Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: MK v R [2014] NSWCCA 274 Hearing dates: 12.09.2014 Decision date: 26 November 2014 Before: Hoeben CJ at CL at [1] Fullerton J at [134] Hamill J at [135] Decision: 1. To the extent necessary, leave to appeal is granted. 2. Ground of Appeal 1 is upheld but Grounds of Appeal 2 and 3 are dismissed. 3. The convictions recorded against the applicant on 4 October 2012 are quashed. 4. The matter is remitted to the District Court for retrial. Catchwords: CRIMINAL LAW - conviction appeal - take without consent and indecent assault - evidence - competence of child to take oath - unsworn evidence by child - fundamental defect in giving of unsworn evidence - appeal allowed - whether verdict unreasonable and not open on the evidence - identification by child witnesses - discrepancies in their descriptions - both child witnesses identify very distinctive feature of assailant - whether open to jury to be satisfied beyond reasonable doubt as to identification of assailant - this ground of appeal dismissed - whether submissions by Crown gave rise to a miscarriage of justice - whether the trial judge gave appropriate directions to jury - no miscarriage of justice - this ground of appeal dismissed - matter remitted to District Court for new trial. Legislation Cited: Crimes Act 1900 - s61M(2) , s86(1)(b) Criminal Appeal Rules - r 4 Evidence Act 1995 (NSW) - s13 Cases Cited: Dyers v The Queen [2002] HCA 45; 210 CLR 285 FP v R [2012] NSWCCA 182 Knight v Queen (1992) 175 CLR 495 M v The Queen (1994) 181 CLR 487 Pease v R [2009] NSWCCA 136 R v RAG [2006] NSWCCA 343 RJ v R [2010] NSWCCA 263 Sami Kurdi v Regina [2011] NSWCCA 179 SH v Regina [2012] NSWCCA 79; 83 NSWLR 258 SKA v The Queen [2011] HCA 13; 243 CLR 400 Warren v Coombs (1979) 142 CLR 531 at 551 Category: Principal judgment Parties: MK - Applicant Regina - Respondent Crown Representation: Counsel: Mr H Dhanji SC - Applicant Ms T Smith - Respondent Crown Solicitors: Abigail Bannister - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent File Number(s): 2011/43255 Decision under appeal Date of Decision: 2012-10-04 00:00:00 Before: Quirk DCJ File Number(s): 2011/43255 Judgment 1HOEBEN CJ at CL: Offences and sentence Between 25 September and 4 October 2012 the applicant was tried before Quirk DCJ and a jury for the following offences: Count 1 - Take without consent and with intent to obtain an advantage being an indecent assault contrary to s 86(1)(b) of the Crimes Act 1900 for which the maximum penalty is imprisonment for 14 years. Counts 2 and 3 - Indecent assault on a person under 16 namely 6 years contrary to s61M(2) of the Crimes Act 1900 for which the maximum penalty is imprisonment for 10 years and a standard non-parole period of 8 years. 2On 4 October 2012 the jury returned with a verdict of guilty of each offence. On 23 July 2013 the applicant was sentenced for those offences as follows: In relation to Count 1, a fixed term of imprisonment of 12 months commencing 9 April 2011 and expiring 8 April 2012. In respect of Counts 2 and 3, imprisonment with a non-parole period of 2 years commencing 9 April 2011 and expiring 8 April 2013 with a balance of term of 12 months to expire 8 April 2014. 3As can be seen, those periods of imprisonment have now expired. 4The applicant relies upon three grounds of appeal: Ground 1 - The trial was not conducted according to law because the complainant and other child witness CL were not competent to give unsworn evidence. Ground 2 - The verdict was unreasonable and cannot be supported having regard to the evidence. Ground 3 - The trial miscarried by reason of the Crown and the trial judge reversing the onus of proof, misstating the identification evidence and inviting the jury to adopt false logic which overstated the probative force of the identification evidence. Crown case and evidence at trial 5The Crown case was that on 6 February 2011 the applicant, who was a stranger to the 6 year old complainant, took her by the hand and pulled her underneath the unit block where she lived into a dark section where garages were located. This occurred after the complainant had gone downstairs with her friend, CL, to collect a ball that had gone over the edge of the balcony of the family's apartment. It was alleged that the applicant then removed her shorts and underpants and touched her genital area with his hands. He then touched her bottom with his erect penis. 6The complainant described her assailant as having a distinctive facial decoration, being three pieces of jewellery, like earrings, on his cheek. The applicant had such an adornment. The complainant said he also had short black hair and described his clothing. 7A Mazda car bought by the applicant on 29 December 2010 was parked in front of the unit block where the complainant and her family lived on 6 February 2011 from some time in the afternoon on that day until a man (not the applicant) came and drove it away some time after the complainant disclosed the offences to her father. 8The Crown case was circumstantial and based on facts largely not disputed. The complainant made immediate complaint of having been grabbed by a strange man in the undercover car-park beneath her family unit, dragged to a different part of the car-park where the offences took place. Her playmate, CL, who was also 6 years old gave evidence that a strange man had told him to go and collect leaves and that when he returned, the complainant ran to him from a dark part of the car-park crying and told him that a man had put something like a rock in her mouth. It was not suggested to either witness that the incident did not occur. 9It was also not in dispute that at about the same time a vehicle owned by the applicant, a grey Mazda, was parked in the building's car-park in a way that blocked access to a resident's garage. Some time after the resident had called triple 0 to complain about the vehicle an unidentified man, who was not the applicant (and was said by the Crown not to be the applicant or the perpetrator), and who was attempting to sell ladies' handbags to residents, drove the vehicle away. 10The applicant was interviewed by the police three days after the accident and denied any involvement. He indicated that many other people regularly drove his car. When police located the car that morning, it was being driven by the applicant's uncle and the applicant's mother was a passenger. 11The Crown's case relied upon three things: (1)The extent to which the applicant fitted the various descriptions of the perpetrator given by the complainant and CL. (2)The circumstance that a car owned by the applicant was at the location of the incident and removed by a person other than the applicant some time after the incident. (3)The police record of interview with the applicant. 12The Crown relied upon identification evidence from the complainant and CL and upon hearsay evidence of descriptions given by the complainant and CL to others immediately following the incident. The Crown case depended upon the jury rejecting parts of the complainant's evidence and that of CL to the extent that it was inconsistent with the appearance of the applicant. 13Before the jury and this Court was a 10 minutes video of the location of the incident (the residential building's car-park) (exhibit A). 14The complainant's record of interview was recorded less than 24 hours after the assault and was played to the jury. The complainant gave little meaningful evidence during the first hour of the interview when she was on her own with a female police officer. After a 25 minute break, the interview resumed, this time with the complainant's mother in the room. On occasions the complainant appeared to communicate with her mother through non verbal signs and on occasions looked to her mother before answering questions about the incident. On occasions her mother would prompt her by nodding with whispered words and signs. From my viewing of the interview I would agree that in relation to the actual offending, her mother did prompt her by moving her hands in a downward motion as though pulling down the complainant's pants. 15In the recorded interview, the complainant said that the assailant had "one of the things you put on your ears" in his cheek and said there was "one big one and one little, medium and one small" (MFI 2 Q and A 366 and 367; MFI 4, Q and A 78 and 79). The complainant was unable to remember which side of the face they were on but she appeared to specify the right side of her cheek a little above her mouth as the location of those items. 16She said that the assailant's hair was short, that he was wearing shorts which were black. She said that the man was skinny and had white skin. She could not remember if he had any other marks or earrings. She said "At the end, when I looked behind he was gone" and she did not see where he went. 17In cross-examination the complainant said that she did not hear the man say anything to CL. She said that she did not know where in the garage he took her, but it was not the area where there was a toilet. She said that when she told her father what had happened on the night of the assault, she said that the man had three earrings, or three little bits of jewellery on his top lip. Her memory was that the man had bits of jewellery on his lip and she said she remembered that the colour of the jewellery was silver. She remembered that she did not see any other marks on his face and that he did not have any spots or freckles on his face. 18She did not remember telling her dad that the man had pictures on his arm and did not remember if he had pictures on his arm. She said by comparison with her father, whom she described as "in the middle" in terms of being fat or skinny, that the man was skinny and shorter than her father. She remembered saying the man had white skin and when asked said it was lighter skin than her own. She said the man was not wearing anything on his head. 19In re-examination the Crown asked about the location of the jewellery on the man's face. She pointed to "her left cheek area" which for the record the applicant's counsel described as "just to the side of the mouth and just above - from the cheekbone - jawbone up", to which the Crown responded "I don't think it's meant to be precise". The complainant said there were three pieces of jewellery and agreed with the statement that they ranged in size. 20CL's interview with police, which was video recorded two days after the incident on 8 February 2011, was shown to the jury. CL said: "The day before yesterday I went to my friend's house and then, and then my friend and me were playing on the balcony with a ball and then fell on the ground and then we went to the garage and picked it, then a man came - he said that, he said to me that go and pick me some leaves from over there and then, and then he took and then he took my friend away. - And when he, then I was looking for her and then I came up and said to my dad and my, and my, and my other friend said that I can't find my friend, they too went running down to find her. And then she was crying and someone else and my friend said that the man put something like this in her mouth and then she spit it out." (At this point CL squeezed his lips open with his hand.) (MFI 4, p 5-6) 21After more questions, the following exchange occurred (MFI 4, p 7): "Q.78 Yeah. Can you tell me what the man looked like? Can you describe him from his head to his toes? A. He is, his shirt was blue and he had a diamond here. [He pointed with his hand to his forehead above his right eyebrow.] Q.79 He had a what? A. A diamond. Q.80 Okay. A. And his shorts were I think brown. Q.81 Is there anything else you can remember about him? A. (No audible reply) Q.82 No. Can you tell me more about his blue shirt? A. There was nothing on it. Q.83 Was it like short sleeved or long sleeved or something ...? A. Short sleeves. And shorts on. Q.84 Do you know what colour hair he had? A. He had black. Q.85 Mmm. A. But they were spikey. [At this point CL pulled his hands straight up from his scalp indicating hair standing up.] Q.86 Was the man tall or short or -? A. Tall. Q.87 Tall and was he a fat guy or a skinny guy or something else? A. Like a little bit fat. [CL gestured around his stomach] Q.88 And can you remember what colour skin he had? A. He had skinny. Q.89 Do you remember what colour his skin was? A. [No audible reply.] [CL shook his head] Q.90 No? Was there anything else about him that you remember? A. [No audible reply] [CL shook his head] Q.91 You said he had a diamond where .... A. Here. [CL again indicated the space on the right side of his forehead between his eyebrow and his hairline and clearly above his eyebrow.] Q.92 ... Was that? Okay do you remember what side of his face it was on? A. No. Q.93 Was there anything else on his face? A. [No audible reply] [CL shook his head.]" 22CL said that when he came back and was looking for the complainant, she and the man were hiding "at the end of the garage, there's a door, they went in there", although he did not see them go in there (MFI 4, p 9). He said that the complainant was crying because the man put a rock in her mouth, but she spat it out and he, CL, knew this because she had told him (MFI 4, pp 10-11). He did not see the man touch her (MFI 4, p 12). He went upstairs to alert his and the complainant's fathers, who came down looking for the complainant. After they found her, they went off in the car looking for the man around the neighbourhood. 