainant's initial inability to describe the events giving rise to count 3) which are poorly conveyed by the written record of the trial, in relation to which the jury enjoyed a significant advantage over this Court reviewing the record (which is almost wholly written). In those respects, the qualifying words "making full allowance for the advantages enjoyed by the jury" have a deal of weight. However, in other aspects (for example, the significance of the complainant's evidence of the applicant's birthmark) this Court is in substantially the same position as the jury. The different nature of the conflicts in the evidence needs to be borne in mind in applying the principles in M v The Queen. As the High Court indicated in Dansie v The Queen at [17], the scope of the advantage enjoyed by the tribunal of fact (in that case, a judge) over an appellate court "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". Indeed, the scope of the jury's advantage is apt to vary depending upon the particular discrepancy or inconsistency to which the appellate court is directed. The dependency of the scope of the jury's advantage being "witness and trial dependent" was explained by Beech-Jones CJ at CL in AJ v R [2022] NSWCCA 136 at [104]. 4. Thirdly, the mere existence of discrepancies and inconsistencies does not suffice to establish this ground. The point was made by McHugh, Gummow and Kirby JJ in MFA v The Queen at [96]: There are, it is true, some aspects of the evidence that are less than wholly satisfactory. But that is not uncommon in most trials. Experience suggests that juries, properly instructed on the law (as they were in this case), are usually well able to evaluate conflicts and imperfections of evidence. In the end, the appellate court must ask itself whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention. (Footnotes omitted.) 1. Finally, in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39] the High Court said: 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. (Footnotes omitted.) 1. That passage is applicable to the present case, where the Crown case depended in very large measure upon the complainant's evidence (that is the force of the words "in a case such as the present"). It is trite that the jury must have found her to be credible and reliable in respect of counts 1-3. Where as in the present case, the accused gives evidence denying the offending, it is likewise trite that the jury found him not to be credible or reliable. Appropriately, the submissions in this Court were directed to whether the inconsistencies, discrepancies or other inadequacies, seen in the light of other evidence, were such that the jury ought to have entertained reasonable doubt as to the applicant's guilt. Evidence at trial Documentary or uncontroversial evidence 1. This was very largely a trial based on testimonial evidence. There were no documents directly establishing or refuting the central allegations. 2. However, it was accepted that the applicant has a small birthmark on the front of his left thigh, roughly midway between knee and hip. It would only be visible if he were wearing speedos or very short (or very loose) shorts, or if, as in the photograph which was tendered at trial, he was wearing ordinary length shorts which descended almost to just above his knee and they were lifted up. 3. It was agreed that the applicant was not circumcised. There was no dispute that the applicant and his wife purchased the home in April or May 2005 and have lived there ever since. There were four children of the marriage, who were born in 1999, 2001, 2004 and April 2006. 4. At the times specified in the indictment for the first three counts (namely, calendar year 2005), the children were aged approximately 6, 4 and 1 year old. The complainant was born in April 1992, and was thus aged 13 in the period May – December 2005. 5. The defence tendered a video recording made in May 2005 of the interior of their (recently purchased) home. It shows the "informal lounge room" at the back of the house, with television and a CCTV camera above it. It also shows the "formal lounge room" at the front of the house, adjoining the driveway. There are no dark curtains shown in the video. The complainant's evidence 1. The complainant's evidence in chief was given by audio-visual link from a remote room, and in the presence of a support person. She gave clear evidence in chief identifying the conduct giving rise to the first and second counts. She said that she regularly visited the applicant's house in 2005 and the two families were friends, and that on one occasion she and the applicant were in the informal dining room and was offered a cigarette, which she refused. She said she noticed a birthmark on his thigh and recalled that he said that "it looked very much like the map of Lebanon". She said he kissed her, giving her a peck on the lips, followed by an attempted open mouth kiss to which she did not respond, leading to him saying "Don't you know how to kiss?". She said that "He grabbed my left breast with his right hand", that she was in a state of shock and didn't really say anything, and that his hand remained on her breast for "just a couple of seconds". 2. The complainant said that the second incident happened "probably around like late November/December" in 2005. She said she was wearing red shorts and a white T-shirt, with three doll heads on it, and that she had been asked to come around and watch the kids, because the applicant's wife was intending to go out. She said that the (then) youngest child Patrick was on the change table when she arrived, and had a bruise on him, and that the applicant's wife had told her that he had recently been circumcised. After the wife left the house, she and the applicant sat on the couch of the formal lounge room, where there was a window which looked out onto the driveway. She said that he asked her "If we did anything, would you regret it?" to which she replied "No" because she didn't really know what he meant. He then kissed her, and asked her to take her shorts off. He took off her shorts, and then her underwear, and gave this evidence (which should be set out in full, in light of the submissions made concerning the evidence given after an application was made pursuant to s 38 of the Evidence Act 1995 (NSW) immediately thereafter): Q. What happened then? A. I had my hands covering, and he said to me, "Why are you shy?". I didn't say anything, and then he made a comment about me having pubic hair. Q. Do you remember what the comment was? A. He just said, "Oh, you have hair". Q. Did you say anything in response? A. No. Q. What's the next thing that happened? A. He forcefully moved my hands. Q. Where were your hands when he moved them? A. They was covering my crotch area. Q. How did he move them? You said he moved them forcefully. How did he do that? A. He grabbed me by my wrist on both hands, and moved them apart. Q. Then what happened? A. He began to touch me. Q. Where did he touch you? A. Sorry. Q. That's all right. Do you need a moment? A. No, it's all right. He put his - he put his thumb on my vagina. Q. Do you remember which hand he used when he did that? A. His right hand. Q. Whereabouts was he positioned in relation to you? A. He was on my left-hand side, on the edge of the couch. Q. When he put his thumb on your vagina, what, if anything, did he do? A. He was rubbing in a circular motion, and up and down. Q. Did he say anything to you? A. He asked me if I was enjoying it. Q. Did you respond? A. No. Q. Ms xxxxx, would you let me know, or let her Honour know, if you need a break? A. Yep. Q. What's the next thing that happened? A. He continued to do that, and then he tried to put a finger inside. Q. You say he tried to put a finger inside. Inside what? A. The - my vagina. Q. When you say he tried to do that, what