Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: FH v Regina [2014] NSWCCA 231 Hearing dates: 18 June 2014 Decision date: 18 November 2014 Before: Price J at 1; Harrison J at 11; Garling J at 204 Decision: (1)Allow the appeal. (2)Quash the convictions. (3)Direct the entry of verdicts of acquittal. Catchwords: CRIMINAL LAW - appeal against conviction - charges of sexual assault upon child - Crimes Act 1900, s 66C(2), s 61M(1), s 61O(2) - directions to jury and summing up - whether misdirection on use of photographs as corroboration, failure to cross-examine complainant on inconsistent statement or limitations upon use of context evidence - whether trial judge adequately put defence case to jury - whether erroneous failure to permit accused to raise prior good character - whether verdicts unreasonable or unsupportable Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Evidence Act 1995 Cases Cited: AP v R [2013] NSWCCA 189 B v The Queen [1992] HCA 68; (1992) 175 CLR 599 DJV v R [2008] NSWCCA 272; (2008) 200 A Crim R 206 Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086 El-Jalkh v R [2009] NSWCCA 139 Healey v R [2006] NSWCCA 235 Ith v R [2012] NSWCCA 70 Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 Mahmood v Western Australia [2008] HCA 1; (2008) 232 CLR 397 Maraache v R [2013] NSWCCA 199 Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 Miles v R [2014] NSWCCA 72 Penza and Di Maria v R [2013] NSWCCA 21 PGM v R [2006] NSWCCA 310; (2006) 164 A Crim R 426 PGM (No 2) v R [2012] NSWCCA 261 Picken v R [2007] NSWCCA 319 Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463 R v Abusafiah (1991) 24 NSWLR 531 R v Kanaan [2005] NSWCCA 385; (2005) 157 A Crim R 238 R v Meher [2004] NSWCCA 355 R v Tomazos (unreported, NSWCCA, 6 August 1979) R v Vonarx [1999] 3 VR 618 R v Wilson [2005] NSWCCA 20; (2005) 62 NSWLR 346 Rodden v R [2008] NSWCCA 53; (2008) 182 A Crim R 227 Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 Wong v R [2009] NSWCCA 101 Category: Principal judgment Parties: FH (Appellant) Crown (Respondent) Representation: Counsel: H Dhanji SC with S Buchen (Appellant) S Herbert (Crown) Solicitors: Phillip Sim & Associates Lawyers (Appellant) Solicitor for Public Prosecutions (Crown) File Number(s): 2010/254679 Publication restriction: The complainant and the appellant to be identified by pseudonym only Decision under appeal Date of Decision: 2012-04-27 00:00:00 Before: Neilson DCJ File Number(s): 2010/254679 Judgment 1PRICE J: I have had the benefit of reading the draft judgment of Harrison J. His Honour's exposition of the evidence and analysis of the inconsistencies in the complainant's evidence enables me to go to his conclusion that the jury must, as distinct from might, have entertained a reasonable doubt about the appellant's guilt. As I am aware that Garling J agrees with the orders proposed by Harrison J, my reasons for disagreement will be short. 2Harrison J details at [144] - [147] below, the principles on which this Court is obliged to deal with Ground 5 of the appeal. 3The jury was entitled to find that the appellant took the pornographic photographs of the complainant in October 2007 and on two occasions in February 2008 and in April 2008. In doing so, the jury rejected the evidence of the appellant and his daughter LH on this issue. 4In my view, LH's evidence of the taking of the pornographic photographs (other than photograph number 3) was plainly dishonest as was the appellant's testimony. The only rational conclusion was that these photographs were taken by the appellant and it was he who cropped photograph 9 so that it showed a close-up of the complainant's genitalia and named photograph 10 as "Pussy1." 5The significance of the finding that the appellant took these pornographic photographs is as follows: (a)it provides independent support for the complainant's evidence that her relationship with the appellant was sexualised; (b) the appellant had a sexual interest in the complainant; and (c) the appellant had the time to covertly take the pornographic photographs which included the re-arranging of the complainant's clothing and her posing for the photographs. His acts were not discovered by Ms Gonzalo or anybody else. 6In these circumstances the jury was entitled to reject the appellant's submissions that there would not have been the opportunity to commit the offences and the complainant's evidence was implausible. 7When counts 1 to 3 on the indictment were alleged to have been committed, the complainant was eleven years old and for counts 4 to 8, she was thirteen. It was open to the jury to accept the complainant's evidence that LH was her closest friend and that she spent time at the appellant's home to see LH as much as possible. 8It was the complainant's evidence that the appellant had threatened that she would never see LH again if she did not accede to his wishes. Her young years and close friendship with LH provide a rational explanation for her visits to the appellant's home, notwithstanding the continuing sexual abuse. 9Having made my own independent assessment of the evidence, it is my view that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of each count in the indictment. I respectfully disagree with their Honours that the jury must have had a reasonable doubt. 10I would dismiss ground 5 of the appeal. 11HARRISON J: The appellant was tried in April 2012 before his Honour Judge Neilson and a jury in the District Court of New South Wales on an indictment charging eight charges of a sexual nature. It was alleged that the appellant sexually abused his partner's daughter on a number of occasions between October 2005 and June 2008. The counts in the indictment are summarised in the table below. # Offence Particulars Maximum Penalty 1 Aggravated indecent assault: s 61M(1) of the Crimes Act 1900 Between 14 October 2005 and 31 December 2005 Imprisonment for 7 years Aggravated by the circumstance that the complainant was aged 11 years (Standard non-parole period of 5 years) Touching of the complainant's breast 2 Aggravated sexual intercourse with child between 10 and 14 years: s 66C(2) of the Crimes Act 1900 Between 14 October 2005 and 6 June 2006 Imprisonment for 20 years Aggravated by the circumstance that the complainant was under the appellant's authority Digital penetration of the complainant's vagina 3 Aggravated act of indecency with person under the age of 16 years: s 61O(1) of the Crimes Act 1900 Between 14 October 2005 and 6 June 2006 Imprisonment for 5 years Aggravated by the circumstance that the complainant was under the appellant's authority Inciting the complainant to masturbate the appellant 4 Aggravated act of indecency with person under the age of 16 years: s 61O(1) of the Crimes Act 1900 Between 7 June 2007 and 6 June 2008 Imprisonment for 5 years Aggravated by the circumstance that the complainant was under the appellant's authority Inciting the complainant to masturbate the appellant 5 Aggravated sexual intercourse with child between 10 and 14 years: s 66C(2) of the Crimes Act 1900 Between 7 June 2007 and 6 June 2008 Imprisonment for 20 years Aggravated by the circumstance that the complainant was under the appellant's authority Digital penetration of the complainant's vagina 6 Aggravated sexual intercourse with child between 10 and 14 years: s 66C(2) of the Crimes Act 1900 Between 1 September 2007 and 31 October 2007 Imprisonment for 20 years Aggravated by the circumstance that the complainant was under the appellant's authority Digital penetration of the complainant's vagina 7 Aggravated act of indecency with person under the age of 16 years: s 61O(1) of the Crimes Act 1900 Between 1 September 2007 and 31 October 2007 Imprisonment for 5 years Aggravated by the circumstance that the complainant was under the appellant's authority Inciting the complainant to masturbate the appellant 8 Aggravated sexual intercourse with child between 10 and 14 years: s 66C(2) of the Crimes Act 1900 Between 1 September 2007 and 31 October 2007 Imprisonment for 20 years Aggravated by the circumstance that the complainant was under the appellant's authority Digital penetration of the complainant's vagina 12The evidence and addresses were heard over four days. On 27 April 2012, after deliberating for approximately three days and receiving a Black direction and a majority verdict direction, the jury found the appellant guilty of each count in the indictment. 13The proceeding was a retrial. An earlier trial occurred in October 2011. The jury in the first trial found the appellant guilty of one count of possessing child pornography contrary to s 91H (2) of the Crimes Act 1900. That verdict related to a single image found on the appellant's computer. The jury was unable to reach agreement on the remaining eight counts in the indictment and were discharged. The appellant was retried on those counts before his Honour. The evidence in relation to the image on the appellant's computer that resulted in a conviction at the first trial was also led at the retrial. 14The appellant was sentenced for the offences on 25 January 2013. He received an overall sentence of 5 years 9 months with an effective non-parole period of 3 years 9 months. The non-parole period expires on 2 December 2015. 15The appellant appeals against his convictions arising from the retrial pursuant to ss 5(1)(a) and (b) of the Criminal Appeal Act 1912, upon the following grounds: (1) The learned trial judge, in his summing up to the jury, impermissibly bolstered the credibility of the complainant and thereby caused a miscarriage of justice, by: (a)Directing the jury that evidence of explicit photographs of the complainant corroborated the complainant. (b)Directing the jury that it could be assumed that the complainant gave a prior consistent version of events to Detective Duncan. (c)Failing adequately to warn the jury about the limitations of "context" evidence concerning other sexual acts. (2) The learned trial judge failed adequately to put the defence case to the jury. (3) There was a miscarriage of justice by reason of an omission on the part of the defence to adduce evidence of the appellant's good character. (4) Alternatively, the learned trial judge erred by determining that the appellant was precluded from raising his good character in the retrial and benefiting from a character direction. (5) The verdicts of guilty are unreasonable, or cannot be supported, having regard to the evidence. Background - the Crown case 16The complainant was born in June 1994. Her parents separated in 2001. The complainant's mother met the appellant in 2004 at a "Parents Without Partners" function and they soon commenced a relationship. The appellant had a daughter from a previous marriage named Laura who was close in age to the complainant. The complainant and the appellant's daughter became close friends. The complainant and her mother regularly stayed over on weekends at the appellant's home. 17In September 2005, the appellant, his daughter, the complainant and her mother travelled together overseas. The relationship between the adults deteriorated during this trip and eventually broke down in about July 2006. However, they remained in contact thereafter so that the appellant's daughter and the complainant could maintain their friendship. After the break up, the complainant would generally spend every second weekend at the appellant's home. 18The Crown alleged that the appellant commenced sexually abusing the complainant soon after returning from the overseas holiday, when she was eleven years old. The alleged conduct included touching the complainant on her breast, digital penetration of her vagina and inciting her to masturbate the appellant. It was alleged that the sexual misconduct occurred whenever the complainant stayed over at the appellant's home, while the appellant's daughter was showering. The eight counts in the indictment referred to six particular instances of alleged offending that "stuck out in [the complainant's] memory". Evidence was adduced of other uncharged sexual acts. This evidence was relied on to establish the realistic "context" in which the offences took place. The evidence was not relied on for a tendency purpose. 19It was also alleged that the appellant took sexually explicit photos of the complainant. Police seized the appellant's computer on 30 July 2010 and subsequently located ten photographs of the complainant in sexually explicit poses. It was alleged that one of the images was cropped through an editing function on the computer so that it only showed the complainant's vagina. The edited photograph was saved under the name "Pussy1" to a directory connected with a user profile named "Dad". The Crown relied on this evidence to prove a tendency on the part of the appellant, namely that he had a sexual interest in the complainant: s 97 of the Evidence Act 1995. 20Contrary to the Crown case, the appellant's daughter gave evidence in which she admitted taking and editing the explicit photos. One of the images was saved under the name "X Celeste by Lozzer". Lozzer was one of the appellant's daughter's nicknames. The Crown was granted leave under s 38 of the Evidence Act to cross-examine the appellant's daughter. It was put to her that she gave untruthful evidence about the photographs to protect her father. 21The Crown adduced evidence from a computer forensics officer, Phillip Moore, to establish that images were saved or edited during normal school hours. The Crown also called Jagdamba Sanjivi, who was married to the appellant for a period of months following the alleged incidents, in an attempt to prove an admission by him that he took the photographs. Ms Sanjivi also gave evidence that the appellant asserted the allegations were false and denied inappropriately touching the complainant. 22The individual counts in the indictment related to the following allegations: Count 1: That about two weeks after the overseas trip the appellant photographed the complainant's breasts and then touched her breast/s for about 20 minutes while the appellant's daughter was in the shower. This was alleged to have occurred in the appellant's computer room. Count 2: That about one month later, while the appellant's daughter was in the shower, the appellant placed his finger in the complainant's vagina for about 20 minutes. This was alleged to have occurred in the appellant's computer room. Count 3: That about two months later, while the appellant's daughter was in the shower, the appellant asked the complainant to masturbate him to the point of ejaculation. This was alleged to have occurred on the upstairs landing close to the bathroom (where the appellant's daughter was allegedly showering), on which there was a second computer. Count 4: That sometime before the complainant's fourteenth birthday in June 2008, while the appellant's daughter was in the shower, the appellant asked the complainant to masturbate him in the appellant's computer room. Count 5: That possibly on the same occasion, the appellant placed his finger in the complainant's vagina. In October 2007 the complainant's mother went on a cruise with her new partner. The complainant was given the option to stay with the appellant, or with her father, for this two-week period. She chose to stay at the appellant's home. During this visit, the appellant and his new partner, Beata Gonzalo, took the appellant's daughter and the complainant on a trip to Forster. Count 6: That before the Forster trip, while the appellant's daughter was in the shower and Beata was in the kitchen downstairs, the appellant placed his finger in the complainant's vagina. It was alleged that this occurred in the computer room. Count 7: That on the same occasion the appellant caused the complainant to masturbate him. Count 8: It was alleged that after the Forster trip the appellant placed his finger in the complainant's vagina, on the landing area, while the appellant's daughter was in the shower and Beata was at work. 23The Crown alleged that the appellant sometimes threatened the complainant to compel her acquiescence. This included a threat that the appellant would not permit her to see his daughter or that he would harm or kill her parents. It was also alleged that the appellant threatened the complainant with a knife. 