Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hilton John Cawthray v R [2013] NSWCCA 105 Hearing dates: 15 February 2013 Decision date: 09 May 2013 Before: Hoeben CJ at CL at [1] Adams J at [6] Beech-Jones J at [97] Decision: 1. Leave to appeal granted. 2. Appeal upheld, conviction on both counts quashed. 3. Verdicts of acquittal be entered. Catchwords: Criminal Law – appeal against conviction – judge alone trial – adequacy of required warnings – failure of trial judge to take into account possibility of confabulation – whether retrial appropriate – appellant served most of sentence. Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Evidence Act 1995 Cases Cited: Arun v R [2010] NSWCCA 214 Crofts v The Queen (1996) 186 CLR 427 Douglass v R [2012] HCA 34; 290 ALR 699 Fleming v R [1998] HCA 68; 197 CLR 250 Haoui v Regina [2008] NSWCCA 209 Jiminez v The Queen [1992] HCA 14; 173 CLR 572 Keir v The Queen [2007] NSWCCA 149 Kilby v R (1973) 129 CLR 460 Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 M v R [1994] HCA 63; 181 CLR 487 Murray v R [2002] HCA 26; 189 ALR 40 R v Hughes [2000] NSWCCA 3 R v Ion (1996) 89 A Crim R 81 R v Kennedy [2000] NSWCCA 487; (2000) 118 A Crim R 34 R v Kurtic (1996) 85 A Crim R 57 R v LTP [2004] NSWCCA 109 R v Markuleski (2001) 52 NSWLR 82 R v Moffatt (2000) 112 A Crim R 201 R v Murray (1987) 11 NSWLR 12 R v NZ [2005] NSWCCA 278 R v O'Donoghue (1988) 34 A Crim R 397 R v Pfitzner (1976) 15 SASR 171 R v VHP (Court of Criminal Appeal, 7 July 1997, unreported) R v Williams (1999) 104 A Crim R 260 SKA v R; R v SKA [2009] NSWCCA 186 SKA v R [2011] HCA 1; 243 CLR 400 SKA v R [2012] NSWCCA 205 The Queen v Taufahema [2007] HCA 11; (2007) 228 CLR 232 Category: Principal judgment Parties: Hilton John Cawthray (Appellant) Regina (Respondent) Representation: Counsel: E Wilson SC & M King (Appellant) J Girdham SC (Respondent) Solicitors: Mark Klees & Associates (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2010/337945 Publication restriction: None Decision under appeal Court or tribunal: District Court Date of Decision: 09 September 2011 Before: Blackmore DCJ File Number(s): 2010/337945 Judgment 1. HOEBEN CJ at CL: For the reasons set out by Adams J and Beech-Jones J, I agree that to the extent necessary, leave should be granted to the applicant to rely upon Grounds of Appeal 2(a), 2(b), 2(c) and 2(d). For the reasons set out by their Honours, I accept that those Grounds of Appeal have been made out essentially on the basis set out in Douglass v R [2012] HCA 34; 290 ALR 699 in that the learned trial judge did not assess the "reliability" of the complainant's evidence as distinct from her honesty as a witness. Clearly such an assessment was required. It follows that these Grounds of Appeal having been made out, the conviction of the applicant should be quashed. 2. I also agree with their Honours that Ground of Appeal 1 should be dismissed. 3. I prefer to express no opinion on the question of whether the verdict arrived at by the trial judge was "unreasonable, or cannot be supported having regard to the evidence" (Criminal Appeal Act 1912 – s 6(1)). It is not necessary to reach a decision on that issue given the conclusion which I have reached as to the orders which ought to be made. 4. As their Honours have pointed out, the applicant has now served the entirety of his non-parole period and a substantial part of the balance of term. In those circumstances, the interests of justice do not require that there be a new trial (Jiminez v The Queen [1992] HCA 14; 173 CLR 572 at 590 per McHugh J; Haoui v Regina [2008] NSWCCA 209 at [164] – [166] per Johnson J). 5. It follows that I agree with the orders proposed by Adams J. 6. ADAMS J: Introduction 1. Following a trial by judge alone, the appellant Hilton John Cawthray was convicted on one count of aggravated indecent assault and one count of common assault, both offences allegedly committed on his granddaughter between 1 May 2005 and 30 September 2006. The prosecution's case was that the appellant called the complainant, who was then aged six or seven years, onto a bed in which he was then lying, put his hand down her pants and touched her on the outside of her vagina. When she tried to resist him by kicking him, he squeezed her one wrist. 2. For the common assault the appellant was sentenced to a fixed term of six months commencing on 13 October 2010. In respect of the indecent assault, he was sentenced to a non-parole period of two years imprisonment commencing on 13 January 2011 with a balance of term of 1 year. He seeks leave to appeal against his convictions. There is no appeal against the sentences imposed. The grounds of appeal Ground 1 The Trial Judge was in error in his procedural approach in two ways: 1. The trial judge erred in his procedural approach in making a positive finding that the complainant was a believable witness before then applying the Murray direction and scrutinising her evidence thereby casting an onus on that process to shift that positive finding; and 2. The trial judge engaged in impermissible reasoning by appearing to reverse the onus of proof on two issues to arrive at his finding of guilt. Ground 2 The findings of guilt by the trial Judge should be set aside upon the ground that they are unreasonable, or cannot be supported, having regard to the evidence. The findings of guilt are unreasonable having regard to the following matters: 1. The trial judge erred when he found time was not of the essence in relation to the dates in the indictment. 2. The trial judge erred by failing to properly warn himself in accordance with the direction sought under section 165A of the Evidence Act NSW 1995 that the evidence of the complainant might be unreliable. 3. The trial judge erred in his approach to giving himself the Crofts direction that the delay in complaint should be taken into account in the assessment of the credibility of the complainant in that the question posed by the trial judge referred to the truthfulness of the allegation and not the credibility or reliability of the complainant. 4. The trial judge failed to properly comply with the Murray direction in two respects: 1. the terms of the warning were insufficient in that the trial judge did not direct himself that he had to be satisfied beyond reasonable doubt that the complainant was a truthful, reliable and accurate witness; and 2. the trial judge approached the matter in terms of belief or disbelief of the complainant and did not give the complainant's evidence the sufficiently careful scrutiny which the warning, carried into effect would have required. 1. Ground 1 is awkwardly phrased. There is no question of any procedural error. In substance, as I understand it, ground 1(a) is a complaint that the learned trial judge made findings as to the credibility of the complainant before applying the relevant tests, thereby in effect, reversing the onus of proof. Ground 1(b) refers to the judge "appearing to reverse the onus of proof". (Emphasis added). This is scarcely an error of law. The question is not one of appearance but of substance although, of course, the appearance might suggest the substance. An error as to the onus of proof is clearly a significant error of law. 2. The complaints in ground 2 do not require any further explication. The reference to Crofts is Crofts v The Queen (1996) 186 CLR 427, in which the majority restated (at 448) the requirement – "[In] appropriate cases juries… [should be] told that the absence of timely complaint (if that be their conclusion) was relevant to the credibility of the complainant and a fact to be considered in evaluating the consistency of the complainant's evidence. There might be 'many reasons' to explain why the complaint was not made promptly. It was for the jury to weigh up those possible reasons. But it was also for the jury to weigh up the significance of the delay in complaining". This restatement was necessary to correct the mistaken notion that legislative changes, such as that brought about by s 405B of the Crimes Act 1900 required the judge to instruct the jury to disregard delays in complaint. 1. The reference in the grounds of appeal to Murray is, I take it, a reference to R v Murray (1987) 11 NSWLR 12 where Lee J said (at 19) – "… In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness' evidence is unreliable." The evidence 1. Although given late in the trial, it is useful to mention at the outset the evidence of an officer of the Probation and Parole Service about the appellant's movements. Amongst other things, she said that the appellant had started a parole order in Queensland on 23 December 2003 after having served a sentence of approximately 18 years for murder. The arrangement was for him to live with his daughter, the complainant's mother, in Wagga Wagga and he began to reside at that address from 22 July 2004. He continued to live there until 16 June 2006, when he moved to other premises in Wagga Wagga. His parole was subsequently revoked and, in August 2010 he was in gaol, about to be released on parole. 2. The evidence commenced on 5 September 2011 with the tender by the Crown of the complainant's videoed interview with police, which had taken place on 2 September 2010. The complainant also gave evidence at the trial by video. Before she gave her evidence, the DVD of the interview was played to her. 3. Dealing first with the circumstances of the alleged offence, the complainant was asked to tell the officer what happened "from the very beginning to the very end". The sequence of events described by the complainant was that the appellant had pulled her onto his bed and then started touching her, that she was kicking him and every time she did so, he squeezed her wrist. She told him to stop but he would not. He told her, "Don't tell mummy". She said, "That's um, all". 4. The police officer then asked some questions to get more detail. (There is no suggestion that these questions were in any way inappropriate.) The complainant added that the appellant had said, "Come here" and that he put her under the blankets. She asked, "What are you doing?" He did not say anything in response. She said that he put his right "hand down my panties" and touched her "on my vagina" on the outside with his hand. She was asked, "And so when he put his hands down your undies, well what part, what part of your undies did he put his hand down?" and answered, "The front part". The officer asked, "How did it stop?" and the complainant replied, "I don't know, he just stopped, and I kicked him really hard". She said that she kicked him on his legs and feet and kept telling him to stop but he didn't. The officer asked, "What could your body feel when he … [touched you on the outside]?" She said, "I don't know, I was just telling him to stop". She said that when she kicked he would squeeze her wrist and every time she kicked harder he would squeeze harder. The officer asked, "Do you remember which arm, which wrist it was that he squeezed? The complainant replied, ""I think he squeezed both of them … but mainly this one – the left". When he finished, he said "Don't tell mummy, don't tell anyone else either" and then he said, "run along". She ran to her room. After questions about whether he said anything about the incident at a later time (no) and her wanting to tell her mother but not doing so (I deal with this issue later), the complainant was asked, "And after this time that Pop touched you on the vagina and squeezed you on the wrist, how did you feel about Poppy then? She replied, "I got angry… And I didn't really want to see him again". 5. The complainant thought she was seven or eight years of age at the time (which would date the offence to 2006 or 2007). She said it occurred in the family home in Wagga Wagga in the appellant's bedroom, where there was a bedside table "with his stuff on it". This evidence was, in substance, repeated in her evidence. At the interview, the complainant had drawn a sketch plan of the layout of the house, depicting amongst other rooms, "his room". This plan was exhibited in the trial by the Crown. She said, as to the time of day, "Well, he knew that mum sleeps in so he did it early in the morning … and she wouldn't, she wouldn't know … It was probably about 8 in the morning". She said that her mother was in bed at the time and her sister was either in bed or at her friend's house. The appellant was wearing a navy tank top and blue jeans. 6. The complainant said that the appellant was still living with the family after the offence "probably about a year or two… 'cause mum didn't know. She thought it was all ok". In cross-examination the complainant gave some further evidence about work that the appellant did around the house but did not remember whether she brought tools to him or helped him with painting. She remembered the replacement of the kitchen and was "pretty sure he did it by himself". She told the police and repeated in her evidence, on each occasion without any qualification or expression of uncertainty, that the offence occurred after the kitchen had been completed. She did not remember whether it was weeks or months after. 7. The complainant said that she thought that she was in year one or two, about six or seven years of age, when the appellant came to live with the family in Wagga Wagga. At that time she was told by her mother that he had come from Tasmania. She agreed that when he moved in she got on very well with him, used to cuddle him, would sit on his knee, play with him and follow him around when he was doing work about the house. From time to time she would go into his room to say goodnight to him. She recalled that when he lived at the house he would get up very early in the morning, much earlier than her mother and would already be up when the complainant and her sister would wake up. 8. The complainant had been told various things about the appellant of a negative character. Her account of when she was told these things and what exactly she was told is not altogether clear. During the interview the complainant was asked whether there was a time when she thought she wanted to tell her mother. The complainant's answer was – "Well, mum thought this was brave but um, I didn't want to tell mum or my sister or anyone, because l heard from my cousins that he had done something really disgusting, like, something really bad to another person, so I didn't want my mum or my sister or me to get hurt, so I didn't say anything. Q180. Ok. Alright. What did you hear from your cousin? A. Oh. She didn't say, but um, she told my sister. But I know now what it was." 1. In the interview with the police the complainant said that her mother asked us (meaning her and her older sister) before (that is, before she made her complaint) if he did (meaning touched them sexually) "but we kept on saying no". She said that her mother had asked her about this both whilst they were living at Wagga Wagga and when they moved. The complainant said that she told a cousin when she was in year three that "My Pop touched me" and her friend's response was "Really?" to which she replied "Yes" but nothing more was said. The cousin was not called to give evidence, (her absence being explained). The complainant said, in effect, that the first close member of the family that she told was her grandmother about a week before the police interview. Her mother was in hospital. The complainant said to police – "And I told my Nan, because um, when my mum was in the hospital, my Nan told me about all the stuff he has been doing lately and then I said um, she said, do you know that um, did you know? And I said no. And then she said um, "Do you know that he's all grotty?" and I said "Yes." And she said, "How?" And then I said, "Because he's touched me too." The complainant was asked – "Q218. Would you know why your Nan would say those things to you the other week about your Pop? Do you know why she talked to you about that? A. Um, because he did something new. Like, he did something again. Q219. Oh, Ok. A. And um, I think my Nan knew that my mum didn't want to tell me so um, I think my mum got my Nan to tell me. Q220. What did she tell you? A. She just um, said that, because used to have um, and old friend in Wagga, and um, she was called Julie Anne Crocker, and she has a daughter too, and Julie Anne was in the shower and he was watching her in the shower." 1. This matter was explored in cross-examination at the trial. The complainant was reminded of what she had said in her interview with the police about hearing that the appellant "did something really bad to another person". She said that she heard this from her cousins, that she could not remember exactly what she was told but that it was "something to do with a gun or something and with his old wife or something… like cheating or something, I can't remember". She said that she understood that it was really bad. She said that she found it out before the assault, whilst he was still living with the family. She said that her mother had not told her anything like that. She said that when she found out about it, it made her a bit scared of the appellant and agreed that it changed the way she thought about him. She said that she thought the appellant was a bad man. She said that she understood that the appellant had hurt his wife with the gun "because why would there be a gun involved". Her cousins had not told her that the appellant had been in gaol but she guessed that it was so. She did not talk to her mother about it at the time. The first time that she spoke to her mother about the appellant having been in gaol was when her mother was in hospital when she told her of the touching incident. In her evidence, the conversation with her grandmother which precipitated the making of the complaint was given as follows – "Q. What was it that your Nan said to you about your Poppy that day, do you remember? A. She said "There's been - If your Mum hasn't told you there's been an incident with, with Poppy" and I said "Yeah how?" and then she said "Oh well apparently he's been looking at Julianne your old friend in Wagga in a shower through the window" and she said "Did you ever think that he'd do something like that?" and I said "Yeah". And then she said "How?" and then I said – I told her the story." 