Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: MRW v R [2011] NSWCCA 260 Hearing dates: 14 September 2011 Decision date: 06 December 2011 Before: Bathurst CJ at [1]; James J at [91]; Johnson J at [92] Decision: (1) Leave to appeal against conviction granted, appeal dismissed. (2) Leave to appeal against sentence granted, appeal dismissed. Catchwords: CRIMINAL LAW - appeal - conviction - fresh evidence - whether significant possibility jury acting reasonably would acquit appellant CRIMINAL LAW - appeal - sentencing - aggravation - whether abuse of trust and abuse of authority different concepts - whether abuse of trust can be aggravating factor where abuse of authority is element of offence - Crimes Act 1900 s 66C(2) - Crimes (Sentencing Procedure) Act 1999 s 21A(2) CRIMINAL LAW - appeal - sentencing - whether sentence manifestly excessive Legislation Cited: Crimes Act 1900, s 61M(1), s 66C(2) Crimes (Sentencing Procedure) Act 1999, s 21A(2) Criminal Appeal Act 1912, s 5(1) Cases Cited: Bourke v R [2010] NSWCCA 22 FV v R [2006] NSWCCA 237 Gallagher v R [1986] HCA 26; (1986) 160 CLR 392 House v The King [1936] HCA 40; (1936) 55 CLR 499 Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 R v Abou-Chabake [2004] NSWCCA 356 R v LTP [2004] NSWCCA 109 R v Johnson [2005] NSWCCA 186 R v Slater [2003] NSWCCA 178 Ratten v R [1974] HCA 35; (1974) 131 CLR 510 Williams v R [2010] NSWCCA 15 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 Category: Principal judgment Parties: MRW (appellant) Regina (respondent Crown) Representation: Counsel R Mathur (appellant) S Dowling (respondent Crown) Solicitors Legal Aid Commission (appellant) Solicitor for Public Prosecutions (respondent Crown) File Number(s): 2009/9544 Decision under appeal Date of Decision: 2009-08-11 00:00:00 Before: Syme DCJ File Number(s): 2009/9544 Judgment 1BATHURST CJ: The appellant was tried before a jury at Taree District Court on two counts: "(1) Between 15 July 2002 and 15 August 2002 at [T] in the State of New South Wales did have sexual intercourse with [the complainant] a person over the age of 10 years and under the age of 16 years and who was under the authority of [MRW] (section 66C(2) Crimes Act 1900) and (2) On or about 25 December 2002 between [W] and [T] in the State of New South Wales did assault [the complainant] and at the time of such assault did commit an act of indecency upon [the complainant] in circumstances of aggravation (section 61M(1) Crimes Act 1900)". 2The jury convicted the appellant on the first count, but acquitted him on the second. 3The complainant is the daughter of the appellant. She was aged 10 years and two months at the time of the offence for which the appellant was convicted and aged 17 when she gave her evidence at the trial. 4The appellant appealed against conviction, the only ground being that a miscarriage of justice resulted from the absence at the trial of fresh evidence. The appellant also appealed against sentence. 5As the appeal on conviction does not relate solely to a question of law, the appellant required leave to appeal both against conviction and sentence: Criminal Appeal Act 1912 s 5(1). The appellant did not seek leave to appeal against conviction, however, no point concerning this was taken on the hearing of the appeal. The conviction appeal 6Before turning to the fresh evidence it is convenient to consider the evidence presented to the jury at the trial as the effect the fresh evidence may have had on the jury needs to be considered in that context. 7At trial, the prosecution case was dependent on the evidence of the complainant as to both incidents, and also relied heavily on the corroborating accounts given by the complainant's aunt, MH, and mother, FW, of having been told about the first incident by the complainant in 2002 and 2008 respectively. First count: complainant's evidence 8As to the first incident, the complainant's evidence (given by CCTV) was that she was at home watching TV with her siblings when the appellant asked her for a massage. They went alone to the bedroom, where she massaged him for 15 to 20 minutes, after which she asked for the appellant to massage her. The complainant said that while massaging her, the appellant "started massaging my insides of my legs and started massaging my groin and then he moved my underwear to the side and started to play with my vagina and then slipped his fingers into my vagina" (appeal book 138). She said he moved his fingers in and out of her vagina more than once, and that: "after the sixth, seventh time I was just like 'Can you stop' and he's just like 'Why' and I'm just like 'Please stop' and he's just like stopped and he's like 'What did it feel like' and I said 'Oh it feels like, I don't like it' can like yeah and he said 'Don't you like it, it's supposed to feel good'. 'No it's not, it didn't'." (appeal book 139) 9She gave evidence that after he stopped they sat on the floor of the bedroom and had the above conversation, during which he also said "'If you keep going' or 'You do it again I'd get you stuff, I'd buy you stuff' yeah and 'Let you go to your friends' houses'" (appeal book 140). 10The complainant gave evidence that she told first her aunt, in 2002, and then her mother, in 2008, about the first incident. These accounts will be set out below along side the respective accounts given by her mother and aunt. 11The complainant also gave evidence that on the day following the first incident, she intentionally banged her head against a brick wall at school, and was stopped by a teacher and questioned, but did not disclose the incident to her (appeal book 141). The teacher gave evidence that she did not recall this and that such an incident would have been worthy of an incident report (appeal book 225, 333). 12The complainant also gave evidence that in 2003 or 2004 her mother asked her if her father had ever touched her and she said "No, he hasn't done anything to me mum I promise" because the appellant "was in the same room with us and he gave me evil eyes" and "I was too scared to say" (appeal book 186-187). 13The complainant also gave evidence that she did not resist her father or seek help immediately after the incident because she was afraid of getting in "heaps of trouble" or being "flogged" (appeal book 141). First count: complainant's mother's evidence 14The complainant's mother also gave evidence by CCTV. She corroborated the complainant's account of being asked by her if the appellant had ever "touched you on the rude part" in 2004 (appeal book 218). It conflicted to a minor degree with the complainant's account of being asked by her mother, in that the complainant recalled that the appellant was in the room, but her mother recalled that he was not in the room but was nearby and "probably would've heard me say it" (appeal book 219). 