23In cross-examination CL said that the man grabbed the complainant's hand and he saw them "go into this dark place where nobody goes. It's like a secret place, and that's where they went" (26/9/12 T.97). He said the dark place is "open in the middle" (T.97). (It was accepted that this would describe the corridor at the farthest point inside the garage, which had a bathroom down a long corridor to the right and a staircase leading to a patio and fenced garden, down a long corridor to the left - the corridor of which does appear to "open in the middle" (exhibit A). 24CL said that the man was about as tall as the complainant's father and "a little bit fat" like the complainant's dad. He gave evidence that the man had a diamond on his forehead and pointed to both sides of his face, but then said that it was on the right side of the man's face (26/9/12 T.99). He said the diamond was "up and next to" the man's eyebrow when asked if it was above, next to, or below the eyebrow and said there was only one (T.99). He said the man had a tattoo all around his right arm, which CL demonstrated by twisting his hand around his arm. He said that this tattoo was closer to the man's shoulder than to his hand, that it was a picture not writing and that the man had no tattoos on his left arm or on his hands (26/9/12 T.99-100). 25The complainant's father, HR, gave evidence that on 6 February 2011 at about 8 or 8.30pm, the complainant told him she was going downstairs to collect her ball which had fallen over the balcony. A few minutes later CL came up and said "Someone is pulling [the complainant] around down there" after which he and CL's father immediately ran down. When he reached the last step of the staircase and turned into the garage [the complainant] was running up the car-park driveway towards him from the farthest area in the garage where the toilet is. He said after the complainant calmed down, she told him that the man pulled her and put something in her mouth which she spat out. He asked where the man was and she pointed to the garage area. 26HR waited for the man to come out and when no-one came out, went in to look for him and saw that it may have been possible for the man to exit out of the back of the car-park. (The video, exhibit A, confirms this.) HR, his wife, CL's father and the complainant and possibly CL got into CL's father's car to drive around the neighbourhood to try to locate the man. 27They returned home after 20-30 minutes driving around. He cuddled the complainant on the sofa and she told him, in a mixture of English and Hindi, that the man "touched my susu and put something in my mouth. It was on a stick ... and I spit it out. It was disgusting." 28After this conversation, HR took the complainant back down to the car-park for a walk and to throw some rubbish out and noticed a car parked in front of two garages on the left hand side of the car-park. He asked his neighbour if anyone owned the car and was told no-one knew who owned it and that it was blocking the garage of his neighbour who needed access to it. He recorded the car's registration. It was a grey Mazda 3 sedan. He did not remember seeing it when he went down to look for his daughter in the first instance but did not positively remember that it was not there. 29HR's neighbour rang triple 0 to complain that a car was parked blocking his garage. The call was played to the jury (exhibit D). The neighbour also told the operator that someone had "teased" one of his neighbour's daughters. HR gave evidence that his neighbour rang his doorbell to tell him a man had come to collect the car. HR rushed back down and saw one man driving the car away. The neighbour rang triple 0 again and reported the assault on the complainant. 30In chief, HR was asked if the complainant or CL told him anything about the man on the evening of the incident. HR said "About tattoos. She mentioned about that and about the rings on eyebrows or something like that" (27/9/12 T.114). He said he thought that she told him when they were in the car. He could not remember what CL told him about the man. In cross-examination he said that the complainant told him about the piercings on the man's upper lip on the right side and about the tattoo on the man's right arm. 31CL's father, SL, gave evidence consistent with HR's. He said he could not recall which of the children gave the "exact" description because the children were talking together at the same time. He made out that the man "was wearing shorts and he was wearing I think a blue t-shirt or something ... and he had some piercing in his face, yeah, and some don't know a tattoo or so" (27/9/12 T.130). 32Detective James gave evidence of responding to the triple 0 call. He said that the complainant told him "The man pulled my pants down. He touched my privates. He had pictures on his arms and three piercings on his face" (T.137-138). In cross-examination he agreed that a police "SIDS" record relating to the incident contained a description of a person of interest as "tattoos on his right arm ... wearing white t-shirt with black pattern ... three piercings on right ear ... shorts and shoes" (27/9/12 T.140-141). In re-examination Detective James said that he had not been told anything about the earrings over the radio. 33The applicant, who was aged 20 at the time, was interviewed at the Auburn Police Station on the afternoon of 9 February 2011 by Senior Constable Williams, who had interviewed the complainant and CL, and Constable Bingham. The ERISP was played for the jury (T.200 - exhibit J). 34In the ERISP the applicant appears to have dark, or very tanned skin, at least as dark as that of the complainant at the time of her interview on 7 February 2011. In that regard the trial judge in her summing up said that his skin was "much darker than the complainant at the time" (SU 17). 35Other matters to emerge from the ERISP are that the applicant appears to be of average build, his hair was very short almost shaved and could not be described as "spikey". He was wearing a white t-shirt with reflective silver writing on it. He had words tattooed on the length of both sides of both forearms and across both hands. He did not appear to have any band tattooed around his upper arms. He appeared to have an earring in his right ear and he had a distinctive mole in the centre of his forehead. 36Most particularly, the ERISP showed that the applicant had three diamond like dermal implants, running from the corner of his left eye to the top of his cheekbone, extending for a distance of about 1-1 ½ inches (2.5-3.8 cms). The top diamond implant is the largest in size, the second is smaller and the third is smaller again. The applicant appeared to have no other jewellery on his face and no piercings were obvious. 37In the interview the applicant said he could not remember his movements on Sunday, 6 February 2011 (i.e., three days before the interview). The applicant said his mate, Hussein or "anyone", could have had his car on that day. He would not provide police with the last name of Hussein. Later in the interview the applicant said that he did not drive or use the car at all. He said that his family (his mother, uncle and brother) and Huss and a couple of other boys normally used the car. 38Towards the end of the interview, the applicant said that police were saying that his car was there at the relevant time but it had "nothing to do with me because the car's not under my name and like everyone, a lot of people use that car you know what I mean". Correspondence and papers in the name of the applicant from the time period around February 2011 were located by police when the car was searched. Ground 1 - The trial was not conducted according to law because the complainant and other child witness CL were not competent to give unsworn evidence. 39In order to understand the submissions, it is necessary to set out s13 of the Evidence Act 1995 (NSW) and the evidence which was adduced from the complainant and CL in relation to their capacity to give evidence. 40Section 13 relevantly provided: "13(1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability): (a) the person does not have the capacity to understand a question about the fact, or (b) the person does not have the capacity to give an answer that can be understood to a question about the fact, and that incapacity cannot be overcome. (2) A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts. (3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence. (4) A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact. (5) A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person: (a) that it is important to tell the truth, and (b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs, and (c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue. (6) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section. ... (8) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person's training, study or experience." 41The relevant parts of the transcript are: "HER HONOUR: Well, the question is does the witness[understand] what "under an obligation to give truthful evidence" is. Now, how is that elicited from a child? I'm thinking might it be better that I actually watch some of the interview and ask some questions, because how am I going to assess her sophistication by just asking those questions that are routinely asked, really, to fit within the exception under s 13(5) I mean, have you got suggestions? CROWN PROSECUTOR: No, no, I agree with that. I think your Honour should watch at least part of the recorded interview with the child, and then your Honour should explore the likelihood that she would give evidence unsworn. The likelihood is that she wouldn't be able to be give sworn evidence. HER HONOUR: No, but in reality, even though the authorities say age alone is not sufficient, because every age - a person is assumed to be competent. So I must actually have some other method assessing her. Do you agree, Ms Hall, with all of this? HALL: I do. HER HONOUR: Yes Should I ask her just a few questions, preliminary, just perhaps to make her feel comfortable? Unfortunately, I can't sit beyond 4.00 this afternoon for other reasons but I can certainly watch some of the interview tomorrow morning before coming back on. But if I ask her some questions now just to - or should I watch it in court now for ten minutes and then ask her some questions? I don't mind either way. Would that be sufficient, do you think? Ten minutes? CROWN PROSECUTOR: I would have thought if you watched it for ten minutes, you would get a feel for how she is. ... HER HONOUR: I might just ask things like, "Do you understand what obligation to give truthful evidence is?" That might be some way of - well, that's a test. DVD PLAYED TO COURT CROWN PROSECUTOR: Would your Honour be assisted by a transcript? HER HONOUR: I think that might be enough. If you can just stop that now. Can we switch through to [the complainant]. ..." (After some preliminary questions and remarks to put the complainant at ease, the following exchange took place between her Honour and the complainant.) "HER HONOUR: Do you understand that it's very serious though. Even though it's - it's quite