24In February - March 2010, the complainant informed her boyfriend, Joe Roughsedge, and her mother about aspects of the appellant's alleged conduct. The timing, sequence and circumstances of the complaints were matters of some controversy in the trial. The complainant first attended a police station to make a formal complaint on 28 June 2010. 25A video recording of the complainant's evidence from the first trial was played to the jury. The complainant also gave brief further oral evidence in the retrial. By agreement with the defence, an audio recording of the appellant's evidence from the first trial was also played to the jury during the course of the Crown case. Appellant's case at trial 26It was the appellant's case that he did not sexually abuse the complainant. He relied on his evidence from the first trial, in which he denied committing any of the alleged sexual acts. The appellant also denied taking any of the explicit photographs. 27The complainant was extensively challenged during her cross-examination in the first trial (which formed part of the tendered recording of the complainant's evidence) and in the retrial. A number of other Crown witnesses were also challenged in cross-examination. The defence sought to establish a number of matters adverse to the prosecution case, including: * The complainant's evidence was so marked by implausibility and inconsistency that her evidence could not be accepted as reliable or credible. * It was implausible that the complainant would choose to stay over at the appellant's home when she supposedly hated and feared him. This was particularly so in relation to the complainant's visit for two weeks when her mother went on a holiday cruise. * It was implausible that all of the alleged misconduct, including the explicit photography, occurred while the appellant's daughter was in the shower. The relevant bathroom was in close proximity to both the landing and the computer room. There was insufficient opportunity to cease and conceal the illicit activity in the time that it took the appellant's daughter to leave the bathroom after each shower. In addition, photograph creation times relied on by the Crown indicated that on one day (16 February 2008) explicit photographs were taken 3 hours apart (at about 5.16 pm and 8.21 pm respectively). It was highly unlikely that she showered at both of these times. * There was a further basis for doubting that the appellant had opportunity to commit the alleged offences inasmuch as the complainant's mother or Beata Gonzalo would have been present at the appellant's home at material times. * Aspects of the complainant's description of the offences were exaggerated or unrealistic. For example, she alleged (in relation to count 1) that the appellant fondled her breast for a period of about 20 minutes. Photographs from the period indicated that the complainant had not developed breasts at this time. It was also alleged (in relation to count 2) that the appellant placed his finger in the complainant's vagina for 20 minutes. The appellant's daughter gave evidence that she did not shower for these lengthy periods of time. * The complainant's evidence was marked by a significant prior inconsistency. This arose from the version that the complainant first gave to Detective Kelly, which differed in material respects from the evidence given by the complainant at trial. The complainant also gave manifestly inconsistent evidence about the alleged threat with a knife. * It was contended that the appellant's daughter's evidence, in which she admitted responsibility for taking and editing the explicit photographs, should be accepted. The circumstantial evidence relied on by the Crown to contradict her evidence was disputed. Ms Sanjivi was criticised as a witness who lacked credibility and who was seeking to "settle scores" with the appellant after the torrid disintegration of their short marriage. * The complaint's personal circumstances cast doubt on her credibility and established a motive to lie. The initial complaint was delayed by a substantial period of time (over four years from the time of the first incident). There was further delay leading up to the formal complaint made to the police on 28 June 2010. It was contended that the complainant made false allegations against the appellant in response to being grounded for a lengthy period of time, after she was caught lying to her mother. The complainant told her mother that she was staying with a friend, when in fact she planned to stay with her boyfriend, of whom the complainant's mother did not approve. The allegations became the subject of widespread rumour. This left the complainant with little option but to go to the police. Ground 1 - appellant's submissions 28The complainant's evidence in relation to the alleged sexual abuse was essentially uncorroborated. No other person witnessed the alleged acts. There was no physical evidence, such as medical or DNA evidence, which might, conceivably, have provided some corroboration of the allegations of sexual abuse. Complaint was delayed. The appellant denied the various acts of sexual misconduct that were the subject of the indictment. 29His Honour gave the jury a Murray direction. The complainant's credibility was squarely in issue. Assessment of the complainant's credibility was the determinative issue in the trial. 30It was in this context that the trial judge gave the three directions that are the subject of this ground of appeal. The appellant contended that each direction had the effect of impermissibly bolstering the credibility of the complainant and that in view of the centrality of the issue, each misdirection had the capacity to affect the outcome of the trial. (a) Directing the jury that the complainant's evidence was corroborated by explicit photographs of her 31The appellant contended that the existence of the explicit photographs did not corroborate the complainant's evidence that he took them. Nor did it corroborate the counts in the indictment. It did not follow from the existence of the photographs that the appellant must have taken them, that he sexually abused the complainant in the manner charged, or that the complainant must have been telling the truth about these allegations: PGM (No 2) v R [2012] NSWCCA 261 at [71]-[72]; PGM v R [2006] NSWCCA 310; (2006) 164 A Crim R 426 at [45]. 32The source of the photographs was the subject of a forensic contest concerned with whether the appellant or the appellant's daughter took and/or edited them. If it was not established that the appellant took or otherwise possessed the photographs, the evidence concerning them did not assist the Crown case. Even if the appellant did take the photographs, any tendency thereby established did not in turn establish the allegations charged. Indeed, the complainant's awareness of the existence of the photographs might conceivably have motivated the complainant to allege other acts of sexual misconduct against the appellant. The appellant emphasised that the complainant was prone to exaggeration and embellishment. Her description of the alleged incidents of sexual abuse is notable for its lack of specific detail. 33His Honour concluded the Murray direction with the following words: "In considering the complainant's evidence and whether it does satisfy you of the accused's guilt, you should, of course, look to see if it is supported by other evidence. In that regard, the Crown asked you to rely upon the photographic evidence and what the Crown says about that photographic evidence as providing corroboration for some of what the complainant had said." 34The Crown relied on the photographs to establish a sexual interest tendency on the part of the appellant, pursuant to s 97 of the Evidence Act. The appellant does not dispute that the evidence was admissible for this purpose. If satisfied beyond reasonable doubt that the appellant took the explicit photographs, the evidence could be used to prove that he had a tendency to be sexually interested in the complainant. No issue is taken with the trial judge's instruction to the jury that the evidence could be used in this way. 35However, at the request of the Crown, and over the objection of defence counsel, the trial judge gave a further direction about the corroborative effect of the evidence. After directing the jury on using the evidence to prove a tendency, his Honour then added the following: "There is only one other way in which the photographs can be used, and that is to corroborate the evidence of the complainant that the photographs were taken by the accused." 36The jury was also directed that reliance on the photographs "to corroborate evidence of the complainant" involved the drawing of an inference, which must be the "only rational inference". To accept the evidence of the complainant over the contrary evidence given by the appellant and his daughter required the jury to have regard to an "essential witness direction" (i.e. the Murray direction), which had been given earlier in the summing up. 37To understand the potential impact of these directions, the appellant emphasised that it is necessary to have regard to the manner in which the Crown addressed on the photographic evidence. The Crown submitted to the jury that "everything hinges" on the question of who took the photographs. The address commenced with an analysis of this issue and was substantially devoted to it. The jury was also told the following: "[I]f you accept that the accused was responsible for those photographs then it follows overwhelmingly, in my submission, to his guilt of all of these matters. That one question, who took the photos, who is responsible for the photos, is I suggest the absolute key to deciding this case. ... If it was him [the appellant], as it clearly was, then that has enormous consequences for this trial. Firstly, it means that [the complainant] has told the truth, it corroborates her evidence. She told the truth about the accused photographing her in sexually explicit ways. That's direct corroboration of her evidence. ... In reality...it is clear that the photos and the sexual abuse go hand in hand. If you're satisfied that the accused took those photos... then it follows almost directly from that, in my submission to you, that you will also be satisfied that everything else [the complainant] has told you about their sexual relationship was true. That he sexually abused her in the way she said she [sic] did. Those photographs are so powerful a piece of corroboration that I suggest you would not or could not reach any other logical conclusion. ... If [the complainant] has made all this up and the accused never did a thing to her, never photographed her, never threatened, never sexually assaulted her, then there has been the most astonishing coincidence, because on the very day that she made her statement to police, they got a search warrant, went and seized the computer and lo and behold what was on it? A picture of [the complainant's] vagina. ...That coincidence... is far too great to ignore. It's not just an almighty piece of bad luck, it points directly to one conclusion and one conclusion only... that the accused took them. From there the conclusion that he also sexually assaulted her just as she said, is inescapable." 38Given the misconception at the heart of the Crown's address, that guilt followed ineluctably from the corroborative effect of the photographic evidence, and the repetitive force with which the argument was put to the jury, it was necessary for the trial judge to give very clear directions on this subject. The appellant submitted that his Honour did not do so and that his directions endorsed circular reasoning with respect to the taking of the photographs. The photographs were then available, by tendency reasoning, to prove the charged offences. Indeed these steps were not clearly set out. Rather, as the passages from the summing up quoted above show, the directions picked up the language of "corroboration". This was likely to have the effect of judicially endorsing the Crown's submission and perpetuating the error. Further, the references to corroboration were apt to undermine the Murray direction, which was crucially important in the trial. The jury was expressly referred back to the "essential witness direction" in the course of instructions about the photographic evidence. 39The appellant conceded the trial judge raised a "question of logic" for the jury concerning whether it necessarily followed from the photographs that the appellant did the acts alleged against him. However, this instruction did not provide the clear repudiation of the Crown's argument about the corroborative effect of the photographs that was required in the circumstances. (b) Directing the jury to assume that the complainant gave a prior consistent version to Detective Duncan 40Detective Michael Kelly was the first police officer to interview the complainant. The complainant was cross-examined at some length about the version of events she gave to Detective Kelly on 28 July 2010. The complainant accepted that she told Detective Kelly that: * On the first occasion of sexual wrongdoing, the appellant approached her with a large kitchen knife and held it close to her face. * The appellant then threatened her that he would go to Bulli and kill her parents and other relatives if she did not do what he said. * The appellant made her give him a "hand job". * The appellant also put his hand inside her pants and placed a finger in her vagina. 41The complainant accepted under cross-examination that she gave a totally different account of the first incident in her examination-in-chief. This version was as follows: * The appellant told the complainant to take off her top so that he could photograph her, threatening that she would never see his daughter again if she did not do so. * The complainant removed her top and the appellant photographed her. * The appellant then touched her breast for about 20 minutes until his daughter got out of the shower. 42This version did not involve allegations of a threat with a knife, masturbation or digital penetration. The complainant admitted that what she told Detective Kelly about the knife and the accompanying threat was false. She conceded that the two versions were inconsistent and asserted that the version she gave in evidence was the correct one. 43Detective Fiona Duncan gave evidence that she became the officer in charge of the investigation after Detective Kelly sustained an injury. She took a statement from the complainant on 30 July 2010. Neither party questioned her about the content of this statement. 44The trial judge directed the jury on the prior inconsistent statement given to Detective Kelly. This included the following direction about the statement taken by Detective Duncan: "So there was a version given to [Detective Kelly] about the first occasion, which the complainant then admitted was not correct. Now we know...that the complainant was interviewed about a month later by Detective Senior Constable Duncan, on 30 July 2010... Now, the complainant was not cross-examined about what she told Detective Senior Constable Duncan, so you may assume that she said to Detective Senior Constable Duncan contained in the statement she made at the time in writing, what was in essence she told you in her evidence-in-chief." 