15The complainant's mother also gave evidence corroborating the complainant's account of telling her mother about the first incident, over the telephone in 2008. According to the complainant, in October 2008 she told her mother about the first incident over the phone "and dad was going off in the background, saying that I'm a lying bitch, that's not true" (appeal book 174). The complainant's mother said that during the phone call the appellant yelled into the phone receiver: "You're a lying little bitch and I'll have you for defamation of character" (appeal book 219). The complainant's mother then recounted an argument that took place with the appellant following the conversation, in which the appellant allegedly stated: "Yes, well I must've fucked her, yes I must've done it, well okay are you happy. I fucked her. I done it" (appeal book 220), and then "Are you happy now?" (appeal book 223). First count: complainant's aunt's evidence 16The complainant's aunt gave evidence corroborating the complainant's account of recounting the first incident to her. 17According to the complainant, around July 2002 she was at her aunt's place (appeal book 142): "We were having a swim and that, and Aunty [XX] had asked me something before I hopped in the - hopped in to have a swim, she asked me, 'What's up with you, [XX], you look upset today?' I said, 'Oh nothing's wrong, Aunty [XX], nothing's wrong.' So she said, 'Okay, girls, go hop in and have a swim,' so I was just like okay then, so we all jumped in and had a swim and I was just like swimming around, like started feeling upset now so I hopped out and went up over to Aunty [XX] and said, 'Aunty [XX], I've been lying to you, I need to tell you something' and she said, 'Yes, okay, come with me,' so we went - I went with her and we went into her bedroom. ... Into her en-suite and then she was just like 'Now, what's wrong, darl, are you going to tell me something' and I was just like, 'Yes,' and she's like, she's like, 'Well, go on then, come out with it' and I told her and I said that Dad had sexually abused me, he had touched me, yeah. ... I said that Dad had - what I exactly said to her, I said, 'Dad had a massage - asked me for a massage and I gave him the massage and then I asked for a massage and I gave him a - like, he gave me the massage and then started playing with my vagina' ... " 18She was then examined as to the events that followed (appeal book 143): Q. So on the day that you told Aunty [XX] you were still living with the accused your father, is that right? A. Yeah. Q. After you told Aunty [XX] and she went somewhere, did you see the accused? A. Yeah. Q. Where did you see him? A. He came to Aunty [XX]'s house and come and got us - us kids. Q. How was he when you saw him? A. He was fuming, real cranky, going off. Q. Did he say anything to you about - or did he say anything to you? A. Yes, he said that, 'Why have you been opening your big, fat mouth, lying, you know not to lie,' blah, blah, blah, carrying on screaming, like you couldn't really understand him, but you could hear him say, like- Q. Was that in front of Aunty [XX]- A. Yeah. Q. -when he was doing that? A. Yeah, and he - he also said that, 'You shouldn't believe what your aunty says and you shouldn't believe anything else,' and just screaming at the top of his lungs. 19The complainant's aunt gave evidence that the complainant came to her house for a swim during the school holidays in July 2002. A document titled "Daily Meteorological observations for [the area of the complainant's aunt's house]" was in evidence, indicating a temperature range in July of 2002 of between 13-21 degrees C. According to the complainant's aunt, the complainant was there without her brother and sister, and swam with the complainant's aunt's daughters (appeal book 197-199): Q. Did you say something to [the complainant]? A. Yes. Q. What did you say? A. I asked [the complainant] was anything wrong. Q. Did she answer? A. She said 'Everything's all right Aunty [XX]'. ... Q. Did you go to work that day? A. Yes. Q. Did you return to make the girls some lunch? A. Yep. ... Q. Did you speak to them when you returned? A. I went out the back and yelled out Mum's home. Q. Right, and what happened then? A. [The complainant] got out of the water and come up to me. Q. What happened then or what did you see about [the complainant] when she came up to you. A. She had a towel - the end of the towel was in her mouth. Q. In her mouth? A. Chewing on them. Q. Was that something you'd seen her do before? A. No. Q. What happened then? A. She asked to see me. Q. Yes. Can you remember what she said, the words she said? A. 'Can I see you Aunty [XX]?' Q. Okay, and did you answer? A. Yes. Q. What did you say? A. I said, 'Can you go to the kids bathroom?' Q. She said, 'Can I go to your bathroom Aunty [XX]?'? A. I said 'Yes continue up to the hallway'. ... Q. Has she ever done that before, asked to go to the bathroom in your room? A. No because my - no. ... Q. At some stage did she say the words to you, 'I've got something to tell you Aunty [XX]?'? A. Yes. Q. What did you say when she said 'I've got something to tell you Aunty [XX]?'? A. I said to [the complainant], 'What's wrong? Has Daddy done something?' and [the complainant] said 'Can I tell you?' and I said 'Yes' and she told me. Q. What did she tell you? A. Said her daddy were massaging and - do I have to tell you, yes? Her daddy were massaging and her dad put fingers in her Mary Ellen which, in my case, is a vagina. I've taught my kids to say Mary Ellen. Q. Okay. After she said that did you say something? A. Yes. I said to [the complainant], 'Are you sure [XX] this happened? This is a big accusation to make against your dad'. Q. Did she answer? A. Yes. She said she's sure. 'I'm sure Aunty [XX]'." 20The complainant's aunt then gave evidence of leaving the complainant at her home and driving to the appellant's house and saying to him: "You put your finger up [the complainant] while she was massaging you" (appeal book 200). She gave evidence that he replied with words to the effect of: "I never touched [the complainant]", and "I fucking didn't. I'll have you up for defamation of character. Get off my property" (appeal book 200). The complainant's aunt said that she then returned home, and the appellant arrived at her home shortly after. She gave evidence that the appellant yelled at her, called for the complainant and took the complainant home with him (appeal book 201). 21In cross examination, the complainant was asked: "What I'm asking you is whether you told Aunty [XX] that he asked for a massage or 'massaged daddy for a long time and he put his finger in my Mary Ellen'?" The complainant replied, "I didn't say it like that to her" (appeal book 176). 