serious. COMPLAINANT: Yeah. HER HONOUR: What you're going to be asked about. How old are you today? COMPLAINANT: Eight. ... HER HONOUR: Sorry, XXX. You're going to be asked questions about what you told the police lady a couple of years ago. COMPLAINANT: Yeah. HER HONOUR: You know that. Do you understand what telling the truth is? COMPLAINANT: Yes. HER HONOUR: But you don't understand what the word "obligation" is, do you? COMPLAINANT: No. HER HONOUR: You understand it's important to tell the truth. Do you know why it's important to tell the truth? COMPLAINANT: No. ... HER HONOUR: If you're asked a question tomorrow and you don't know the answer, then what do you think you should say? Say I say to you, "What's 25 multiplied by 50?" COMPLAINANT: I don't know. ... HER HONOUR: "I don't know." Right. So if you're asked a question tomorrow about something that happened some time ago, those things that happened downstairs that you say that happened when you dropped the ball - remember those things? COMPLAINANT: Yeah. HER HONOUR: So if you're asked a question and you don't know the answer, what will you say? COMPLAINANT: I don't know. HER HONOUR: You know that that's okay to say that, don't you? COMPLAINANT: Mm-hmm. HER HONOUR: It's okay to say, "I don't know." Is that okay? You know that? If you're asked a question and you can't remember the answer, you can't remember what happened, what do you think you should say to that? COMPLAINANT: I don't remember. HER HONOUR: That's very good. That's what you should say. It doesn't matter if you don't remember. You understand that, don't you? It doesn't matter if you [don't] know or you don't remember. COMPLAINANT: Yeah. HER HONOUR: What if someone asks you a question, but you don't agree with it? Say someone says, "Your top is red?" what do you say? COMPLAINANT: No. HER HONOUR: You say, "No. My top's blue." That's what you'd say, wouldn't you? COMPLAINANT: Yeah. HER HONOUR: Do you understand that you can do that when you're asked questions? COMPLAINANT: Yeah. HER HONOUR: Even if it's by a lady in a wig and who looks quite maybe serious. Do you understand that? COMPLAINANT: Yes. HER HONOUR: You understand that if someone says to you, "Your top is red," it's very important that if you don't believe that, that you should say so. Do you understand that? COMPLAINANT: Yes. HER HONOUR: So if someone asks you questions - it's not just about silly things like your top, the colour of your top, but about what happened a couple of years ago, and you don't agree with what the question is, it's important that you don't have to agree. You understand that, that you don't have to agree with what's in the question. Do you understand what I'm saying or am I being a bit - going on too long? What does that nod mean? COMPLAINANT: I understand. HER HONOUR: So you understand that you are under no pressure to agree with anything that's asked of you. Do you understand that? COMPLAINANT: Yes. HER HONOUR: Mr Crown, do you think I've asked enough questions or is there some aspect CROWN PROSECUTOR: I don't know whether your Honour has covered 5A. It's important to tell the truth. HER HONOUR: I thought I - yes, the most important, Mr Crown. I might have overlooked that one. XXX, do you understand that even though you don't have to agree with everything, and if you've forgotten something, you have to say you forgot it, and if you don't agree, you can say you don't agree, but do you understand that the most important thing is that you must tell the truth. Do you understand that? COMPLAINANT: Yes. HER HONOUR: Even if you don't know why that is but you understand that you must tell the truth. Do you understand that? COMPLAINANT: Yes. HER HONOUR: You know it's very important that you tell the truth, do you? COMPLAINANT: Yes. HER HONOUR: Okay. So what's the most important thing when you're answering questions tomorrow, when the lady with the wig and the glasses asks you questions? What's the most important thing, do you think? COMPLAINANT: Um. HER HONOUR: Well, just tell me any of the things that you think, if you can remember, tomorrow, what you should do when you're asked questions tomorrow. COMPLAINANT: Telling the truth. HER HONOUR: That's right. That's very good. And there are some other things. That's the most important. ..." (25.9.2012 - T.51-55) 42Her Honour then delivered a brief judgment as follows: "HER HONOUR: Yes. I am satisfied that although XXX is not competent under s 13, she fits within the exception under s 13(5) and is able to give unsworn evidence under that section. I think it is 13(5), isn't it? I had better use the right words, all right. I was just trying to -- CROWN PROSECUTOR: 13(3), I think. HER HONOUR: Sorry. Is it 13(3)? ... HER HONOUR: No, no. I'm sure you're right. Yes. I find that under s 13(1) XXX is not competent to give evidence but is competent to give unsworn evidence under s 13 -- CROWN PROSECUTOR: 13(3)." (25.9.2012 - T.55.21) 43In relation to the witness CL, the following evidence was adduced as to his competence. "HER HONOUR: I'll take ten minutes to go through these steps, then half an hour and any further questions, it will be close to 4.00. So don't worry about it. We're going to have played ten minutes or so of this interview without anyone else being in Court - in the absence of the jury, I should have said. DVD PLAYED TO COURT HER HONOUR: That might be sufficient. Now if we can switch through to the remote room, please. CLOSED-CIRCUIT TELEVISION ACTIVATED HER HONOUR Q. Hello, CL. CL. Hi. Q. Can you see me? CL. Yes. Q. I'm the lady with the wig on. CL. Yes. Q. And you can hear. CL. And glasses. Q. And glasses. That's right. Chris, do you know why you're here today? CL. No. Q. Okay. You're here today - do you remember you spoke to the police officer 18 months ago, more than a year ago. CL. Yeah. Q. And you told her what you saw or heard CL. Yeah. Q. --one day when you were playing with XXX. CL. Yes. Q. You've been asked to come back here and then you will be asked a few questions about that. CL. Yeah. Q. Do you know that's why you're here? CL. Okay. Q. Do you know it's very important why you're here today? CL. No. Q. When the police lady talked to you, she talked to you about telling lies and the truth. Do you remember that? CL. Yes. Q. She told you it was important to tell the truth, did she? CL. Yes. Q. Do you remember that or not? CL. Yes. Q. I'm telling you now that it's very important that you only tell what really happened, the truth, today. Right? CL. Yeah. Q. Do you understand that? CL. Yeah. Q. There will be another lady with a wig and glasses. CL. Yeah. Q. And she'll ask you a few questions. CL. Yes. Q. That's after the video is shown. If you don't remember anything, what should you say if you're asked a question that you don't remember? Do you know what to say? CL. No. Q. It's really important if you don't remember about something and you're asked a question about it, then you should say, "I don't remember," okay? CL. Okay. Q. It's okay to say, "I don't remember." Do you realise that? I'm telling you that now. CL. Yes. Q. If you're asked a question that you think that what's said is untrue - like if someone said to you that your shirt that you're wearing today is red, right? CL. Yes. Q. Is your shirt red? CL. No, it's white. Q. So if the other lady with the glasses and the wig said, "Chris, your shirt is red, isn't it?" what would you say? CL. It's grey. Q. You'd say, "No, it's not. It's grey" or "it's white." Okay? CL. Yeah. Q. You understand that you can do that. CL. Yeah. Q. You can say when you think something is wrong or not true. CL. Yes. Q. You don't have to agree with anything at all in a question. You don't have to feel that you should agree. Do you understand that? CL. Okay. Yes. Q. So if anything is said to you while you're answering questions today and you don't agree with it, you should say so. CL. Okay. Q. Okay? CL. Yes. Q. If you don't know something, if you're asked a question that you just don't know the answer to - like, you might be asked - I don't know what sort of question, but say I said to you, "What was the date on Monday of this week?" would you know the answer to that? CL. No. Q. So what would you say if I said, "Chris, can you tell me the date of Monday of this week?" what would you say? CL. I don't know. Q. "I don't know that one" or "I don't know." That's good. HER HONOUR: Is there anything further, Mr Crown? CROWN PROSECUTOR: I may have missed it, your Honour, but subs (3) of s 13 requires your Honour to form a view about the obligation to give truthful evidence. HER HONOUR: Yes. Thank you, Mr Crown. Q. CL, do you understand what these words mean, that you are under an obligation to give truthful evidence? Do you know what those words mean? CL. No." (26.9.2012 - T.87-90) 44The following exchange then took place between CL and her Honour before the jury: "HER HONOUR" Q. Good afternoon, CL. Hello CL. I'm back again. CL. Yes. Q. As I indicated to you when the jury wasn't here or as I said to you, I'm sorry, we're going to be playing a video and then you'll be asked some questions. All right? CL. Okay. Yeah. Q. Do you know that today you're going to be asked questions about something that happened with XXX over a year ago? CL. Yes. Q. Do you know that it's very important to tell the truth? CL. Yes. Q. You know the difference between telling the truth and telling a lie, don't you? CL. Yes. Q. Do you know that if you are asked questions that you don't know the answer to, what do you do then? CL. I don't know. Q. You say, "I don't know". That's good. If you don't remember what happened, what do you say then? CL. I just say, "I don't know." Q. "I don't know" or "I don't remember." CL. Yeah. Q. You know that if you don't agree with a question, you don't have to agree with it. Do you understand that? CL. Yeah. Q. If you think something is wrong that's not true in the question, you can say, "No, that's not right" or "That's not true." You understand that? CL. Yes." (26.9.2014 - T.92.12) 45Her Honour gave a brief judgment in relation to the competency of CL: "HER HONOUR: I find under s 13 (1) that CL is not competent to give sworn evidence, but under s 13(3) that he is competent to give unsworn evidence." (26.9.2012 - T.90.36) Submissions as to Ground 1 46The applicant submitted that in order for a witness to be competent to give unsworn evidence the Court must first conclude that the witness was not competent to give sworn evidence because the witness did not have the capacity to understand that in giving evidence he or she was under an obligation to give truthful evidence (Evidence Act 1995 - s13(3)). He submitted that the starting point when assessing competence to give sworn evidence under s13(3) was the presumption that unless the contrary was proved, a person is not incompetent because of that section (s13(6)). 47The applicant submitted that if a prospective witness was found not competent to give sworn evidence, before being competent to give unsworn evidence that witness must also be given the directions required by s13(5) in full. He submitted that both the finding of incompetence to give sworn evidence and compliance with s13(5) were strict requirements. If either was not complied with, the witness will not be competent, the trial will not have been "conducted according to law" and any resulting conviction must be set aside (SH v Regina [2012] NSWCCA 79; 83 NSWLR 258 at [35] per Basten JA (Blanch and Hall JJ agreeing). 