45The appellant submitted that his Honour erred by giving the italicised direction. It invited the jury to participate in an impermissible process of reasoning. The jury was not entitled to "assume" that the complainant gave a version of events to Detective Duncan, which was consistent with her evidence-in-chief, on the basis that the complainant was not cross-examined about the content of the second statement. The direction in effect invited the jury to draw an inference about a particular factual matter that was favourable to the prosecution case, or adverse to the interests of the accused, on the basis of an omission to question a prosecution witness about that particular factual matter. It was not permissible to draw such an inference: see Mahmood v Western Australia [2008] HCA 1; (2008) 232 CLR 397 at [27]-[28]. 46The appellant contended that this misdirection was significant in view of the forensic emphasis placed on the prior inconsistency (the Detective Kelly version) in the defence case. Defence counsel addressed the jury on the inconsistency. The misdirection offered a means of re-establishing the complainant's credibility in relation to this important issue, but on an impermissible basis. (c) Failing adequately to warn the jury about the limitations of "context" evidence 47The Crown relied on evidence of "other acts" to provide a "realistic context" for the complainant's evidence in respect of particular instances of sexual misconduct. The evidence was not relied on, nor was it admitted, for a tendency purpose. 48The complainant gave evidence that sexual acts occurred, "[p]robably nearly every time" that she visited the appellant's daughter. She alleged that the appellant would "always want to do something" when she visited "every Friday". Evidence was led from other witnesses to support this aspect of the complainant's evidence. The complainant's mother gave evidence that the complainant "didn't know the exact dates, but she said that it happened on many occasions when she was over there". Detective Kelly said that the complainant told him that the sexual abuse "became a regular occurrence over the next five years", from the time of the first incident. 49The Crown addressed on the evidence as follows: "Don't forget, after a while, the sexual abuse at the hands of the accused was hardly a shock to [the complainant]. She told you once it had begun, it happened many times. On many occasions when she went there, acts of a similar nature to the ones in the indictment took place. It became in a sense routine; a routine of ongoing sexual abuse in which with [sic] each episode little different from the past. Sure there was some variation as to those details, but the fact is being sexually abused by the accused was, at the time of most of those offences on the indictment, nothing new to [the complainant]. It was to her, you might well think, just a part of the price she believed she had to pay to keep her relationship with [the appellant's daughter] and to protect the safety of her family." 50The evidence was significant. The prosecution relied on the evidence to meet a challenge to the complainant's credibility on the basis of her acquiescence to the alleged acts of sexual abuse and her delay in complaining about it. Acquiescence and delay in complaint were live issues, particularly in view of evidence that the complainant regularly chose to stay with the appellant during the course of the alleged offending. 51General principles concerning "context" evidence were summarised and explained in DJV v R [2008] NSWCCA 272; (2008) 200 A Crim R 206. McClellan CJ at CL said this at [13]-[14]: "[13] It is common to find in cases involving allegations of sexual misconduct with a minor that the complainant alleges similar misconduct on other occasions. They have often been referred to as 'uncharged acts', although this label was criticised in HML [(2008) 245 ALR 204] by Hayne J at [129]; Crennan J at [399]. [14] I understand that it is common, at least in New South Wales, for the Crown to serve a tendency notice in relation to this class of evidence but when, as will almost always be the case, the defendant objects to its admission, the Crown alters course and confines the purpose of the tender to evidence which explains the context of the offences including the nature of the relationship between the accused and the complainant. Whatever be the purpose for which it is tendered the evidence will almost always occasion significant prejudice to an accused. Care must be exercised both as to its admission and, if admitted, the directions given to the jury as to its use. If admitted as 'context' evidence s 136, which requires directions to be given with respect to the limited use of the evidence, is engaged." (Emphasis added.) 52McClellan CJ at CL incorporated into the judgment (at [17]) a passage from his earlier judgment in Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463 in which his Honour said: "If admitted, the trial judge must carefully direct the jury both at the time at which the evidence is given and in the summing up of the confined use they may make of the evidence. They should be told in clear terms that the evidence has been admitted to provide background to the alleged relationship between the complainant and the accused so that the evidence of the complainant and his/her response to the alleged acts of the accused, can be understood and his/her evidence evaluated with a complete understanding of that alleged relationship. The jury must be told that they cannot use the evidence as tendency evidence." (Emphasis added.) 53Doubt was expressed at [18] as to the proposition that in order to explain a lack of complaint, evidence of other sexual activity will necessarily be relevant, or that its probative value with respect to the issue of lack of complaint will necessarily outweigh the obvious prejudicial value. It was recognised at [31] that instructing a jury against tendency use of the evidence was "contrary to ordinary human experience". For this reason it is incumbent upon a trial judge to ensure that the jury "must be left in no doubt that they cannot follow that line of reasoning." 54In the present case his Honour directed the jury on "other acts". Three aspects of that direction are the subject of complaint. 55First, no warning was given to the jury about the limited permissible use of the evidence at the time that the evidence was admitted. Contrary to the passage from Qualtieri, the warning was not given until the trial judge summed up the case. 56Secondly, the jury was not directed that it had to be satisfied that the "other acts" occurred before it could use the evidence against the appellant. In R v Vonarx [1999] 3 VR 618, a sexual offence case involving the admission of evidence of other sexual acts, the Victorian Court of Appeal said at [22]: "...we believe that in a case such as the present, where evidence of criminal conduct, other than that which is charged, is being introduced into the evidence on the trial, the jury ought to be clearly told that evidence of such conduct can be used by them only if they are satisfied that it occurred". 57This requirement was applied in Healey v R [2006] NSWCCA 235 at [94]-[100] and Rodden v R [2008] NSWCCA 53; (2008) 182 A Crim R 227 at [112], [130]. The requirement was important in the appellant's trial, because the evidence about other acts was of questionable veracity: it was vague, given by a witness who was, on one view, prone to exaggeration, and whose evidence was, in important respects, implausible. The warning was also required in light of the Crown's expansive use of the evidence. No attention was given to particular matters that might have indicated that reduced weight should be given to the evidence. 58Thirdly, his Honour abridged part of the direction, which seeks to warn the jury against impermissible use of the evidence. The appellant submitted that this was critical and had the effect of removing the explanatory parts of the warning, which enable a jury properly to understand and give effect to the warning. The direction given by the trial judge was in the following terms: "However, I must give you some important warnings with regard to this evidence of other acts. You must not use this evidence of other acts as establishing a tendency on the part of the accused to commit offences of the type charged. You must not substitute the evidence of other acts for the evidence of specific offences contained in the indictment. You must not reason that because the accused may have done something wrong to the complainant on other occasions, he must have done it on the occasions referred to in the indictment." 59The suggested direction set out in the Criminal Trials Bench Book at 4-215 is in the following terms, with the portions omitted by the trial judge indicated in italics: "However, I must give you some important warnings with regard to the use of this evidence of other acts. Firstly, you must not use this evidence of other acts as establishing a tendency on the part of [the accused] to commit offences of the type charged. You cannot act on the basis that [the accused] is likely to have committed the offence(s) charged because [the complainant] made other allegations against [him/her]. This is not the reason that the Crown placed the evidence before you. The evidence has a very limited purpose as I have explained it to you, and it cannot be used for any other purpose or as evidence that the particular allegations contained in the charges have been proved beyond reasonable doubt. Secondly, you must not substitute the evidence of the other acts for the evidence of the specific allegations contained in the charges in the indictment. The Crown is not charging a course of misconduct by [the accused] but has charged particular allegations arising in what [the complainant] says, was a course of sexual misconduct. You are concerned with the particular and precise occasion alleged in [the/each] charge. You must not reason that, just because [the accused] may have done something wrong to [the complainant] on some or other occasion, [he/she] must have done so on the occasion(s) alleged in the indictment. You cannot punish [the accused] for other acts attributed to [him/her] by finding [the accused] guilty of the charge(s) in the indictment. Such a line of reasoning would amount to a misuse of the evidence and not be in accordance with the law. [Note: attention should be directed to any particular matters that might affect the weight to be given to the evidence.]" 60The appellant acknowledged that suggested directions in the Bench Book cannot be relied upon as a complete and authoritative statement of the law or that departure from its precise terms will necessarily indicate legal error: Ith v R [2012] NSWCCA 70 at [48]. However, comparison with the model direction serves to demonstrate the extent to which the most important parts of the direction were abridged, to the detriment of the appellant's case. In the particular circumstances of the trial, it was necessary and appropriate for the trial judge to give a careful direction, which, applying the language in DJV v R, was apt to leave the jury in no doubt that it could not follow an impermissible line of reasoning to the guilt of the appellant. The appellant submitted that his Honour failed to do so. 61The jury was specifically directed that the evidence of uncharged acts was relevant to the credibility of the complainant. The jury was told that the evidence was admitted so that the complainant's evidence was not viewed as being "less credible" by virtue of any artificiality that might arise from the complainant giving evidence about isolated acts. Rule 4, Criminal Appeal Rules 62Defence counsel objected to a further direction about the corroborative effect of the explicit photographs. No complaint was made about the direction concerning the version of events given to Detective Duncan or the warning about "other acts". Accordingly, leave is required in order to rely on this ground of appeal. 63The appellant submitted that each of the misdirections had the effect of impermissibly bolstering the complainant's credibility in a particular way. Assessment of her credibility was the central issue in the trial, and the defence case was primarily focused on an attack upon it. For these reasons, the misdirections caused a miscarriage of justice. The appellant asserted that leave under rule 4 should be granted in the circumstances: Penza and Di Maria v R [2013] NSWCCA 21 at [180]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [60]; Picken v R [2007] NSWCCA 319 at [20]; R v Kanaan [2005] NSWCCA 385; (2005) 157 A Crim R 238 at [99]; R v Wilson [2005] NSWCCA 20; (2005) 62 NSWLR 346 at [20]; R v Abusafiah (1991) 24 NSWLR 531 at 536. The Crown response to Ground 1 64The Crown contended that the identified errors neither individually nor collectively caused the trial to miscarry. 65With respect to the directions regarding the photographs providing corroboration, the jury were directed that they were required to be satisfied beyond a reasonable doubt that the appellant took the photographs before they could be used in this manner. The text of the relevant directions is cited later in these reasons. 66If the jury disbelieved the appellant's daughter when she claimed that she had taken all the photographs and created the edited "Pussy1", then the only other person who could have done so was the appellant. There was the admission made by him to Jagdamba Sanjivi that he had taken the photographs. In this way the photographic evidence was independent of the complainant. It was available to be used when considering the credibility of the complainant in relation to the true nature of the relationship, and the specific offences. 67As his Honour directed the jury that they had to be satisfied beyond reasonable doubt of the complainant's evidence about the photographs, there could be no impermissible bolstering of the credibility of the complainant resulting in a miscarriage of justice. 68Contrary to the appellant's submission, the direction was not given over the objection of defence counsel. Objection was not raised when his Honour responded that he would direct the jury that it could be used to corroborate the evidence of the complainant that the appellant photographed her. There was no request for any redirection or correction with respect to this aspect of the summing-up. 69With respect to ground 1(b), the direction given concerning the statement to Detective Duncan in this trial was identical to the direction in the first trial. In discussions with counsel prior to the summing-up in the first trial his Honour indicated his intention as follows: "Then tell them - sum up to them what the evidence was that the mother gave about what the complaint was to her. Then the complaint to Kelly and then finally the complaint to Duncan which I've had to tell them it has to be consistent with the evidence that she's given even though because he didn't cross examine her on her statement made to the police" 70Senior Counsel who appeared at the trials did not raise any concerns at that stage or ask later for a redirection. 71When questioned about the inconsistencies in the version she gave to Detective Kelly, the complainant in effect said that her second statement was consistent: "Q. The version you gave Detective Kelly therefore was incorrect, was it not? A. Yes, and then I had to make a second statement and that didn't have that in it. Q. Yes, I'm not concerned about your second statement. I'm concerned about what you said to Detective Kelly when he first asked you about the matter. A. Yes." 72The Crown contended that this evidence provided a proper foundation for the direction given in the summing-up. 73In the context of this trial, and considering the approach taken to the cross-examination of the complainant and the degree to which his Honour highlighted her inconsistencies, the appellant's failure to raise the matter indicates that counsel was content with his Honour's direction and that no miscarriage of justice occurred. 