1. Her grandmother had also told her, about the time of the incident, that she should not get into the car with the appellant, from which the complainant gathered, "…she's worried about me and that she was scared and that she doesn't want me to get hurt". Her grandmother also told the complainant (although it is not clear when this conversation occurred) that "she would try and make sure that [the appellant] wouldn't be allowed to come and live with you". The complainant said that made her feel scared. She agreed that, from what she had been told by her grandmother, she understood that her grandmother did not like the appellant and that her grandmother had always conveyed that feeling, having said lots of things about him over the years that were not very nice. 2. In respect of the misconduct, the complainant said that she knew that the appellant had done something wrong but that she did not tell her mother because, "I thought that if I told my mum and like everybody else that I would be in trouble by him and that I would get other people hurt because I heard what my cousins told me so I just kept it quiet and I didn't want to say anything". She said that she remembered when her mother asked her if the appellant had ever touched her. She said that this occurred after the incident when they were still living in Wagga Wagga and that she said "No", "Because I didn't want her to know". She did not recall whether she had been asked again whilst they were living in Wagga Wagga and, although she told the police there was a second occasion when they moved to another house that she was asked and had denied any touching, she did not recall this in her evidence. She said in her evidence that she also told her sister that it had not happened "Because, like she was asking me too". The complainant was asked – "Q. So did your Mum ask you again when you were living in your new house whether Poppy had touched you? A. I don't remember. I don't know I think when I said - we kept saying no is because she kept on asking us like at the same time she said "Oh has he touched you?" and we said "No" and she said "Has he touched you?" and I - and we kept saying "No" so. Q. So she asked you a number of times? A. Yeah but at the same time but yeah. Q. And you said that "We kept saying no"-- A. Yeah. Q. Is the we? A. Me and …[my sister]. Q. So do you remember now that you and …[your sister] were together when your Mum was asking you-- A. Mm. Q. --whether your Pop had touched you? A. Yeah. Q. And you both said "No"? A. Yeah. Q. In front of each other? A. Yeah. Q. And your Mum then asked you again "Has he been touching you?" and you both said no again? A. Mm." Not surprisingly, counsel asked as follows – "Q. So why did you tell your Nan on 10 August what had changed? A. Well l felt more comfortable when Nan said that he's been looking at other people in the shower I don't know why but yeah I just did." 1. The complainant was cross-examined, in telling her mother about the misconduct (see below), that the appellant told her, "Come lie down with me", which she had not mentioned to the police. She said, in effect, that what she told her mother was correct. The complainant had also told her mother that the appellant had pulled her pants down. It was pointed out to her that she had told the police that Poppy had put his hand down the front of her pants. She said, "Yeah, he, he pulled my pants and then put his hand down there". 2. The complainant's grandmother and mother also gave evidence. The grandmother is the appellant's ex-wife. Their relationship ended unhappily in 1979. The dislike for him continued but she "thought, as he had been to prison for 19 years, he was rehabilitated and I was willing to give him another chance so I was friendly and spoke to him." After the appellant had served 19 years for his sentence he planned to come back to live with their daughter, the complainant's mother and his grandchildren. She said that she did not think that it was a good idea and tried to talk her daughter out of it. Indeed, although she said "she wasn't bitter against him", she was "appalled at the prospect of [him] living with the family". The grandmother said that on 18 August 2010 she called in after school to mind the complainant and her sister because their mother was in hospital, and they were out on the back veranda having a drink when she had a conversation with the complainant. Her account of that conversation was elicited as follows – "Q. Did you have a conversation at that time with … [the complainant]? A. I did. Q. Are you able to recount that conversation in the first person? A. Yes. Q. Between yourself and … [the complainant]? Would you do that please? A. Yes. I said to … [the complainant] - I forget the first sentence but I said to her, "Are you aware that Poppy might be coming to live in this area," and she said "No." And I said, "Oh well he might be, darling," and she said, "I don't want him to come up here." Q. All right. Now do you mind just going back a little bit? A. Yes. Q. Before … [the complainant] said that she didn't want him to come back here, did you mention in the conversation at any time where the accused had been? A. Yes I said to her "Are you aware he's been in gaol". Q. Did you know when that came up, when you raised that with …[the complainant]? Was it the beginning of the conversation? A. Yes at the beginning of the conversation. Q. What did she say to that? A. She said "Yes" Q. Did you say anything in response to that? A. I said to her, "Do you know what for, darling?" And she didn't answer and I didn't tell her. I didn't want to alarm her. Q. Did you then go on to say something else to her? A. Yes. Q. Could you tell his Honour what you said? A. I said to her, "Well why don't you want him to come up here?" And she said "I don't want him up here because he's a bad man." And I said. "Is that because he's been in gaol." and she said "Yes." and then she said something like "I still don't want him up here, he's a bad man." And I said, "Why? Why do you say that?" And she said, "He touched me." And I didn't want to admit what my gut feeling was so I said to her "Oh did he touch your arm, … [the complainant]" And she said, "No, he touched me down there," and she looked highly embarrassed and red faced and put her hand, her whole hand down by her genital area. Q. During that conversation was there any mention by you of a car, or getting into a car? A. Yes I did say to her before all that, I said, "If he comes up here you'd better be a little bit careful, …[the complainant]. Don't get into a car or anything like that." Q. When was that in the conversation, are you able to say? A. Yes that was at the beginning of the conversation because I knew he was in prison and what for. Q. When you said that, what was the response if any to you saying that to …[the complainant]? A. She said, "I don't want him up here, he's a bad man." after that yeah. Q. I think we'd got to the part where …[the complainant] had indicated her genital area when she said she'd been touched? A. Yes. Q. Did you do something then to her? A. I put my arm around her and I told her she was a very brave little girl for telling Nanny and I said " will tell Mummy and we'll try not to have him come up here." Q. And did she say anything in response to that? A. Well out of the blue she just said, "He tried to pull me onto the bed," or "He pulled me onto the bed and I kicked and kicked but he was too strong but he was too strong." And I didn't want to upset her or anything so I didn't ask what happened or anything. I just said, "Oh dear." or something like that. Q. Did …[the complainant] say anything else to you at that time about what she had just told you? A. No. I just kept putting my arm around her and telling her how brave she was and the fact that I'd tell Mummy and Mummy would do something to sort it out. Q. And then I think you at some point went to the Cessnock Police Station. That was in fact the next day? A. I did." 1. In the grandmother's statement to the police, however, the only information she reported was that the complainant told her, "He touched me", that she asked "On the arm?" and was told "Nanny down there". The statement does not mention the appellant pulling the complainant onto the bed and she kicking him. However, the grandmother said, in cross-examination, that this information was contained in what she described as the original statement that was given to the investigating police officer. That officer's statement refers to the complainant saying to the grandmother, "I was kicking him and telling him to stop but he wouldn't" but there was no reference to pulling the complainant onto the bed. 2. I should mention that the grandmother gave inconsistent evidence as to what she knew about the appellant's criminal record which, to my mind, reflected adversely on her reliability and perhaps even honesty as a witness. However, those matters do not seem to me to be material to the central part of her evidence, which concerned the conversation with the complainant in which she disclosed the appellant's alleged conduct. 3. The complainant's mother confirmed the dates of birth of her two daughters, the elder being three years older than the complainant. She had separated from her partner in 2001 and since that date had sole custody of the girls. She said that in July or August 2004 her father, the appellant, came to live with her and her daughters in Wagga Wagga as part of the conditions of his parole following his release from prison in Queensland. He lived with the family from 2004 until September 2006 when he moved out to another suburb in Wagga Wagga. At the time the appellant moved in the girls were five and eight years of age. 4. The mother said that during the first six months after the appellant arrived he did some work on the house, fixing the roof, paving around the pool and painting. Indeed, during the two year period he did many handyman type jobs. The appellant usually rose at about 5.30am or 6.00am and was not prone to lying around in bed until 8.00am, whilst the mother stayed in bed until 7.30am when her alarm went off. By that time he was always up. It was after he had moved out that he helped kitchen renovators with putting in a new kitchen. The mother was unable to say how long after the appellant left the house that the kitchen renovations were undertaken but, as I understand her evidence, rather thought it was some months. She confirmed in cross-examination that while the girls were living in Wagga Wagga there was an occasion when she asked them whether their grandfather had touched them inappropriately and that the complainant's answer was no, the mother being satisfied with this response. When they moved to Cessnock she had again asked the complainant about whether her grandfather had touched her inappropriately, although she could not recall the circumstances in which she came to do so. She remembered, however, that the complainant said no. She agreed that she had probably asked it more than once. 5. After he moved out he would visit every day, have a cup of tea and stay for the evening meal most nights. Usually, he would leave at about 9.00pm. When the appellant visited the house after he left, the complainant would spend time with him although the oldest daughter would not. Both would usually go to his room and say goodnight and maybe lie down in his bed. In October 2007 the mother and the girls moved to the Cessnock area but the appellant did not. He visited once or twice a year. 6. When her father was living with the family in Wagga Wagga he had a very close relationship with both girls at the beginning. In her eyes, the relationship between the complainant and her grandfather was "a perfectly normal loving relationship" and the mother agreed that that remained the case for the entire time that they lived in Wagga Wagga. In about 2005 the older daughter changed her attitude towards her grandfather, describing him as a "mean man" but no such change occurred so far as the complainant was concerned and she agreed that "things just seemed to go along perfectly smoothly for the entire time… that your father lived in the house with you". 7. On 16 August 2010 the mother went into hospital and, whilst there, received a telephone call from her mother, the children's grandmother. She said something to the effect, "I've got some bad news for you, are you sitting down?" The mother responded, "Well I am laying down" and then the grandmother said, "… [The complainant's] come clean to me about your father touching her". Following that conversation, the mother spoke to the complainant in the hospital two days later. Her evidence as to this conversation was – "Q And what did …[the complainant] say? A. I said to her, "Nanny's told me what happened. What happened, what did Poppy do to you," and she said "He touched me down there." And she pointed to her vagina and I said, "What do you mean," and she said, "He touched me on the vagina." And I said "What did he actually do," and she said, "He'll pull my pyjama pants down and he was playing with my vagina," and I said, "What did you do?" And she said, "I tried to fight him. I kicked him, I tried to kick him off but he held me," and she said she just kept kicking him until she could get him - get away from him. Q. You asked her something else, didn't you, at the end of all that? A. Yes. Did he put his fingers in your vagina. Q. And what did she say? A. No." She confirmed that the complainant had said nothing to her at the hospital about the appellant's squeezing her wrist. 1. The mother was released from hospital on 20 August and, some three days later, spoke to the appellant. He was then in gaol and asked her to find him some more accommodation. She refused, accusing him of touching the girls. He denied this in emphatic language and the conversation was quickly over. On the following day the mother took both girls to the Cessnock Community Centre where they were interviewed by the police. 2. She said that she asked the girls whether they had ever been touched by the appellant. Both said no, the older daughter adding an emphatic comment. 3. So far as her father's criminal history was concerned, the mother's evidence was, in substance, that she had shielded the children from that matter because she was concerned that it might adversely affect their attitude towards their grandfather. She did become aware that the girls found out some time in 2009 from their cousin that he had been convicted of murder (called a domestic murder). At this time the family was living at Cessnock. So far as the mother was aware, the girls had not known of their grandfather's past whilst they were living in Wagga Wagga. The mother spoke to the girls about the case, though it seems briefly, telling them in substance that it was an accident and that he had done his time and was ok. She did not recall that the complainant was upset about it. She did not think that she told the complainant anything about the appellant getting into trouble for touching girls at a sports carnival. 4. Moving forward to 2010, the appellant had breached his parole, which put him back in prison. When he was about to be released, he asked her for help with accommodation. The mother wished to help him in this regard but, although she was quite willing to have him stay with her and the girls, the accommodation was not suitable. She saw no problem with his coming to live close by. Her mother, however, was opposed to the plan saying, "Just be wary of him, I don't trust him." She confirmed that her mother had called her when she was in the hospital and said "… [The complainant's] come clean about your father touching her". 5. The Crown led further evidence from the investigating police officers but that is not presently material. 