48Applying those principles to the facts of this case, the applicant submitted that neither the complainant nor CL were competent to give unsworn evidence because it had not been proved that they were not competent to give sworn evidence and in any event, in relation to both children, s13(5) was not fully complied with. 49By reference to the complainant, the applicant submitted that the three questions directed to her competence to give sworn evidence did not comply with s13(3). Those questions were: "HER HONOUR: ... Do you understand what telling the truth is? COMPLAINANT: Yes. HER HONOUR: But you don't understand what the word "obligation" is, do you? COMPLAINANT: No. HER HONOUR: You understand it's important to tell the truth. Do you know why it's important to tell the truth? COMPLAINANT: No." (See [39], p15 hereof) 50The complainant was aged 6 years and 7 months at the time of the offence and 8 years and 2 months at the time of trial. The applicant accepted that her Honour had watched some 10 minutes of the complainant's record of interview made 19 months prior to trial. The applicant noted that it was not clear what, if any, effect watching this material had had on her Honour. In that regard, the applicant further noted that in MFI 2 (the complainant's interview of 6.02.2011) the following questions and answers were given: "Q.27 ... And what happens when somebody tells a lie? COMPLAINANT: Umm, you get a punishment from ... Q.28 You what, sorry? COMPLAINANT: You get a punishment from God. Q.29 Okay, so it's very important today that we only talk about the truth, which is things that really happened. COMPLAINANT: Okay." 51In relation to CL, the applicant submitted that the sequence of questioning was important. CL was aged 8 years and 10 months at the time of trial. The applicant submitted that her Honour appeared to have assumed that he was not competent to give sworn evidence and proceeded to ask a number of questions in accordance with s13(5). It was only when that process was completed and when prompted by the Crown, that the following exchange took place between her Honour and CL: "CROWN PROSECUTOR: I may have missed it, your Honour, but subs (3) of s 13 requires your Honour to form a view about the obligation to give truthful evidence. HER HONOUR: Yes. Thank you, Mr Crown. Q. CL, do you understand what these words mean, that you are under an obligation to give truthful evidence? Do you know what those words mean? CL. No." (See [41] p 20-21 hereof) 52The applicant noted that her Honour then gave judgment as to CL's competence to give evidence (see [43] hereof). 53The applicant submitted that the process followed by her Honour did not comply with s13. In that regard he relied upon that which was said by Campbell JA (with whom Latham and Price JJ agreed) in RJ v R [2010] NSWCCA 263 at [22] - [23]: "22 A feature of the way section 13 operates, which is important for the present case, is that the occasion for telling a potential witness the things listed in paras (a) (b) and (c) of section 13(5) only arises if the judge has first decided that the person is not competent to give sworn evidence. 23 An effect of section 13(7) is that (as happened in Pease v R [2009] NSWCCA 136) a judge might be able to satisfy himself or herself of the matters necessary to decide whether a presumption of competency under section 13 has been displaced by listening to a recording of a police interview with the child. Even if an informal method of proof such as is permitted by section 13(7) were used, it would still be necessary for the judge to address the question posed by section 13(1) before finding that a person was not competent to give evidence about a particular fact, and to address the test posed by section 13(3) before finding that a person who is competent to give evidence about a fact is not competent to give sworn evidence about that fact." The applicant submitted that because her Honour did not follow the specified process of reasoning in relation to CL, the requirements of s13 were not met so that by allowing CL to give unsworn evidence, the trial miscarried. 54The applicant submitted that in addition, the questions asked by her Honour did not involve an assessment in accordance with s13(1) and 13(3) because her Honour had simply used the terminology in s13(3) when testing the capacity of the complainant and CL and did not otherwise make any assessment of their competence. The applicant submitted that this was contrary to the observations of Latham J (McClellan CJ at CL and Johnson J agreeing) in R v RAG [2006] NSWCCA 343 where her Honour criticised the trial judge's complicated and abstract questioning of a child witness, including asking the child to define "truth" and "lie", in order to determine her competence to give unsworn evidence. It was held that it was not necessary for a child to be able to define "truth" and "lie" or other abstract concepts in order to demonstrate the ability to tell the difference between the two. 55The applicant submitted that in this case it was erroneous for her Honour to base her findings that the child witnesses were not competent to give sworn evidence on their inability to understand the meaning of the precise words of s13(3). The applicant submitted that her Honour should have made further inquiries in simple and direct terms as to the witness' understanding of their obligation. The applicant sought to contrast the questions put by her Honour with those of the police interviewers some 19 months previously when both children, then much younger, expressed an understanding of significant consequences if they told lies. The applicant submitted that in the circumstances the child witnesses were not given an opportunity to demonstrate their competence. 56The applicant submitted that s13(5) had not been complied with. He submitted that even if it had been proved on the balance of probabilities that both children were not competent to give sworn evidence, there had not been a compliance with s13(5) and as a result, the evidence of both child witnesses was given contrary to law. 57The applicant submitted that s13(5) required the court to tell the complainant and CL six things: (1)That it is important to tell the truth (s13(5)(a)). (2)That he or she may be asked questions that he or she does not know the answer to and that he or she should tell the court if this happens (s13(5)(b)). (3)That he or she may be asked questions that he or she cannot remember the answer to and that he or she should tell the court if this occurs (s13(5)(b)). (4)That he or she may be asked questions that suggest certain statements are true or untrue (s13(5)(c)). (5)That he or she should agree with the statements that he or she believes are true (s13(5)(c)). (6)That he or she should feel no pressure to agree with statements that he or she believes are untrue (s13(5)(c)). 58In support of that submission the applicant relied upon SH at [11] where Basten JA said: "11 Dealing with the content of paragraph (c), it appears that there are two limbs to the required instruction, each involving the idea of a 'suggestion', reflecting a common form of cross-examination. The prospective witness is advised to agree with those suggestions which he or she thinks are true, but "should feel no pressure to agree with" statements believed to be false." The applicant submitted that in this case her Honour did not tell the complainant or CL that they should agree with the suggested statements which they thought were true. The applicant submitted that her Honour also failed to tell the children, as required by s13(5)(c), that they may be asked questions that suggest certain statements were true or untrue. 59In relation to the s13(1) and s13(3) issue, the Crown submitted that her Honour under s13(8) was able to inform herself as she thought fit when determining the competence issue. The Crown noted that her Honour had watched a portion of the complainant's recorded interview with the police for the purpose of assisting her in making that assessment. The Crown had regard to the questions specifically put to the complainant in terms of s13(3). By reference to those matters, the Crown submitted that the determination by the judge of whether the complainant was not competent to give sworn evidence was a matter of judgment and inevitably included assessment and impression. On that issue, the Crown relied upon what was said by Grove J (with whom McClellan CJ at CL and Buddin J agreed) in Pease v R [2009] NSWCCA 136 at [8] - [11]: "8 The issue of testimony from the complainant was raised before the learned trial judge and the Crown Prosecutor correctly informed him that it would be necessary to determine whether the complainant was competent to give sworn evidence, and, if not, whether she could give unsworn evidence as sanctioned by s13. His Honour was authorized to investigate the matter as he saw fit: s13 (7). 9 His Honour first listened to an audio recording of an interview of the complainant by police. Near the conclusion of that interview she was asked some questions about "telling lies", "fibbing" and "telling the truth." After listening to the recording his Honour then asked a series of questions of the complainant (transcript 18 September 2007 pp 8-10). 10 The material showed that the complainant understood the difference between telling the truth and telling a lie, but it is apparent from the terms of s13(1) and 13(2) that there is a difference between being able to discriminate between telling the truth and telling a lie, and understanding the obligation to give truthful evidence. 11 The determination required by s 13(1) is a matter of judgment and inevitably includes assessment and impression. His Honour was able to listen to the complainant being interviewed and to observe her demeanour as she responded to his questioning. Although, as I have said, it would be erroneous to assume incapacity only by reason of age, it would nevertheless be potentially relevant to make an assessment of maturity. Nowhere did he say that he presumed that she was incapable simply because of her age and there is no reason to infer that he did. It has not been shown that his Honour's discretionary judgment has miscarried." 60The Crown submitted that her Honour had the benefit of being able to watch the complainant's demeanour when answering questions in the police interview and also when responding to her own questioning. She was able to make an assessment of any changes she could observe in the complainant between the time of the police interview and giving evidence before her and make an assessment of her overall maturity. The Crown submitted that importantly, at the time of giving her evidence, the complainant had indicated to her Honour that she did not understand why it was important to tell the truth. 61The Crown submitted that as a result there was material upon which it was open to her Honour to be satisfied that the presumption of competency under s13(5) had been displaced. The Crown noted that there were no submissions made by the Crown or the applicant's counsel at trial to the contrary. 62In relation to CL, the Crown noted that he was aged just over 7 years when he was initially interviewed by police on 8 February 2011 and at the time of giving evidence was aged 8 years and 10 months. The Crown noted that as in the case of the complainant, her Honour watched a portion of CL's recorded interview with the police for the purpose of informing herself on the issue of competence. In his recorded interview, CL had been asked what happens if someone tells a lie and he responded "You're in trouble". 63The Crown submitted that her Honour had the significant benefit, which this Court does not have, of making an assessment of the maturity of CL when answering her questions. In that regard, the Crown drew attention to the following exchange between her Honour and CL: "HER HONOUR: Q: Do you know it's very important why you're here today? CL. No." 64The Crown accepted that it was only after it was pointed out to her Honour that she needed to form a view about the capacity of CL to understand that he was under an obligation to give truthful evidence that her Honour asked CL the following questions: "Q. CL do you understand what these words mean, that you are under an obligation to give truthful evidence. Do you know what those words mean? CL: No." The Crown submitted that despite the sequence in which questions were put to CL, there was material upon which it was open to her Honour to be satisfied that the presumption of competency under s13(5) had been displaced. The Crown submitted that even if the sequence of questioning was important, it was still open to her Honour on the basis of the questions which she had asked before using the words in s13(3) to reach an opinion as to CL's competency to give sworn evidence. 