22The complainant's aunt gave evidence that she did not tell the police about the incident but she told DOCS. She said she did not follow it up with DOCS (appeal book 204). Second count: complainant's evidence 23As to the second count, the complainant gave evidence that on the way home from visiting her grandmother on the evening of Christmas Day 2002, she fell asleep in the front seat of the car driven by the appellant. She said she awoke with her skirt pulled up and the appellant's "hand rubbing on my leg and like playing with my vagina, over my underwear" (appeal book 150). She said she pretended to be asleep for five to ten minutes before turning her head to look at the appellant, at which point he stopped. The complainant was cross-examined about an inconsistency between her evidence at trial and her police interview, namely that she told police in the interview that she: "was asleep and I was in one of those half sleeps, where you can still feel and hear everything, and like when I felt it, I like woke up and like woke, the kind of woke up, just opened my eyes a bit and turned me head, and then I opened me eyes fully and then he moved his hand away real quick" (appeal book 186), as opposed to having pretended to be asleep. The complainant agreed that these accounts were different, but also said: "Well half asleep is like, what I felt was like, I was awake but I wasn't fully awake, I felt him doing it, and as soon as I felt him like, realised I opened my eyes, and yeah" (appeal book 185). This inconsistency was relied on heavily by counsel for the defence in his address to the jury. 24The complainant gave the following evidence in cross examination (appeal book 173-174): "Q. Do you remember, you've told us you talked to Aunty [XX] and you told her something in 2002 right? A. Yes. Q. Do you remember talking to Aunty [XX] in 2007 and talking to her about this incident in the car? A. No. Q. It's not a situation that you said to Aunty [XX], you wouldn't believe it Aunty [XX] I woke up and dad had his hand down my pants and he was fingering me while you were driving in the car travelling to [W]? A. I didn't say that to- Q. You didn't say that to Aunty [XX]? A. No I only told her about the one on the bed. Q. You didn't have a conversation when you went to [G] to do some shopping? A. No. Q. I'll be specific. You told her that he did something during a Christmas visit to your Nan's in [W] and you were driving in the car travelling to [W]. Did you tell her you were travelling to [W] when it happened? A No I didn't tell her that that happened at Christmastime. I didn't tell her anything about that incident." 25The complainant was asked on re-examination whether she would describe the second incident to anyone as "fingering". She agreed that she would not have described it this way (appeal book 190). Second count: complainant's aunt's evidence 26The complainant's aunt gave the following evidence at trial in relation to a visit with the complainant in July 2007, which was admitted only as to the complainant's credibility (appeal book 205): "Q. And did [the complainant] say something to you about an incident that occurred at Christmas time? A. Yes. Q. And she told you about an incident that occurred in a motor vehicle being driven by her father? A. Correct. Q. Was the fact of the matter that [the complainant] said that that happened while they were driving to [W]? A. Yes. Q. That's the important part. To [W], not from [W] to [T]. Yes? A. She just said they were on their way to nan's. I don't know if they were coming back or on the way. I was just told. Q. I'll refer you to your statement, paragraph 20. 'On the way back to [the complainant's mother's] house from shopping [the complainant] told us that while they were driving in the car, travelling to [W], [the complainant's siblings] were asleep in the back seat. [The complainant] said she was asleep in the front seat.' That says driving to [W]? A. Yes, yes. Q. You said that she said to you 'You wouldn't believe it Aunty [XX], I woke up and dad had his hands down my pants and he was fingering me'? A. Yes. Q. That's the words she used 'he was fingering me'? A. Yes." 27The complainant's aunt's statement to police (reproduced at appeal book 86) was in evidence, and gave a detailed account of this alleged conversation. The complainant's aunt said that the complainant made the above statement in a car with the complainant's aunt, the complainant's aunt's husband and their two children, on the way home from shopping. Her statement continued: "21. I said, 'Can you come back with us and I'll take you to the [F] Police Station to report it. [The complainant] said she was too scared but I know she wanted to come with us. When we got back to [the complainant's mother]'s place [the complainant's aunt's daughter] helped [the complainant] pack her bags so she could come with us. That's why we decided to leave the next day. I didn't want to stay near that prick another night. 22. At the time we left [the complainant] got really scared and said, 'I can't do it Aunty [XX], I can't do it.' [The complainant] made me pinky promise that I wouldn't tell anyone before I left. I wanted to report it to [G] police on the way but I knew [the complainant] was terrified of her father. We left and returned to [F]." 28The only other evidence at trial came from the officer who interviewed the complainant and arrested the appellant. She gave evidence as to this, and noted that after identifying herself to the appellant, he said: "This is about [the complainant], isn't it?" (appeal book 235). 29During the course of her summing-up the trial judge directed the jury that it could accept part and reject part of the evidence of the witnesses. She referred to the fact that the complainant's evidence was that she told her aunt about the first incident but not the second, contrary to the evidence of her aunt. She referred to the differences between the evidence of the complainant and that of her aunt in the conversation in which the complainant said she told her about the first incident. She referred to the evidence of the complainant that on the day following the incident she banged her head against a brick wall at school and the evidence of the teacher, Ms Watson, to the effect that she did not recall the incident but that had it occurred it would have been worthy of an incident report. 30Her Honour emphasised that the Crown case largely depended on the acceptance of the reliability of the complainant. She referred to the statement of counsel for the defence that the differences between the complainant's and her aunt's version of the conversation at which the first incident was recounted were significant. She stated the jury had to decide whether the aunt's evidence supported what the complainant said she told her and that if it did it may increase the weight to be given to the complainant's evidence. 31Her Honour further told the jury that if they found the appellant not guilty on either count, particularly if it was because of doubts concerning the reliability of the complainant's evidence, then they would have to consider how that consideration or conclusion affected their consideration of the other count. 