6. The appellant did not give evidence and did not call any evidence on his behalf. The applicable directions of law 1. The requirement for a trial judge to direct himself or herself in accordance with the directions to be given to a jury is imposed by s 133(3) of the Criminal Procedure Act 1986, which provides as follows – "(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter." Dealing with an earlier but identical iteration of this provision the High Court said in Fleming v R [1998] HCA 68; 197 CLR 250 – "[32] The obligation… 'to take the warning into account' is not only to be discharged but also to be seen to be discharged. The means by which the obligation may be discharged is that indicated in … [subsection] (2), namely the inclusion in the reasons for judgment of the particular requirement for a warning among the principles of law applied by the judge. The various requirements that warnings be given have been expressed as rules of law or practice … The failure to give such a warning does not always lead to the setting aside of a conviction. But that does not mean that it is not a principle of law within the terms of [subsection] (2). The judge is obliged … to take the warning into account and in doing so the judge applies a principle of law. [33] The result is to require the recording and heeding of a warning, if one is called for in the particular case, and the giving of effect to it in a real sense by stating reasons why, notwithstanding the warning or as a consequence of it, a particular verdict is reached. A mere recording or statement of it, without more, would amount to an empty incantation. If these criteria are not satisfied in a particular case, then the judge is to be taken as not discharging the obligation imposed … that the warning be taken into account." The court cited with approval the statement by McHugh J in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 at 107 – "If, however, the evidence discloses any circumstance which suggests that the evidence of the complainant may be unreliable, the trial judge has a duty to make the jury aware of the dangers concerning that person's evidence. As in any case where the prosecution depends solely upon the evidence of one witness, the trial judge is entitled to point out that the evidence of the complainant requires careful scrutiny before acting upon it. But cases will frequently arise where the circumstances will require a stronger warning. The terms of that warning will depend upon the particular circumstances of the case." The court in Fleming went on to deal with the prosecution's submissions that the warning expressed by the trial judge was sufficient – "[36] … [The warning was stated as] 'The Crown case relies solely upon the complainant. If I am unable to accept her evidence beyond reasonable doubt, I must acquit the accused.' There may be cases where an examination of the reasons given, although they do not contain express reference to a warning, sufficiently discloses that the judge has had regard to the warning. However, the statement just referred to does not satisfy any such criterion. [37] No doubt consciousness of the importance of such a warning will be of second nature to many judges. However … an animating principle which lies behind the requirements of… [the section] is that criminal justice not only be done but also be seen to be done. The judgment must show expressly or by necessary implication that the warning was taken into account. If the judgment does not do so, a breach of [subsection 3] has occurred. It is no answer that the trial judge is an experienced judge who was well aware of the requirement of a warning and that he or she must have taken the warning into account." 1. As has been mentioned above, the particular directions pointed to by the appellant were those submitted to be required by Murray and Crofts. The first of these directions is simply an emphatic application of the onus and standard of proof to a case where the Crown relies essentially on the evidence of one witness. 2. So far as the Crofts direction is concerned, it requires that the trial judge bring to the attention of the jury the relevance of a significant delay, if any, in the making of a complaint. The majority of the Court (186 CLR at 448) cited with approval what might be thought to be the commonsense observation of Barwick CJ (with whom McTiernan, Stephen and Mason JJ agreed) in Kilby v R (1973) 129 CLR 460 at 472, in rejecting a submission that a failure to complain was evidence of consent to the intercourse in question – "In my opinion, quite apart from the fact that there may be many reasons why a complaint is not made, the want of a complaint does not found an inference of consent. It does tell against the consistency of the woman's account and accordingly is clearly relevant to her credibility in that respect." As their Honours commented (ibid) it was for the jury to weigh up the possible reasons for a complaint not having been made and the significance, if any, of the delay in complaining. 1. The appellant also draws attention to s 165A of the Evidence Act 1995, which concerns warnings in relation to children's evidence. This provision is as follows – "(1) A judge in any proceeding in which evidence is given by a child before a jury must not do any of the following: (a) warn the jury, or suggest to the jury, that children as a class are unreliable witnesses, (b) warn the jury, or suggest to the jury, that the evidence of children as a class is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults, (c) give a warning, or suggestion to the jury, about the unreliability of the particular child's evidence solely on account of the age of the child, (d) in the case of a criminal proceeding — give a general warning to the jury of the danger of convicting on the uncorroborated evidence of a witness who is a child. (2) Subsection (1) does not prevent the judge, at the request of a party, from: (a) informing the jury that the evidence of the particular child may be unreliable and the reasons why it may be unreliable, and (b) warning or informing the jury of the need for caution in determining whether to accept the evidence of the particular child and the weight to be given to it, if the party has satisfied the court that there are circumstances (other than solely the age of the child) particular to the child that affect the reliability of the child's evidence and that warrant the giving of a warning or the information. (3) This section does not affect any other power of a judge to give a warning to, or to inform, the jury." 1. The direction sought by counsel for the appellant under s 165A(2) was submitted not to be based solely on the age of the witness but on particular circumstances referred to by counsel. In summary, they were that the complainant was, as a 12 year old, still very young and giving evidence as to an event which occurred some five years previously; her age at the time of the alleged offence was between six and seven years old or seven and eight years old and she might not "have the capacity for clear expression of reliable evidence"; the time that elapsed between the alleged events and the initial disclosure; and the number of instances where the complainant was "unable to remember details about various things". 2. The appellant relied on the criticism of the High Court in Douglass v R [2012] HCA 34 of the approach taken by the trial judge (sitting without a jury) in relation to the credibility of the complainant. The Court summarised the approach of the Court of Criminal Appeal as follows (omitting references) – "[43] The Court of Criminal Appeal agreed with the trial judge that CD's initial denials and the inconsistencies between her statements in the interview and on later occasions were explicable on the basis of CD's young age. However, the court was not prepared to place the same weight on the two factors on which the trial judge relied for his finding that CD was truthful. Doyle CJ, who gave the leading judgment, was not confident that the allegation was one a three year old child was unlikely to make up. Nor was Doyle CJ confident that he would have given as much weight to CD's firmness in cross-examination as the trial judge had done. Nonetheless, Doyle CJ considered that it had been open to the trial judge to accept CD's account and to rely on it to reach a finding of guilt. In reaching that conclusion, Doyle CJ said this: 'One cannot simply say that because [CD] was a three year old one could discard any difficulties with her evidence, accepting and acting on her evidence of the alleged offence. But equally one cannot say that [CD's] evidence should be assessed in the same way as one would assess the evidence of an adult. Nor could one say that [CD's] evidence was inherently unreliable because of her age. However, having regard to [CD's] age, it was open to the Judge to decide that she was truthful and reliable during the interview by the psychologist, which became her evidence, despite the problems with that evidence that [the appellant's counsel] identified'." In its consideration of this reasoning, the High Court said – "[46] In the passage set out earlier in these reasons, the Court of Criminal Appeal said that one could not discard any difficulties with CD's evidence simply because she was a three year old. In the same passage, the court went on to say that having regard to CD's age it had been open to the judge to decide she was truthful and reliable despite the problems with her evidence. The court did not explain how the two propositions were to be reconciled. How was the judge to arrive at a state of satisfaction beyond reasonable doubt of the reliability of CD's statements in the interview given that the limited detail of the allegation was supplied in response to leading questions and only after initial denials? Those statements were the only evidence of the commission of the offence. [47] In later statements, CD gave inconsistent accounts of the scene of the offence. It is understandable that CD may have been confused when she was shown the plan of her great-grandmother's property and asked to identify the shed. Nonetheless, the fact that CD gave three different accounts of the scene of the offence cannot be dismissed in any assessment of her reliability as an historian. [48] The criminal standard of proof is a designedly exacting standard. A different, lesser, standard is applied by courts dealing with contested issues involving the care and protection of children. This was not such a proceeding. In the circumstances of this trial, it was an error for the Court of Criminal Appeal to hold that it had been open to the trial judge to be satisfied of the reliability of CD's statements in the interview and to reason from that, despite the appellant's denials, to a conclusion that his guilt had been proved beyond reasonable doubt." 1. The appellant submits that his Honour made an allowance for the complainant in the way which was thus criticised. 2. It is scarcely necessary to cite any authority for the proposition that reversing the onus of proof in the sense of requiring the defence to lead evidence suggestive of, let alone establishing, a reasonable doubt is a fundamental error. 3. There is a further important direction that is always given to juries when explaining their role as judges of the facts. They are directed that, as a result of their function, although they should have regard to what is said to them about the facts and the inferences that might flow from them by counsel or, for that matter, by the judge, it is for them to decide what facts are important and what facts are not. They may consider that a fact not mentioned at all could be important, perhaps decisive, whilst facts or reasoning of which much is made, they might think to be unimportant. This requirement to weigh the whole of the evidence, whatever may be submitted to them by counsel or mentioned by the trial judge, is of the very essence of the jury's function. The judgment at trial 1. After setting out the charges and the matters comprising the elements of the offence, namely the appellant putting his hand down the complainant's pants and touching the outside of her vagina which comprised the indecent assault and squeezing her on the wrists to overcome her resistance, the learned trial judge referred in narrative terms to the requirements of s 133 of the Criminal Procedure Act 1986 in respect of the applicable warnings. The first particular direction his Honour gave himself was described as a "Markuleski direction", a reference to, as I take it, the judgment of Spiegelman CJ in R v Markuleski (2001) 52 NSWLR 82 at [186] as to the requirement that each count be treated separately being supplemented, in a word against word case, by a direction to the "effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant's evidence in respect to any count". Having regard to his Honour's findings, there was no occasion to consider the possible significance of different conclusions as to the guilt of the appellant on each count and this was not the subject of any complaint on the appeal. 2. The trial judge then went on to summarise the evidence of the complainant, concluding in this respect – "The complainant was cross-examined by a public defender, Mr King, for the accused. To my mind she was completely unshaken in her evidence. My impression after hearing her evidence was that she was believable witness who is doing her best to tell the truth about something that had actually happened in her life. Mr King conceded that much of the job of the tribunal of fact here would depend upon assessment of the complainant and her evidence. That assessment includes an assessment of the demeanour of the complainant. A submission was made to me that she appeared to be someone who was relating a story rather than someone recounting something that had happened to them. I do not discount that submission but frankly it was not my impression. It must be remembered that she was recounting something that had happened many years before. She was not emotional about her evidence although at times she was shy about saying exactly what had happened. Of course if, as was suggested by the accused, this was a total fabrication, it is difficult to understand her reaction to the questioning when she displayed some reluctance to provide exact details of where she had been touched. See question 43. It could be suggested that she was coached into giving the performance she gave including appearing at times to be shy when she provided her account to police. In fact there was a hint of an allegation of concoction or joint concoction in the submissions of counsel. But I note that those submissions carry little weight, in my view. The suggestion is that her grandmother and perhaps her mother -although I understand that counsel might have pulled back from that suggestion now - have engineered a complaint from the complainant. Neither the complainant nor the grandmother were cross-examined on this suggestion. That might not be fatal to the making of the submission, but in my view it detracts significantly from its weight. I do not accept it and I do not accept it because I could not see any hint of it in the evidence of the complainant. Let me provide an example why I say that I did not see any hint of such a concoction. The complainant was asked what the accused was wearing in bed. She said blue jeans. I find it very difficult to accept that a concocted version would have included that detail, particularly if the version was given to her by an adult It is of course possible that she simply made up that detail, but again that was not my impression of the complainant. To the contrary, the evidence has the ring of truth about it. The Crown, in his address, provided another reason to doubt the complainant was recounting a concocted account. As noted in the summary of the complainant's evidence outlined above, the complainant was adamant that she was touched on the outside of her vagina, not the inside. If this was a concocted story engineered by the grandmother or her mother, why would that detail be part of the story? It would have been simple to make a more serious allegation and the adults would have understood that. In the context of a jointly concocted allegation, it makes little sense. By addressing the issues in this way, a question can arise as to whether I have fallen into error by suggesting to myself a simplistic question like, "Why would the complainant lie?" In my view, it is entirely appropriate to look at what motives might appear in the evidence or the submissions as to why the complainant might have concocted a story implicating the accused. What cannot be done is to suggest that it was up to the accused to establish such a motive. It was not up to the accused to prove anything. In relation to the motive as to why someone would concoct a story against him, he might simply be unable to nominate any such reason. The accused has denied his involvement in the offences by his plea and also expressly when the matter was put to him by the complainant's mother. He did not give evidence before me but no inference adverse to him can be drawn from that fact. It does not lend any weight to the Crown case, it does not fill any gaps that might be perceived to exist in the evidence. The accused's denial is sufficient for the Court to pursue a close examination of the complainant's evidence and any other evidence supporting her evidence because that is the evidence that must be established beyond reasonable doubt before the accused can be convicted of anything. However, that does not make the examination of possible motives for the complainant to lie suggested in the evidence and submissions inappropriate. To the contrary, it is a necessary part of the examination of the evidence. The fact that I found the complainant a believable witness does not mean that I ought to find the accused guilty beyond reasonable doubt. As was rightly pointed out by the accused's counsel, there are a number of additional considerations to be taken into account before I could reach that conclusion. As with a jury trial, a judge sitting alone must give himself or herself the directions that it would have been appropriate to give a jury. It would only be after hearing those directions and considering their content that I will be in a position to revisit my consideration of the complainant's evidence. The matters dealt with in the warnings flow directly from the onus on the Crown and from the fact that the complainant's evidence is, in effect, the sole evidence in the case. In any such case, the judge in a trial must warn the jury, and in this case I must take into account a warning that when the complainant's evidence stands alone as making out the Crown case, her evidence must be scrutinised with great care before it can be accepted as a sufficient basis to establish the facts in a case beyond reasonable doubt. In that regard it is necessary to take into account any weaknesses in her evidence. Those weaknesses might include contradictions in her evidence with other evidence that the Court accepts it should prefer over her evidence." 