65In relation to compliance with s13(5) the Crown submitted that a proper reading of the questions put by her Honour to the complainant, in particular that even though she did not have to agree with everything which was suggested to her, the most important thing is that she must tell the truth, were sufficient to satisfy the section. The Crown submitted that the only matter relied upon by the applicant was that the complainant was not specifically told that she should agree with suggestions that were true if she believed them to be true. The Crown submitted that the effect of SH was that s13(5)(c) did not impose an obligation to give instruction in a particular form, but to a "particular effect". The Crown submitted that this had been achieved by her Honour's questions, in particular the emphasis on the need to tell the truth. 66The Crown submitted that while her Honour did not say to the complainant, that if a suggestion were made to her that she believed was true, she should agree with it, that information was conveyed by her Honour when the effect of other statements was taken into account. 67The Crown made the same submission in relation to CL. Consideration 68I have a concern about the process followed by her Honour in relation to the conclusion that the complainant and CL lacked the capacity to give sworn evidence. I appreciate that as in Pease, her Honour had watched some 10 minutes of the record of interview made by each of the children some 19 months before the trial. When giving her reasons, however, her Honour made no reference to any aspect of what she had seen. One is left with an impression that the primary basis for her Honour's conclusion were the questions which she put to the child witnesses. 69Those questions are also a cause for concern. In the case of both the complainant and CL, they were brief in the extreme and expressed in terms of s13(3). In the case of the complainant, the abstract proposition was put as to whether she knew the meaning of the word "obligation". To the extent that there was any investigation of the complainant's understanding of the test in s13(3), it comprised the question "Do you know why it's important to tell the truth?". In accordance with the guidance provided in RAG, I am of the opinion that some further testing of the child witness' understanding of the obligation to give truthful evidence should have been carried out by the use of simple and concrete terminology, such as that described in that case. 70In the case of CL, there is the additional problem of the sequence of reasoning. As was pointed out by the applicant in submissions and by reference to the analysis of s13 in both RJ and SH, the section is expressed in obligatory terms and requires a sequential mode of reasoning for there to be compliance with it. In the case of CL, as was properly conceded by the Crown, that sequential mode of reasoning did not take place. Her Honour proceeded directly to the s13(5) issue and only engaged in the preliminary but mandatory investigation as to competency to give sworn evidence, when reminded by the Crown. It was implicit in her Honour's approach that she had already reached a conclusion as to competency to give sworn evidence on the part of CL well before she asked the question expressed in terms of s13(3) to which reference has already been made. 71It is, however, unnecessary to reach a conclusion on those matters. I have raised them not only in deference to the careful submissions made by the applicant, but also to note the concerns which I have as to the process which was followed by her Honour in determining the important preliminary issue of whether a witness was competent to give sworn evidence. 72A decision on that issue is unnecessary because there was a failure by her Honour to comply with the provisions of s13(5)(c). The requirement of that subsection is clear. The court is obliged to tell the potential witness "that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should not feel pressure to agree with statements that he or she believes are untrue". Her Honour failed to give effect to the requirement to tell the child witnesses that he or she should agree with the statements that he or she believes are true. The important qualification to those "statements" is that they form parts of questions that suggest that they are either true or untrue. That is a qualitatively different proposition to a simple admonition that in giving evidence a proposed witness should tell the truth. 73The requirement for strict compliance with the "effect" of s13(5) was stated in SH as follows: "8 This ambiguity is to be resolved in favour of the conclusion that there is no discretionary power to refuse to allow a child to give unsworn evidence, if the court is satisfied as to the capacity to understand a question and give a comprehensible answer, in accordance with sub-s (1). That conclusion follows from both the structure of the section and by reading sub-ss (4) and (5) together. Thus, sub-s (5) does not use equivocal language, but, subject to identified preconditions, states that a person who is not competent to give sworn evidence "is" competent to give unsworn evidence. That language, together with the absence of any attempt to specify criteria relevant to the exercise of a discretion, demonstrate that no discretionary power was intended. ... 11 Dealing with the content of paragraph (c), it appears that there are two limbs to the required instruction, each involving the idea of a 'suggestion', reflecting a common form of cross-examination. The prospective witness is advised to agree with those suggestions which he or she thinks are true, but "should feel no pressure to agree with" statements believed to be false. 12 ... That report provides limited guidance, but the idea behind the provision is tolerably clear: it is designed to limit the danger that persons with a limited understanding of the concept of truth telling may be confused or intimidated by the fact that a person with apparent authority is seeking agreement to a proposition. Similar concerns underlay the formulation of the rules for interrogation of Aboriginal persons in R v Anunga (1976) 11 ALR 412 (Forster J). Forster J noted the difficulty in dealing with people who do not understand English very well, a remark which also applies in respect of the language used in courts. His Honour continued at 414: "Another matter which needs to be understood is that most Aboriginal people are basically courteous and polite and will answer questions by white people in the way in which they think the questioner wants. Even if they are not courteous and polite there is the same reaction when they are dealing with an authority figure such as a policeman." 13 Similar considerations may apply in respect of children. Although somewhat vaguely expressed, the key consideration underlying paragraph (c) appears to be a concern that the prospective witness should not feel under pressure to agree with statements put by adults in wigs and robes. Such instruction is required to be provided by the court, not by the person who is likely to be doing the questioning. ... 33 Despite the suggestion in the judgment on competence set out above, there is no doubt that the trial judge appreciated the need that he should give the instruction required by s13(5) and proceeded to do so. Although he did so by asking questions of the witness, that form of instruction should not be seen as inconsistent with the requirement of sub-s (5). However, what was missing from the final question in relation to suggestions was the exhortation not merely to say that a statement believed to be untrue is wrong, but that the witness "should feel no pressure to agree" with such a statement. 34 In my view that omission was a failure to comply strictly with the terms of sub-s (5). However, given the passage from the examination by counsel for the prosecution set out at [28] above in relation to not feeling under any pressure "because we are grown-ups in funny clothes", it is difficult to conclude that there was any substantial miscarriage of justice resulting from that omission. 35 On the other hand, to seek to avoid the consequences of non-compliance would be inconsistent with the approach referred to in the authorities discussed above. If reliance upon the statement by the prosecutor in the course of asking questions of the witness on the voir dire were to be treated as an adequate compliance with sub-s (5) in one respect, it would be difficult to draw a line in respect of other requirements of sub-s (5). On the other hand, ignoring the part played by the prosecutor, it would be difficult to draw a line based on the omission by the trial judge of some element of the instruction, as opposed to other elements. Rather than take such a course, the appropriate conclusion is that the complainant was not competent to give unsworn evidence because, it having been concluded that she did not have sufficient capacity to understand the obligation to tell the truth, she was not given the directions required by s13(5) in full. In the words of Doyle CJ in Starrett, the trial was not conducted according to law, as was the appellant's entitlement, and accordingly the conviction should be set aside." 74A similar situation to that identified in SH has arisen here. Ground of Appeal 1 has been made out on the basis that s13(5) of the Evidence Act 1995, in respect of the complainant and CL, has not been complied with. It therefore follows that the trial was not conducted according to law, as was the applicant's entitlement, and accordingly the conviction should be set aside. Ground 2 - The verdict is unreasonable and cannot be supported having regard to the evidence. 75The applicant submitted that the conflicts in testimony and inconsistencies in the description and identification of the applicant as the person who assaulted the complainant were such that the verdict against him was unreasonable. 76The applicant sought to establish that proposition by a detailed analysis of the identification evidence. He noted that in her record of interview, the complainant said that the man who assaulted her was white skinned, was skinny, had short black hair, wore black shorts and a white t-shirt with black writing, had three "the things you put on your ears" on his cheek, which she identified to be in the middle of her cheek above the lip and next to her nose, and that otherwise she did not remember any other marks or earrings. The applicant submitted that the complainant did not describe anything that could have been tattoos, she did not describe someone with dark or tanned skin, she did not describe any notable moles or marks on the assailant's face and she did not describe diamond jewellery or piercings on the side of the face or near the eye. 77By reference to the complainant's evidence at trial, the applicant noted the following identification features: * The man had three pieces of silver jewellery above his lip or next to his mouth on his cheek that ranged in size. * He was white skinned, having lighter skin than her. * He had short dark hair. * She could not remember if he had tattoos. * He did not have any other marks on his face. 78The applicant noted that the complainant did not give any evidence as to whether it was a young man or an old man who assaulted her and gave no evidence as to whether a car was parked in the underground car-park at the time. In that regard, the applicant submitted that according to her evidence of where the man took her, she would have walked past the Mazda if it were parked in the same location as it was found to be later in the day. The applicant noted that the complainant gave no evidence that the man had tattoos on his hands. 79In relation to CL, the applicant submitted that the combined effect of his evidence, both at trial and in his police interview was as follows: * Short-sleeved blue shirt and brown shorts. * Had a diamond above or next to his right eyebrow. * Spikey black hair. * Was tall. * Was a little bit fat. * Had no other marks on his face. * Had a picture tattoo that looped around his upper right arm. * Had no tattoos on his left arm or hands. 