32The jury retired to consider its verdict at 11.10am on Friday, 7 August 2009. They requested and were given a transcript of the complainant's evidence, and a copy of the complainant's aunt's statement to police. They also requested a copy of the complainant's statement to police, but they were not given this as it was not in evidence. 33At midday on Monday, 10 August 2009, a jury note indicated they were unable to reach a decision as to either count and believed they would not reach a decision given more time. Three hours later the jury sent another note with words to the effect of: "Do we have to stay here forever?" (appeal book 52). On the morning of Tuesday 11 August 2009, the jury requested a copy of the complainant's aunt's evidence. They received it at 10.44am. They returned a verdict of guilty to the first charge and not guilty to the second charge just after 2.00pm that day. The fresh evidence 34The fresh evidence consisted of an affidavit of JM, the mother of the appellant. In an affidavit affirmed on 16 May 2011, she gave the following evidence: "6. On Monday, 21 September 2009 at 7.15 am, [MH, the complainant's aunt] telephoned me. We had the following conversation with words to the effect: [MH] said: 'I am ringing you about [MRW's] court cases, the ones at [F] and [T]. Both of my statements for courts were made up between [FW, the complainant's mother], [the complainant] and me. I just went along with what [FW] and [the complainant] told me. Is [MRW] appealing against the case?' I said: 'I don't know but I don't think so.' 7. [MH] then started crying on the phone and said words to the effect: 'He got 25 years for nothing. Please tell [MRW] that I am so sorry. I took [the complainant's siblings] to [C] prison to see him because they have been asking for their father but they wouldn't let me in. [FW] and [the complainant] are bad on drugs and running amok in [F]-[T]. [The complainant] is living with a 27 year old man.' ... 10. Immediately after the conversation with [MH], I wrote down our conversation. I then spoke to my partner and my daughter. On the same day I rang and left a message for Alex Donne, who was [MRW's] solicitor at the time of the trial to call me. I cannot recall now when he returned my call, but I do recall saying to him ' I have some information from [MH].' Alex said to me ' Don't talk to me. Send it in a letter.' 11. I then wrote to Alex Donne. I have been shown a handwritten letter by me dated 5 October 2009 and I recognise that as the letter I sent to Alex Donne. Annexed hereto and marked with the letter 'A' is a copy of that letter." 35The letter which is annexure A to the affidavit repeated what was in par 6. Relevantly it stated: "On Monday 21.9.09 at 7.15am [MRW]'s wife's sister rang me referring to [MRW's] court cases. The one at [F] and [T]. She stated that both court cases were made up between [FW], [the complainant] and herself. She said she only went on what they told her ... She then broke down crying on the phone and said he got 25 years for nothing ... She stated that [FW] and [the complainant] were bad on drugs and running amok in [F]-[T] ... After that conversation she rang me back at midday wanting to know where [MRW] was ... She made these 2 phone calls from [a] payphone. She then gave me her mobile to ring her back." 36Paragraph 6 of the affidavit was admitted as evidence of the conversation, not as evidence of the truth of its contents. Similarly, the letter which is annexure A was not admitted as truth of the representations contained in it. 37During the course of the appeal each of MH and JM gave evidence and were cross-examined. During the course of her cross-examination MH agreed she had two conversations with JM on 21 September. It was put to her and she denied the conversations did not concern the wellbeing of JM's grandchildren. She rejected the proposition that she did not tell JM that there had been a drug raid on the home of FW (the appellant's former wife) and that as a result she (FW) had been deemed an unfit mother stating that that was why she (MH) had custody of JM's grandchildren. In the course of her cross-examination, she was asked the following questions (the references are to the transcript of the appeal): "Q. What I'm suggesting to you that in the second conversation you had with [JM] again there was no discussion with respect to the wellbeing of the children? A. Yes there was." (at T10.15 - T 10.20) and Q. What I'm suggesting to you is that the purpose of the phone calls to [JM] on 21 September had nothing to do with the wellbeing of those children and that's simply a lie made up by you? A. No it's not. Q. In fact the purpose of the phone call on 21 September was for you to confess to [JM] that you in cahoots with [the complainant] and [FW] had made up your statement to the police with respect to [MRW]. A. No. Q. Are you sure about that? A. One hundred per cent." (at T10.35 - T10.46) 38And she gave the following additional evidence: "Q. [JM's] affidavit indicated, did it not, that you told her that [FW] was on drugs and running amok around [F]-[T]. That wasn't a lie, was it? A. She was running amok. Q. Yes, and you told [JM] that, did you not? A. Yes." (at T 12.5 - T 12.11) and "Q. But you disagree, I take it, that what you also told [JM] in that phone call was that you, along with [FW] and [the complainant], made up your statements with respect to [MRW]? A. Never. Q. Never said that? A. Never ever. Q. Do you agree madam that in that conversation with [JM] you said to her that [MRW], 'He got 25 years for nothing'? A. No because I didn't know he had 25 years." (at T12.20 - T12.31) 39At the conclusion of her evidence she was asked the following questions (at T 13.5): "Q. You see what I'm suggesting to you madam, as I have already, is on 21 September 2009 you made a confession to [JM] that you'd fabricated your evidence in cahoots with [the complainant] and [FW]? Q. No. Q. And the basis for that confession was that you knew there was rumours around town letting everyone know precisely what the three of you had done? A. No." 40In her evidence in chief, JM denied she had any conversation concerning the wellbeing of her grandchildren. She stated she had a clear recollection of what was discussed between herself and MRW on 21 September 2009. 