do you mean by that? A. Well, he did, but as he was doing it, like right after I felt that his finger was actually inside, we heard a vehicle from like coming into the driveway. Actually, sorry, no. 1. The complainant then gave evidence that the applicant saw on the CCTV monitor that his wife had returned home, and that he quickly returned to his room and told the complainant to get dressed. She said the wife thanked her for watching the kids, and that she then left. It was dark outside when she left, and estimated that she had been at the house for around an hour. 2. After the complainant gave evidence of the applicant's wife returning home, an application was made under s 38 of the Evidence Act, opposed by the applicant but to which the trial judge acceded, to cross-examine the complainant on her witness statement concerning the conduct giving rise to the third count. That led to the following evidence before the jury: Q: I want to suggest to you that the next thing that happened was that the accused stood up and pulled down his shorts and underwear? A: That's true. Sorry, I forgot to mention that. Q: You remember that happened? A: Yeah. He did, he got up pulled down his shorts and he wanted to do something which he didn't get the chance to. 1. The trial judge then directed the complainant to describe what he said or did rather than saying what she thought he wanted to do. She then described the applicant inserting his erect penis slightly into her vagina for "not too long" and "maybe a minute or two". 2. The complainant gave a detailed description, both in words and a handwritten diagram, of the applicant's house, including the configuration of the lounge rooms and the location of a CCTV monitor. The complainant was shown the walkthrough video of the house, filmed in May 2005, and agreed that the CCTV monitor was not shown in the formal lounge room. 3. The complainant gave evidence that she told her school friend (whom she named), when she was in year 8 at school, that there were sexual activities happening between her and the applicant, and said that her friend told her that she needed to tell her parents and that it was wrong that he was taking advantage of her. However, she said she did not tell her parents because "I [was] always too scared to tell my parents". 4. The complainant also described sitting on her driveway, talking to another friend (whom she also named), when the applicant drove past, slowed down, smiled and waved, and that "led to the conversation of me telling her that there were sexual things happening between him and I". That in turn led to a conversation between the complainant and her mother, about a week later, which the complainant described as follows: Q. What did she ask you? A. She asked me if anything has ever happened between Abdallah and I. Q. What did you say to her? A. I said, "No." Q. Sorry, I cut you off there. What did you say her; as in, your mother? What did you say? A. I said, "No." Q. Did your mother do something? A. She sat me down so that I wasn't too scared to talk but I was too scared to talk and just didn't say much other than, "No." Q. Okay. A. She then walked outside and then told me to come out. She told me that [the friend] had told-- Q. Sorry, I'll stop you there. Did she do something when she went outside? A. She had a Bible in her hand. Q. All right and what did she do with the Bible? A. She made me put my hand on it and swear that he didn't hurt me. Q. What did you do? A. I had to lie and do what she said. Q. Can I just check what you said, did you say, "I had to lie", was that your evidence? A. Yes. Q. Why do you say that you had to lie? A. Because I was too scared of the consequences of getting into trouble from my parents. Q. So when you say that you lied what did you say to your mother? A. I swore on the Bible that nothing happened. 1. The complainant had supplied a statement, which formed the basis of the indictment, identifying the first, second and third incidents and a fourth incident at a farm as to which she said she was unsure if she was aged 16 in some detail. Yet in her evidence in chief, she volunteered that there were other sexual encounters between herself and the applicant. Originally, she had said that she was having oral sex and penetrative sex with him (by which she included penile-vaginal intercourse) "all the way between 13 and 16 continuously", but then after describing the third incident at the Plumpton Hotel she said, "That would've been the second time with him [scil, that penile-vaginal intercourse had occurred], the first time being the formal lounge room and the second time being that". 2. The complainant went on to say that: A: There was other times too, I just – I didn't put them in my statement cause I don't remember them completely, but there was plenty of times where it happened. Q: In between the hotel and the farm, were there other times when things happened? A: Yes. Q: I think you said earlier that it was about on the basis of once a week? A: Yes. Q: How many times did sexual activity happen between you and the accused in between the hotel and the farm? A: Every time I would see him on my own. Q: Are you able to give a number of times? A: It was countless amount of times, I can't count, to be honest. 1. (It was established through a police witness that neither the statement she had made to the police in 2020, nor a subsequent statement in July 2001 made mention of her having regular sexual intercourse with the applicant at this time.) 2. The complainant was taken in cross-examination to her statement concerning the second incident where she recorded that "[h]is penis was erect, and I am fairly certain he was circumcised as I could see the head of his penis without any skin on top of it". It was agreed at trial, by reference to a photograph (which was not ultimately tendered), that the applicant was not circumcised. This led to a lengthy challenge in cross-examination which is best reproduced in detail: Q. I really don't want to embarrass you, or anybody, about this but this is a very important point. If you are correct - and I've already put to you that you're not - on your version of events, between the Plumpton Hotel event and the farm event, you met with the accused "countless times" and had sex with him in his motor vehicle. What I'm going to put to you is that on very many of those occasions, based on your own evidence; that is, accepting your evidence is true, you would have seen his penis many times, would you not? A. Yes. Q. You would have seen it when it was flaccid and you would have seen it when it was erect? A. No. Q. Why do you say no? A. Because it was rarely ever flaccid. I only ever seen it, like I said, without any skin on top so that's how my memory is. Circumcised or not, that's how - what- Q. On at least one- A. -that's why I told- Q. Sorry, I thought you'd finished. My mistake; it's a bad habit? HER HONOUR Q. "I only ever saw it with no skin on top." Did you say something further than that, Ms xxxxx? A. That's how I always seen it, so I assumed it was circumcised because there was no skin on the head. AGIUS Q. Didn't you tell us, in the course of giving your evidence, last week, that on one occasion, he asked you to fellate him; that is, give him oral sex so as to make his penis erect? A. Yes. That was in the hotel. Q. On that occasion, you saw it flaccid? A. Yes, but his hand was there and he had whatever - if he had skin, it would have been pulled back, I don't know. Like I said, I've only seen the head with nothing on top. Q. I know you keep saying that but what I'm putting to you is, is if your version of events is true, you must have seen it many times, in various states of erection, both before and after the penile or penetration sex you say you had? A. Okay. Well, I wasn't examining it every single time I seen it. Q. It