74With respect to ground 1(c), the Crown contended that there was no connection drawn by the Crown between the other sexual acts and the delay in complaint. It did not form the basis of any submissions in the Crown's closing address. 75His Honour's directions at pages 32-34 of the summing-up were consistent with the directions endorsed in Qualtieri: "[81] The Supreme Court Bench Book contains a model direction with respect to relationship evidence which is to my mind the appropriate manner in which to instruct the jury. It states: 'It is important that I explain to you the relevance of this evidence of other acts. It was admitted solely for the purpose of placing the evidence of the particular acts relied upon by the Crown to prove the charges in the indictment into a true and realistic context. It is confined, in other words, to making the circumstances of the particular offences charged more intelligible. Otherwise, a jury such as yourselves may wonder about the likelihood of apparently isolated acts occurring suddenly without any apparent reason. If a complainant gave evidence of isolated acts of sexual misconduct, a jury would be entitled to say to themselves, as persons of common sense, well, really, it is very odd for there to be such isolated acts between these persons. Thus, it is open to the Crown to lead evidence of other acts of sexual nature between the accused and [the complainant] ... [it is necessary, to explain this direction, by reference to the facts of the particular case]. However, I must give you certain important warnings with regard to this evidence of other acts, which we can conveniently refer to as 'context evidence.' You must not use this evidence of other acts as establishing a tendency on the part of the accused to commit offences of the type charged, and, therefore, it cannot be used as an element in the chain of proof of the offences charged. You must not substitute the evidence of the other acts for the evidence of the specific offences charged. You must not reason that, because the accused may have done something wrong to [the complainant] on another occasion, [he/she] must have done so on the occasions charged..." 76The directions were appropriate. As the appellant concedes, a departure from the Bench Book does not of itself lead to a conclusion of legal error. As was said in Ith v R at [48]: "To my mind the submission is without merit. This Court has previously commented on the fact that the Bench Book, although prepared with great care, should not be relied upon as a complete and authoritative statement of the law. The fact that a trial judge does not direct in the precise terms provided by the Bench Book is not indicative of legal error. It is necessary to consider the directions which were actually given at the trial and determine, in the context of that trial, whether or not they were appropriate: Hong v The Queen (2009) NSWCCA 242." 77There was no miscarriage of justice as the directions were sufficient to ensure that the jury would not misuse the evidence or follow an impermissible line of reasoning. There was no request for any further directions, suggesting that counsel saw no injustice in the direction given. 78The Crown acknowledged that at the time the complainant gave evidence of the other sexual acts there was no direction given to the jury, and unfortunately no request was made for such a direction. The direction should have been given. However, the Crown submitted that in light of the clear directions given in the summing-up, there was no miscarriage of justice. The directions were sufficient to ensure that the jury would not misuse the evidence or follow an impermissible line of reasoning. 79The Crown submitted that rule 4 applied if any of these grounds are not otherwise dismissed. Consideration of Ground 1 80The essential burden of the appellant's concern with ground 1(a) is that the jury were not properly instructed that before they could use the photographic evidence for any purpose, they had to be satisfied that it had been proved beyond reasonable doubt. Specifically, the jury had to be satisfied to that standard that the appellant took the photographs in question. He was not facing any charge with respect to the photographs, as that had been dealt with and decided adversely to him at his first trial. 81It seems to be uncontroversial that it does not follow from the mere existence of the photographs that the appellant must have taken them or that he sexually abused the complainant as alleged in the indictment. Nor does it follow that the complainant must have been telling the truth about the allegations simply because photographs exist depicting her in sexually explicit poses. The source of the photographs was the subject of a forensic contest. That included whether or not the appellant either took the photographs at all or edited them thereafter. 82It is trite to observe that if it was not established that the appellant took the photographs, the evidence concerning them - that is to say, the fact that they existed at all - does not assist the Crown case. Before any use adverse to the appellant can be made of the photographs, a necessary connection between them and the appellant must be established. That connection had to be established beyond reasonable doubt. 83His Honour's directions concerning the photographs are relevantly in the following terms: "The Crown asks you to use the photographs in exhibit 2 as evidence that the accused had a certain tendency, that is a tendency of being sexually interested in the complainant... However, tendency evidence must be proved beyond reasonable doubt. If the images in exhibit 2 have not been proved beyond reasonable doubt in a way that I will shortly mention, you cannot use those photographs as evidence of any such tendency or interest. To use the images numbered one to ten as evidence of any sexual interest of the accused in the complainant, you must be satisfied beyond reasonable doubt that the accused took images numbered one to nine and made image number ten. If you are not satisfied, then you must ignore those photographs because they are not relevant to the question of tendency on any count. If you are satisfied beyond reasonable doubt that the accused took the photographs numbered one to nine and made image number ten, then you can conclude that the accused had a tendency to have a state of mind of being sexually interested in the complainant as the Crown alleges, and may use the fact of that state of mind in considering whether the accused committed the charges that are counts one to eight. There is only one other way in which the photographs can be used, and that is to corroborate the evidence of the complainant that the photographs were taken by the accused. If the photographs have not been proven to your satisfaction beyond reasonable doubt to have been taken or made by the accused, you cannot use them to establish a tendency. Furthermore, if you must need them to corroborate evidence of the complainant, again you are drawing inferences and you must draw inferences in accordance with the direction I gave you earlier. The inference must be the only rational inference. Can I just point this out to you, ladies and gentlemen. To accept that the photographs were taken by the accused beyond reasonable doubt requires you to say that there is no reasonable possibility that the evidence given by [the appellant's daughter] about them is correct; there is no reasonable possibility that the evidence given by the accused about them is correct; that the only person who could have taken the photographs was the accused, and to accept that, you have to accept the evidence of the complainant in accordance with the essential witness direction I gave you earlier. You must also think about things logically. Even if you accept that the accused took the photographs and they show a tendency on his part to have a sexual interest in the complainant, does it necessarily follow that he did the acts that the complainant said he did? In other words, people can have photographs of this nature, but not do anything to carry out a sexual interest in the person photographed. It is a question of logic. Furthermore, it may be the case that no-one is telling you the truth. Is it possible that Laura took the photographs? Look at image number three. Is it possible that she did crop them or change the colours at some stage, thus leading to some of the images being downloaded into the hidden file, and later that the accused came across them and looked at them and made perhaps the tenth image 'Pussy1'? These are possibilities that you will have to consider. What is likely to have occurred? Of course, if you look at the last scenario, that the accused made 'Pussy 1' after finding these images in the back of the computer somewhere that were taken by Laura, it means you have doubts about the evidence of the complainant, doubts about the evidence of Laura, and doubts about the evidence of the accused. But again these are questions of fact that you have to consider." 84It is to some extent regrettable that the sentence "[t]here is only one other way in which the photographs can be used, and that is to corroborate the evidence of the complainant that the photographs were taken by the accused" is not both separated from the unexceptionable direction concerning tendency on the one hand, but also made the subject of a reiteration of the direction concerning satisfaction beyond reasonable doubt on the other hand. It does not seem to me, however, that his Honour's failure to re-emphasise the standard of proof direction in this context amounts to error. To suggest otherwise is to assume that the jury would not have understood that proof of whether the appellant took the photographs for corroboration purposes had to be established in just the same way as it had to be for tendency purposes. I do not consider that such an assumption is warranted having regard to the summing up as a whole. 85I am comforted in that conclusion by the fact that trial counsel did not take any objection to the summing up on this point or seek a redirection. Indeed, the submissions relied upon by the appellant in this Court instead direct attention to the forceful nature of the Crown's final address to the jury on this point. That address could on one view have been the subject of a request for a special direction from the appellant, but no complaint was made at the time. That may well be because, in the context of a proper understanding of the standard of proof, there was no basis upon which to challenge the Crown's address. It is not without significance that that address commenced on this topic with the words, "if you accept that the accused was responsible for those photographs". 86It seems to me that the so-called circularity of reasoning by his Honour of which the appellant complains is only evident if the jury were not properly directed with respect to the standard of proof required concerning whether or not the appellant took the photographs of the complainant before they could be used as evidence of corroboration. Whether for tendency purposes or as evidence of conduct arguably assisting the jury to determine the guilt of the accused, satisfaction beyond reasonable doubt was required. His Honour did not in my opinion erroneously fail to explain that to the jury. 87Nor am I satisfied that his Honour's references to corroboration were "apt to undermine the Murray direction". That direction is critically concerned with the question of corroboration. The fact that there may have been some evidence that tended to detract from the appellant's ability to point to and rely upon the frailty of an uncorroborated single complainant does not invalidate the summing up so much as weaken his defence. His Honour's references to corroboration were entirely in conformity with the single witness warning that was given. 88With respect to ground 1(b), this Court has not been provided with the text or even the substance of what the complainant said to Detective Duncan when she was interviewed on 30 July 2010. The statement taken by Detective Duncan was not tendered at the trial. The question of whether or not there was a difference between what the complainant said in her evidence-in-chief and what she told Detective Duncan has therefore not been answered for the purposes of the present appeal. 89As a matter of inference, it does seem highly unlikely that if what his Honour said to the jury had been incorrect, counsel appearing for the appellant would not immediately have raised his objection at the time. On the other hand, if what his Honour said to the jury was in fact correct, two things seem to follow. First, the appellant is not prejudiced by the comment because it accorded with the truth. Secondly, counsel's failure to object at the time attracts the operation of rule 4. 90His Honour's comments do not in my opinion somehow operate impermissibly to re-establish the complainant's credit. The jury was ultimately left with no more and no less than the impression that the complainant lied to the police originally but subsequently changed her story. It seems to me to be entirely inconsequential whether she did so when speaking to Detective Duncan or at some other time. The forensic advantage to the appellant was that the complainant could be shown to be a person or a witness who was prepared to change her evidence or not tell the truth to police. Either way, nothing said by his Honour concerning the complainant's statement to Detective Duncan detracts from the force or the availability of that inference. 91It was at all times entirely within the scope and ability of counsel for the appellant at the trial to neutralise any perceived or actual prejudice to the appellant that his Honour's directions may arguably have caused. I do not consider that any error has been identified but in the absence of a request for a redirection, rule 4 should apply in any event. 92So far as ground 1(c) is concerned, there has in my opinion been an erroneous failure by his Honour properly to direct the jury on the use and limitations of context evidence. Even though a failure to conform strictly to the suggested terms of the direction in the Bench Book is not of itself significant, his Honour's directions were inadequate in the particular circumstances of this case. I agree with the appellant's submission that important aspects of the direction were abridged to the potential detriment of the appellant. 93The italicised portions of the recommended direction, omitted by his Honour, contain and are intended to convey very important warnings about the limitations applying to a jury's legitimate use of evidence of uncharged acts. The period over which the offences are alleged to have taken place was reasonably long. Having regard to the regularity and frequency with which the complainant visited the appellant's home, the jury might well have reasoned that a very large number of opportunities for sexual abuse might have arisen during that time. The jury might also have reasoned that actual abuse was likely to have occurred on significantly more occasions than even the evidence of uncharged acts tended to suggest. It was critical in these circumstances that the jury be emphatically reminded in clear terms that such evidence was irrelevant except to the extent that it contextualised the acts that were the subject of the indictment. 