1. It was submitted on the appellant's behalf that the trial judge's reference to his impression of the complainant as "a believable witness" was a premature finding of credibility and, because what might be called the cautionary warnings such as the Murray direction were mentioned at a later stage, the process was to make a favourable finding and then to test whether that finding should be changed by applying the warnings was to be reverse the appropriate order of reasoning. 2. It was submitted that the judge's approach to the issue of credibility was foreshadowed by an observation made during the closing submissions of defence counsel. That occurred as follows. Mr King had drawn the judge's attention to the mother's evidence that, at the time of the kitchen renovations, the accused was not staying over at the house but came in the morning and left in the evenings after dinner. The submission proceeded – "I submit your Honour that this evidence significantly undermines … [the complainant's] evidence because if her evidence is accepted and if the assault occurred just after the kitchen was finished then the assault occurred at a time when the accused was not living in the house and therefore [he] would and could not have been present at the house early in the morning in his bed to commit that crime. HIS HONOUR: Wearing his jeans. KING: That's what she said. But my point is your Honour- HIS HONOUR: It doesn't strike you as going to bed sort of stuff does it really? KING: No. HIS HONOUR: More like somebody's arrived to do some work on the kitchen, got into his bed and pulled her into the room at that time. KING: Well-- HIS HONOUR: So - I'm giving you this opportunity. Normally you wouldn't have anybody speak to you. KING: No, no. That's-- HIS HONOUR: But I'm giving you this opportunity to address that specifically because to me that seems a fairly significant piece of evidence as well KING: Well-- HIS HONOUR: There's nothing you can do much with it but-- KING: No there's not. It can't be said to be impossible but certainly there was nothing in the evidence of the mother that suggested that he was a man who arriving to work goes back to bed. She said he got out of bed very early and got on with work. HIS HONOUR: But she also says that she was in bed, so. KING: She was in bed, she doesn't - she can't say about that day but she knows about her - she knows pretty well about her father's habits and that is he's a man who springs out of bed at 5.30 in the morning, not someone who is prone to laying around in bed. HIS HONOUR: But as will be obvious to you, he has opportunity then. He knows what her habits are, he knows she doesn't get out of bed until eight. He's up early, he's working on the house, he's obviously got access at any stage, he's dressed for work when he allegedly calls this girl into bed. It doesn't seem entirely impossible that this occurred at a time when he was working on the kitchen or thereafter. KING: Well your Honour is making an assumption - it may be a reasonable assumption but it is an assumption - about Mr Cawthray's sleeping paraphernalia habits. Most people don't sleep in jeans but it's not impossible HIS HONOUR: All right. Okay. That's probably as good as it can get I guess. KING: Thank you. HIS HONOUR: I'll make a note of that thanks." (Emphasis added). It is submitted that the trial judge had taken a position on this issue, which was significant to an assessment of the complainant's credibility, before he had applied the cautionary warnings and that this conclusion was maintained through to the end of his judgment, despite those warnings. 1. I do not accept that these matters, of themselves, show any error, certainly not of prejudgment. The passage in the judgment relied on by the appellant certainly dealt with his impression of the complainant as a witness. The judge made a specific reference to her demeanour and how she "appeared" to him. Assuming that, indeed, this was his Honour's starting point, it does not suggest any error. On the contrary, it was a sensible commencement of his Honour's discussion of the issues in the case. Had his impression been that the complainant was a dishonest witness, for example, it would scarcely have been necessary for his Honour to proceed with a detailed analysis of the evidence although, no doubt, it would have been appropriate for him to identify those matters, if any, which were contained in her evidence and that suggested such a conclusion. Nor did his Honour's impression of the witness of itself suggest that, despite that impression, a close analysis of her evidence was unnecessary in order to consider appropriately whether, not only the impression were mistaken but also whether, despite the complainant's apparent sincerity, her evidence as to the crucial elements could not be regarded as reliable. For that contention to succeed, it is necessary to consider the manner in which his Honour dealt with the evidence of the complainant as to the facts. 2. The cautionary warning as to close scrutiny of a complainant's evidence is directed, of course, not only to any what might be called objective problems with it, such as inconsistencies, unlikelihoods, mistakes or inaccuracies but also to the way she presented as a witness. As has been said many times, one has to be careful about drawing conclusions from appearances. Thus, it was, with respect, not inappropriate for the judge to state at the outset his view of how the complainant presented as a witness. 3. Dealing with the argument that the complaint was concocted on the instigation of the complainant's grandmother and possibly her mother, the judge rejected it, in part no doubt because of his view about her demeanour, which he described as "guileless", but particularly by reference to two matters: the first was the complainant's evidence about the appellant wearing blue jeans at the time (as distinct, I think, from pyjamas or perhaps some other attire usually worn by the appellant when he went to bed); and, secondly, the complainant having been "adamant that she was touched on the outside of her vagina and not on the inside", as it "would have been simple to make a more serious allegation and the adults would have understood that". His Honour then went on to explain that he had not approached this question by asking, simplistically, "why would the complainant lie" but considered that it was entirely appropriate to look at whether the evidence disclosed any motive that might suggest concoction. His Honour rightly observed that it was wrong to look to the accused to establish any such motive and commented that, of course, (if there were such a motive) he might simply be unable to identify it. The suggested motive was instigation by the grandmother, either by actually making the suggestion to the complainant or the implicit repeated suggestion by questioning about interference by the appellant, thus encouraging the making of a false complaint to satisfy this questioning. The matters to which his Honour referred demonstrated, to his mind, that the complaint had not been concocted. 4. It is important to note, however, that merely to have rejected the possibility of concoction does not at all determine the question of reliability. A witness might well believe that he or she is recounting an event that occurred but that memory may be mistaken, not only as to details but as to whether the event actually occurred. Thus, it is also necessary (dealing with the evidence in this case) to focus on the nature of the alleged event, the circumstances in which it was said to have occurred, the lapse in time before it is recounted, the reasons for delay in recounting it, the significance of any earlier denials that it happened, consistency in the various accounts, descriptions of surrounding or connected facts and the age and maturity of the complainant both at the time of the alleged event and the time of it being reported. 5. Having stated his view of the complainant's demeanour, the judge then referred to the appellant's denial of committing any offence, in effect by his plea and also when the complainant's mother accused him. His Honour noted that the appellant had given no evidence but said (rightly, of course) that no adverse inference could be drawn from this, that it did not add anything to the Crown case and did not fill any gaps that might exist in the evidence. His Honour then said – "The accused's denial is sufficient for the court to pursue a close examination of the complainant's evidence and any other evidence supporting her evidence because that is the evidence that must be established beyond reasonable doubt before the accused can be convicted of anything." This passage was the subject of a critical submission by counsel for the appellant but it seems to me that nothing significant arises from it. The mere plea of not guilty places in issue all the elements of the offence, whatever an accused might have said, and requires the close examination of the evidence to which his Honour referred. The point is that his Honour accepted that the Crown bore the onus of proof beyond reasonable doubt and a close examination of the evidence was essential. 1. Importantly, in light of the complaints made here on the appellant's behalf, his Honour then said – "The fact that I found the complainant a believable witness does not mean that I ought to find the accused guilty beyond reasonable doubt. As was rightly pointed out by the accused's counsel, there are a number of additional considerations to be taken into account before I could reach that conclusion. As with a jury trial, a judge sitting alone must give himself or herself the directions that it would have been appropriate to give a jury. It would only be after hearing those directions and considering their content that I will be in a position to revisit my consideration of the complainant's evidence. The matters dealt with in the warnings flow directly from the onus on the Crown and from the fact that the complainant's evidence is, in effect, the sole evidence in the case. In any such case, the judge in a trial must warn the jury, and in this case I must take into account a warning that when the complainant's evidence stands alone as making out the Crown case, her evidence must be scrutinised with great care before it can be accepted as a sufficient basis to establish the facts in a case beyond reasonable doubt. In that regard it is necessary to take into account any weaknesses in her evidence. Those weaknesses might include contradictions in her evidence with other evidence that the Court accepts it should prefer over her evidence." It seems to me, with respect, that there is no error in the question posed by the judge in the first paragraph quoted above. Nor, does it seem to me that there is any reversal of the onus of proof in his Honour's reference to the need to revisit the complainant's evidence bearing in mind the cautionary directions. The passage, taken as a whole, does not suggest to me that his Honour had prejudged, let alone, dismissed the question of the complainant's reliability. 1. The judge went on to mention the significance of the issue concerning the timing of the kitchen renovation, to which he said he would return. He referred to the complainant's denials to her mother of any touching by the appellant, and to the submission of defence counsel "that those denials should at least cause the court to have a significant doubt about the veracity of the complainant's account". 2. His Honour then went on to state – "It was submitted that perhaps there is a question about the reliability of the complainant's evidence, but I do not accept that in reality the issues here can be addressed in that way. There is no question that the complainant has related what she said was a memory of an incident. The reality is that the event either happened or it did not. She has not made a significant mistake about that event. Is it possible that she has misapprehended when the event took place or some other even less significant detail? That is possible but even if that is so it may not necessarily detract greatly from the truth of the disclosure made because of the nature of the disclosure. Of course, very significant error in that regard might cause a tribunal of fact to question the existence of the basal fact, but I do not perceive that to be the situation here. (Emphasis mine). The accused submitted that I should have some concerns about the evidence of the complainant due to her age at the time when the disclosure was made. Of course, it was not submitted that that I should necessarily be concerned about her age at the time when the alleged event took place because to make that submission acknowledges that some event must have taken place. The accused denies any such event." The judge then went on to mention the issue of age, limiting it to the delay in complaint (answered by the appellant's telling her not to tell anyone) and the prejudice to the accused arising from the delay and then deal with the complainant having been "asked continually about whether the accused interfered with her … [which] she denied …" and the submission that the complainant might have been encouraged to make a false complaint to satisfy her grandmother's questioning of her. The judgment then continues – "[These matters] cannot be ignored … [but if] this was a complaint that was fabricated by a twelve year old child, it has very strange content indeed … In my assessment there was simply no guile in the complainant when I saw her give evidence. I reject the possibility that her account was fabricated in the manner suggested by counsel." 1. The first paragraph in the passage quoted immediately above can be read in two ways. The most likely is that the complainant "has not made a significant mistake" about whether the incident occurred or not, in the sense that she has not confabulated. The judge rejected approaching the question of the "veracity [ie truthfulness] of the complainant's account by testing its reliability, considering "that in reality the issues here [cannot] be addressed in that way", there being "no question that the complainant has related what she said was a memory of an incident". 2. Defence counsel had submitted that the complainant's evidence "lacks real probative value and may not be reliable" pointing out that it was given by a 12 year old girl recounting an event which she said occurred up to five and half years earlier when she was perhaps six years of age. He added – "… the evidence given by … [the complainant] concerns a child aged … somewhere between six and seven years old and on her evidence, which differs and may itself demonstrate some unreliability, between seven and eight years of age. Children of those very young years do not always have the capacity for clear expression of reliable evidence." 1. Counsel said that he did not submit that the evidence was automatically unreliable by virtue of age but the question of age would weigh in the judge's mind "when considering how much weight can be placed on" it. The gap was also, counsel submitted, a fact which may itself demonstrate some unreliability which would erode confidence that the complainant "was able to give an honest, but perhaps in this context more importantly, accurate version of what happened sometime back in 2005 or 2006" (emphasis mine), adding – "Put another way, it seems that whatever happened to … [the complainant] if anything in 2005 or 2006 bubbled away in her head completely unexpressed for up to five and a half years before being spoken of for the first time, apparently in August 2008. I submit that that would test any tribunal of fact's unreserved belief about any like evidence but, given the age of the complainant at the time and at the time of disclosure I submit that in this case there are a number of real and substantial reasons why your Honour would be slow to come to any unreserved acceptance of her account." 1. Counsel referred to the details which either could not be remembered or were differently described in the various accounts, the difficulty with dating the offence, the errors about where the appellant was living at the time and a number of other features including in particular what was submitted to be a vague description of the "actual mechanism of the assault … peppered with 'I don't know' and 'I don't remember', that much is to be expected from a version of events looking back to five years ago by a young child." Various other matters were referred to by counsel to support this argument. 