was within inches of your eyes, was it not? A. Yes. But if he's holding it and he's holding his skin back, how am I supposed to know that he's doing that. I wasn't paying attention to any of that. Q. When you made your statement, you were sure enough about it to say that you believed that he had been circumcised. Isn't that right? A. Because that was my recollection, yes. If I don't see any skin, I assume then that he was circumcised. … Q: What I'm going to suggest to you is that if you had oral sex on the countless occasions you've spoken of, there would be no doubt in your mind as to whether or not his penis was circumcised. A: That's not true. Like I said, I've only ever seen it with no skin on the head. Circumcised or not, that's how I remember it. I'm not going to lie to you and say yes, he was 100% circumcised, or no, he was 100% not circumcised. I'm telling you from memory what I remember, which is seeing it without any skin on top of the head. 1. The complainant was confronted about the implausibility of her account of the third incident, in which she was picked up after school by the applicant and rather than being taken home was driven to the Plumpton Hotel. She said she had a shower and there followed a number of sexual acts. There was the following exchange: Q: But why would you consider having a shower in a motel room, with the accused present in the room, given what you say was your history with him or his history with you during incidents 1 and 2? A: Because I wasn't aware that he was going to do what he did. I didn't know it was going to result that way. Q: You see, that also is a nonsense, isn't it? If you'd been through what you say you'd been through in incidents 1 or 2, there's no way you would have gone into a bathroom, taken your clothes off, and stepped into the shower with your back to the door. That's just nonsense, isn't it? A: You would know that how? HER HONOUR: Just perhaps answer that question, Ms xxxxx. AGIUS Q: Do you not think that's strange behaviour given what you say has happened during incident 1 and 2? A: No. 1. The complainant was also confronted with the proposition that contrary to her statement and her evidence, there was not one large bed in the hotel room but two single beds. She insisted there was one large bed. The complainant's mother 1. The complainant's mother said that at one time the two families were very friendly, and that she asked her daughter to check on the young children in the Hanna's house when Mrs Hanna was visiting her and the applicant was having a nap. She also gave evidence that there was a time when the complainant swore on a bible that nothing was going on between her and the applicant, adding that she did so "because she was scared". 2. An unopposed application to cross-examine the mother established that she had given a statement to the police that there were times when the complainant "would go and babysit for hours or more than like a long time". The mother gave evidence that that would happen "several times". 3. Although the mother said nothing further about swearing on the bible in chief, she was then cross-examined about that point: Q. When you were giving evidence about the swearing on the bible, you agreed that she had sworn on the bible, but you said, "Yes, because she was scared". A. WITNESS: Mm-hmm. Q. Is that because that's what your daughter has told you? A. INTERPRETER: No, she didn't say anything to me because she went to them, she stayed there for a while. When she came back, I felt that she was scared. Q. She went to where, sorry? A. INTERPRETER: When his wife sent her to see if the daughter was sleeping or not. Q. What's that got to do with your daughter swearing on the bible? A. INTERPRETER: When his wife left, I felt that my daughter was uncomfortable. I felt that he might have touched her or done something to her, so I asked my daughter to swear on the bible. Q. You asked your daughter to swear on the bible and she did swear on the bible. A. INTERPRETER: And I believed that nothing had happened. Q. You asked her because someone had said to you that Abdullah had touched your daughter? A. INTERPRETER: I didn't believe that. Q. I'm not saying you believed it, I'm just tracing the history how you came to be asking her. You didn't believe that Abdullah had touched your daughter, did you? A. INTERPRETER: No. Q. But you still asked her to swear on the bible? A. INTERPRETER: I did this just for myself, to feel comfortable. Someone said that there is a relationship between my daughter and my Abdullah, and I asked my daughter, "Would you swear that there's nothing going on?" She said, "Yes. I – Q. You believed her? A. INTERPRETER: Yes. If someone swears on the Bible, you would believe them. Q. Had you asked her to swear on the Bible before, for any other reason. A. INTERPRETER: No. 1. There was also cross-examination on whether Mrs Hanna had asked the complainant to check on her children while she was in the complainant's house: Q. Mrs xxxxx, I'm going to suggest to you that there never was an occasion when Mrs Hanna was at your house, and she asked for [the complainant] to go and check on the children in her house? A. INTERPRETER: So, you're asking me if his wife said, "Go and check on the children?" Q. Yes, I'm suggesting to you that that never happened? A. INTERPRETER: Of course, it did. It did happen. 1. The complainant's mother gave evidence that she could only remember two occasions, both brief, when the complainant had visited the Hanna household. One was when a kitten was stuck on a tree and there were a lot of people watching its rescue by the fire brigade, and the other time was very quick. Other evidence in the Crown case 1. Four witnesses gave evidence of the complainant telling them that she had been sexually assaulted as a child. 2. Two were school friends (who cannot be named but were each identified by the complainant in her evidence). One gave this evidence, speaking of a time when she and the complainant were 14 or 15: Q. When you were outside, did something happen? A. The only thing that I could remember is we were standing outside the front yard and then this car pulled up across the side, like on, the opposite side of the road from her house. I do not remember what the car looked like. I don't know the model of the car. I didn't know who it was, so I asked [the complainant] and she just looked at me and she just looked worried. Q. Can I just stop you there. When you say you asked [the complainant], what was it that you asked [the complainant]? A. I said, "Do you know who that is?" Q. You say that she looked worried? A. That's correct. Q. What makes you say that? A. Because she kept looking at the vehicle so I suddenly thought that she knew who it was or someone that was coming over to her house, hence why I had asked her "Do you know how that is?" Q. Did she say anything to you about who the person was? A. She just told me that it was her neighbour. Q. What if anything else did she say to you? A. That's all that it was, and then I looked at her again and then I could see in her face that she was just like shocked, like she couldn't speak. And then she turned around and she said to me that she used to babysit his kids. That's all. Q. Was there anything else said by [the complainant]? A. I just looked at her and I'm like "What do you mean, like what do you mean you babysitted his kids?" and then she said that, "he touched me". Q. Were those the exact words that she used "he touched me"? A. Yes, from memory. Q. Once she had said those words, what if anything was her reaction? A. All I could remember was that I turned back around and looked at her and she was just crying. She just had tears down her face. 1. The cross-examiner did not challenge any of this. He asked whether the complainant had told her why she no longer babysat the children. The friend said "No. All she said to me on that night was that 'he touched me'. That's all it was." 2. A second school friend gave evidence that in 2006, when the pair were in year 9 at school, they became friends, and the complainant told her that she was seeing an older man who was a family friend. She said the complainant said they were "sexually involved with each other". She also recalled that later, when in years 11 and 12 they attended a different high school, there were a few occasions when she left school with the older man, putting on a jumper to cover her school uniform, and he was waiting in his car outside the school. She could not recall the make or colour of the car. She said she recalled that the complainant joined her and other friends to go to the school formal in a limousine, after which they were all going to go out, but she left earlier with him. The cross-examination established that the pair were roughly the same age, and that the school formal must have occurred when they were 16 or 17. 