94The standard direction contains words of warning. These words are clear and emphatic. They include statements of what the jury cannot do with the evidence. They include instructions to the jury that the evidence has a very limited purpose. These are directions that in this case would presumably be intended to dilute what might otherwise be a not unexpected but nevertheless impermissible reaction to evidence of apparent sexual abuse over an extended period. It is the very potential for unfair prejudice arising from the admission of this evidence at all that demands the explanation in clear and where necessary expansive terms of the important restrictions that govern its use. The appellant did not in my opinion receive the benefit of such an explanation. 95Nor am I satisfied that rule 4 should be applied in the circumstances. The nature of the misdirection was such that a significant potential exists for there to have been a miscarriage of justice. His Honour's failure to give the appropriate direction in any terms at the time when the evidence was adduced assists me in forming that view but would not in my opinion alone have been sufficient to amount to an error capable of withstanding the effect of rule 4. Ground 2 - appellant's submissions 96Wood CJ at CL set out the requirements of a fair and balanced summing up in R v Meher [2004] NSWCCA 355 at [75]. His Honour observed that while a trial judge is generally not required painstakingly to summarise all of the evidence or the conflicts in it, there is an obligation to ensure that the jury understands and is able to give effect to the defence, including the matters relied on in support of the defence: see also B v The Queen [1992] HCA 68; (1992) 175 CLR 599 at 605. It is essential to a fair and balanced summing up that the defence case is put to the jury. A trial judge should explain to the jury why the accused asserts that his guilt has not been established beyond reasonable doubt and give any directions that call for a particular explanation or caution. 97These principles derive from a trial judge's "fundamental task" of ensuring that there is a fair trial. An unbalanced summing up that deprives an accused of a fair trial will result in a miscarriage of justice. 98In Maraache v R [2013] NSWCCA 199 at [68], Emmett JA considered and applied the principles outlined in R v Meher to the circumstances of a "single issue" trial, in which the trial judge failed adequately to put the defence case to the jury. Consideration was given to when a trial judge is obliged to refer to a particular evidentiary matter or argument in the summing up. His Honour, referring to the decision in El-Jalkh v R [2009] NSWCCA 139, said at [72] and [74]: "[72] The trial judge should refer to specific parts of the oral evidence, or of recorded conversations, making such references to the evidence as would be required to enable the jury properly to understand the defence case (El-Jalkh at [148]-[149]). A trial judge is not relieved of the requirement of putting matters to the jury because they have already been put by defence counsel or because they might have seemed obvious or because they might have seemed difficult to accept (El-Jalkh at [152]). ... [74] Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. If, having regard to the complexity of the factual issues for the jury to determine, the trial judge has not put the defence case adequately, such that the jury may misunderstand or not understand it, then the jury will not be in a position where they can properly act as judges of the facts and thus there will be a miscarriage of justice. The idea of a summing up is to present for the jury the issues of fact that they have to determine (R v Zorad (1990) 19 NSWLR 91 at 105). ..." 99In the same case at [101], Fullerton and Schmidt JJ applied the following passage from Isaacs J's judgment in R v Tomazos (unreported, NSWCCA, 6 August 1979), which was also referred to with approval in R v Meher: "[101]... A trial according to law includes as an essential prerequisite that the trial judge has put fairly, cogently and with clarity to the jury the accused's defence. The weaker the defence the more essential it is for his defence such as it is to be put to the jury so that they can consider it in the light of the Crown case and evaluate it as part of their assessment together with the Crown evidence to see whether the Crown has discharged its onus of proof. It can properly be said that the accused fairly lost a chance of acquittal because his case was never put to the jury by the trial judge. It is completely insufficient for a trial judge simply to say to the jury in effect, 'Well, you have heard all that has been said on behalf of the accused by his counsel; it is unnecessary for me to say anything more'. The trial judge must lend the weight of his judicial position and authority to putting before the jury himself the case for the accused." 100The appellant submitted that his Honour did not adequately put the defence case to the jury. While passing reference was made to some aspects of the evidence relied on by the defence, this fell well short of a summary that would have ensured that the jury understood and was able to give effect to the defence case. In certain respects, aspects of the evidence that were important to the defence case were not touched upon at all. 101The trial judge did refer to the following matters which were relevant to the defence case: * The jury was told that the appellant denied committing any of the offences, and that if his evidence was accepted, the jury was obliged to acquit him. * The jury was reminded of evidence concerning the inconsistent version of events given to Detective Kelly, although this portion of the summing up concluded with the direction about the assumed-to-be consistent version given to Detective Duncan. * The jury was reminded of evidence relevant to the defence argument that complaint was only made after the complainant got into trouble for lying to her mother about her boyfriend Joe Roughsedge. * There was a passing reference only to the evidence of the appellant's daughter in respect of the photographs, although the trial judge then outlined a factual scenario that neither party had advanced in their respective cases, namely, the possibility that each relevant witness gave untruthful evidence about the photographs. 102Notwithstanding these references, the summing up did not come to grips with the defence case or its attack on the reliability and credibility of the complainant. It did not address the fundamental implausibility of the complainant's evidence. The above matters were aspects of a broader defence case that was not put. In summary, the plausibility of the complainant's account was disputed on a number of bases to which his Honour did not refer, including: * The fact that the complainant continued regularly to visit the appellant and stay over at his home throughout the course of the offending period, at a time when she was purportedly terrified of him. * Evidence that the complainant chose to stay with the appellant, rather than with her father, during her mother's holiday absence. * The unlikelihood or impossibility that all of the offences could have been committed while the appellant's daughter was showering. * The unlikelihood or impossibility that the offences could have been committed, having regard to evidence that the complainant's mother or Beata Gonzalo were present in the appellant's home. * The implausibility of the allegation that the appellant fondled the complainant's breast for about 20 minutes, at a time when the complainant had not developed breasts. 103These challenges to the plausibility of the complainant's narrative, and hence to her reliability and credibility, were not put to the jury, notwithstanding that they constituted a very important component of the defence case. It cannot be assumed that the jury sufficiently understood these issues and the evidence, so as to be able to give proper effect to this challenge. The evidence emerged from a number of witnesses and at disparate points in the trial. Reminding the jury of the evidence in an ordered and cogent manner was necessary to ensure an adequate appreciation of the defence case. The omission to sum up these matters also meant that the trial judge did not "lend the weight of his judicial position and authority to putting before the jury himself the case for the accused": R v Tomazos. 104The defence also sought to meet the Crown case about the explicit photographs in a number of ways, including: * Cross-examining the expert witness Phillip Moore about the possible effect of an untested virus scanner on meta-data (i.e. the times and dates of image files). * Cross-examining the complainant about her appearance and location in the photographs, her relationship with the appellant's daughter, their sexual curiosity, their opportunity to engage in photography, their enjoyment of dress-up games, an incident in which the two girls were chastised by the appellant for searching the internet for pornographic material and the appellant's daughter's use of the nickname "Lozza". * Cross-examining the school headmaster, Donald O'Connor, about the reliability of the school attendance records. * Extensively cross-examining Ms Sanjivi on various matters adverse to her credit. * Relying on the evidence of the appellant and his daughter concerning the authorship of the images. 105The appellant contended that the summing up did not refer to this evidence or analyse it in any cogent manner. The rejoinder to the Crown case on the photographs was comprised of a number of strands and developed through a number of witnesses. Again, it cannot be assumed that the jury would have adequately understood the defence case without assistance from his Honour. Given the force and emphasis with which the Crown addressed on the photographic evidence, it was incumbent upon the trial judge to ensure that the defence case in relation to the photographs was adequately put to the jury. This did not happen. The misdirection about the corroborating effects of photographic evidence, which is the subject of ground 1(a) above, also bears on this deficiency in the summing up. It was particularly important that the defence case in respect of the explicit photographs was put to the jury in view of the determinative manner in which the jury was being urged to use the evidence. The quoted passage from R v Tomazos has application here. 106There were other instances of inconsistency and embellishment in the complainant's evidence, which reflected adversely on her reliability and credibility. The evidence is addressed below. The trial judge omitted to sum up this evidence as well. The evidence concerning threats of violence was particularly important in this regard. Consonant with the quoted passage from Emmett JA's judgment in Maraache v R, his Honour was obliged to put this particular evidentiary matter to the jury, to ensure that the jurors had sufficient knowledge and understanding of the evidence properly to determine the case according to the evidence. Rule 4, Criminal Appeal Rules 107In contrast to the circumstances in AP v R [2013] NSWCCA 189, a case in which leave under rule 4 was refused, the appellant's counsel did not refuse a direct offer by the trial judge to sum up on the facts. However, the appellant's counsel did not complain to the trial judge about the omission to put the defence case. 108In Healey v R, Smart AJ provided the following reasons for granting leave under rule 4 in respect of an analogous ground of appeal: "[67] The appellant needs leave to raise this ground. Counsel did not ask the judge to discharge the jury or withdraw his summing-up and sum-up again, putting the defence case or add to his summing-up the defence case. Despite the lack of protest, it remains that the defence case and the major matters in support were not put to the jury. They should have been put to give the summing-up the necessary balance. These are fundamental requirements and, in my opinion, not doing so amounts to a miscarriage of justice. I would grant the appellant leave to raise this ground and uphold it." 109The appellant submitted that this reasoning applies to the present case and justifies a grant of leave. The Crown response to Ground 2 110The Crown submitted that a reading of the summing-up provides a clear and concise account of the issues in the trial. Consistently with the attitude of counsel at the trial, the summing-up was sufficient to put the defence case. This is not a case like Wong v R [2009] NSWCCA 101 where there was a complete failure to put the defence case to the jury. His Honour spent considerable time highlighting the inconsistencies and deficiencies in the complainant's evidence. 111In considering motive to lie, his Honour referred specifically to the evidence of the complainant being "grounded" for having lied about being with a friend when she was in fact with her boyfriend. Again, his Honour quoted from the evidence of the complainant about whether she was grounded, when this occurred, and its relationship to her disclosure of the offences. His Honour commented about the evidence given by the complainant's mother. He said that "[w]hen [she] gave evidence... [w]e get a completely different version". His Honour went on to detail the inconsistent evidence regarding the timing of the complaint and the grounding. 112His Honour continued: "Now, the defence asks you to consider that evidence, consider the inconsistency and determine what actually happened, and the defence refers you to the markings on the calendar. I have noted them there on the chronology. The notation for 21 February 2010 is "Cel's period start". The notation for 27 February is "Cel's period finish" and then the notation for 20 March 2010 is that Cel is due. Those were the only notations made over a period of some six years in connection with the menstrual cycle of the complainant. So essentially what the defence is saying to you and wants you to accept is that the allegations raised against the accused were only made after the complainant got into serious trouble with her mother about telling her mother lies about where she was and where there may have been some suggestion that the complainant may have been pregnant." 113It was a significant aspect of the defence case that in desperation due to concerns that she was pregnant to her boyfriend the complainant made false allegations against the appellant. 114It was clear that the defence case was one of fabrication, and that the complainant was unreliable, as demonstrated by the inconsistencies in her evidence. The summing-up identified the issues in the trial, and related the law to those issues. The effect of the summing-up was to explain to the jury why the appellant asserted that his guilt had not been established. In short his Honour gave the jury the required assistance to identify the critical issues and application of the law in the case. Considering the summary of the law as set out in Wong [129]-[141], there was no error in the summing-up. 115In the event that error is established rule 4 is applicable. The reasoning in Wong [145] relied upon by the applicant is distinguishable for the reasons outlined in AP v R. In this matter there was not a complete failure to put the defence case to the jury. 116In considering an identical ground of appeal in AP v R it was stated at [16] "[16]...a transcript cannot fully convey the extent to which it was obvious to the judge and those present in the court that all members of the jury appeared either to understand or to fail to understand the significance of the evidence and the issues for their determination. That reflects part of the policy underlying r 4..." 