41In cross-examination JM gave evidence that she had had a number of strokes over the previous ten years and her memory was not as reliable as it used to be. She agreed that sometimes she could not remember, or might not quite understand what was going on. She said she wrote important matters down and that she wrote her conversation with MH on a piece of paper which she had not been able to find. During the course of her cross-examination she gave the following evidence: "Q. Your younger grandchildren, [R] and [J], they live with [MH] now, don't they? A. Yes, yes. Q. But you haven't had any contact with them for quite some time, have you? A. No. Q. Are you still interested in their lives? A. I'd very much like to see them but [MH] said they're not allowed to be seen unless we have legal - have to go to Court to see them. Q. It's the case, isn't it that when [MH] called you in September 2009, you wanted to find out how the kids were going, didn't you? A. No, they weren't mentioned at all, the children." (at T17.31 - T17.45) 42However, she subsequently gave evidence that the children were in fact mentioned: "Q. [JM], it's the case isn't it that when [MH] called you on 21 September, she told you that she had the younger children in her custody, didn't she? A. Yes. Q. And she told you that they were doing okay? A. No, I don't think she mentioned any more about it. Q. So are you telling the Court that she just rang you up and told you that she had the children and that was that? A. Yeah, but that wasn't what she rang me up for I feel. Q. That's not my question. Is it your evidence that [MH] simply called you up and said, I've got the children and nothing more about them? A. No, she was ringing up about the case. Q. She also told you that the children were doing okay at school, didn't she? A. I don't think that was mentioned. Q. And she told you that [FW] was not well and she couldn't look after the children at that time, didn't she? A. No. Q. Is it possible that you've forgotten that part of the conversation? A. I don't think so. Q. What makes you think that you haven't forgotten it? A. I don't know. Q. In relation to [MRW's] case, what [MH] actually said to you was that there were rumours going around town that [FW] and [the complainant] had made up the allegations, isn't that right? A. Yes." (at T19.16 - T19.49) and "Q. [MH] also gave you her mobile number in that conversation, didn't she? A. That's right. Q. And she said - she gave that to you so that if you wanted to call the younger children you could? A. Yeah, but I never because I didn't-- Q. But you've never called them? A. No. Q. Is it your evidence that as you're sitting here today, two years after that conversation, that you've got a clear memory of that conversation? A. I've got sort of a memory of it, yes. Q. Sort of a memory? A. Yeah. Q. And even though it was two years ago? A. Yes. Q. Your memory of that conversation is not entirely clear and complete though is it? A. Partly. Q. And you've got some problems with your memory because of the strokes and the time that's gone by? A. (No verbal reply). Q. [MH] didn't tell you that she had made up her evidence, did she? A. Yes, she did for sure. Q. In fact what [MH] told you is that other people around town were saying that, isn't that correct? A. I don't know about that. Q. Well, what do you say to that proposition? [MH] in the phone call with you told you that the word around town was that the case had been made up? A. Yes." The parties ' submissions 43The appellant submitted that the evidence in question was fresh evidence arising from a conversation which had taken place after conviction. Counsel for the appellant submitted it was credible, that is, capable of belief, relying on the fact that parts were consistent with the evidence of MH, that there was no issue that two phone calls took place on the day in question from a phone booth, and that there was a discussion about FW being on drugs. She also relied on the letter and submitted that JM was unshaken in cross-examination. She submitted that if the jury was to accept the evidence there was a significant possibility it would raise a doubt in their minds. 44The Crown submitted that JM's evidence should be rejected along with what she wrote in her letter, pointing to her lack of memory and saying that the reason she may have been confused was because of the rumours that the case had been fabricated, something she had been told by MH. Consideration 45The principles on which a verdict of acquittal or a new trial will be ordered on the grounds of fresh evidence are relatively well settled. In Ratten v R [1974] HCA 35; (1974) 131 CLR 510, Barwick CJ said (at [518]): "In every situation the court must decide on the relevance of the new evidence, even in the case of a reference by the Attorney-General such as the present. It must decide its credibility, that is to say whether or not it is capable of belief, both as to veracity and competence in the case of oral evidence, and as to authenticity in the case of documentary evidence. But in some situations, as I shall point out, the court will decide whether it believes the evidence. In other situations it will be enough that, whatever its own view, the evidence is capable of belief, and likely to be believed, by reasonable men. Having considered relevance and credibility, the court will weigh the cogency of the evidence, having in mind always the evidence produced at the trial. That evidence will be taken in that sense in which, having regard to its verdict, the jury must have accepted it. For all these purposes the court may see and hear the witnesses of the new evidence, both Crown and appellant being entitled to examine and cross-examine as the case may be. Further, the court will be entitled to receive evidence which tends to support, contradict or weaken the new evidence or the inferences which might be drawn therefrom." 46In circumstances where what is sought is that the conviction be quashed and a new trial ordered, there are three questions that need to be considered. First, is the evidence fresh evidence in the sense that it was not available to the appellant at the time of trial: see Ratten v R supra, at 512; second, was it credible or capable of belief and third, was there a significant possibility that the jury acting reasonably would have acquitted the appellant. These principles were summarised by Kirby J in R v Abou-Chabake [2004] NSWCCA 356 at [63], Mason P and Levine J agreeing. 47In the present case there is no issue as to the freshness of the evidence. It arose out of a conversation which took place after conviction. 48What is required in respect of the second question was considered by the High Court in Gallagher v R [1986] HCA 26; (1986) 160 CLR 392 and Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259. 