3. Mr Jacob was a work colleague who in January or February 2017 was walking his dog with the complainant when they sat down and she burst out crying. She told him that "she'd been interfered with when she [was] 13". He said that she used the words "interfered with". He gave this evidence: Q. What, if anything else, did she tell you about that on this occasion? A. I was in total shock and I asked her to elaborate. Again, she sobbed and then when she came to, she said that she had been interfered with by an older man whilst she was babysitting his children when she was 13 years old and he was her neighbour across the road. Q. Did she say to you, in more detail, about what had happened? A. Yes, she did. Q. What was the detail that she gave? A. That when there was nobody home and she was sitting there, that the gentleman approached her and began touching and kissing her and pulled his shorts down. Q. Did she say anything else about what had happened? A. Yes. Q. What was that? A. That he began performing oral sex on her and his hands went under her shorts. Q. What, if anything else, did she say; do you remember? A. At the time, the emotions were quite high cause I was in a lot of shock, and then I asked her, I said, "What do you mean your neighbour?" She said, "Yes, he's my neighbour across the road." And I said - I asked her the question, "You mean, he's still there?" She said, "Yes." I said, "You've been living across the road all these years?" She said, "Yes, I have." And so I asked her, "What have you done about it? What - how have you been living across the road from this person all these years?" She said, "Because we're still there and he's still there", and it happened on a couple of occasions and she elaborated a couple of instances where she went back there and she was touched against and the next time was when he picked her up from school, claiming that her parents - he told her that her parents had asked him to pick her up from school because they were busy and when he did pick her up from school, it happened again. Q. A moment ago, you said that she had gone "back there" and other things had happened. When she said, "back there", what did you understand her to mean when she said, "back there"? A. Back to the house for babysitting. Q. When she said to you that he had picked her up from school, did she say to you where they went? A. She said they went to a hotel. He's told her he had to go somewhere before he dropped her off at home, he had something to do, and they went to a hotel. Q. Do you remember whether or not she said where the hotel was? A. Yeah. My memory was vague but I'm sure she said Plumpton. 1. There was no challenge to any of that evidence in a very short cross-examination. 2. The fourth witness giving complaint evidence was Ms Nakhoul, who met the complainant through church, and who said she had become quite close friends with the complainant in 2020 when she had learned of some of the offending. There was a dispute as to the terms of those conversations. The complainant denied Ms Nakhoul telling her statements like "how can you report him, when you don't remember what happened yourself?" and "so, you could be mistakenly getting this man in trouble". Ms Nakhoul said that the complainant had said, "I don't care. I just want revenge. I just want someone to pay for the hurt, for the pain I am feeling". In response to that last statement, the complainant said: I said to her that I wanted revenge for what he has done, yes, because he deserves to be punished for what he did. 1. Ms Nakhoul gave evidence that the complainant had identified two hotels, neither of which was the Plumpton Hotel. Some of her evidence reflected the fact that the complainant had told her "several male names" which led to Ms Nakhoul saying "because she came with me, a number of different accusations, and I just said, 'You need to sort it out, before you do anything to hurt anyone'". Although there had been a hearing in the absence of the jury and a preliminary ruling on (what was at the relevant time) s 293 of the Criminal Procedure Act 1986 (NSW), it is difficult to avoid the conclusion that the jury would have become aware that Ms Nakhoul had been told that the complainant had suffered sexual abuse from more than one man (I mean to imply no criticism of any participant in the trial). The cross-examiner directed her to focus attention only on the neighbour, the applicant, and there followed this exchange: Q: … So, consistent or inconsistent about the sexual abuse, so far as the neighbour was concerned? A: Quite inconsistent. Q: To the extent that you were not able to work out what she was really saying? A: That's right. Q: As a result, is that why you were discouraging her from going to the police, until she had been able to work out and fill in the gaps? A: That's right. Other witnesses in the Crown case 1. The manager of the Plumpton Hotel gave evidence that the beds were single beds, which could be moved together and made up as a double bed. 2. The officer in charge of the investigation confirmed that the pretext call was made pursuant to a warrant under the Surveillance Devices Act 2007 (NSW) and that there was nothing in the complainant's witness statements about her regularly meeting up with the applicant for sexual intercourse between the Plumpton Hotel incident and the farm incident. The pretext call 1. In July 2020, after making her formal complaint to the police, the complainant participated in a pretext telephone conversation with the applicant, in the presence of a police officer. No issue was raised at trial as to the lawfulness of the recording (although a separate objection as to relevance was made, and rejected). The recording is partly in English but largely in Arabic, and the jury was given a transcription/translation as to which once again there was no dispute as to the accuracy. 2. At around 6 minutes into the 9 minute conversation, the complainant described a dream she had had, when she was wearing red shorts and a white top with three faces, describing what she said was "the first time everything happened". She said: "I still remember very well and you're looking at the TV in case anyone comes, the, the screen". After saying that, the applicant said "Yes". The Crown relied on this answer as an admission. 