2. It is clear, therefore, that the reliability question was not posed merely as whether the complainant believed she was telling the truth or otherwise had concocted the story either by herself or at the instigation or with the connivance of her grandmother or mother. The case for the appellant was simple, namely that the event in question had not occurred. Counsel on his behalf put matters to the trial judge arising both from the complainant's evidence and, in particular, that of her mother which questioned the complainant's reliability. Of course, unreliability did not matter of itself but only if it raised the reasonable possibility that no incident as alleged occurred. Counsel's submission was not a mere commentary on matters said to indicate unreliability. The point of counsel's submission was that the judge would have a reasonable doubt about the guilt of the appellant, in other words, a reasonable doubt that the offence had been committed, because of the matters to which he referred. The distinction between honesty and accuracy was an important element of counsel's address, although he did not refer to confabulation as such. The appellant denied that the event occurred. It was not necessary for the appellant to formulate an explanation for the (on this hypothesis) false complaint being made. 3. In deciding that the complainant was relating an event present in her memory about which she was not mistaken, and rejecting the possibility that the matters that suggested unreliability might demonstrate a doubt about the reliability of her belief, the judge depended, as I read the judgment, entirely upon his view of her demeanour as a witness. This, with respect, is a non sequitur. That the complainant genuinely believed that the incident occurred cannot demonstrate that the incident actually occurred. Of course, it is cogent evidence of that fact but it was necessary to consider whether the evidence as to unreliability raised the reasonable possibility that she was mistaken. However, the judge summarily dismissed approaching the evidence with this in view and focussed on the question whether she had concocted the allegation, which was the only remaining issue. 4. It seems to me, with respect, that his Honour's focus on the possibility of concoction erred in that it overlooked the possibility that the event did not take place as described by the complainant but that she had confabulated. Put otherwise, the variations in details of the offence itself, the mistakes about the kitchen renovation and when the appellant resided at the home, the likelihood that complainant's recollection about her attitude towards the appellant whilst the family lived in Wagga Wagga was a construction, not to speak of the denials of misconduct by the appellant, are more reasonably explained by the possibility that no misconduct took place as the appellant believed and she had confabulated some other innocent event. When are added the facts that the alleged event occurred when the complainant was six or seven and she first mentioned it five years later, it was even more important, to my mind, that the fact-finder consider this issue. Merely to conclude that the complainant was "guileless" could not, in the circumstances here, resolve the issue of unreliability. 5. The penultimate paragraph (italicised) in the passage quoted above is, with respect, problematical. The reference to the "basal fact" is, as it seems to me, a reference to the indecent assault. Its existence might be doubted – as his Honour appears to be reasoning – if significant errors detracted from the "truth of the disclosure". This does suggest to me that the judge may indeed have approached the matter by deciding that the complainant's evidence was not only truthful but accurate (in the sense that she had been indecently assaulted by the appellant as she described) and then see whether there were any "very significant errors" that might bring that accuracy into question. But the necessary scrutiny cannot commence with an assumption about accuracy, though it was reasonable to start with the conclusion about sincerity. It was necessary to analyse the contradictory evidence to weigh its significance, bearing in mind that a mistake cannot confirm accuracy. Moreover, the existence of a fact might be doubted because of circumstances not comprising "errors", here, in particular, the age of the complainant at the time of the alleged offence and at the time it was reported, the denials of its occurrence, the description of the assault and how it happened. 6. The error had its compounding effect in the passage immediately following those quoted above – "The accused submitted that I should have some concerns about the evidence of the complainant due to her age at the time the disclosure was made. Of course, it was not submitted that I should necessarily be concerned about her age at the time when the alleged event took place because to make that submission acknowledges that some event must have taken place. The accused denies any such event." In fact, as the above quoted parts of Mr King's submission demonstrates, the age of the complainant at the time of the alleged event as well as her age at the time of disclosure were important. To do so, in no way contradicted or qualified the contention that no indecent assault occurred, but led to the question whether the complainant had recalled some incident that had not involved indecent assault but which she now mistakenly believed did so. 1. Counsel then went on to deal with the submitted difficulty of the complainant in remembering details, including details of the event itself. 2. His Honour then dealt extensively with the possibility that the complainant's view of the appellant might have been poisoned by the knowledge of the accusations against the appellant in respect of other sexually related offences, which had given rise to the mother asking the complainant whether the appellant had interfered with her, which she denied. In dealing with the contention that repeated suggestions to the child implied in the questioning of her as to whether she was interfered with by the appellant could have encouraged her to falsify a complaint in order to satisfy her grandmother, his Honour said – "In my view, whilst that cannot be ignored, it merely highlights the need for a close examination of the actual complaint. If this was a complaint that was fabricated by a twelve year old child it has very strange content indeed. Moreover, it provides details that one would not expect in such a complaint and the complainant has been consistent even under cross-examination, in repeating the complaint. In my assessment, there is simply not guile in the complainant when I saw her evidence. I reject the possibility that her account was fabricated in the manner suggested as possible by counsel." 1. This again focused on the possibility of fabrication. But, as I have mentioned, this was not the only possibility. 2. The judge then dealt with the evidence of the complainant as to when the event occurred in relation to the kitchen renovations. His Honour briefly referred to the mother's evidence in this regard, which he accepted, he concluded "that the complainant was simply wrong when she said that the appellant lived in the house at the time". His Honour considered that this did make her evidence unreliable but not in a way that significantly detracted from the reliability of the disclosure since, his Honour said, the question as to when the kitchen was completed would not "have been a prominent issue … when she related her complaint which dates from some five years previously." The information was provided when she was asked about it by the police in an attempt to give some timeframe for the charges. His Honour pointed out that there was no evidence that the appellant's former bedroom was not still being used by him at times, especially when he was at the home working on the kitchen. However, there was no evidence at all which suggested that the appellant in fact used the bedroom at any time after he had left the house. Nor was there any evidence as to the time he came to the house when he worked on the kitchen or, indeed, after he had left the house. The evidence of the complainant was categorical, that he was living at the house when the offence occurred and referred to the "stuff" of the appellant on the bedside table. She did not say that it occurred whilst he was building the kitchen but to the police and later confirmed in her evidence that it was when he had just finished the kitchen. His Honour thought it was significant that the appellant was, according to the complainant, dressed in blue jeans and a tank top since this was unlikely had he slept in the bed, and concluded that it was most likely that the appellant was dressed for work at the time that the alleged event took place. The notion that, being dressed in blue jeans and a tank top, he was dressed for work had no evidentiary basis and therefore the conclusion that it was likely that the appellant was working on the kitchen at the time of the alleged offence, despite the evidence of the complainant that he was not, was necessarily speculative. 3. Once the conclusion was reached that the event occurred when the appellant had left the home, it was necessary to consider the evidence as to his access to the house at that time. It was not contested that he helped with the kitchen renovations but there was no evidence at all as to the time of his attendance at the home during this time, except – if the alleged assault occurred then – from the complainant's evidence that it happened at 8am. Nor was there any evidence that the appellant had access to the home before the mother rose. In an exchange with counsel, the judge said, "He's up early, he's working on the house, he's obviously got access at any stage". There is no evidence that the appellant did have such access, unless of course, the evidence of the complainant is accepted, but then the finding as to access does not in any way support her evidence. The error was not pointed out by counsel and, as it happens, is not mentioned in the judgment. However, the question of access to the house was plainly highly significant. The omission to address it indicates to my mind that his Honour had assumed that it was not an issue. 4. The only evidence as to the appellant's time of rising concerned the period when he was living there. The evidence as to his visiting the home after he left came from the mother and went no further than that he came for a cup of tea and stayed for an evening meal. There was no evidence at all (except from the complainant, who thought he was still living at the house) from which it could be inferred that he came to the home in the early morning at any time. 5. Defence counsel had submitted that the complainant's evidence that she was very angry with the appellant as a result of the assault was contradicted by the mother's evidence that there was no change in her demeanour towards the appellant around that time. The judge, however, rejected this contention upon the basis that, if the event occurred after the appellant had left the house, "there might not have been much more than sporadic contact between the two of them after that time" and, therefore, this matter was not significant. However, the only evidence on this point came from the mother. As mentioned above, she said he visited almost every day and stayed for dinner, the complainant would spend time with him; and their relationship "was a perfectly normal loving relationship" whilst the appellant lived at the house and after he moved out. There might be reasons that the young victim of a sexual assault might not wish to change his or her behaviour towards the perpetrator. As is obvious, his Honour did not need (on his mistaken view of the evidence) to deal with them. There was here the additional difficulty that the complainant said that her attitude did change "and I didn't want to see him again". 6. Having rejected the submission that time was of the essence and the offence may have allegedly occurred after the 30 September 2006 date specified in the indictment (to which I will come later), the judge moved to the submissions of Mr King as to the differing accounts of the complainant to her grandmother, mother and as given in evidence. He considered that these accounts were not markedly different, pointing out that, had they been identical then the suggestion that the allegation was concocted would have been enlivened. The crucial question, of course, was whether those differences were significant in terms of accepting the reliability of the complainant. His Honour concluded, as I understand it, because they were not "markedly different" they did not reflect adversely on the reliability of the complainant's evidence. It was a matter for the trial judge to assess the importance of the differences between the complaints. It is very much a matter of judgment whether those differences were or were not important. At the same time, as I mentioned above, the inconsistencies could not strengthen the complainant's reliability. 7. The judge then dealt with the delay and complaint. His Honour pointed out that the complainant was a young girl at the time and her mother was close by. He referred to her evidence that she did not complain because the appellant told her not to tell her mother or anyone else and, also, due to things she later learned about the appellant from a cousin which she described as "disgusting". His Honour pointed out that it was not possible to know exactly what the complainant was told about the appellant but it was unlikely, he considered, that she knew that the appellant had served a prison term for murdering his former wife. His Honour referred to the direction from the appellant and to her knowledge that her mother was supportive of the appellant who would have been able to stay with them had there been room in the house where they then lived. The trial judge considered that there was therefore pressure on the complainant not to make trouble with the grandfather but when she learned that he was already in trouble for sexually interfering with someone else, the pressure was relieved and his Honour referred to her saying that she felt more comfortable in the circumstances revealing what had happened to her. Part of the difficulty with this reasoning is that the complainant had not referred at all to any pressure on her coming from her mother not to make trouble with her grandfather; nor did the mother give any evidence to this effect. This was supposition. In R v LTP [2004] NSWCCA 109 at [132] Simpson J observed that "judges should not volunteer explanations, particularly where the complainant has actually given reasons for not complaining" citing R v Williams (1999) 104 A Crim R 260 per Wood CJ at CL at [26]. Although this was said in the context of a direction to the jury on the issue of complaint, it plainly applies to the process of reasoning of a judge sitting alone. 8. The judge then referred to the legislative requirement of reminding himself that there might be many reasons why a complainant does not complain. He pointed out that she was very young and might have been quite unsure about what to do at the time. The difficulty with this explanation is that it is clear from her evidence that the reason she gave for not going to her mother or anyone else was that the appellant had told her not to do so. This was not therefore a case of confusion but, rather, one of obeying the appellant's instruction. 