49In Gallagher v R supra, Gibbs CJ stated the evidence had to be credible or at least capable of belief. He went on to say as follows (at 397, citations omitted): "There can be no doubt that the Court of Criminal Appeal is required to form some view as to the credibility of the fresh evidence. In some cases the Court of Criminal Appeal will be able to reach a firm conclusion as to whether the evidence is trustworthy or unreliable, but in many cases it will be able to do no more than decide whether or not the evidence is apparently credible, or capable of being believed. Where the fresh evidence conflicts with the evidence given at the trial, and the Court of Criminal Appeal has not heard the witnesses with whose evidence it is in conflict, it will often not be possible to decide whether a reasonable jury would (or might) believe the fresh evidence: cf per Stephen J in Lawless v The Queen . Further, as Mason J pointed out in the same case, the question will not necessarily be whether the evidence is likely to be believed by a jury, because evidence may be sufficiently cogent and plausible to lead a jury to have a reasonable doubt, although the jury might not necessarily prefer it to other evidence with which it is inconsistent." 50His Honour in considering the third question then made the following comments (at 399): "It seems to me, with all respect, that where the trial was by jury, the accused was entitled to have the question of his guilt determined by the verdict of the jury, and that the Court of Criminal Appeal, in considering the effect of the fresh evidence, should consider what effect it might have had upon a reasonable jury. It is not enough that there is a bare possibility that a jury might have been influenced by the evidence to return a verdict of not guilty. On the other hand, it is too severe, and indeed speculative, a test, to require that the Court should grant a new trial only if it concludes that the fresh evidence was likely to have produced a different result, in the sense that it would probably have done so. I have had the advantage of reading the reasons for judgment prepared by Mason and Deane JJ who suggest that the Court of Criminal Appeal will conclude that the unavailability of the 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. I am in substantial agreement with this statement. However, I would emphasize that no form of words should be regarded as an incantation that will resolve the difficulties of every case. No test 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. It is only a practical guide to the application of that principle to say that the court will grant a new trial if, having approached the matter with the caution that is always demanded when fresh evidence is produced in a criminal case, and having weighed the credibility of the fresh evidence and considered its cogency in the light of the evidence given at the trial, it considers that a jury might reasonably have reached a different verdict if the evidence had been available at the trial." 51Whilst Mason and Deane JJ suggested the correct approach in the following terms (at 402): "Regardless of the precise words in which one describes requirements such as 'cogency', 'plausibility' or 'credibility', the ultimate question for decision by an appellate court when considering an application for a new trial on the ground of fresh evidence in the relevant sense, is, as the remarks of Rich and Dixon JJ in Craig indicate, whether there has been a miscarriage of justice at the trial. The appellate court will conclude that the unavailability of the new evidence at the time of the trial involved such a miscarriage if, and only if, it considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial. Obviously, that question can only be answered in the context of, and by reference to, 'the probative force and the nature of the evidence already adduced at the trial'." 52In Mickelberg v The Queen supra, Mason CJ stated the position as follows (at 273, citations omitted): "The final matter concerns the appropriate test to be applied by an appellate court in deciding whether to set aside a conviction on the ground of fresh evidence. It is established that the proper question is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial. This test was endorsed by four of the five Justices in Gallagher v The Queen . Deane J and I considered that the test was best expressed in those terms. Gibbs CJ expressed his substantial agreement with the statement, although his Honour emphasized that 'no form of words should be regarded as an incantation that will resolve the difficulties of every case'. Dawson J said that the court would need to conclude that 'a jury might entertain a reasonable doubt about the guilt of the appellant'. His Honour went on to say that in his view the use of the expression 'significant possibility' did not involve a different standard. I am in agreement with those statements." Whilst Toohey and Gaudron JJ expressed the following views (at 301) (emphasis added): "In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it ( Gallagher , per Brennan J) or, if there be a practical difference, that there is 'a significant possibility that the jury, acting reasonably, would have acquitted the [accused]' ( Gallagher , per Gibbs CJ and per Mason and Deane JJ). If there is a difference it is not material to the outcome of the present applications. For ease of expression we proceed by reference to the formulation that the jury is likely to have entertained reasonable doubt had all the evidence been before it, noting, in that context, that it is necessary that the fresh evidence be credible in the sense that a reasonable jury could accept it as true, but it is not necessary that the court should think it likely that a reasonable jury would believe it: see Lawless , per Mason J, and Gallagher , per Brennan J, but cf Barwick CJ in Ratten. " 53It should be noted that the formulation by Toohey and Gaudron JJ in Mickelberg was different to that of Dawson J in Gallagher , namely that the jury might entertain a reasonable doubt about the guilt of the appellant. Notwithstanding this, this Court has adopted the approach of Toohey and Gaudron JJ in Mickelberg and stated that there is no practical difference between the formulation that a jury would have been likely to entertain a reasonable doubt and the formulation that there was a significant possibility that a jury acting reasonably would have acquitted the appellant: See R v Abou-Chabake supra at [63]. 54Uninstructed by authority, I would have considered that the test of significant possibility imposed a somewhat lower threshold than the test of whether the evidence was such that a jury would have been likely to entertain a reasonable doubt about the guilt of the appellant. However, in the present case the application of either test, in my view, will lead to the same result. 55The evidence is fresh evidence in the sense that it was not available at the trial. The parties accepted it first arose in the conversation to which JM deposed. 56In my opinion, the evidence of JM is credible in the sense that it is capable of belief. Although the Court had an opportunity of observing JM and MH in the witness box, it was not possible in my opinion, to decide more than that the evidence was capable of being believed: See Gallagher v R supra at 397. Having said that, there were a number of difficulties with the evidence of JM which are relevant to the consideration of the question of whether, if the evidence was before the jury, there was a significant possibility that the appellant would be acquitted. 