3. Repeatedly through the conversation, the applicant invited the complainant to "come over, so we can have some fun" and "we'll arrange some quiet time together" and "we'll do it quietly … if you don't, don't have anyone in your life now, for example". All of those overtures were made in Arabic; I have reproduced their (agreed) translations. There is no suggestion in the evidence that they bore any meaning other than the obvious one, namely, an invitation to have a sexual encounter. True it is that from the applicant's perspective, the complainant was calling him, out of the blue, and reminding him of time many years earlier which they had spent together. If there had been sexual activity at that time, then it is possible to see why he proceeded on the basis that she might be interested in repeating them. When he was cross-examined about this, he said that "She was the one who called me". When asked about his words "Come over, so we can have some fun" he said, "I'm saying it to someone who is 30 years old, not 13 years old". The defence case 1. Senior counsel for the applicant gave an opening pursuant to s 159(3) of the Criminal Procedure Act, and identified the following issues which would arise from the evidence of the applicant and his former wife: You will hear evidence that the complainant's father was, for a time, employed by the accused and that employment was terminated. There is an issue between the Crown and the accused as to whether he ever had any sexual relationship with [the complainant]. He will explain that the two incidents that the complainant … spoke of as being the first and second incidents never took place. He will explain that he never spoke about smoking a cigarette; that he never touched her on the breast, that he never indecently assaulted her or assaulted at all and that they never had any kind of sex at all on either of those occasions or indeed on any other occasion. The accused disputes the prosecution case that he met and collected [the complainant] from her school. He will tell you that he never knew where her school was; that he never drove there and never made any arrangement with her to collect her and take her anywhere. He will say she's never been in his car. There is a dispute between the accused and the Crown in relation to what I'll call the "Plumpton Hotel issue". The accused disputes that he ever took her there, that he ever was there with her and that any sexual activity or indecent activity occurred between them. There is a dispute between the accused and the Crown on the question of whether, after the Plumpton Hotel or at any time, the accused ever had sexual intercourse of any kind; any kind of sexual intimacy with the complainant … between the Plumpton Hotel and the incident at the farm or at any time. The accused says those things did not happen; that he was not involved in any of that. There is a dispute about whether or not the accused is circumcised. There will be evidence before you that he is not circumcised. There is a dispute about whether Mrs Hanna ever told the complainant that the infant, Patrick, was circumcised. The evidence from Mrs Hanna will be that she never said that. In any event, he's not circumcised and hasn't been, certainly wasn't as a child at the relevant time and isn't now. Then there is a dispute between the accused and the Crown case concerning the circumstances in which the complainant … was asked to leave the house. You'll hear evidence from the accused about how that came about, what had happened with the home phone and the mobile phone and of his conversation with her when he was awoken by her from a sleep that he'd been having in the informal lounge room. There is evidence to deal with dispute between the accused and the Crown concerning when it was that Mrs Hanna spoke to [the complainant] and what she said to [the complainant] about what she had been told by the accused. 1. It is not necessary to summarise details of the applicant's evidence. Over the course of much of two days, he gave evidence in chief in accordance with the outline stated above. In evidence in chief and in cross-examination he denied having any sexual relationship with the complainant: [In evidence in chief] Q. Did you ever had a sexual relationship with [the complainant]? A. WITNESS: Never. [In cross-examination] Q. Just for completeness, I also suggest to you and you and [the complainant] met up on numerous occasions, and had sexual intercourse? A. WITNESS: Never. 1. The applicant gave evidence in his own case that he woke up from a nap to find the complainant kissing him on the lips, as a result of which he pushed her up, and told her "What you're doing is wrong. You are still a little girl", and that she told him "I love you". He told his wife what had happened that evening, and said to her "you will not allow [the complainant] to come here again". 2. In cross-examination, he was confronted with the complainant's version of the offending. It was also put to him that he had made up the incident about waking to discover the complainant kissing him, in collusion with his wife. 3. It was also put to him that he was lying when he said during the pretext call that he never had the complainant's phone number, when he said (in Arabic) "I lost your number". Eventually the applicant indicated that his language was consistent with him never having had the complainant's number ("in the Lebanese way, the way we say things, we can say, 'I don't have your number. I've lost your number. I want your number'"). The applicant said that when he agreed, repeatedly, with the complainant's recounting of her recollection of the second occasion, he was agreeing with her description of what she said was a dream. The applicant accepted that when he said "Come over, so we can have some fun" he was inviting the complainant over. This was when he said that "I'm saying it to someone who is 30 years old, not 13 years old". 4. The applicant's wife gave evidence. There had been a breakdown in their relationship in 2006, despite which she lived at the same address as the applicant and their four children, who were born in 1999, 2001, 2004 and April 2006. They purchased the property in April or May 2005 and at that time she made a video walking around the house which showed the rooms and the furniture. She said this was done as "a memory for the kids when they grow", and confirmed the accuracy of the date stamp which was 14 May 2005. She confirmed that the CCTV monitor was in the back room (that is, the informal lounge room) and had been in place when they had purchased the house, and that it showed whoever came through the driveway. She described her neighbour Mrs Spiegler, who became a friend and who also babysat her children, and denied that anyone else babysat her children. She said that her family became friendly with the complainant's family, and they would come for coffee or birthdays, and once the two families went to the beach together where they went swimming, and her husband was wearing shorts and a singlet. 5. The applicant's wife gave this evidence: Q. Was there ever any occasion when you asked [the complainant] to come to your house to assist in looking after your children whilst you were not there? A. No, never. Q. Is there any reason for that? A. There was no need for her to be there because when I leave the house, their father is with them, and all occasions, me or them – or him. 1. She confirmed that she never had a change table, that her son Patrick had never been circumcised, and said there was never an occasion when Patrick was lying on a change table, bruised, and she had told the complainant that he had been circumcised. 2. She said that after her husband came home from work, he would always have a nap, between 4pm and 5pm, in the informal lounge room. 3. The applicant's wife described an incident in late 2006 when she and the complainant's mother and their children went for a walk, and the complainant volunteered to go back to the Hannas' house to get the pram, and took a long time to do so. When they returned home, she said her husband told her that he was having a nap, and that he woke to find the complainant kissing him on the lips and telling him that she loved him and had been making phone calls to the house in the evenings. She gave evidence that when she later saw the complainant riding her bike, she told her not to visit her house again. 