9. The judge stated then that he had scrutinised the complainant's evidence thoroughly, paying particular regard to the submissions of counsel and the other witnesses. He noted that there were some areas of her evidence where she was in conflict with other witnesses, thinking that the most significant was the question as to whether the kitchen was completed at the time of the alleged assault. Following a brief description of the manner in which he approached his task which does not call for present discussion, his Honour concluded – "In my view, the complainant gave straightforward and believable evidence when she said that her grandfather pulled her into his bed and indecently assaulted her. I am of the view that her evidence should be accepted by me beyond reasonable doubt, even after having scrutinised her evidence thoroughly. In addition I accept beyond reasonable doubt that the accused held her wrists when she resisted him." 1. It seems to me that it is fair to describe the trial judge's approach as starting with his impression of the complainant as a witness of truth and then analysing particular matters arising both in her evidence and that of her mother and grandmother in particular to see whether those matters reflected adversely on the impression he had formed of her. In dealing with each of the criticisms in that way, it does not seem to me that his Honour erred. Furthermore although his Honour did not in terms say so, in my view it is clear that he considered what might be called the detracting or adverse matters as a whole. I am satisfied that the trial judge did consider whether the complainant was both truthful and reliable. However, as I have said, he considered reliability only in relation to the possibility that the complainant had fabricated the accusation against the appellant and was giving a deliberately dishonest account. As I have pointed out, although this was the way in which the matter was argued, it was in my view incumbent on his Honour to consider all reasonable possibilities open on the evidence that might give rise to a reasonable doubt about his guilt. I have mentioned that the trial judge accepted the evidence of the complainant's mother as to significant matters about which the complainant's evidence was wrong. However, his Honour formed the view that although her evidence was unreliable as to those matters, this did not reflect adversely on her honesty. The question is not fundamentally different when considering whether the complainant's evidence was reliable in respect of her description of the alleged indecency. Again, it might be honest but unreliable. That was the sense of unreliability which his Honour was also obliged to consider but did not. The significance of time 1. As mentioned above, the indictment charged the appellant with an offence said to have occurred between 1 May 2005 and 30 September 2006. In his address, the Crown prosecutor adverted to the evidence that suggested that the relevant timeframe might have commenced in July or August of 2004 when the appellant arrived at the house in Wagga Wagga where the complainant was then living and 30 September 2006 when the appellant moved to other premises. He repeated several times that the alleged assault occurred whilst the appellant was living in the complainant's home. It is important, as it seems to me, that the offence was framed not only as occurring between dates but, more importantly as having occurred whilst the appellant was living at the premises. Indeed the dates were, as the prosecutor explained, chosen by reference to the residence of the appellant with the complainant and her family. The renovation of the kitchen was important because the complainant herself fixed the offence as having occurred before that event but, as the prosecution submitted, if the judge found (as indeed his Honour did) that the kitchen was renovated after the appellant left the premises, that would not affect the Crown case, not because the offence occurred at a later time but because an error in the date of the renovations was a mistake which did not affect the complainant's credibility. It is clear from the evidence as to the appellant's visits to the complainant's home after he stopped living there that it was not the Crown case that he might have been there early in the morning before the complainant's mother rose. This is the only sensible explanation for the prosecutor not asking the mother about the time when the appellant would arrive at the home or about his access to the house in the early morning before the mother rose and what the arrangements were for him coming to the house at the time of the kitchen renovations. Not surprisingly, defence counsel did not ask any questions of the mother as to the appellant's visits after his departure. It was clear that this evidence was irrelevant. Moreover, the prosecutor commenced his case by tendering the complainant's interview with police, in which she clearly said that the assault occurred whilst the appellant was living at the home and he did not seek any correction. The complainant's certainty on this issue was confirmed by her recollection that her mother was ignorant of the assault whilst he lived at the home: she was asked how long the appellant was "still living with you after the time that [the assault] happened" and replied "Um, probably about a year or two… 'cause mum didn't know. She thought it was all ok." So the assault was dated not only by the fact that the appellant was still living at the house but also by the year or so that he continued to live there whilst the complainant was keeping his misconduct a secret from her mother. The prosecutor took the complainant through the sketch map of the house which she had prepared during the interview and identified the room where the assault occurred as the appellant's room. This is inconsistent (though it might possibly be explained away) with his no longer living at the premises. In cross-examination the complainant confirmed that the appellant had his own room. Indeed, Mr King cross-examined the complainant to confirm the facts she had related to the police as to this matter. 2. The prosecutor, in his closing address, made it quite clear that the Crown case was that the offence occurred during the period when the appellant was living in the home and not after he had left. This was so regardless of when the renovations occurred. The relevant passage is – "One thing that is certain, in my submission to your Honour on the evidence, is that the girl was quite clear that in fact the incident or the assault occurred when the grandfather (Poppy, the accused) was in his bed and you will recall that she described his state of dress in the interview with the Police. I'll come to that in a moment, it was in the morning when he was living with them. So we would submit that there were three instances where … [the complainant] would have a memory of her Poppy and they would be as follows: one is in the period when he came to live with them when he came out on parole; secondly, when he came to visit to have coffee after he'd left there in September 2006; and thirdly - and I don't know that there's any evidence from the girl about this - when he went to visit them in Cessnock. You will recall the evidence that he didn't follow them up there. Now of those three periods, the only period that fits with what the girl is describing and can only fit with that period is that period when the accused of course was first staying with them after he came out on parole from Queensland." The prosecutor had indeed referred to the potential for a decision that varied the date on the indictment, but this was a reference only to the commencement date of 1 May 2005. 1. The approach of both counsel was consistent only with a case in which the Crown alleged that the offence in question occurred whilst the appellant was living at the house. In this sense, the time specified in the indictment, understood as referrable to the dates of the appellant's residence in the complainant's home, was indeed of the essence. 2. Defence counsel took the matter up in his final address to his Honour, pointing out that the period in the indictment ran from 1 May 2005 to 30 September 2006 and submitting, in effect, that the evidence did not disclose any assault occurring in that period. He first referred to the complainant's evidence that, whilst she was not sure, she thought that the assault occurred when she was aged seven or eight. The complainant's seventh birthday occurred on 13 April 2006 and, of course, remained aged eight until 12 April 2008. Mr King submitted that, in light of the complainant's mother's evidence about the timing of the kitchen renovations, that they had occurred after September 2006 at which point the appellant was no longer living in the house. Accordingly, the alleged assault occurred when the accused was no longer living there and "therefore would and could not have been present in the house early in the morning in his bed to commit that crime". His Honour then interrupted to point out that the way that the appellant was dressed, according to the complainant, indicated that he had "arrived to do some work on the kitchen, got into his bed and pulled her into the room at that time". Mr King responded that there was nothing in the evidence of the mother to suggest that, having arrived to go to work, he would go back to bed. He submitted that, if the appellant was not living in the house after the kitchen was completed, then it would appear to be impossible that the offence occurred as the complainant asserted. 3. The argument about time is not a technical one. It is, fundamentally, a question of fairness. In R v VHP (unreported, Court of Criminal Appeal NSW, 7 July 1997) the complainant gave unequivocal evidence that the offence had occurred on a particular date, although the indictment had specified a range of dates. It was accepted that the jury could not have been satisfied that the offence occurred on the date specified by the complainant because he had associated the sexual activity with events which were proved by objective evidence not to have occurred on the date identified by the complainant. The trial judge gave an equivocal direction which might have led the jury to think that they could nevertheless convict the appellant if they thought the offence had occurred within the range of dates specified in the indictment. Gleeson CJ (with whom Handley JA and Studdert J agreed) accepted the concession made by the Crown in the appeal that, in the way in which the trial was conducted, the jury could not properly have convicted the appellant unless they were satisfied beyond reasonable doubt that the offence occurred on the date stipulated by the complainant. His Honour also pointed out that this was so although the trial judge had correctly instructed the jury that what they made of the complainant's evidence was a matter for them with the additional instruction that it was always open, in considering the reliability of a witness to accept one part of the witness' evidence and reject another part. The jury had asked a question showing that the problem upon which they wanted the trial judge's assistance was whether or not they could convict the appellant even though they were unwilling to accept that the complainant was reliable in his evidence that it occurred on the particular date. The trial judge's further direction was equivocal so that the jury might have been left with the impression that the date was not vital and that, in order to convict, it was only necessary to decide that the offence had occurred within a range of dates specified in the indictment. Gleeson CJ said – "As a general rule, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, and if the Crown fails to establish an inessential fact, or a particular which has been provided before the trial, or which emerged from the evidence of Crown witnesses, that is not fatal. However, that generalisation may, in any given case, need to be qualified. Two examples of possible qualifications are of present relevance. First, in some circumstances the requirements of procedural or substantive fairness may restrict the capacity of the Crown to depart from particulars. Second, the evidence in a case may be such that it would not be open to a jury, acting reasonably, to treat one part of the Crown case as reliable, and another part as unreliable. The general rule was stated by Atkin J in Reg v Dossi (1918) 13 Cr App R158 at 159-160 in the following terms: 'From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence ... Thus, though the date of the offence should be alleged in the indictment, it has never been necessary that it should be laid according to truth unless time is of the essence of the offence.' There are, however, many examples of cases in which it has been held that time has been made of the essence of the offence, or, to use another expression adopted by judges, has been made vital, by reason of circumstances which give rise to qualifications of the kind mentioned above. (eg The King v Dean [1932] NZLR 753, R v Kringle [1953] Tas SR; R v Pfitzner (1976) 15 SASR 171, R v Macdonald (199G) 84 A Crim R 508, R v Westerman (1991) 55 A Crim R 353)." 1. In R v Pfitzner (1976) 15 SASR 171 Bray CJ said (at 185) – "Whether the date alleged in an information is vital to the charge must depend on the circumstances. So long as it is clear that the controversy turns on the events of a certain occasion, it may not matter if the date of that occasion is misstated if the occasion itself is clearly identified and both parties have directed their cases towards it; cf. Page v. Butcher. But obviously if a man is charged with committing an offence on Saturday and comes prepared with an alibi for Saturday, he cannot be convicted of committing the offence on Friday or Sunday, unless perhaps the information is amended and the trial adjourned to enable him to meet the new case." 1. In R v Hughes [2000] NSWCCA 3, the allegations against the accused were 20 years old. The complainant had alleged the offences had occurred in a grocery shop in 1979. The accused produced evidence that the grocery shop had not been purchased until 1981. The credibility of the complainant was to be assessed having regard to the place and time at which he said the offences had been committed and became essential to the acceptance of his evidence as reliable in respect of the allegation itself. 2. A similar instance is R v Kennedy [2000] NSWCCA 487; (2000) 118 A Crim R 34. There, the complainant insisted that the offence occurred on the same day as the royal wedding and said that she was 100 percent sure that she witnessed a live broadcast of that ceremony just before the commission of the offence. Other credible evidence contradicted this possibility although it was consistent with the possibility that the offence had occurred (contrary to the complainant's evidence) some three days later when a replay of the royal wedding was broadcast. Studdert J (with whom Heydon JA and James J agreed) said – "[33] …The complainant's evidence as to the commission of the first offence made the time of such commission essential to the acceptance of her evidence and was crucial in the sense referred to by Gleeson CJ in R v VHP [supra, in the passage cited above]… [34] It does not seem to me that it was possible to treat the complainant's evidence as reliable as to the commission of the offence if it was not reliable as to the date upon which she said it occurred. Yet the effect of the amendment [enlarging the dates] was to obscure this difficulty and the amendment resulted in the jury being left to consider a Crown submission contradicted by the evidence of the complainant that what she was watching on the night of the offence was a replay of the royal wedding rather than a live telecast. It seems to me that the amendment resulted in unfairly depriving the appellant of the possibility of an acquittal which the indictment prior to amendment would have presented." 1. See also SKA v R [2011] HCA 13; 243 CLR 400 and on referral to the Court of Criminal Appeal [2012] NSWCCA 205. 2. Here, the complainant gave evidence that the offence occurred whilst the appellant was living in the same house with the family. There was no suggestion by her that it occurred after he had left. As it happened, the complainant also thought that it occurred after the renovation of the kitchen. The evidence of the complainant's mother, which was preferred by the trial judge, was that the kitchen renovations were done after the appellant had moved out of the house. Although it is true that the appellant did not raise an alibi defence, in terms, it is clear as I have said that the case was fought upon the basis that he was still living at the home and was given to early rising. Once the mother's evidence that the kitchen renovations occurred after the appellant had left the house was accepted, it followed that the complainant's evidence that the offence had occurred whilst he was living at the house, dated not only by reference to the kitchen renovations of course but her own recollection of his departure could not be correct. The defence had established that it was not possible for the crime to have occurred, not only within the timeframe alleged by the indictment, but more importantly the period which was fixed by his residence in the family home. Had the defence been made aware that the case would change to an allegation that the offence had not occurred after the kitchen renovations but during them and that the appellant had left the home rather than still living there, it would have been possible to have adduced from the mother – and, perhaps, from other witnesses – what the arrangements were for his visits whilst the renovations were proceeding or afterwards and whether, indeed, he had access to the house whilst the mother was still abed. As a practical matter, the defence were denied this evidence because of the change in the case after the evidence had closed, indeed, after addresses. In short this was not the case that the appellant was informed he needed to meet and, in the circumstances, he was denied the opportunity of doing so. Conclusion 1. The grounds of appeal are not in any logical progression. For clarity, I propose to deal with them in general terms. Ground 1 submits that the trial judge erred in his Honour's procedural approach. For the reasons explained above, I would reject this ground. There was no error in the order in which the judge dealt with the issues in the case, legal or factual. As to Ground 2(a), in my respectful view, the judge erred in expanding the indictment to comprehend an offence that allegedly occurred after the appellant had left the complainant's family home. I further conclude that this resulted in a miscarriage of justice. 2. Although the judge directed himself in accordance with s 165A of the Evidence Act 1995, and the warnings in Croft and Murray, his Honour's scrutiny of the evidence involved several significant errors of fact. Furthermore, the judge's omission of a consideration of the possibility of confabulation was, in substance, unexplained. For the reasons stated in Fleming, an explanation was necessary to comply with the requirements of s 165A. In the circumstances, the mere acceptance of the honesty of the complainant did not justify this conclusion. This was the error identified in Douglass. 3. Ground 2 also sought under s 6(1) of the Criminal Appeal Act 1912 the setting aside of the verdicts as unreasonable or unable to be supported having regard to the evidence. Although the form of the ground appeared to rely only on specified complaints, the Court was informed that it was intended, as the written submissions made clear, to rely on it as a stand alone ground. There was no objection from the Crown to this reading of the ground. 