57Turning to the third question I am, however, of the view that if the evidence was before the jury there would not have been a significant possibility of the appellant being acquitted. This is for a number of reasons. 58First, it is by no means clear precisely what MH was referring to in the alleged conversations. She is alleged to have said that both her statements before the Court were made up. She is not alleged to have directly said that she gave false evidence in the Court, although it may perhaps be inferred that was what she was allegedly intending to convey. 59Second and aligned to this point, assuming the jury accepted the evidence of JM as a true recollection, it is not clear what part of MH's statement or her evidence MH was stating to be false. It must be remembered that MH gave evidence at the trial on two issues of importance, namely, that the complainant had complained to her about the first incident and, secondly, that the complainant had complained to her about the second incident. It is not clear whether she was saying she lied about each of these complaints. 60Third, it is not entirely clear from the evidence that MH was saying that she simply went along with what FW and the complainant told her or that she actively participated with them in falsifying the evidence before the Court. JM's evidence was that MH said: "Both of my statements for courts were made up between [FW], [the complainant] and me. I just went along with what [FW] and [the complainant] told me". Although the previous sentence attributed to her would suggest that she was complicit in providing false evidence, there is ambiguity in the last sentence. 61Fourth, it must be remembered that MH denied the terms of the conversation. Once again, although it was not possible to form a view as to her reliability, nothing was put to her which would suggest that her denials were false. 62Fifth, aligned to the fourth matter there are a number of difficulties with the evidence of JM. She admitted her memory was unreliable and that sometimes she could not remember or might not understand what was going on. More importantly, she initially said her grandchildren were not mentioned at all, although later in her evidence she said MH told her she had custody of the children. She admitted MH gave her her mobile phone number and said she could ring the children but said she did not think there was any further conversation about them, something which might seem surprising. Ultimately she said that MH told her that the word around town was that the case had been made up. That, of course, was something different to a statement that MH had been complicit in making up the case. 63Sixth, the inconsistency in the evidence of the complainant and that of MH to which I have referred above (see at [21], [23]-[27]) if anything tends against the suggestion that the story was concocted between MH, the complainant and FW. 64Finally, and perhaps most importantly, the jury had the opportunity of observing the complainant, MH and FW in the witness box and of making an assessment of their credibility. Taking all of the factors referred to above into account, it does not seem to me that the assertions of JM, coupled with the denial of those assertions by MH, would influence the jury such that there would be a significant possibility of an acquittal. 65In those circumstances, leave to appeal against conviction should be granted, but the appeal dismissed. The appeal against sentence 66Her Honour sentenced the appellant to imprisonment for a term of 4 years and 6 months with a non-parole period of 3 years 4 month and 15 days from 26 February 2009 to expire on 11 July 2012. The appellant has appealed on the following two grounds: (1) Her Honour erred in determining that there was an additional aggravating feature of breach of trust, separate from the circumstances of "authority" set out in the indictment. (2) The sentence imposed was manifestly excessive. Her Honour ' s remarks on sentence 67In her remarks on sentence her Honour set out the facts surrounding the count on which the appellant was found guilty broadly in accordance with the account of the complainant to which I have referred above. She accepted that she had to consider so far as possible in sentencing the appellant, sentencing practice as at the date of the offence. 68In relation to the question of breach of trust her Honour made the following comments (at 4-5): "In relation to the consideration of breach of trust, this is a separate circumstance from part of the indictment that [the complainant] was under the offender's authority. The breach of trust which I take into account here, which is an obvious and aggravating feature, is in relation to [MRW] being [the complainant's] father on the one hand, and at the time she was also under his authority. The abuse of trust involved between a father and a child is an obvious aggravating feature." 69In dealing with mitigating factors her Honour found no evidence of remorse, nor any evidence upon which a court could make a finding that his prospects of rehabilitation were good. She found, however, that from the early 1990's he was a contributing member of the community, who took his family responsibilities and financial responsibilities seriously. 70Her Honour found the offence to be a spontaneous single act of criminality committed for a relatively short period of time, but not of a momentary nature, and the actions ceased upon complaint. She assessed the offence as below mid-range seriousness, although when she came to pronounce sentence she described it as close to the mid-range. 71Her Honour took certain subjective factors relating to the appellant into account. She found he was 46 years of age and had a small but supportive family which would be important to him upon his release. The parties ' submissions on ground 1 72The appellant pointed to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 ("the Act") which provided that the court in sentencing is not to have regard to any aggravating factor if it is an element of the offence. This, of course, is to avoid double counting on sentencing: See, for example, R v Johnson [2005] NSWCCA 186. 73The appellant submitted that taking into account as an aggravating feature abuse of position of trust in circumstances where one of the elements of the offence was that it occurred whilst the complainant was under the appellant's authority, was an error. It was submitted, in effect, that the aggravating factor in s 21A(2)(k) of the Act was a single aggravating factor and as one of the elements of the offence was that it was committed "under authority" there was no room for its operation. 