4. It was put to her that the incident about the complainant kissing the applicant did not occur, and that it was something which she had made up with him, after she learned that the complainant had given a statement saying that she had asked the complainant to stay away from her husband. 5. The final defence witness was Mrs Spiegler. She became friendly with the Hanna family after they bought the house, and would help babysit the children. She recalled an incident when the applicant told her that the complainant had woken him with a kiss on the lips, following which he told the complainant to get out of the house. She said that he told her that the day after it happened. She agreed in cross-examination that she did not know whether the story the applicant told her about the complainant kissing him was true. The submissions as to the deficiencies in the Crown case 1. There was, understandably, a large overlap between the submissions made to the jury as to why they should return not guilty verdicts, and the submissions made to this Court as to why the three guilty verdicts which had been returned were unreasonable. 2. At trial the defence addressed the evidence of Mrs Hanna and the complainant's mother about babysitting (T 428); the improbability of the complainant returning to the house after the first incident (T 430, "why did she even go there, given what had happened to her on the last occasion she had been there?"); the evidence about the son Patrick being circumcised (T 430-431, "Long before we get to any question on the countless times she gave the accused oral sex, according to her, she can't be relied upon to determine whether his [scil, the son's] penis was circumcised or not circumcised"); the evidence about the location of the CCTV monitor (T 431-432, "not just an issue of memory, it's a very significant issue because, in the complainant's version of events, the monitor was critical to bringing the sexual assault to an end"); the need to cross-examine the complainant in order for her evidence as to count 3 to be adduced (T 433, "Now, all of this is not mentioned by her until the Crown takes her back to it. I'm not suggesting there was anything wrong in the Crown taking it back. The point is, that she didn't remember it. … This was her first, according to her, conventional sexual intercourse with the accused. Would she not remember that?"); the improbability of her having a shower at the hotel; (T 439); the inconsistent evidence as to whether there was one large bed or two single bed in the room (T 440); the absence of explanation why she didn't report to the police until 2020 (T 440); the different hotels mentioned to Ms Nakhoul (T 440, 443); the absence of evidence in her police statements about the other sexual activity (T 443); her unreliability concerning the dates of the third incident (T 443-446), and, at length, the evidence of Ms Nakhoul concerning her uncertainty as to the identity of the man and her desire for revenge (T 447-449). 3. These matters were also summed up by the trial judge. There was no criticism of the adequacy of her Honour's summing up. Thus for example her Honour reminded the jury that defence counsel "asked you to recall the way in which the complainant recounted her evidence as to the second incident, not mentioning at all the penile-vaginal allegation until the Crown was granted leave and he was able to take her to it, effectively reminding her of it". 4. In this Court, the applicant's written submissions likewise identified the weaknesses in the Crown case which, so it was said, should have caused the jury to have reasonable doubt of his guilt on counts 1-3. The submissions pointed to: 1. The unlikelihood of the complainant being asked to babysit the applicant's children while he was at home; 2. The absence of any other evidence that the complainant did babysitting, and the evidence of Mrs Hanna that the complainant did not babysit for her, and the evidence of Mrs Spiegler that she (Mrs Spiegler) did babysit for her; 3. The improbability that, after the first incident, the complainant would return to the applicant's house to mind the children; 4. The initial failure, until cross-examined pursuant to a direction under s 38 of the Evidence Act, of the complainant to mention the conduct giving rise to count 3, which had it occurred "would be the last detail which the complainant would have 'forgotten'"; 5. The fact that the birthmark could have been seen when the two families went to the beach together; 6. The complainant's error in stating that the son Patrick had been circumcised; 7. The improbability that the complainant could have been mistaken about the applicant being circumcised; 8. The complainant's errors as to the presence of dark curtains and a CCTV monitor in the formal lounge room; 9. Even if the reason for the not guilty verdicts on counts 4-9 was the jury's failure to be satisfied beyond reasonable doubt that the events happened before the complainant turned 16, that must have led to doubts as to her credibility; 10. The inconsistency between the complainant's recollection that there was one large bed, and the hotel manager's evidence that all rooms had two single beds and a sofa; 11. The implausibility of the complainant taking a shower in the hotel room; 12. The absence of any mention of the "countless number of times" during which the complainant and the applicant engaged in sexual activity in the statement she gave to police; 13. The absence of any mention of the incidents giving rise to counts 1-3 in the pretext call; 14. The absence of complaint for many years, and the fact that the complainant swore on a bible that there had been no sexual activity; 15. Ms Nakhoul's evidence that the complainant had told her "I don't care. I just want revenge. I just want somebody to pay for the hurt, for the pain I am feeling", and 16. The 15 year delay leading to forensic disadvantages suffered by the applicant. 1. The applicant's oral submissions in this Court elaborated on most of the points which had been made to the jury and in writing to this Court. Consideration The applicant was lying about never having sexual relations 1. The jury cannot have accepted the applicant's evidence that he had never had sexual relations with the complainant. I have no difficulty whatsoever with that conclusion. The jury saw both the complainant and the applicant give diametrically opposed evidence on this issue. Further, parts of the pretext call are very difficult to explain unless the pair had a sexual history. In that call, the applicant repeatedly invited her to come to his place to "have some fun" if "you don't have anyone in your life now". There is no suggestion in the evidence that "Come over, so we can have some fun" was said sarcastically or in other sense other than the ordinary sense, which is laden with sexual connotation. Indeed, that was appreciated by the applicant when he said "I'm saying it to someone who is 30 years old, not 13 years old". By itself, this falls far short of establishing the Crown case. Considered in isolation, it is entirely consistent with the applicant's version of the kissing incident, but also that after his relationship with his wife broke down, he had sexual relations with the complainant when she was 16 or older. 