4. Arun v The Queen [2010] NSWCCA 214 contains a recent discussion by Hall J (with whom the other members of the Court agreed) of the principles applying to an appeal against the verdict of a judge sitting alone under s 6(1) of the Criminal Appeal Act on this ground. After mentioning (at [52]) Keir v The Queen [2007] NSWCCA 149, his Honour set out the following passage from the judgment of Wood CJ at CL (with whom the other judges agreed) in R v Moffatt (2000) 112 A Crim R 201 at [3] – [5] – "The Court of Criminal Appeal is a court of error, and does not proceed by way of re-hearing in a way that permits it to substitute its own findings of fact for those of the jury, or of the trial Judge where acting alone: Kyriakou (1987) 29 A Crim R 50, and Kurtic, CCA (NSW) (26 February 1996, unreported). Where, as in the present case, the relevant ground is that the verdict, or more accurately, the finding on the question of guilt by the trial Judge (s.17 Criminal Procedure Act 1986) should be set aside upon the ground that it is unreasonable, or cannot be supported, having regard to the evidence (s 6(1) Criminal Appeal Act 1912), then it can only intervene if, after making its own independent assessment of the evidence, it concludes that it was not open for the trial judge to have been satisfied beyond reasonable doubt of the guilt of the appellant: MM (1994) 181 CLR 487 at 493, and Jones (1997) 149 ALR 598. In that event, error permitting the substitution of a verdict of acquittal is established: Coombe, CCA (NSW) 24 April 1997 at p 11 and p 12. What is required in this regard is attention to the matters identified in Fleming (1998) 158 ALR 379, Giam (1999) 104 A Crim R 416 and Gipp (1998) 194 CLR 102." (Emphasis added). Hall J then set out the provisions of s 6(1), referred to the importance of giving attention to the precise words of the subsection and continued – "[54] …It was also noted in Keir (supra) that, with respect to the interaction of s.6(1) of the Criminal Appeal Act and s.133 of the Criminal Procedure Act (then s.33 of that Act), the High Court said in the unanimous judgment at 262, [26] – Thirdly, the first limb of s 6(1), which deals with the unsatisfactory quality of 'the verdict of the jury', must now be seen through the prism of s 33(1). The first limb will address attention to the evidence upon which the trial judge acted, or upon which it was open to the trial judge to act, in reaching the finding as to ultimate guilt. Approached on that footing, is that finding 'unreasonable' or one which 'cannot be supported'? … [56] This Court is required to make its own independent assessment of the evidence. As noted in Keir (supra) at [20], in undertaking that task, the credibility findings of the trial judge with respect to the witnesses remain significant: Fleming (supra) at 266-267, [44]–[46]." 1. Accepting the credibility findings of the trial judge, my independent assessment of the evidence is that it was not open for the trial judge to have been satisfied beyond reasonable doubt of the guilt of the appellant. Accepting that the complainant should be regarded as an honest witness, sincerely relating what she believed to be true, it seems to me that there is, at the least, a reasonable possibility that the true explanation for the matters to which I have adverted in respect of the circumstances of the alleged offence and its aftermath, including the place of residence of the appellant at the time and the denials of the complainant to her mother's enquiries about whether the appellant had misconducted himself towards her, the lack of any supporting evidence of opportunity (accepting the mother's evidence as to his departure), and the contradiction as to her attitude to the appellant – in light also of the complainant's age at the time of the alleged offences and her age when she disclosed them – is that she has confabulated the alleged assault with some other, innocent, interaction. 2. Accordingly I would, on this ground, allow the appeal and acquit the appellant. 3. Even if I had not come to this conclusion, I would not order a new trial and, accordingly, would propose an order of acquittal. The essential reason for this conclusion is that the case that the alleged assault, if it occurred, took place before the appellant had left the complainant's home, is most likely to fail in light of the mother's evidence as to the date of the kitchen renovations and the appellant's departure. I do not think that it would be appropriate, the Crown having undertaken a trial on the basis that the offence occurred whilst the appellant was living in the complainant's home, should now be permitted to put the appellant to trial on a significantly different case. Furthermore, the appellant's non-parole period expired on 12 January 2013 and the overall sentence expires on 11 January 2014, so that he has already served about 80% of his sentence. Proposed orders 1. Leave to appeal be granted. 2. Appeal upheld, conviction on both counts quashed. 3. Verdicts of acquittal be entered. 1. BEECH-JONES J: I have had the benefit of reading the judgment of Adams J. His Honour's judgment relieves me of the necessity to set out the background to the appeal. As is apparent from his Honour's judgment, the applicant is the grandfather of the complainant. Neither party to the appeal sought an order suppressing the applicant's identity. Presumably the Crown considered that such an order was not necessary to preserve the complainant's anonymity. 2. Before I address each of the grounds of the appeal it is necessary to outline the evidence and the trial judge's findings concerning one matter that was said by the applicant to be of particular significance to whether the complainant's evidence should have been accepted as reliable, namely the timing of the offence. The trial judge described this as "perhaps the most significant" respect in which her evidence differed from that of the other witnesses. 3. The complainant was the first witness called at the trial. Her evidence in chief consisted of her stating that what she told the police in her interview was true. The video of the interview was played. She was then asked some further brief questions in chief before being cross-examined. 4. In her interview with the police the complainant said the offence occurred when she was "7 or 8", but that she could not remember the year. In both her interview and in cross-examination she stated that the offence occurred at a time when the applicant was living with her, her sister and mother at a house in Wagga. She stated that the applicant continued to live with them for "probably about a year or two" afterwards. The evidence of the applicant's parole officer referred to in the judgment of Adams J (at [12]) established that he lived with the complainant, her sister and her mother from 22 July 2004 to sometime in June 2006. The complainant was born on 13 April 1999 and turned 7 on 13 April 2006. 5. Another matter relevant to the time of the offence concerned the timing of renovations that were undertaken to the kitchen at the house in Wagga. In her interview the complainant was asked: "Q79 … So this time it happened when you were 7 or 8, can you think of anything that was happening around that time that, that might help you remember when it was? A Um, we just sold about five cats. Q80 O.K. You just sold five cats. A Um, like, he'd just finished building the kitchen. Q81 He had just finished, had he? A Yeah, he had built the kitchen, because it wasn't really that big." 1. In cross examination she was asked: "Q. You told them [the police] that Pop touched you in the bedroom? A. Yep. Q. You told them that you remember that this was after Pop finished the kitchen? A. Correct. Q. Can you remember how long after it was that Pop finished the kitchen? A. No. Q. Do you think it might've been weeks after, or months after? A. I can't remember that. Q. All right, but you definitely remember – A. It was after. Q. It was after? A. Yeah." 1. In his Honour's judgment (at [17]), Adams J notes that the complainant's evidence as to the timing of the kitchen renovations was given without qualification or any expression of uncertainty. I agree although I do not take the above answers as necessarily embracing the degree of certainty that the cross-examiner was seeking to obtain from her. Neither the reasons of the trial judge nor the submissions of any of the counsel who appeared at the trial before his Honour suggested that the complainant embraced the exactitude that was being urged upon her by the cross examiner. 2. It should also be noted that neither the Crown Prosecutor nor counsel for the applicant ever suggested to the complainant that she was wrong or mistaken to the extent that her evidence suggested that the applicant renovated the kitchen while he was living at the house. Hence it is not known what her response would be to a suggestion that she was mistaken in recounting the timing of those events. 3. The Crown led evidence from the complainant's mother as to the timing of the renovation work to the kitchen undertaken by the applicant. Her evidence was less than emphatic as to the date: "A. Well he left in September 2006 so it would've been – he would've done the kitchen after. Q. After he left? A. Yeah." Her evidence in cross-examination was to similar effect. 1. The Crown Prosecutor did not ask the complainant's mother any question that could have justified a conclusion that the offence occurred after the time at which the applicant ceased living at the house in Wagga. It is to be recalled that the complainant stated that the offence involved the applicant calling her into his room. Her mother was not asked whether he maintained a room at the home after he ceased living there. The complainant said that the offence took place at "probably about 8 in the morning" when her mother was asleep. However her mother was not asked whether he ever arrived early in the morning prior to her waking. She was not asked whether he ever stayed over at the house in the period after he ceased living there. 2. In his address the Crown Prosecutor explained that the dates in the indictment did not bind the Crown, and the relevant time frame for the offence was the period when the applicant lived with the complainant's family at Wagga from mid-2004 to 2006. The Crown Prosecutor referred to the evidence concerning the timing of the renovations to the kitchen. He stated that he "wouldn't cavil" with an acceptance of the complainant's mother's evidence that they were undertaken after the applicant left the residence, although he noted the "uncertainty" in her evidence that I have referred to above (at [106]). However the Crown submitted that any mistake as to the timing of the renovations was not critical. He submitted that the complainant was "quite clear" that the offence occurred "in the morning when he was living with them". The Crown Prosecutor submitted that it could be expected that the complainant would remember the period when her grandfather lived with her (and inferentially it was less likely that she would have any strong recollection of when he undertook renovations to the kitchen). 3. Thus the Crown confined its case to one that identified the offence as having occurred during the period the applicant lived with the complainant and her family in Wagga. It submitted that the complainant's reference to the kitchen renovations occurring prior to the offence was a simple mistake concerning an irrelevant detail. 4. His Honour did not adopt the Crown's approach. In dealing with the relevance of the renovations his Honour concluded: "A factor that has to be addressed is the fact that the complainant said that this event occurred at a time when the [applicant] had finished his work on the kitchen in the complainant's home. The complainant's mother said that the [applicant] completed this work after he stopped living at the house. The complainant's evidence implied that he was still living there at the time. It is submitted that if the complainant's mother is correct, then the event alleged by the complainant could not have happened. That overstates the situation. I note that there was no independent evidence to confirm when the kitchen work was undertaken, even though the work was carried out through the auspices of a kitchen renovation company. Despite that, if I accept that the complainant's mother's evidence should be accepted – and on balance I do accept that – it is still possible that the complainant was simply wrong when she said that the [applicant] lived in the house at the time. In a sense this makes her evidence unreliable but not in a way that significantly detracts from her disclosure. The question of when the kitchen was finished would not have been a prominent issue for the complainant when she related her complaint, which dates from some five years previously. She provided that information because she was asked for it by the police to attempt to give some timeframe for possible charges. In addition, there was no evidence that the [applicant]'s former bedroom was not still being used by him at times, especially when he was at the home working on the kitchen. Importantly in my view the complainant said that the [applicant] was dressed in his blue jeans and a tank-top. It is not entirely impossible, but frankly extremely unlikely that the [applicant] went to bed in those clothes. I note that evidence of the manner in which he was dressed for bed could have been led from the grandmother who had been married to him, and his daughter who lived with him, but none was led. What is most likely is that the [applicant] was already dressed for work at a time when the alleged event took place. If he was dressed for work and he was in [the complainant]'s home, then it is likely that he was there working on the kitchen. As I understand it, the [applicant] ended up leaving the home around September 2006. A Probation and Parole officer gave evidence that the [applicant] sought permission to leave the house in June 2006. Whatever the actual date, it is possible in the circumstances that the allegation made by [the complainant] falls outside the dates in the indictment. This is not a case where time is of the essence. The question is whether the event took place or not. The complainant has given the details that she is able to give to provide a date for the incident and there is more than sufficient detail for the [applicant] to be able to address the complaint." (emphasis added) 1. With respect to his Honour, this reasoning cannot be supported. In this passage his Honour accepts the complainant's mother's evidence as to the timing of the renovations. His Honour appeared to accept that the complainant could have been mistaken as to the timing of the renovations in that his Honour accepted that the timing of the renovation "would not have been a prominent issue" for her. Nevertheless, his Honour concluded that the offence occurred while he was working on the kitchen. This conclusion is flatly inconsistent with the complainant's evidence which, in this respect, was that the offence occurred after the renovations. It is also inconsistent with the balance of the evidence at the trial which, in my view, was capable of demonstrating that the offence occurred before the renovations and that the complainant was simply mistaken as to the timing of the renovations. There was no evidence that the offence occurred during the renovations. 2. The complainant's description of the applicant as having worn jeans at the time of the offence was a wholly speculative basis for concluding that he was at the house working on the kitchen. Further, his Honour's reference to there being "no evidence that the [applicant's] former bedroom was not still being used by him" after he left the house misstates the correct position. There was no evidence that it was being used by him. In the context of the onus being upon the Crown to prove the charge beyond reasonable doubt, then, at the very least, it was incumbent upon the Crown to adduce such evidence if it wanted to support a finding that the offence occurred after the applicant ceased living with the complainant's family at Wagga. It did not do so because the Crown eschewed any such case. 3. The relevant finding of the trial judge was that it was "likely" that the offence occurred while the applicant was at the house in Wagga working on the kitchen some time after he ceased living there. In Fleming v R [1998] HCA 68; 197 CLR 250 at [26] the High Court noted the following in relation to a challenge to particular factual findings made by a trial judge in a judge alone trial: "Thirdly, the first limb of s6(1) [of the Criminal Appeal Act 1912], which deals with the unsatisfactory quality of 'the verdict of the jury', must now be seen through the prism of s33(1). The first limb will address attention to the evidence upon which the trial judge acted, or upon which it was open to the trial judge to act, in reaching the finding as to ultimate guilt. Approached on that footing, is that finding 'unreasonable' or one which 'cannot be supported'? It is unnecessary on this appeal to determine whether, in such cases under the first limb or in cases under the more broadly stated third limb, the appellate court will intervene, as it was put in passages from decisions of the Court of Criminal Appeal set out earlier in these reasons, only where there was no evidence to support a particular finding, the evidence was all the one way or there has been a misdirection, leading to a miscarriage of justice." (References omitted) The decisions of the Court of Criminal Appeal referred to in this passage were R v Kurtic (1996) 85 A Crim R 57 at 60, R v Ion (1996) 89 A Crim R 81 at 85 to 86, and R v O'Donoghue (1988) 34 A Crim R 397 at 401. 