80The applicant submitted that the only identification evidence of CL which was consistent with that of the complainant was that the assailant had jewellery of some kind somewhere on his face, had black hair, had no other marks on his face and had no tattoos on his hands or left arm. 81HR's recollection of the complainant's description to him of her assailant was a man with a tattoo on his right arm, three piercings on his right upper lip (this changed to "rings on eyebrows or something like that" by the time he gave evidence two years later), a t-shirt with black shorts and shoes. The evidence of CL's father was similar to that of HR. 82Taking those identification elements into account, the applicant submitted that most of them were inconsistent with his appearance. He submitted that the following matters were not disputed and that taken together demonstrated the weakness of the Crown identification case: * He did not have white skin. * He did not have piercings in his lip. * He did not have piercings in his cheek near the mouth. * He did not have piercings in the eyebrow or forehead. * He did not have silver piercings. * He did not have ring piercings. * He did not have a single diamond in or above the eyebrow. * He did have tattoos on the left arm and his tattoos consisted of writing. * He did have tattoos on his hand. * He did not have a band tattoo on his upper right bicep. * He did not have spikey hair. * He was not particularly tall. * He did have other marks on his face, being a prominent mole on his forehead and an earring. 83The applicant submitted that it was only when the identification evidence was treated with a level of generality which ignored specific details that it was consistent with his appearance. He did have black hair and he did have three facial piercings of different sizes. He was prepared to accept that the facial piercings were unique but stressed that they were not in any of the locations described by the witnesses, nor were they silver, nor rings, nor was there a diamond in the eyebrow. He submitted that his tattoos were entirely inconsistent with the descriptions given by the complainant and CL. He submitted that his tattoos and his dermal implants were both extremely distinctive. In particular, the diamonds descended from the corner of his eye like teardrops. He submitted that if he were the assailant, the omission to describe these very distinctive features, i.e. the tattoos and the dermal implants, was a significant omission. 84The applicant submitted that there were other persons who could have been the assailant. He identified Mr Stapleton, whose fingerprint was taken from the bathroom door in the car-park. Mr Stapleton's evidence was that he had worked in strata complexes, but he did not know whether he had ever worked in that building. He had tattoos which the applicant submitted met the general description of those described by CL. The applicant submitted that there was no evidence led as to whether any of his male friends or family had access to his car or had facial piercings or dermal implants. The applicant submitted that there was no evidence led as to how many people in Sydney might have facial jewellery like his. The applicant submitted that many of the physical features of the man who collected the Mazda, as described by the adult men who spoke with him, matched some of the identification features described by the complainant and CL. 85The applicant noted that none of the adults was able to identify him from a photo array as the man who collected the car and that it was the Crown case that it was not him who collected the car. 86The applicant submitted that when taken at a level of generality, some of the identification evidence was consistent with him. He submitted that on a careful analysis of that evidence, it could be shown that it was inconsistent with him in significant respects. He submitted that even the evidence as to piercings could only be accepted if CL's evidence were rejected entirely. He submitted that to find that the assailant's description matched his piercings, assumed that the complainant was wrong in her various descriptions of the piercings in other significant respects. 87In relation to his ownership of the Mazda, the applicant submitted that the man who collected the car at the scene of the assault was selling handbags. There was no other evidence as to why the vehicle would be in that area. The applicant noted that the only evidence that the man who collected the car said he was collecting it "for a friend" was given by Mr Kharde, another resident of the unit complex, and that this evidence at trial contradicted his witness statement and the statement of others present when the car was collected. 88The applicant submitted that the highest that the "Mazda evidence" went was that he owned the vehicle, that it was left at or near the scene of the assault around about the time of the assault and was removed by a man other than him. The vehicle was later found in the possession of his uncle and mother and contained documents and letters addressed to him and others who shared his address. 89The applicant submitted that the presence of the Mazda at the premises did not establish that he was there at the time. He submitted that at no time did the Crown establish any motive for why he would be at those premises at that time. He submitted that the presence of the person who was selling bags and who was observed to drive the Mazda away from the premises provided an adequate explanation for why the car was there. He submitted that this explanation for the presence of the Mazda was consistent with him not being there. He submitted that the presence of the person selling bags was not suggestive of someone there to pick up the car but of someone utilising the car to carry around a suitcase of bags. 90The Crown submitted that there was no issue that the complainant had been pulled to a dark area under the apartment block by a stranger and that he had committed the sexual acts which she described. The issue at trial was the identity of the relevant offender. The Crown submitted that this was adequately established by the circumstantial evidence. 91The Crown submitted that there was no issue that a car owned by the applicant was parked across the front of two garages in the bottom area of the complainant's unit block at about the same as the incident occurred. There was evidence that the car owned by the applicant was seen at that location immediately after the incident by CL's father. He described seeing the car when he came down the stairs immediately after CL had come to the apartment and told him that the complainant was missing (27.09.2012, T.132-133). 92Shortly after the incident, the complainant told the first police officer who attended, that the man "had pictures on his arms and three piercings in his face" (27.09.2012, T.138.1). 93In a recorded interview with police the next day the complainant described the following: "A.366 And ah he had a, one of things you put on our ears. Umm there was one big one and one little medium and one small. Q.367 And where did he have those? A. On the cheek. Q.368 Oh, okay and how many did he have did you say? A. Three." 94During the appeal the Court had the benefit of observing a DVD of the complainant answering those questions. When the complainant referred to the "cheek", she demonstrated where the three items were on the cheek starting higher up on her cheek and then moving towards the lip. During the trial when giving evidence, the complainant agreed that she had told her father after the incident that the man had three bits of jewellery on his top lip (26.09.2012, T.79). 95In re-examination she was asked to identify on her face where the jewellery was on the man's face and she pointed to her left cheek area. The Court was able to also observe the DVD of the complainant giving this evidence. What is clear from that DVD is that the complainant was moving her finger up and down on the left cheek opposite the nose and higher than the lip when giving that evidence. 96In re-examination the following evidence was given: "Q. XXX was it one piece of jewellery that was on the face or was it a number of pieces or you don't remember? A. There were three pieces. Q. Did they range in size? Were they all the same? A. No. They range in size." (26.09.2012, T.85.1) 97The Crown submitted that the difference in the descriptions by the complainant and CL was readily explained because the complainant had an opportunity to observe the man for much longer than CL and at much closer proximity. In contrast, CL only saw the man briefly when he was told by him to go and pick up some leaves. 98Even so the Crown noted that CL in his interview with police on 8 February 2011 described the man as having a diamond and pointed to a location just above the eyebrow. In cross-examination at trial, he demonstrated on his face where the diamond had been. He described it as being "up and next to" the eyebrow (26.09.2012, T.99). The Court has had the benefit of viewing the DVD of CL giving this evidence. What he demonstrated was not that the diamond was actually pierced through the eyebrow itself but was next to the eye. The Crown submitted that the importance of the evidence of CL was that it confirmed the presence of facial jewellery on the assailant and that it described that jewellery as a diamond. 99The Crown submitted that discrepancies between the evidence of the complainant and CL on the one hand and the appearance of the applicant on the other were readily explained. Given that the complainant was taken to a dark place, and would have been primarily looking at the assailant's face, she would not have had a good opportunity to view his skin colour. In addition, it was clear from her evidence that she had difficulty answering questions about the colour of her own skin. The Crown submitted that similar considerations applied even more to CL who had only brief contact with the assailant. 100The Crown submitted that there was evidence from others that initially the complainant had referred to the assailant having tattoos. This evidence comprised that of the complainant's father and the first police officer she spoke to. There was a reference to tattoos in the first triple 0 call. The effect of the complainant's evidence at trial was that she could not remember if the man had pictures (tattoos) on his arms. 101The Crown submitted that the fact that the place where the assailant took the complainant was dark provided some explanation for why the facial jewellery would have stood out, but the tattoos which were in black ink writing might not. The Crown submitted that allowance had to be made for the complainant's distressed state given the events which were occurring. The Crown submitted that this provided an explanation for why some features would have been observed by her but not others. 102The Crown submitted that during the trial, the jury had the benefit of seeing witnesses such as Mr Stapleton. The Crown noted that it was never suggested at trial that Mr Stapleton might have been the assailant. Similarly, the Crown noted that it was never suggested at trial that the person who drove the Mazda away was the assailant. The Crown also noted that one of the neighbours, Mr Kharde, gave the following evidence at trial: "Q. Did your friend Shankar then ask the man something about the car? A. Yes, he did. Because that person was staying there - he or his friend, I'm not sure, the word he used was that is not his car, but his friend has parked it and he has come to collect that car." (27.09.2012, T.166.7) In referring to that evidence, the Crown accepted that Mr Kharde only gave evidence of this matter for the first time at the trial and had not mentioned it in his statement. Consideration 103The principles to be applied by this Court when considering an unreasonable verdict ground are now well established. In SKA v The Queen [2011] HCA 13; 243 CLR 400 the plurality (French CJ, Gummow and Kiefel JJ) said in relation to 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'."" 104In Sami Kurdi v Regina [2011] NSWCCA 179 Bathurst CJ (with whom Hall and Harrison JJ agreed) said that in order to comply with M v The Queen: "8 ... it is necessary for the Court to review the whole of the evidence available to the jury. That is not to say that a court of appeal conducts its own trial. The question which it must answer is whether it was open to the jury to reach the verdict which it in fact reached. Further, as was pointed out in M v The Queen supra, the Court must pay full regard to the primacy of the jury as the fact-finding tribunal and to the fact that the jury has had the benefit of having seen and heard the evidence." 