117No explanation has been given for the decision of trial counsel not to request any further directions. Consideration of the conduct of counsel in the trial, as shown in the cross-examination and closing address, demonstrates the performance of an experienced counsel undertaking the defence in a very professional and effective manner. 118The finding in AP v R at [31] is apposite: "... there is not a proper basis to grant leave to appeal on a point not taken at the trial. This is not a case like Wong. No error is shown which goes to the root of the trial. To apply what was said in Germakian, no convincing basis has been shown for complaint not having been made at trial, and it does not appear that there was the possibility of real injustice in light of the way the trial was conducted. I propose that leave to appeal be refused." Consideration of Ground 2 119The Crown's general response to this ground is to emphasise that the appellant's defence was based upon assertions of complete fabrication by the complainant and that his Honour's directions and summing up was adequate, at least in a general sense, adequately to convey that to the jury. This approach insists that a failure in every respect to isolate and explain the several possible details of that defence case did no injustice to it if the basic proposition was clearly adumbrated. In this sense the Crown contends that the defence case was adequately explained and that no error was committed. 120I am unable to agree. The particular factual areas in which the appellant suggests that the summing up was deficient are in my view particularly significant. This is so if they are considered alone, but even more so if they are considered in combination. 121The fact that the complainant continued regularly to visit the home of appellant over a four year period in the face of the sexual abuse of which she complains, and when she was on one view terrified of him, was a significant question lying in the path of her acceptance as a truthful witness. It is not without significance that his Honour raised the rhetorical question of why the complainant would have made the allegations if they were untrue. In one sense, the predicate of that inquiry is the question of why the complainant acquiesced in the perpetration of the abuse for so long. 122There may be a number of answers to that question. The complainant was herself asked about this in cross-examination. The relevant portions of the transcript are as follows: "Q. But weren't you going to Frank's place every week or every second week? A. Most of the time, yes. Q. Pardon? A. Most of the time, yes. Q. You were going to a man's home who used to sexually abuse you, is that right? A. Yes. Q. Slap his daughter in front of you? A. Yep. Q. As you told the court, a thoroughly unpleasant man, and yet you continued to go there. A. Yes I did. ... Q. You realise, of course, that this could have stopped overnight just by refusing to go to Frank's place or ever again after the first time, you realise that don't you? A. Every time that he used to tell me that I should do something I'd always try to avoid it by saying that I had my period or something so that I wouldn't have to do anything. ... Q. But I would really like you to deal with my question if you would. This could have stopped overnight just by - without even telling your mum and dad, by simply not going to Frank's place at all after the first time it happened, could it not? A. Yes, but he would never have let me see Laura and he kept on saying if I don't come over then he'd do something. Q. Come down and kill your mother? A. Yep and that's why I've always been scared of that. Q. So is this the position? You went to Frank's place every second week for two years and allowed him to sexually abuse you because you believed he would kill your mother? A. It was - it was about nearly every second weekend. Q. Whatever - whether it was every second weekend or every week, it matters not, but you went there every second week to take your proposition because you believed he would kill or harm your mother? A. Yes and he didn't always say that my mum or kill anyone, he threaten me other ways. Q. So he threatened you? A. Yep. Q. The best place to be if you don't wish to be threatened is away from Frank, is that right? A. Yes." 123Because the jury's inquiry in the circumstances was necessarily guided by their collective wisdom and common sense, there was in my view a real need to remind them of that fact in the particular context of the implausibility of the complainant's continued attendance at the scene of the abuse over the years. That was a significant plank in the appellant's defence case. It is not sufficient merely to assume that the issue is so fundamental to that case and so obvious in the circumstances that specific reference to it was unnecessary. Indeed, a failure by his Honour to refer to it in terms may on one view inferentially, if even only inadvertently, have diluted its significance. 124The fact that the complainant chose to stay with the appellant rather than with her father during her mother's holiday absence is in the same category. It was also the subject of specific cross-examination. It is significant because it represented an extended stay at the appellant's premises when a safe alternative was available but not utilised. It lay at the heart of the appellant's case on plausibility and his Honour should have referred to it specifically. 125The unlikelihood or implausibility of the offences having occurred when the appellant's daughter was showering was another limb of the same defence case. There were several aspects to it, including the length of the daughter's showers, the frequency of the showers and their timing in relation to other events in the household. These included the presence of the complainant's mother and Ms Gonzalo in the appellant's home from time to time when some of the alleged acts of sexual abuse are said to have occurred. His Honour did not draw these defence threads together in his summing up and in my opinion fell into error in failing to do so. 126The independent issue of the appellant's alleged threats of violence was also something that his Honour ought properly to have addressed in his summing-up. This was particularly so not only because it went to the heart of the appellant's case on implausibility and the complainant's credit, but also because the complainant changed her evidence about the appellant's alleged threats with a knife. It was the appellant's case that the threats never occurred and that a jury could not reasonably have believed that they were made. He was entitled to expect that his Honour would have referred to that part of the defence case in some detail. 127The remarks of Smart AJ in Healey v R at [67] are applicable here. Leave to raise this ground should be granted as there has otherwise been a miscarriage of justice. Grounds 3 and 4 - appellant's submissions 128The appellant raised his good character in the first trial. The defence relied upon evidence given by Detective Duncan to establish that he did not have a prior criminal history. This evidence was not adduced in the retrial. A remnant of the evidence of the appellant's good character did survive into the retrial. His Honour asked the appellant during the first trial whether he had been subjected to a criminal history check before migrating from Northern Ireland to Australia and the appellant answered in the affirmative. The appellant's evidence from the first trial was tendered in the retrial. 129The appellant was sentenced on the basis that he was a person of prior good character. His Honour found as follows: "The offender has been a man of good character. There is no suggestion that he has been guilty of any offence against any law of the United Kingdom, or of any law of Australia or of this State. The evidence suggests that he was well regarded in the community." 130It appears that both the trial judge and defence counsel assumed that the appellant was not entitled to raise good character, most probably on the basis that he was found guilty of the count 9 offence following the first trial. This mutually held assumption resulted in the following exchange: "HIS HONOUR: Furthermore there won't be a good character direction. There can't be this time around. STEIRN: Your Honour, that's understood, I never attempted ..." 131The appellant submitted that it is wrong in principle to regard the guilty verdict following the first trial as a prior criminal finding that disentitled him from raising his previous good character in the retrial. The offence in count 9 arose out of the same series of events that were the subject of the indictment in the retrial. The Crown was not entitled to rely on evidence of the prior finding in the retrial: s 91 of the Evidence Act. 132In any event, the Crown adduced evidence in the retrial to re-prove the allegation at the heart of count 9. A potential consequence of leading evidence of good character is that it may lead to the admission of evidence to rebut it. Here the evidence that may have been relied on in this regard was already part of the Crown case. In the circumstances, there was no valid reason for the appellant to forego reliance on evidence available to him of good character and his entitlement to the associated directions. 133Evidence of the appellant's prior good character was relevant to his defence: it had probative significance. It obviously went to the likelihood of him committing the serious criminal offences charged. The evidence also tended to contradict the Crown case that he possessed a tendency (or propensity) that supported findings of guilt. The Crown's tendency case and its reliance upon "other acts" to provide "context" for the offences both tended to raise the appellant's bad character. Evidence of good character was relevant to dispute these aspects of the Crown case. 134The defence also relied on the appellant's evidence from the first trial, which was admitted in the retrial. Evidence of good character was relevant to the appellant's credibility, which in turn had the potential to affect the weight that the jury ascribed to his sworn testimony. 135The appellant submitted that this led to a miscarriage of justice, caused by the omission on the part of the defence to adduce evidence of the appellant's prior good character. 136Alternatively, the appellant submitted that his Honour erred in determining that the appellant was not entitled to a good character direction. Such a direction was appropriate and necessary to ensure that the appellant received a fair trial: Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1, especially at [30]-[32], [79] and [155]-[156]. The Crown response to Grounds 3 and 4 137No explanation has been provided from senior counsel who appeared for the appellant at trial as to the reasons for his tactical decision not to seek to rely on evidence of good character. There is no ground of appeal based on competence of counsel. 138However, the Crown contended that it would not in any event have been open to suggest that the applicant had no prior convictions in light of the previous trial. If there had been general evidence of good character, the Crown would have been entitled to rely on the appellant's possession of child pornography to rebut it, and for the jury to be directed that this evidence was relevant to their determination of whether the appellant had established that he was a person of good character. 139Seeking to rely only on an absence of convictions for dishonesty, thereby raising character only in a particular respect, would be fraught with danger as the jury may have reasoned that the applicant must have other convictions. As was said in Miles v R [2014] NSWCCA 72: "[175] It is true that, in any trial, the raising of good character in a general sense powerfully assists the accused, and it may be that in a trial in which sexual offences are alleged it does so with particular force. Raising character in a particular respect is less powerful, and, by its very specificity, has the potential to lead the jury to speculate about why the evidence is circumscribed." 140The appellant's decision not to rely on evidence of good character, given the strength of the evidence upon which he had been convicted of possession of child pornography, was a legitimate tactical decision well open to experienced trial counsel. 141The appellant contends that his Honour erred by determining that he was precluded from raising his good character in the retrial and benefiting from a good character direction. The exchange between his Honour and senior counsel quoted above was no more than an appropriate recognition of the fact that the appellant had not called evidence of good character during the trial, and that on that basis no direction was required. His Honour did not make a determination. There had been no application on which his Honour was asked to rule, and trial counsel did not have an evidentiary basis for making one. Consideration of Grounds 3 and 4 142These grounds are without merit. The appellant did not seek to raise his good character and the issue passed without argument. No issue was taken with his Honour's summing up, to the extent that good character was not referred to, and there the matter rested. 143Whether or not that course was a tactical decision made on the appellant's behalf is currently beside the point. No evidence of good character was called, no directions were asked for and no injustice has occurred. Ground 5 144Section 6(1) of the Criminal Appeal Act provides relevantly as follows: "6 Determination of appeals in ordinary cases (1) The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence..." 145The correct approach to determining a ground of appeal which asserts that verdicts are unreasonable, or cannot be supported, was considered by the High Court in SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400. The majority summarised the relevant principles as follows: "The task of the Court of Criminal Appeal [11] It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ: 'Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself 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'. [12] This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to 'unsafe or unsatisfactory' in M is to be taken as 'equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'.' [13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.' Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter. [14] In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make 'an independent assessment of the evidence, both as to its sufficiency and its quality'. In M, Mason CJ, Deane, Dawson and Toohey JJ stated: 'In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'." 146The substantial portion of the complainant's evidence and the entirety of the appellant's evidence were given by way of tendered recordings of evidence in the first trial. The jury in the retrial did not have the relative advantage of seeing or hearing this evidence given in person. 147The High Court in Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086 considered a ground of appeal concerning the insufficiency of evidence in a child indecent assault matter. After reviewing inconsistencies in the complainant's account, the Court emphasised at [48] that the criminal standard of proof is a "designedly exacting standard". 148The appellant submitted that the following matters support the conclusion that the verdicts of guilty were unreasonable, or cannot be supported, having regard to the evidence. The generally vague quality of the complainant's evidence 149To find the appellant guilty of each individual count in the indictment, the jury had to be satisfied beyond reasonable doubt that the particular incidents relevant to those counts occurred in the manner alleged. In other words, the jury was obliged to give separate consideration to each count in the indictment. The jury was not permitted to find the appellant guilty of some counts simply because it was satisfied beyond reasonable doubt in relation to other counts in the indictment. 