2. However, I do not accept the Crown's submission that the affirmative "Yes" in the pretext call when the complainant said she recalled him looking at the TV screen was an admission that any aspect of the second occasion had taken place. I have listened, repeatedly, to the recording, and it is at least equally consistent with the applicant being distracted and making non-committal statements to a woman who had called him to tell him about her dream, and wanting her to finish in order that he could repeat his offer to her to come back to his home so that the pair could "have some fun". The significance of the complaint evidence and the swearing on the bible 1. Next, there is a powerful body of evidence that a neighbour interfered with the complainant when she was a young girl. I agree with the Crown submissions that "[o]verall, the body of complaint evidence (made to four separate friends, over a period of 14 years from 2006-2020) was powerful evidence in support of the Crown case". Two aspects of the evidence go back to 2006. 2. There is the unchallenged evidence of two school friends. One remembered the complainant's recounting to them of her being interfered with by the man who drove past the pair while they were standing outside the complainant's house, and recalled her saying that "he touched me" and that she was crying. The other said that when in year 9 the complainant had told her that she was sexually involved with an older man who was a family friend. Both friends were recounting events which would be apt to stick in their minds. 3. There was also no challenge to the evidence of Mr Jacob, that the complainant broke down and cried when the telling him that her neighbour had touched her and pulled his shorts down. 4. Secondly, there is the evidence from the complainant and her mother concerning the "swearing on the bible" incident. I have no doubt that that happened. It was the unchallenged evidence of both the complainant and her mother. It was a remarkable event. It was, according to the mother's cross-examination, the only time the complainant had been asked to swear on the bible. That came about because the mother was concerned that something sexual had happened between the complainant and the applicant. According to the applicant, it was her unsolicited kiss on the lips; according to the complainant, it was because her mother had been told that the applicant had touched her. 5. The complainant's mother gave evidence that her daughter was scared when she returned from the Hannas' house. I see no reason to discount the force of that evidence by the mother's statements that, after her daughter so swore, she believed that nothing had happened. The complainant said that she lied because she feared that she would be punished if she told the truth. The critical fact is that there had been some incident, 17 years earlier, which struck the mother sufficiently strongly to cause her to do something unprecedented, namely, to require her daughter to swear on the bible. 6. When all that evidence is combined, I am left in no doubt that some sexually charged incident took place in 2005 when the complainant was 12 or 13, in the afternoon in Mr Hanna's home. The jury proceeding rationally to evaluate the evidence would likewise have had no doubt about that. It may very well be that Mr Hanna told his wife and his babysitter Mrs Spiegler that he had received an unsolicited kiss from the complainant, and that each of those women believed what Mr Hanna told them. But the truth of that account cannot be reconciled with the evidence of the school friends and Mr Jacob, it sits very uneasily with the evidence of the complainant's mother that her daughter was scared, and of course it is contrary to the complainant's account. The corroborating details in the complainant's account, and the peripheral inconsistencies 1. Next, there is a deal of force in aspects of the complainant's account. Her statement that Mr Hanna said "Oh, you have hair" is highly suggestive of a genuine recollection of words spoken to a 13 year old girl. Her recollection of the applicant saying that his birthmark was the same shape as Lebanon is also suggestive of a genuine recollection, although it was common ground that the complainant had accompanied the Hanna family to an excursion to the beach, at which point she might readily have noticed his birthmark. 2. I regard the large majority of the inconsistencies and defects in the complainant's evidence as not significantly undercutting that evidence. 3. It is unusual that the complainant forgot to mention what, according to her, was the first time she had been penetrated by a man's penis, when giving evidence at a trial where he was charged with unlawful sexual intercourse because of that act. However, it is tolerably clear that the complainant was in some distress when giving her evidence. That seems to have been obvious to everyone in the Court, including what was said and what was left unsaid by the application under s 38 of the Evidence Act made in the absence of the jury. Parts of the transcript ("Do you need a moment?"; "would you let me know, or let her Honour know, if you need a break?") convey that the complainant appeared to be distressed while giving the evidence reproduced above. The jury were much better placed than this Court to assess the effect (if any) that the complainant's momentary inability to recite the events giving rise to the third count had upon the reliability of her evidence. It is also to be borne firmly in mind that witnesses who appear to have a clear and confident recollection of the events of many years ago may be regarded as (and may be in fact) no more than witnesses who have "learnt their lines" and are no longer attempting to convey their memories of the events. The fact that a witness forgets a crucial aspect of his or her testimony is not uncommon (a not dissimilar example may be seen in Fairfax Media Publications Pty Ltd v Gayle (2019) 100 NSWLR 155; [2019] NSWCA 172 at [40]-[42]). It is easy to underappreciate the pressure that a witness giving such personal evidence to strangers in a court may experience, even if doing so remotely (as was the case here). Indeed, the most confident and assured witnesses may be those who have practised their evidence so extensively that they no longer have a genuine recollection of what occurred. It is quite possible that the fact that the complainant was emotional when recalling these events, and had to be reminded of an aspect of her account, added to the perception by the jury that she was giving reliable evidence of traumatic events that had actually happened to her. In short, this is an example of an aspect of the evidence which was well within the scope of the jury to assess, and they were squarely directed to do so by both the defence and the judge. 4. The applicant placed greater weight on the conflicting evidence about the CCTV camera, just as he did at trial, because it was central to the conclusion of the second occasion which gave rise to the second and third counts. But it is quite possible that the complainant was merely confused and the events took place in the informal lounge room at the back of the house, where there was a CCTV camera. The fact that the applicant recalled a CCTV camera, which was in the room where the applicant regularly had a nap each afternoon, tends to support the reliability of her account. 5. I am unpersuaded of the significance of the evidence as to whether the complainant visited the applicant's house to babysit the children. In this Court, the applicant submitted that "there was no evidence from any other witness that supported the assertion from the complainant that she did baby sitting on behalf of the Hannas". The applicant's wife denied it, and the complainant's mother said that her daughter would sometimes visit the Hannas to check on the baby very quickly. The applicant pointed to evidence from the complainant's mother to the effect that the only time when her daughter had spent a long time at the Hanna home was when a kitten was in a tree and being rescued by the fire brigade, with many neighbours watching. 