105In order to apply those principles, I have not only read the transcripts of evidence at trial but have also viewed the DVDs of the statements made by the complainant and CL and the DVDs of their evidence at trial. Having done so I am firmly of the belief that despite the discrepancies in the identification evidence set out by the applicant, that it was well open for the jury to decide beyond reasonable doubt that the applicant was the person who assaulted the complainant. My reasoning is as follows. 106The photographs taken of the applicant, after his arrest on 9 February (exhibit G), readily demonstrate that he had three diamanté studs, such as those that would be usually worn in the ears, embedded in his left cheek. Those studs were located one beneath the other. It can also be seen that in descending order there is a large diamanté, a medium and a smaller one. This is a very striking feature of the applicant's face and it is fully consistent with the complainant's description when interviewed on the day following the assault. 107I note that at the trial the complainant was asked in cross-examination what colour the "jewellery" on the assailant's face was. The complainant replied "silver". This and the fact that the applicant at one point referred to the jewellery being on his lip were relied upon by the applicant as discrepancies in her evidence. I do not agree. When one looks at the photographs in exhibit G, the diamantes are consistent with the complainant's description of the colour silver. It is difficult to see how else the colour could be described. Far from the complainant's answer being taken as an assertion that the jewellery was made of the metal silver, it is clearly a description of the child's perception of the colour of the jewellery and in that regard, it is an accurate description of the colour. Moreover, the DVD of the complainant giving this evidence shows her identifying the lower part of the cheek on the left side, just a little above the level of the mouth. At no time did she indicated by gesture that the jewellery was in or on the lip of the assailant. 108The facial jewellery of the applicant was clearly distinctive. In those circumstances, it was open to the jury to conclude based on their own experience, that three pieces of jewellery in descending order of size (large, medium and small) embedded in the cheek area of a male was relatively rare. This was precisely what the complainant described the assailant as having and it was precisely what the applicant had. 109When this is combined with the evidence that the applicant's car was in the garage area of the apartment block at the time of the incident, it presented a compelling circumstantial case supporting the proposition that the applicant was the assailant. In that regard, the applicant was not assisted by his ERISP. When asked on 9 February 2011, he could not remember his movements on Sunday 6 February, despite it being only three days earlier. 110The fact that neither the complainant nor CL was able to place the assailant's facial jewellery in precisely the correct location on his face is not determinative. The location of those objects is really a matter of perspective, particularly in the case of a child. The important consideration is that the complainant was definite that there were three such objects and that they were in a descending order of size and that they were on the assailant's cheek. 111The large number of "discrepancies" identified by the applicant between the evidence of the complainant and CL and his photograph (see [82] hereof) is also not determinative. On closer examination those discrepancies can be reduced to: skin colour, the location of the facial ornaments, the absence of spikey hair and an incorrect description of the applicant's tattoos. As the Crown explained in its submissions, those "discrepancies" can be explained when one has regard to the circumstances in which the children saw the assailant, the brief period of such observations and the dark location to which the complainant was taken. 112As the Crown submitted, the difference in observations of the assailant by the complainant and CL is explained by the relatively brief exposure which CL had to him. What is of particular significance, however, is that CL was able to say that the assailant had a diamond either over or next to his eye. In later evidence, he put the diamond next to the right eye. That is an important observation, given the unusual nature of such a facial decoration. It provides important corroboration for the complainant's evidence, even though he did not recollect seeing three such objects. 113The similarity in the observations of the complainant and CL cannot be explained or dismissed as being at too high a level of generality. 114Criticism was levelled at the complainant's evidence on the basis that in her interview with the police she appeared to receive some prompting from her mother. When assessing that criticism, it needs to be kept in mind that at the point in time when the interview took place, the applicant had not been interviewed and nothing was known of him or of his facial decoration. Accordingly, any prompting given to the complainant by her mother could only have been based on information which the claimant had provided to her mother at an earlier point in time, but one which was still proximate to when the assault took place. 115Those matters persuade me that it was open to the jury to find beyond reasonable doubt, that the applicant was the person who assaulted the complainant. It follows that this ground of appeal has not been made out. Ground of Appeal 3: The trial miscarried by reason of the Crown and trial judge reversing the onus of proof, misstating the identification evidence and inviting the jury to adopt false logic which overstated the probative force of the identification evidence. 116The applicant submitted that the trial miscarried for the reasons specified in this ground of appeal. On that issue, the applicant relied upon the following assertions which were made by the Crown in its closing address: "When you look at those two photographs, and in particular the second of those two photographs, you see three items of jewellery, one big, one medium, one small on the cheek of the face of the accused. Members of the jury you might consider that that, it's entirely a matter for you, but you might consider that that evidence is highly persuasive and even ignoring the balance of the evidence that you might be looking at you might think that the likelihood that somebody else would be at those premises other than the accused would be fairly remote. You no doubt would take into account in your ordinary day to day affairs the number of people that you might see with such jewellery on their face." (3.10.12, T.2.16). 117The applicant submitted that this assertion involved false reasoning and grossly overstated the probative force of the eyewitness description. The applicant submitted that the effect of the reasoning was to suggest that the probability that someone other than the applicant committed the offence was equivalent to the ratio of members of the public who had the same unique piercings when compared to the rest of the population. The applicant submitted that the correct reasoning would be to assert that the probability that the applicant committed the offence was equivalent to the ratio of members of the public who had piercings matching both eyewitness' descriptions, i.e. silver studs or hoops on the lips and cheek to a diamond near the eyebrow when compared to the general public, a much larger group. 118The applicant was also critical of the assertion by the Crown in its address that: "Now in examining that sort of material you might think that absent some satisfactory explanation from the accused the evidence is quite damning and we'll look at the accused's record of interview to see what explanation, if any, can be gleaned from that in due course." (3.10.12, T.2.27) "... What I'm saying there is is there anything in the accused's record of interview that would help you to exclude him as a possible person who might have committed this offence." (3.10.2012, T.4.8) "To sum it up members of the jury you might think that it's not a great deal of assistance that the accused could take from his record of interview when it comes to explaining away any connection that he might have with the offence. In essence he says to you, through his record of interview, look the car's not under my name and a lot of people use the car. Well think about your own circumstances for those of you who have cars, and most people do these days, is it likely that you would not know where your car was at a particular point of time. You might wonder to yourself well why would you buy a car in late December and you're not going to use it, just loan it to other people, does that ring true. They're all matters for you and all matters that I'd ask you to take into account when considering the Crown case and when considering whether the accused provides any sort of satisfactory explanation for the presence of his car and the suggestion that he may be connected in the offence." (3.10.2012, T.5.25) 119The applicant submitted that these parts of the Crown address involved a reversal of the onus of proof and should have been specifically corrected by the trial judge. In that regard, the applicant noted that his counsel at trial expressed her concern that the Crown had raised this issue with the trial judge at the conclusion of the Crown address. 120The applicant accepted that in her summing up the trial judge did give directions as to the onus and standard of proof, but complained that she did not do so by way of specifically correcting anything the Crown had said. The applicant submitted that in fact the trial judge had made things worse when she said in her summing up: "The Crown says you would accept the evidence of [the complainant], where she describes the jewellery on the man she says assaulted her because it is her description that most closely matches the piercings on the accused, that is, that he has three piercings." (3.10.2012, SU 18) 121The applicant submitted that the reasoning in this part of the summing up was fallacious in that it also reversed the onus of proof. It did so by beginning with the presumption that the applicant was guilty and therefore the complainant's evidence could be more readily accepted because it more closely matched the applicant. Consideration 122While it is true that her Honour did not in terms refer to what the Crown had said in its address when dealing with the onus of proof, she did state and restate that onus in clear terms on a number of occasions. "You have already been told that the onus of proving the accused's guilt in respect of the charges is on the Crown, and that is beyond reasonable doubt. This means that in respect of each of the essential legal ingredients, or elements, of the charges you must be satisfied beyond reasonable doubt that the Crown has established that element before you would be entitled to bring in a verdict of guilty on those charges." (3.10.2012, SU 13.5) "The correct approach is first to determine what facts you find established by the evidence. You then consider all of those facts together and ask yourself whether you can conclude from those facts that the accused is guilty of the offence charged. If such a conclusion does not reasonably arise, then the Crown's circumstantial case fails because you are not satisfied of the guilt of the accused beyond reasonable doubt and, therefore, if that happens you must find the accused not guilty." (3.10.2012, SU 15.5) The Crown must then prove to you that the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts, viewed as a whole, is that the accused is guilty of these offences. If there is any other reasonable conclusion open on those facts that is inconsistent with the conclusion which the Crown asks you to find, then the Crown's circumstantial case has failed." (3.10.2012, SU 18.2) "The most important and fundamental direction that I have to give you is concerning the onus and standard of proof. You must remember throughout your deliberations that because this is a criminal trial which is of a most serious nature, the burden of proving the guilt of the accused is placed firmly on the Crown. The accused starts from the position that he is presumed innocent and that presumption continues until the Crown satisfies you beyond reasonable doubt that he is guilty. The onus rests on the Crown in respect of every element of each charge. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence, but for the Crown to prove his guilt and to prove it beyond reasonable doubt. It has always been a critical part of our system of justice, that persons tried in our courts are presumed to be innocent unless and until they are proven guilty beyond reasonable doubt, which is the presumption of innocence. The Crown does not have to prove every single fact in the case beyond reasonable doubt, but has to prove the elements of the charges beyond reasonable doubt, and the accused is entitled to the benefit of any reasonable doubt in your minds. Although he was not obliged to say anything to the police when they spoke to him at the police station, he did give a version of events in a recorded interview, which you have seen and which is in evidence. He is entitled to rely on that account, and ask you to take it into consideration along with the other evidence called by the Crown. However, he is not required to prove that this account is true. The Crown, in discharging its obligation to prove the accused's guilt, must satisfy you that the accused's version of events could not reasonably be true. You do not have to be satisfied that the accused is innocent before you could acquit him. ..." (3.10.2012, SU 20.3 -21) [Her Honour continued to stress the onus of proof in that passage and dealt specifically with the applicant's decision not to give evidence at trial (3.10.2012, SU 21-22).] 123It should also be noted that counsel for the applicant in her address said: "It's for that reason members of the jury that contrary to what Mr Crown said to you earlier it is not for [the applicant] to exclude himself, he does not bear any onus of proof in this matter. Now that's not simply a copout that we like to use at the end of the case, it's a basic principle, it's an important principle that applies to each one of us but it's simply part of that principle that you have to be satisfied of the Crown case beyond reasonable doubt." (3.10.2012, T.16.48) 124Because of what defence counsel had said in her address and the detailed directions of her Honour, it is not surprising that defence counsel did not seek a further direction from her Honour specifically addressing the issue of what had been said by the Crown at the conclusion of her Honour's summing up. One can infer from that lack of complaint that defence counsel believed that the detailed directions given by her Honour had appropriately remedied the situation. 125The applicant's criticism of that part of the Crown's address directed to the unlikelihood of persons in the community generally having facial decorations of the kind identified by the complainant is not made out. Properly read in its context, the Crown in this part of the address was dealing with the complainant's description of the assailant's facial jewellery. He was saying that the jury would find it consistent with the applicant since she described three earrings on the cheek in a descending order of size. The Crown then said, based on their experience, that the jury would conclude there were not many people who had facial decorations of such a kind as described by the complainant. What the Crown was in fact describing was the unlikely scenario of encountering other people with facial jewellery as so precisely identified by the complainant. 126It is correct that the part of her Honour's summing up extracted by the applicant does reverse the onus of proof in that it includes an assumption that the applicant was the offender. The extract needs to be read in context. Firstly, her Honour was not expressing her own view but was purporting to summarise a submission by the Crown. It is not without significance that immediately before this extract, her Honour had given the jury a strong direction as to the Crown having the onus of proof at all times. 127In fact her Honour had misquoted the Crown's submission. The submission to which her Honour was referring was where the Crown sought to make a distinction between the evidence of CL and that of the complainant and submitted that the jury would consider the complainant's account more reliable because the complainant had a longer opportunity to observe the assailant and that the jewellery on his face might have been something which was quite prominent to the complainant as a young child looking at an adult in such a terrifying situation. 128Most particularly her Honour was not giving the jury a direction of law. She was only summarising in short form a purported Crown submission. I accept that the jury would have understood the summary of that submission in the context of the full argument which had been advanced by the Crown. Moreover, the summing up needs to be read as a whole, including the lengthy and detailed directions as to the onus of proof to which reference has already been made. The failure by defence counsel at trial to raise this aspect of the summing up is important. Defence counsel was in a far better position than this Court to assess the atmosphere of the trial. To the extent that the extract may in some way have been misunderstood by the jury, given the relatively insignificant position which it occupied as part of a much longer summing up, it is unlikely to have had any real influence on the jury's deliberations. 129It does not come close to satisfying the onus identified in FP v R [2012] NSWCCA 182 where McClellan CJ at CL (with whom R A Hulme and Schmidt JJ agreed) said in respect of rule 4: "73 The critical issue for the applicant to establish, as she bears the onus of showing that leave should be granted, is that there has been a miscarriage of justice in that she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R; R v Picken [2007] NSWCCA 319 at [21]. Another formulation of the test is that "leave will only be granted where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings": R v Tripodina, supra, at 195." 130The applicant has failed to demonstrate a miscarriage of justice and insofar as leave is required under rule 4 to rely upon that issue, I would refuse such leave. 131Ground 3 has not been made out. Conclusion 132The applicant has succeeded in making out Ground 1 but has failed in establishing the other two grounds. In those circumstances, this Court should follow the approach set out in SH. Because the trial was not conducted according to law, the convictions must be quashed. The proviso cannot be invoked by the Crown. The appropriate order for this Court is to order a new trial. 133The orders which I propose are as follows: (1)To the extent necessary, leave to appeal is granted. (2)Ground of Appeal 1 is upheld but Grounds of Appeal 2 and 3 are dismissed. (3)The convictions recorded against the applicant on 4 October 2012 are quashed. (4)The matter is remitted to the District Court for retrial. 134FULLERTON J: I agree with Hoeben CJ at CL. 135HAMILL J: I have had the considerable advantage of reading in draft the judgment of Hoeben CJ at CL. 136I agree with his Honour's analysis and conclusion in relation to ground 1 and have nothing to add to his careful analysis of that ground of appeal. It follows that the appeal must be upheld. 137In relation to ground 2, I agree with his Honour's conclusion that it was open to a properly instructed jury to be satisfied beyond a reasonable doubt of the appellant's guilt. 138I have considered the whole of the record and applied the principles enunciated by the High Court in SKA v The Queen [2011] HCA 13; 243 CLR 400 and M v The Queen (1994) 181 CLR 487. I have also considered the approach adopted by the High Court in circumstantial cases where an appellate court is called upon to consider a ground that a verdict is unreasonable or unable to be supported: see Knight v Queen (1992) 175 CLR 495. I have considered whether in the circumstances of this case the Court is in as good a position as the jury to decide on the proper inferences to be drawn from facts which are undisputed or which are clearly established by the findings of the jury: see, for example, Warren v Coombs (1979) 142 CLR 531 at 551. 139While this was a circumstantial case in which a number of factual circumstances were not in dispute, it was also a case in which the jury enjoyed the considerable advantage of having observed both children and a number of other witnesses give evidence. The jury was in a far better position than this Court to make assessments of the kinds of criticisms made of the prosecution witnesses both by defence counsel at the trial and by senior counsel on the hearing of this appeal. Those criticisms have been set out in some detail by the Chief Judge at Common Law and I need not repeat them. 140While there are many details of the descriptions of the assailant which do not match the appearance of the appellant, there remained before the jury a powerful circumstantial case based around the facial piercings of the appellant and the presence of his motor car at the scene of the crime. Added to that was the description that the assailant had tattoos. Whilst that description was inconsistent with the precise location of the tattoos worn by the appellant, it was nevertheless a matter which the jury was entitled to consider along with the various inconsistencies in determining whether or not the Crown had established its case beyond reasonable doubt. It was for the jury to consider the significance of such inconsistencies bearing in mind the tender age of the child witnesses. 141I am of the opinion that the evidence in the case was such that it was open (in the relevant sense) to a properly instructed jury to conclude that the prosecution had excluded all hypotheses consistent with innocence. Put the other way, it was open to the jury to be satisfied beyond a reasonable doubt that the appellant was the assailant. 142I agree with the analysis of the evidence which has been undertaken by Hoeben CJ at CL and I agree that ground two has not been established. 143I also agree with the Hoeben CJ at CL that ground 3 is not established. I would take a slightly different path to that conclusion than has his Honour but that difference has no practical impact in the circumstances of this case. 144In view of the fact that defence counsel raised the problem with the Crown's address (transcript 3/10/12 at 15), I would not invoke rule 4 of the Criminal Appeal Rules against the applicant. 145However, for the reasons given by Hoeben CJ at CL, I have come to the conclusion that neither the address of the Crown Prosecutor nor the summing up of the learned trial judge (particularly the impugned passage referred to by the Chief Judge at [120]) caused the appellant's trial to miscarry. 146I have come to this conclusion in view of the fact that the trial judge gave careful and firm directions in the course of her summing up which would have left the jury in no doubt whatsoever that the onus was on the prosecution and that the standard of proof was beyond a reasonable doubt. In view of the general tenor of the summing up, the infelicitous language employed by the trial judge in the impugned passage would not have caused the jury to approach the case in any other way than to consider whether every inference inconsistent with the appellant's guilt had been excluded by the prosecution. 147Accordingly I would reject ground 3. 148I have also considered the submission that it is appropriate to order an acquittal in circumstances where the appellant has fully served the sentence of imprisonment imposed by the primary judge. In some cases that may be the appropriate order: see, for example, Dyers v The Queen [2002] HCA 45; 210 CLR 285 at [90] (Kirby J). However, I am satisfied by the submissions of counsel for the respondent that the appropriate order in this case is for a retrial: and see Dyers v The Queen (supra) at [23] (Gaudron and Hayne JJ) and [135] (Callinan J). It will be a matter for the Director of Public Prosecutions to determine whether it is appropriate that the appellant be put on trial again in circumstances where he has fully served a sentence of imprisonment imposed following upon a trial which, through no fault of his, was not conducted in accordance with the law. 149For those reasons, I agree with the orders proposed by Hoeben CJ at CL. ********** 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: 27 November 2014