150Application of this general principle in this case is arguably problematic, given the vague, non-specific and repetitive nature of the complainant's evidence in respect of particular incidents. This is especially the case in respect of the evidence concerning counts 4 to 8 inclusive. The evidence concerning the dates of particular offences was vague and not entirely consistent. Each incident was alleged to have occurred while the appellant's daughter was showering. Each incident was alleged to have occurred when the complainant was working on a computer. Each incident allegedly took place in one of two locations (the appellant's computer room or the landing area nearby). Indeed, on one occasion the complainant shifted in her evidence between the two locations: the incident relevant to counts 6 and 7 was initially described as occurring "on the landing", but then later relocated to the appellant's computer room. It is questionable whether the complainant actually recalled specific incidents occurring in particular locations. 151This degree of repetition or non-differentiation was reflected in the summing up, in which the trial judge made a number of comments about the similarity of the allegations and struggled to differentiate among them. The deficiency of the evidence also manifested itself in the inconsistent version of events given to Detective Kelly, namely, the manner in which a complaint about masturbation and digital penetration on the first occasion of sexual misconduct later changed into one of touching the complainant's breast. Five areas of implausibility in the complainant's evidence i. The complainant chose to stay at the appellant's home. 152This case may be distinguished from the preponderance of child sexual offence cases in which the complainant was required to live or stay in contact with the alleged offender. In this case the prosecution alleged that the offences occurred while the complainant was a visitor in the appellant's home. The most striking example of this circumstance occurred when the complainant's mother booked a holiday cruise with her new partner on October 2007. 153By this time, the appellant had supposedly committed a number of offences (possibly counts 1 to 7 inclusive, although the timing of particular offences is not entirely clear). The complainant gave evidence under cross-examination that she was fearful and terrified of the appellant from an early stage of the alleged offending. She had been taught at school about the need to report any incidents of sexual abuse. It was supposedly in these circumstances that the complainant was given the choice of staying with her father or with the appellant during her mother's absence. She chose to stay with the appellant. 154The manner in which the complainant explained this choice under cross-examination reflects adversely on her reliability and credibility. The complainant affirmed that when she chose to stay at the appellant's house, she was "absolutely scared" of him and harboured an intense dislike of him. She then gave the following evidence: "Q. You were given a choice by your mother whether you stayed with your own father or went to [the appellant's] place, remember that? A. I wanted to stay with my father but he said that he couldn't take me for that long amount of time. Q. That's not true, is it? You wanted to go to [the appellant's] place? A. Well, yes and no because of Laura. Q. Well how can there be yes and no about it given your fear of this man who sexually abused you for some two years that you'd want to go and stay there in all those circumstances? A. Because I was afraid that he was going to do something to Laura. ... Q. What did he actually say? A. He used to say that he would hurt Laura or I wouldn't be able to see, stuff like that, but he never used to say that he would hurt, like, kill her but - Q. But he would hurt her? A. Yes. Q. You see that's the first time you've ever said that before, isn't it? A. Yes." 155The first explanation offered, namely that the complainant's father could not take her, was not supported by her mother's evidence. Her mother said both in chief and in cross-examination that the complainant was given a choice to stay with her father. When challenged, the complainant appears to have abandoned this explanation in favour of the allegation of a threat to harm the appellant's daughter. This was conceded to be a hitherto unstated explanation, and in the circumstances, there is a compelling inference that it was a recent invention. These circumstances include the fact that she was interviewed by police officers on more than one occasion and the observations of Beata Gonzalo that the complainant behaved in a comfortable, relaxed and confident manner around the appellant. ii. The claims that each instance of misconduct occurred when the appellant's daughter was in the shower. 156The complainant gave evidence that each act of misconduct occurred when the appellant's daughter was in the shower. This claim became a mantra or formula in the complainant's evidence to explain how the appellant could regularly abuse her when her friend was there without knowing. The complainant similarly claimed that the appellant's daughter was showering when the appellant made her dress up, when he photographed her and when she searched the internet for topics of a sexual nature. In other words, every controversial act involving the complainant, including potentially time-consuming ones, supposedly occurred while the appellant's daughter was in the shower. 157The very repetition of this evidence raises doubts about its plausibility. However, there are additional reasons for doubting it. The bathroom in which the appellant's daughter showered was immediately adjacent to the two locations in which the sexual misconduct allegedly occurred. It is unlikely that the appellant could desist from his alleged misconduct and conceal its occurrence in the (irregular) times it took the appellant's daughter to take a shower and return. This was particularly the case in relation to the dressing-up allegations. However, if the complainant is to be believed, the appellant was able to abuse her for years on a regular basis without his daughter becoming aware of this fact. 158Allegations that the misconduct relevant to counts 1 and 2 occurred in each case for about 20 minutes were contradicted by the appellant's daughter, who denied having showers for that long. She gave evidence that the appellant would always knock on the door if she took too long in the shower. Further, three explicit images relied on by the Crown had file creation times for 16 February 2008 of 5.16 pm, 5.18 pm and 8.20 pm. It is highly unlikely that she would take showers three hours apart. The appellant's daughter denied taking multiple showers when questioned by his Honour. 159The complainant also wove the shower scenario into an admitted lie about an incident in which the appellant chastised the appellant's daughter and the complainant for searching the Internet for sex-related topics. However, the use of the showers, in conjunction with the admitted lie, indicates that the complainant was prepared to give evidence of this sort when it suited her to do so, irrespective of its truth. iii. No reasonable opportunity to commit offences when other adults were present. 160In addition to the questions raised by the constant presence of the appellant's daughter, the plausibility of the complainant's account is also open to doubt by reason of the presence of her mother and Beata Gonzalo at relevant times. The regular abuse of the complainant allegedly commenced in late 2005, following the overseas holiday. The relationship between the appellant and the complainant's mother did not end until July 2006. The complainant's mother gave evidence that she continued to stay over at the appellant's home in the period between the overseas holiday and the relationship breakdown. The complainant would occasionally visit by herself in this period during school holidays when her mother was at work. In cross-examination, the complainant's mother agreed with a proposition that she stayed at the appellant's home with the complainant every second weekend until July 2006. The complainant stayed with her father on the alternate weekends. 161Ms Gonzalo was in a relationship with the appellant from mid-2006 to mid-2010. She stayed at the appellant's home almost every weekend. She was ordinarily present when the complainant stayed over. She did not observe any misconduct by the appellant. She never witnessed the complainant in a fearful or apprehensive state. Nor did the complainant ever complain to her about the appellant's alleged misconduct. On one occasion, in relation to count 6, the complainant accepted that Ms Gonzalo was present in the appellant's home when she was abused. The complainant claimed that the appellant acted while the appellant's daughter was in the shower and Ms Gonzalo was in the kitchen. 162This evidence suggests that it is likely that either the complainant's mother or Ms Gonzalo was present in the appellant's home on most occasions when the allegedly regular acts of abuse took place. It is implausible that the appellant would engage in the alleged acts, on a regular basis, in these circumstances. iv. The complainant's undeveloped breast was allegedly fondled for about 20 minutes. 163This allegation, which was contradicted by the inconsistent version of events given to Detective Kelly concerning the first occasion of abuse, is unlikely to be true. One reason for coming to this conclusion is the unlikelihood that the appellant's daughter would remain in the shower for this lengthy period of time. v. The appellant allegedly attempted to abuse the complainant while her father was waiting at his door. 164The complainant gave evidence that she stayed over at the appellant's home in February or March 2010, after she had complained to her mother about the sexual abuse. In June 2010, she collected the appellant's daughter from his home to take her out to dinner. The complainant gave the following curious evidence about this incident: "Q. When's the last time that something happened? A. Well the last time that happened was when we went to go pick Laura up... I went in to pick Laura up and my dad was drop - came in, like he was at the door waiting for me at the door and he said - [the appellant] said to me 'Or can I have a grope' meaning 'Can I touch your breast' and I said 'No way' and then I called my dad to come inside because I was scared." 165The complainant said she did not say anything to her father at that time. The complainant's father was not called to give evidence of the circumstances surrounding the incident. The appellant's daughter was presumably in the house. The scenario is inherently implausible. Other indications of unreliability: inconsistency and embellishment 166The complainant's evidence was marked by inconsistency and embellishment in a number of important respects. This reflects adversely on her reliability as a witness. Three examples follow. * Evidence of threats and violence. 167The complainant's evidence about threats and violence on the part of the appellant was inconsistent and contradicted by other evidence. The evidence is summarised below. 168In her evidence-in-chief in relation to count 6, the complainant alleged that the appellant told her that if she did not do these things, he would come and kill her mother and anyone that she cared about. The complainant never believed that he would carry out this threat. Ms Gonzalo was in the kitchen cooking and the appellant's daughter was in the shower when this happened. 169On another occasion, when the complainant was in the kitchen, the appellant was "just holding" a knife ("he didn't hold it up to, like me or anything") and told her "really angrily... you know what will happen". 170The complainant repeated in cross-examination that she never believed the appellant's threat to hurt or kill someone she knew. The complainant alleged that the appellant threatened to harm his daughter, but conceded that she had never made this allegation before. 171In seeking to explain her continued regular visits to the appellant's home after the abuse allegedly started, the complainant referred to the threats about killing her mother or others and stated, "I've always been scared of that". This was inconsistent with her earlier evidence that she never believed that the appellant would carry out these threats. 172The complainant told Detective Kelly (the first police officer to interview her) that the very first incident involved the appellant approaching her with a large kitchen knife while she sat in the appellant's computer room. She said that the appellant told her that he would go to Bulli and kill her mother, father and other relatives if she did not do what he said. The complainant was fearful because the appellant held the knife close to her face. The appellant then procured a "hand job" from the complainant and placed his finger in her vagina. 173The complainant was cross-examined on this prior inconsistency. At first she tried to reconcile the Detective Kelly version with her evidence about the knife. When reminded about the allegation made to Detective Kelly that the appellant approached with the kitchen knife, the complainant said, "Yes, he did. He didn't hold it up at me though but he just had it in his hand and looked angrily at me and that just scared me a lot". After she was reminded of the allegation that the appellant held the knife close to her face, she added, "Yeah, he held it close to my face but he didn't hold it close to my throat or anything". 174The complainant later conceded that the version she gave to Detective Kelly was "false", although she maintained that the appellant did threaten her with a knife on another occasion. However this allegation had now evolved to incorporate the claim that the appellant held the knife close to her face: "Q. What you told Detective Kelly about being approached with a large kitchen knife initially was false? A. Partly yes. Q. And that he was - go to Bulli and kill your mother and father, that was also false wasn't it? A. Yes. Q. The fact that he held a knife close to your face, that was also false? A. On that occasion yes. Q. ...In fact he did not have a knife at all on that occasion did he? A. No. Q. Nor at any other occasion did he? A. No, well there was another time when I said that he did have the knife in my statement. Q. But there was never an occasion where he held it to your face was there? A. He held it close to me yes he did." 175In cross-examination, the complainant alleged that she was in fear of the appellant because he was always really angry and always used to hit his daughter in front of her. She said that the appellant would slap his daughter's face, leg and arm. Occasionally he slapped her "really hard with a lot of force". The Crown did not put these allegations to the appellant's daughter. She was cross-examined by the defence about them and denied being struck or slapped in the face or anything like it. 176These inconsistencies and contradictions were significant. They support an inference that the complainant was prepared falsely to allege serious matters against the appellant. They demonstrate an attempt on her part to reconcile inconsistent evidence in a manner that reflects poorly on her credibility. They also undermine the complainant's explanation for her acquiescence and her continued visits to the appellant's home, which relied heavily upon the allegations of threats and violence. * Evasive and contradictory evidence about pornographic Internet searches 177The complainant was cross-examined about an incident in which she and the appellant's daughter were chastised by him for searching the Internet for pornographic sites. The complainant at first completely denied the incident. She then claimed that she did search the Internet in 2008 (when the appellant went to the shops and the appellant's daughter was in the shower) for information about "sexual assault", although she never told the police about this. The complainant then conceded that the appellant did ask about pornographic Internet searches, but she denied actually performing the searches, saying "[h]e had asked, but we never did anything". 