1. It follows that, at the very least, a "particular finding" of a trial judge in a judge alone trial will attract appellate intervention under the third limb of s 6(1) of the Criminal Appeal Act if there is no evidence to support it. Whether it can be reviewed on a wider basis has not yet been settled. For the reasons I have outlined, there was no evidence to support the finding that it was "likely" that at the time the offence was committed the applicant was at the house working on the kitchen and had ceased living there. The consequence is that the trial judge's reasoning supporting the guilty verdict cannot be supported. A matter pointed to by the applicant as potentially warranting a rejection of the complainant's evidence was rejected by his Honour on the basis of a factual finding that had no evidentiary basis. 2. It follows from this conclusion that I consider that the third limb of s 6(1) of the Criminal Appeal Act has been made out, namely that there was a miscarriage of justice. I will return to address what I consider should follow from this, but at present I also note that the case put by the Crown was not addressed either. As I have said, the Crown contended that the offence occurred during the period that the applicant lived with the complainant's family at the house in Wagga, and that she was mistaken as to the timing of the kitchen renovations. In the first part of the above extract his Honour appears to have accepted the force of that latter contention but then departed from it by speculating that the offence occurred after the applicant ceased living at the house in Wagga. 3. Against the above background I will address the individual grounds of appeal. Ground 1(a) – Murray direction 1. Ground 1(a) is set out in the judgment of Adams J at [8] and the relevant statement of principle from Murray v R [2002] HCA 26; 189 ALR 40 is set out at [11]. I agree with his Honour that this ground should be rejected. The only matter pointed to by the applicant as supporting this ground is the fact that in his judgment his Honour recorded his impression that the complainant was a "believable witness who was doing her best to tell the truth about something that had actually happened in her life" at a point prior to setting out, inter alia, the terms of the Murray direction. 2. The applicant's submissions concerning this ground appear to falsely assume that the "judgment" prepared by a judge sitting without a jury and referred to in s 133(2) of the Criminal Procedure Act 1986 is a record of the trial judge's deliberations, commencing on the first page with the judge having an open mind, and only concluding with the trial judge reaching a verdict on the last page. In fact, the judgment is the trial judge's explanation for the verdict that they have reached usually prior to publishing the judgment. The location within the judgment of an observation recording the application of a direction is not a necessary indicator that it was not applied to the evidence and matters discussed in that part of the judgment that precedes it. 3. Ground 1(a) appears to raise a question of law and thus does not require leave (Criminal Appeal Act, s 5(1)(a)). I reject ground 1(a). Ground 1(b) – Reversal of Onus of Proof 1. The terms of this ground are set out in the judgment of Adams J at [8]. This ground was directed towards the reasoning of the trial judge that I have extracted above at [110]. Two particular complaints were made. 2. First, reference was made to that part of the extract in which his Honour noted that "[t]he question of when the kitchen was finished would not have been a prominent issue for [the complainant] when she related her complaint, which dates from some five years previously". This reasoning was said by the applicant to have involved "making an allowance … of the type which was criticised by the High Court in Douglass v R [2012] HCA 34; 290 ALR 699 at [43] and [45]". This assertion was not elaborated upon. 3. In Douglass the High Court found that the trial judge in that case had accepted the truthfulness of the complainant's evidence, but had not addressed the "distinct question of [its] reliability" (at [15]). The complainant in Douglass was just under four years old at the time of the alleged offence, and five years and nine months of age at the time of the trial (at [2]). In the passages cited by the applicant from Douglass, the High Court found, contrary to the trial judge in that case, that the initial denials by the complainant of the offence and the inconsistencies in her evidence suggested that her evidence was unreliable and were not matters that were addressed by her "firmness in cross examination", which was (only) capable of "bearing on her truthfulness" (at [45]). 4. Nothing in these passages from Douglass support the applicant's contention that it was not open to his Honour in this case to reason that the timing of the renovations undertaken on the house was a matter that the complainant might be expected to be mistaken about, and that the complainant's mistaken recollection of that matter was not necessarily fatal to the reliability of her evidence. In any event, as I have explained, ultimately his Honour did not develop that reasoning and find that the offence occurred while the applicant lived with the complainant, as was urged by the Crown. 5. Second, the applicant complains that his Honour reversed the onus of proof in that part of the extract in [110] in which his Honour noted that "there was no evidence that the [applicant]'s former bedroom was not still being used by him at times [after he ceased living with the family], especially when he was at home working on the kitchen". I have already addressed this at [112]. Depending on its context, such a comment may not demonstrate error. However, I have already accepted that it is confirmatory of a finding as to the timing of the offence that had no evidentiary basis. In that sense I accept ground 1(b) (and would grant leave to raise it to the extent that may be required). Ground 2 – Unreasonable finding of guilt and other matters 1. The terms of ground 2 are extracted in the judgment of Adams J (at [8]). The opening words of the ground invoke the first limb of s 6(1) of the Criminal Appeal Act. The first limb requires that attention be directed to the evidence upon which the trial judge acted or upon which it was open to the trial judge to act (Fleming at [26]). The only relevance of the trial judge's reasons for judgment to that aspect of ground 2 is that they may expressly or implicitly record the advantages enjoyed by the trial judge, which in turn may inform the limitations imposed on this Court on forming a conclusion as to whether "upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the [applicant] was guilty" (M v R [1994] HCA 63; 181 CLR 487 at 493). 2. The matters alleged in sub-paragraphs (a) to (d) of ground 2 all address allegedly erroneous aspects of the trial judge's judgment. They only raise matters that possibly fall within the second and, most likely, the third limb of s 6(1). I will address those grounds first. Ground 2(a) – Time of the essence 1. Ground 2(a) contends that the trial judge erred when he found that time was not of the essence in relation to the dates of the indictment. I have described the approach taken by the Crown to the timing of the offence at [108] to [109]. As I have explained, his Honour ultimately found that the offence occurred at a time after that identified by the Crown which was fixed upon the time the applicant lived with the complainant and her family. 2. At [85] Adams J has set out the relevant statement of principle from the judgment of Gleeson CJ in R v VHP (Court of Criminal Appeal, Gleeson CJ, Handley ja and Studdert J, 7 July 1997, unreported) in which his Honour identified two possible qualifications to the proposition that the Crown need not prove some generally inessential fact or particular, such as the date of the offence in a case such as this. The first exception was where the requirements of procedural fairness restricted the capacity of the Crown to depart from such particulars. In this case the Crown confined itself to a case alleging that the offence took place when the applicant resided with the complainant, her mother and sister. It adduced evidence directed to that time frame and did not lead evidence to lay an evidentiary foundation for the trial judge's finding as to the date of the offence. However the exchange between the trial judge and counsel noted in the judgment of Adams J at [51] and [84] may have been sufficient to place the applicant on notice that a potentially wider period could be considered. In the end result it is not necessary to determine this. 3. The second exception identified by Gleeson CJ in R v VHP was that the "evidence … may be such that it would not be open to a jury, acting reasonably, to treat one part of the Crown case as reliable, and another part as unreliable". This invites attention as to whether the trier of fact acting reasonably could have accepted the complainant's evidence that the assault occurred, but rejected her evidence that it occurred while the applicant was residing with her family. For the reasons that I have already outlined, I do not accept that his Honour could have done so. There was simply no evidentiary foundation for finding that the offence occurred at a later time. The evidence only permitted a conclusion that, if the offence was committed, it was during the period the applicant resided with the complainant and her family. 4. It follows that I accept ground 2(a) is made out and would grant leave to raise it to the extent that leave may be required. Grounds 2(b) to 2(d): Directions and reliability of the complainant's evidence 1. Ground 2(b) is set out in the judgment of Adams J at [8]. As framed, it appears to raise an issue as to whether the trial judge was required to give a direction of the kind contemplated by s 165A(2) of the Evidence Act 1995. A number of potentially significant issues would need to be resolved in order to establish a ground framed in those terms. One issue is whether an obligation on a trial judge to give such a direction is established by meeting the criteria in s 165A(2); ie "satisfaction" that "there are circumstances (other than solely the age of the child) particular to the child that affect the reliability of the child's evidence and that warrant the giving of a warning or the information". If that is correct and the trial judge fails to give a direction, what standard of review is to be applied to the failure to be so satisfied? Another issue was raised by the Crown in that it submitted that ss 165 and 165A of the Evidence Act are solely concerned with trials before a jury and have no application to a judge alone trial. 2. It is not necessary to address these issues because, as the submissions were developed, it became clear that the applicant's true complaint under this ground was that the trial judge had not assessed the "reliability" of the complainant's evidence and had only assessed her honesty as a witness. Leaving aside s 165A(2), in my view it is clear from Douglass that such an assessment was required. 3. Whether or not the trial judge addressed the reliability of the complainant's evidence is a matter that has caused me considerable hesitation. Throughout his Honour's judgment he addressed all the various matters that were put to him as warranting the rejection of the complainant's evidence, either because they showed she was not honest, or was otherwise unreliable. However I agree with Adams J (at [80]) that his Honour only addressed the former and not the latter. In my view this is made clear by the following passage from his Honour's judgment: "There is no dispute that the complainant was asked on a number of occasions by the complainant's mother whether the [applicant] had touched her and she understood that meant sexually and she had denied that touching. A principal submission for the [applicant] is that those denials should at least cause the Court to have a significant doubt about the veracity of the complainant's account. It was submitted that perhaps there is a question of the reliability of the complainant's evidence, but I do not accept that in reality the issues here can be addressed in that way. There is no question that the complainant has related what she said was a memory of an incident. The reality is that the event either happened or it did not. She has not made a significant mistake about that event." (emphasis added) 1. With respect to his Honour it may be true that the event "either happened or it did not", but it is not true that the complainant was either lying about the event or giving honest evidence. Between those two possibilities there are various permutations which include that when she gave evidence the complainant genuinely believed that the event occurred but it had not. As Douglass makes clear these issues are dealt with under the rubric of "reliability". The complainant's denials had the potential to lead to an adverse conclusion about the reliability of her evidence. His Honour erred in asserting to the contrary. 2. Ground 2(c) is set out in the judgment of Adams J at [8]. With this ground the applicant accepted that the trial judge gave himself a Croft direction about the effect of delay, but complains that his Honour did not properly apply the direction in that his Honour failed to consider its effect upon the reliability of the complainant's evidence. Ground 2(d) makes the same complaint in relation to the trial judge's approach to the application of a Murray direction. As with ground 2(b), the real complaint with both of these grounds was the alleged failure of the trial judge to assess the reliability of the complainant's evidence. It follows from the above that I would grant leave to the applicant to raise these grounds and consider that they are made out. I adopt the same view in relation to ground 2(b). If it is not clear already, I repeat that my reasons for doing so do not turn upon any obligation said to be imposed on the trial judge by s 165A of the Evidence Act. Balance of Ground 2: unreasonable, or cannot be supported, having regard to the evidence 1. I have reviewed the evidence given at the trial, including that of the complainant, although I have not viewed the video of her interview that was tendered as her evidence in chief (see SKA v R; R v SKA [2009] NSWCCA 186 at [106] to [108] per Simpson J (McClellan CJ at CL and James J agreeing); SKA v R at [28] per French CJ, Gummow and Kiefel JJ; R v NZ [2005] NSWCCA 278 at [10] to [11] per Spigelman CJ). The trial judge found her to be an honest witness. Her evidence was not inherently unlikely or incredible. As I have explained above, one difficulty with the complainant's evidence is that she nominated the offence as having occurred at a time when the applicant lived with her and her family, but after the work on the kitchen was complete, and when other evidence suggested that the work on the kitchen occurred after he ceased living with them. For the reasons I have already discussed, I regard it as open to a trier of fact acting reasonably to regard any mistake by her as to the timing of the kitchen renovation work as of little or no significance. As I have stated, it was never suggested to her that she was mistaken about the timing of that work. The evidence as to her reasons for not complaining earlier also had some confusing aspects to it in terms of the time at which she learnt unsavoury details of the applicant's past conduct or at least rumours about those matters. However, given her description of the offence and that the applicant is said to have told her to not tell her mother her stated reason for subsequently denying the incident, namely that she was scared, was entirely plausible. 2. I am not satisfied that it was "not open for the trial judge to have been satisfied beyond reasonable doubt of the guilt of the appellant": M v R at 493. I would grant the applicant leave to raise the balance of ground 2, but reject it. 3. Nevertheless the question arises whether the Court should enter a verdict of acquittal pursuant to s 6(2) of the Criminal Appeal Act 1912 or direct that there be a new trial pursuant to s 8(1). In his judgment (at [97]) Adams J concludes that, even if the verdict was unreasonable, his Honour would nevertheless order an acquittal. This is so because his Honour considers that the Crown's case at the trial would most likely fail and the Crown should not be permitted to run a different case. It follows from the above that I do not accept that the case run by the Crown would most likely fail. I also consider there is no question of the Crown running a new case at trial. Instead it appears to me that the Crown case was never dealt with on its merits. However, as Adams J points out, the applicant has now served the entirety of his non parole period and a substantial part of the balance of term. In those circumstances I consider that the interests of justice do not require that there be a new trial (Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 at 590 per McHugh J; The Queen v Taufahema [2007] HCA 11; (2007) 228 CLR 232 at [55] per Kirby J and see Haoui v Regina [2008] NSWCCA 209 at [164] to [166] per Johnson J). 4. Accordingly I agree with the orders proposed by Adams J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 June 2015