74It was submitted that the error was compounded by the sentencing judge's remarks that MRW was a feared authority figure. It was submitted there was no evidence on which to base this finding. 75The Crown by contrast submitted that s 21A(2)(k) referred to two distinct categories expressed in the alternative. The Crown also submitted that there was evidence justifying her Honour's description of the appellant as a feared authority figure. 76Neither party was able to point to any authority which directly supported their respective positions. The Crown, however, referred to R v Slater [2003] NSWCCA 178 where Shaw J, with whom Grove J agreed, stated the notion of breach of trust was qualitatively different to the notion of under authority. The Crown also referred to FV v R [2006] NSWCCA 237 at [57] and R v LTP [2004] NSWCCA 109 at [109] as supporting its position. However, as the appellant correctly pointed out, the issue the subject of this ground of appeal did not fall for consideration in any of those cases. Decision 77There can be little doubt, in my opinion, that the matters referred to in s 21A(2)(k), namely abuse of trust and abuse of authority, are distinct concepts although commonly arising out of the same facts. As only the latter of the two concepts formed an element of the offence, in my opinion, it was open to the trial judge to take the former factor into account as an aggravating feature on sentencing. 78However, when the circumstances giving rise to abuse of trust or abuse of authority arise from the same facts it would seem to me that a sentencing judge should be cautious in giving undue weight to an abuse of a position of trust where abuse of authority is an aggravating factor. In circumstances where a sentencing judge does so, error may result with the prospect of intervention by this Court. However, the judge committed no error in taking abuse of a position of trust into account in sentencing the appellant. 79Further, it does not seem to me that the judge erred in concluding that the appellant was "a feared authority figure". Having regard to the jury's verdict, she was entitled to accept the complainant's evidence that she would get into a heap of trouble and get flogged if she complained, and the complainant's evidence of the conduct of MRW when confronted with the complaint (T 5/8/09 p 12). This evidence, in my opinion, provided justification for her conclusion. 80It follows that the first ground of appeal has not been made out. The parties ' submissions on ground 2 81The appellant submitted that the sentence was manifestly excessive. He relied in particular on her Honour's finding as to the nature of the offence to which I have referred above. He pointed out that the maximum penalty was 10 years and submitted that in such a case a head sentence of 4 years and 6 months with a non-parole period of 3 years 4 months and 15 days was manifestly excessive. 82The appellant relied on some statistical evidence. He acknowledged there were limited statistics available for the previous offence under s 66C(2) as there were only five cases available involving a single act of criminality. However, he submitted that in four of those cases a non-parole period of 3 years or less was imposed, whilst only one case involved a head sentence of greater than 4 years. He also pointed out that 51 percent of all offenders being sentenced for multiple offences under s 66C(2) received a head sentence of 4 years or less and only two received a non-parole period of 3 years or less. 83The Crown in its submissions pointed to a number of problems with the statistics. It pointed out that it included sentences containing discounts for pleas of guilty and offences where the offender was of prior good character. The Crown submitted that the appellant was not of good character, having been convicted in 1987 for maliciously inflicting actual bodily harm with intent to have sexual intercourse. The Crown submitted these factors would tend to suggest that a sentence for an offence against a ten year old after a trial and where the offender was not of prior good character could well be found at the top of the range. 84The Crown also submitted that generally speaking the top of the statistical range is generally not the maximum sentence. Reference is made in that regard to what was said by this Court in Williams v R [2010] NSWCCA 15 at [23] and Bourke v R [2010] NSWCCA 22 at [43]-[44]. 85The Crown also referred to the fact that in R v LTP supra a sentence of 8 years with a non-parole period of 6 years imposed in respect of a single offence under s 66C(2), with a maximum penalty of 10 years, was quashed by this Court and a sentence of 6 years with a non-parole period of 4 years imposed. The victim was the 12 year old daughter of the offender. The offender had no prior criminal convictions. Although the case was one of penile penetration the Crown submitted that it demonstrated that the sentence was within an acceptable range. Consideration 86The offence in question at the time carried a maximum penalty of 10 years. There was at the time no standard non-parole period. The sentence imposed by the trial judge was a little less than half the maximum penalty. The question is whether that sentence was so long as to lead to the conclusion that the sentencing discretion miscarried and the sentence was unjust and unreasonable: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [58]; Hili v R; Jones v R [2010] HCA 45; (2010) 85 ALJR 195 at [59]. 87In the present case I do not find the statistics particularly helpful. They were simply too limited and covered too wide a variety of potential offences to be of any assistance: See Hili v R supra at [54]. Further, contrary to the submissions of the Crown, I do not find the sentence imposed by this Court in R v LTP supra conclusive in the present case. 88Although minds may well differ as to the appropriateness of the sentence, it seems to me that having regard to the nature of the offence, the maximum penalty, the age of the child, the prior criminal history of the appellant, the absence of any identifiable error in the reasoning of the trial judge on sentencing and the fact that the appellant was sentenced after a trial in which he pleaded not guilty, her Honour's sentence was not unreasonable or unjust such as to demonstrate error in accordance with the principles in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505. In the circumstances, this ground of appeal has not been made out. 89It follows that leave to appeal against sentence should be granted and the appeal dismissed. 90The orders I would therefore make are: 1 Leave to appeal against conviction granted, appeal dismissed. 2 Leave to appeal against sentence granted, appeal dismissed. 91JAMES J: I agree with the Chief Justice. 92JOHNSON J: I agree with the Chief Justice. ********** 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: 07 December 2011