178The complainant admitted the inconsistency in her evidence and hence the falsehood in her initial denial. She then said that she "half denied" the accusations because she did not want the appellant to know that she was researching "sexual assault". However, the complainant later admitted to using search terms such as "sex", "penis", "vagina", "pleasure" and "fucking". She denied doing this out of sexual curiosity. However, she later agreed with the proposition that when left to her own devices with the appellant's daughter, they became sexually curious. 179The appellant's daughter gave evidence that her father confronted her and the complainant after he observed pornographic items in the computer's search history. The complainant at first denied the accusation, "but then she eventually admitted that she'd done it, looked at it". The appellant consistently described the incident in his evidence. 180The inconsistencies and contradictions in the complainant's evidence support adverse findings about her reliability and credibility. However, the real significance of the evidence lies in the complainant's attempt to introduce an explanation that advanced her allegations against the appellant (i.e. the claim that she was researching "sexual assault"). The inference is available that this was a false explanation. * Timing and circumstances of the initial complaints. 181The contradictory and inconsistent evidence was summarised by the trial judge. The complainant's initial blanket denial about being grounded by her mother, and her subsequent reluctance to acknowledge this fact, demonstrated a further attempt by her to work around problematic evidence. Her former boyfriend readily acknowledged the circumstance that the complainant was reluctant to accept. 182Proof of each of the counts in the indictment requires satisfaction beyond reasonable doubt as to the honestly and reliability of the complainant. The appellant, through the tender of his evidence from the first trial, denied committing the offences. These matters establish the context in which the deficiencies in the complainant's evidence are to be considered and weighed. 183When the "designedly exacting standard" of the criminal proof is applied to the complainant's evidence, in light of all the evidence in the trial, the conclusion follows that it is not possible to be satisfied of the appellant's guilt beyond reasonable doubt. Nor was any relevant advantage held by the jury capable of resolving any such doubt. It was not open to the jury to convict: Douglass v The Queen at [48]. 184That conclusion is not affected by the outcome of the forensic contest concerning authorship of the photographs. The complainant was demonstrated to be a witness who was prone to embellishment and false accusation. Although it is not conceded that the evidence establishes the fact; even if the appellant did take or obtain possession of the photographs, this may well have motivated or influenced the complainant to allege the other acts of sexual misconduct against the appellant. This proposition does not suffer from the basic implausibility that afflicts the complainant's account of events. Moreover, it provides an explanation for the other unreliability factors outlined above. 185The appellant emphasised that the first jury was unable to reach verdicts. The second jury only did so after deliberating for a period almost as long as the time it took to hear the evidence, and only after receiving perseverance directions. The Crown response to Ground 5 186In SKA v The Queen at [12], the Court reaffirmed that the function to be performed by this Court is as stated in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493 and 494: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, ... the question which the court must ask itself 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. ... In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred." 187In applying this test, the court is required to make an independent assessment of the evidence, both as to its sufficiency and quality: SKA at [14]. 188In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 at [113], Hayne J said: "[113] It is clear that the evidence that was adduced at the trial did not all point to the appellant's guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard." 189The verdicts establish that the appellant was not accepted as a witness of truth. The jury had the opportunity of seeing the complainant and was satisfied beyond a reasonable doubt of the allegations. The Crown submitted that the verdicts were not unreasonable and that this Court would not be satisfied either that they were or that they could not be supported by the evidence. Consideration of Ground 5 190I have reproduced in some detail the appellant's arguments and submissions in support of this ground of appeal. They are thorough and in my view also persuasive. I am satisfied in the circumstances that the jury must have entertained a doubt about the appellant's guilt. 191It is timely to emphasise that the jury were required to bring to their deliberations all of their collective wisdom, experience and common sense as members of the community. Their assessment of the evidence from all sides, and the disposition of contradictions and conflicts that it may have presented, had to be carried out and considered in a realistic and practical manner. Their conclusions necessarily had to be supported by an identifiable logic, even though there may have been more than one apparently logical conclusion at which they could have arrived. A jury must at the very least be expected to have entertained a reasonable doubt in circumstances where inferences respectively supporting guilt and innocence are equally probable. 192It is trite to observe that the appellant was required to prove nothing. The burden of establishing his guilt rested upon the prosecution from start to finish. Having regard to these obvious matters, it seems on one view that it must have been particularly difficult for the jury to have reconciled the complainant's concerns about being constantly and systematically sexually abused by her friend's father, as well as being quite malevolently threatened by him from time to time, with her ongoing voluntary attendance at his home in a way that provided the appellant with further and continuing opportunities to repeat the abuse. The complainant was not forced by circumstances or some situation over which she had little or no control to return to the appellant's home. I recognise the force of the appellant's contention that no reasonable juror could fail to entertain a reasonable doubt about the complainant's veracity in such circumstances. 193I also accept that the appellant quite understandably places considerable emphasis upon the fact that there is, on one view, no reasonable or rational explanation for the complainant's constant return to the premises. It is the appellant's argument that it is accordingly dangerous to accept that the jury could have been comfortable with the complainant's explanation that she attended the appellant's home every second weekend, presumably expecting and anticipating that the abuse would continue, for the reason that the appellant had threatened to kill or harm her mother if she did not do so. The complainant's decision to spend the holiday period with the appellant is just another more extreme example of her regular fortnightly visits over the years, and equally inimical to the absence of a reasonable doubt. 194It is inherent in the appellant's argument as well that the arrangement cannot be explained upon the basis of a single or isolated event. Even though the complainant may originally and unexpectedly have been subjected to abuse and ill-equipped to avoid or deflect it, the same cannot be said with respect to its continuation and repetition. Notwithstanding her increased age at this time, the complainant still, on her account, remained in the thrall of the appellant and continued to visit his daughter with the associated prospect of further sexual abuse. The appellant argues that in such circumstances the jury must have entertained a reasonable doubt, particularly with respect to the alleged acts of abuse in the later years. 195It was clearly open to the jury, in the sense of a theoretically available outcome, to decide the case against the appellant in the way that it did. It is the appellant's case that it was not open to them to do so according to law. Moreover, any advantage that the jury had from seeing and hearing the appellant and observing the manner in which she gave her evidence, although limited, must have been tempered by the curious and even extraordinary content of that evidence. It seems apparent that the jury were not dissuaded from accepting the complainant even though she gave two contradictory versions of certain events to two different police officers about critical and important aspects of the case against the appellant. Not only were these versions at odds with each other, but they were extravagantly incredible as well. It is unnecessary for present purposes to do more than refer to the complainant's evidence concerning the alleged threats made by the appellant using a knife. The jury's apparent acceptance of suggestions that the appellant threatened serious physical harm to his own daughter and her mother as the price of the complainant's silence or compliance also does not in this context sit easily with the application of common sense or collective community wisdom. 196The appellant also drew attention to the curious nature of events at the appellant's premises, quite apart from the debate about the difficulty in accepting that the complainant would have continued to go there in the circumstances. As far as I am aware from the material provided, and the evidence at the trial, the abuse only and always occurred when the appellant's daughter was showering. The unexplored implication is that the appellant was always in the complainant's presence when the showers were about to commence and that the complainant remained with the appellant in the circumstances even though she was, or soon became, aware that they were a trigger for the abuse to occur. Once again the appellant relied upon these matters to support the proposition that the jury must have had a reasonable doubt. 197The burden of the Crown's response to the appellant's submissions was that his disputed possession of the photograph "Pussy1" was corroborative of his guilt and that it was evidence capable of eradicating any reasonable doubt about it that the jury might otherwise have retained. The photographic evidence was of course not directly connected to the commission of the offences charged but went to the issue of the appellant's credit generally in the context of his sworn denials of the charged conduct. The Crown at the trial enthusiastically embraced the connection between the appellant's possession of the photographs and his guilt, as the extract from the Crown's address to the jury at [37] above clearly reveals. This photographic evidence was undoubtedly powerful. The Crown argued that it could quite properly have been sufficient to dispel a reasonable doubt that the evidence might, not must, have otherwise created in the minds of the jury. 198The question for this Court, however, is whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant. In other words, the question is whether the jury must, as distinct from might, have entertained a doubt about it. It is clear that there was material which might have been taken by the jury to preclude satisfaction of guilt to the required standard, as the appellant's submissions quite forcefully demonstrate. However, any doubt the jury might have entertained, or that an appellate court itself might entertain, is respectively neither sufficient nor relevant. 199This is not a case in which the jury enjoyed the distinct benefit of observing both the complainant and the appellant giving evidence. However, there may be one or more reasons why the jury chose to believe the complainant despite the difficulties that accompanied her evidence. Those difficulties would appear to have influenced the first jury, or at least some of them, to the point of ultimate indecision. The second jury's decision may well have its origin in matters that are neither obvious nor apparent to this Court. Unless there is something that impels this Court to the conclusion that the jury must have entertained a reasonable doubt, its decision cannot be disregarded. 200I accept that the appellant's possession of the photographs of the complainant was an important and understandable part of the Crown's case against him. I also consider that it is entirely reasonable for the jury to have concluded that he took the photographs. I am, however, unable to accept that the evidentiary force of the photographs was such that it could have overcome a reasonable doubt about the appellant's guilt that the jury must in my view have had about the complainant's evidence concerning the offences. Put another way, I consider that the jury must have had a reasonable doubt about the complainant's reliability and truthfulness as a witness, having regard to the inconsistencies in and content of her evidence, which the admitted force of the photographs was insufficient to dispel. 201I have earlier recorded that the Crown addressed the jury at the trial by insisting that if the appellant was responsible for the photographs then it followed "overwhelmingly... to his guilt of all of [the] matters". The Crown characterised the question of who took the photographs as "the absolute key to deciding this case". The Crown was perfectly entitled to make those submissions and no complaint was made about them at the trial, and none is made now. However, the Crown was in my opinion correspondingly unable to come to terms with the complainant's unreliability or her inconsistencies. That unreliability and those inconsistencies are at least equally forceful. I am therefore also unable to discard the force of that unreliability or those inconsistencies and in the circumstances I have a reasonable doubt about the appellant's guilt. I consider that that the jury itself must also have had a reasonable doubt and that it was not open to them to be satisfied beyond reasonable doubt of the appellant's guilt. 202I would uphold this ground of appeal. Disposition 203Despite my conclusion with respect to grounds 1(c) and 2, which standing alone would have led to a different result, it follows from my conclusion with respect to ground 5 that the following orders should be made: (1)Allow the appeal. (2)Quash the convictions. (3)Direct the entry of verdicts of acquittal. 204GARLING J: I agree with Harrison J, for the reasons which he expresses, that the jury in this trial must have entertained a reasonable doubt about the guilt of the appellant on each of the charges. I agree with the orders proposed by Harrison J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 February 2023