6. It is quite plausible that a 12 or 13 year old girl was never formally employed as a babysitter. That does not mean that she was not asked to visit the house on afternoons where Mrs Hanna was away and the applicant was known to be taking a nap. Few witnesses are capable of giving evidence about something which did not happen 17 years earlier. The evidence of the complainant's mother, who plainly regarded it as perfectly clear that her daughter was asked to visit the Hanna house while Mrs Hanna was visiting their own house, was both confident and plausible. And there is the striking fact that on any view of the matter, something happened between the applicant and the complainant while the two were in a room alone in the applicant's house which led to the complainant's swearing on the bible. 7. I am also not greatly troubled by the inconsistent evidence concerning whether the applicant's son Patrick had been circumcised, or the complainant's faulty recollection that she had been told as much. Similarly, whether the events took place in the formal or informal lounge room, the presence or colour of the curtains are neither here nor there, insofar as they do not greatly bear upon the assessment of the complainant's evidence. They are relatively peripheral details. It would be astonishing if there were no conflicts in the evidence of events many years earlier, and if every aspect of the complainant's evidence, whether entirely peripheral or closely related to the events giving rise to the counts, was accurate. 8. The applicant submitted that the complainant had been adamant as to her age at the time of the third incident, and that if the not guilty verdicts were the consequence of the jury not being satisfied that she had not turned 16, that went significantly to her credibility. But it is clear that the complainant was confused as to the times in relation to that part of her evidence bearing upon the third occasion, some three years after the first and second. Her inability to be sure of the date does not of itself undercut the evidence of the first and second occasions. 9. I am not greatly troubled by the many years which have elapsed between the alleged offending and the police being notified. Lengthy delay is not uncommon, and there may be good reasons for such delay, which is now recognised in s 294 of the Criminal Procedure Act. Here a young child, apparently from a religious family, being required to swear on the bible that nothing had happened, and doing so because she feared being beaten, is at least one aspect of the delay. The three most significant matters capable of giving rise to doubt 1. There are three matters which, to my mind, are of greater concern. They are the internal inconsistencies in the complainant's account, the evidence of Ms Nakhoul about her not being certain and seeking revenge, and her evidence about the applicant being circumcised. 2. The complainant at one stage said that there were countless occasions of sexual interactions between her and the applicant when she was aged between 13 and 16, only to withdraw that evidence and substitute for it countless sexual interactions after the third incident. It is an unusual thing to be confused about, and it might suggest a poor recollection of her early teenage years. 3. This links with the evidence of Ms Nakhoul. The applicant's counsel said that "one could scarcely think [of] more damning evidence about the testimony of a complaint witness in a sexual assault case", and noted that there was no re-examination. It must have been obvious to the jury that Ms Nakhoul had been told by the applicant that there was more than one man with whom she had had damaging sexual relations, and also that she had had memory lapses. That said, the fact that two participants in a conversation have different recollections of the force of what was said (including as to the basis upon which the complainant sought "revenge") is utterly normal. The jury saw both the complainant and Ms Nakhoul give evidence on that point. The latter was a witness who was compelled to attend, and was poor at answering questions. She had to be reminded repeatedly to focus exclusively upon what the complainant had said about her sexual history with the accused. 4. However, the complainant's inconsistencies and the evidence of Ms Nakhoul were more directly related to counts 4-9, when the applicant was older. Neither bears directly upon the evidence concerning counts 1-3. And again, both of these points were forcefully raised for the jury's consideration. 5. I am also a little troubled by the complainant's evidence about the applicant being circumcised. On the versions of the complainant's testimony given in the witness box (as opposed to in her witness statement), she had ample opportunity to observe whether he was circumcised. On the other hand, she said she rarely saw his penis when flaccid, and was not paying attention, and accepted she could have been wrong. On balance, I think this falls into the same category as the evidence about the number of sexual encounters between the pair: the jury were well placed to see the complainant tested on this, at length, and to assess whether it materially impacted the reliability of her evidence of the events of 2005. 6. In short, the position is this. The complainant's evidence in chief established, if ultimately accepted to the criminal standard, that the applicant had committed the act of indecency and the two acts of digital and penile penetration in 2005. His denials that he had never had sexual relations with her are readily rejected. The complainant's memory was faulty, which is unsurprising since it was of traumatic events suffered as a child 17 years earlier. Her evidence about his birthmark was correct, and her evidence about the CCTV camera is readily accommodated if the events took place in the informal rather than the formal lounge room. The roughly contemporaneous complaint evidence from her two school friends is powerful – and powerful in two respects. It is not merely evidence which supports her account of the applicant's sexual offending. It is also evidence which is inconsistent with the competing hypothesis that her unsolicited kissing of the applicant while asleep was the incident that caused the swearing on the bible. 7. Once the story that the complainant gave an unsolicited kiss to the sleeping applicant is put to one side, which it must be unless the complainant was knowingly lying to her school friends, then the only real question is whether the essential aspects of her testimony as to the applicant's conduct on the first and second incidents in 2005 established the elements of the offences in counts 1, 2 and 3 to the criminal standard. The other difficulties with the complainant's evidence are capable of casting doubt about her reliability. But when it is borne in mind that the jury had the advantage of seeing the complainant give that evidence, I am unpersuaded that the jury acting rationally should have had a doubt. Having considered all of the evidence, I do not consider that there is a significant possibility that the applicant was wrongly convicted. 8. For those reasons, while there should be a grant of leave, I propose that the appeal be dismissed. 9. YEHIA J: I have had the significant benefit of reading the reasons of Leeming JA in draft form. Having conducted my own assessment of the evidence, and having regard to the matters outlined by Leeming JA, I have concluded that it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused on counts 1, 2 and 3, and that it is not the case that the jury must have entertained a doubt as to the applicant's guilt on those counts. Accordingly, I agree with the orders proposed by Leeming JA. 10. WEINSTEIN J: I have also conducted an assessment of the evidence. I agree with the reasons of Leeming JA that it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused on counts 1, 2 and 3. I agree with the orders proposed by his Honour. ********** 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: 26 July 2023