Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Lever (a pseudonym) v R [2018] NSWCCA 107 Hearing dates: 9 March 2018 Decision date: 01 June 2018 Before: Basten JA at [1]; Johnson J at [80]; Campbell J at [82] Decision: (1) Refuse leave to rely upon grounds 3 and 4 pursuant to Criminal Appeal Rules, r 4. (2) Grant the applicant leave to appeal against convictions with respect to grounds 1 and 2. (3) Dismiss the appeal against convictions. (4) Refuse leave to appeal against sentence. Catchwords: CRIME – appeal against convictions – aggravated sexual assault against child under 16 years – whether conviction on eight counts inconsistent with acquittal on further counts – whether convictions unsafe or unsupported by the evidence CRIMINAL PROCEDURE – jury directions –complainant's evidence regarding multiple charged acts of aggravated sexual assault –evidence on each count as tendency and context evidence on others –IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 considered EVIDENCE – significant forensic disadvantage caused by delay – no direction sought – whether absence of direction caused substantial miscarriage of justice – Evidence Act 1995 (NSW), s 165B EVIDENCE – sexual assault proceeding – sexual assault communications privilege – complaint to general practitioner – applicant refused access to evidence produced under subpoena recording counselling communication between doctor and complainant – leave to lead evidence regarding surrounding circumstances of complaint refused –Criminal Procedure Act 1986 (NSW), ss 298, 299D Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A Crimes Act 1900 (NSW), s 61J Criminal Appeal Act 1912 (NSW), s 5 Criminal Procedure Act 1986 (NSW), ss 295, 296, 297, 298, 299D; Pt 5, Div 2, Ch 6 Evidence Act 1995 (NSW), ss 9, 165, 165A, 165B Jury Directions Act 2015 (Vic), s 40; Pt 4, Div 5 Criminal Appeal Rules, r 4 Cases Cited: Binns v R [2017] NSWCCA 280 Director of Public Prosecutions v Martin [2016] VSCA 219 Greensill v The Queen (2012) 37 VR 257; [2012] VSCA 306 Groundstroem v R [2013] NSWCCA 237 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 MWL v The Queen [2016] NTCCA 6 Packard v The Queen [2018] VSCA 45 R v O'Brien [2017] NTSC 34 RMD v State of Western Australia [2017] WASCA 70 TO v R [2017] NSWCCA 12 Texts Cited: N Williams, J Anderson, J Marychurch and J Roy, Uniform Evidence in Australia (LexisNexis, 2015) pp 946-947 Category: Principal judgment Parties: K Lever (a pseudonym) (Applicant) Regina (Respondent) Representation: Counsel: Mr W Terracini SC/Mr B Green (Applicant) Mr D Kell SC/Mr M Pulsford (Respondent) Solicitors: Russo & Partners (Applicant) Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2014/269213 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 25 October 2017 Before: Traill DCJ File Number(s): 2014/269213 Judgment 1. BASTEN JA: This matter involved an application for leave to appeal against both conviction and sentence. The offences involved aggravated sexual assaults on a child under 16 years of age. The applicant was the child's stepfather. Because s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) prohibits publication of the name of a child, including information which is likely to lead to her identification, this judgement uses pseudonyms for the family members, including the applicant, although the children did not bear his name, but the names of their natural parents. 2. The applicant, Kevin Lever, was charged with nine counts of aggravated sexual assault, contrary to s 61J(1) of the Crimes Act 1900 (NSW) in relation to his stepdaughter Sarah between 1 September 2006 and May 2007, at which stage the girl was at first nine and then 10 years of age. A jury acquitted him of one count, but convicted him on the other eight counts. The applicant was also charged with respect to one count involving Sarah's twin sister, Maryanne. He was acquitted on that count. 3. On 25 October 2017 the applicant was sentenced to an aggregate term of imprisonment for all eight offences, commencing on 5 September 2016 with a non-parole period of 8 years, together with a balance of term of a further 5 years. The trial judge (Traill DCJ) indicated that, if individual sentences had been imposed for each offence, there would, in each case, have been a non-parole period of 5 years, with a balance of term of 3 years, giving a sentence period of 8 years. Grounds of appeal 1. It is convenient to address the grounds chronologically, rather than in the order in which they appeared on the notice of appeal. Ground 2 concerned two rulings on evidence with respect to the admissibility of certain matters under Pt 5 of Ch 6 of the Criminal Procedure Act 1986 (NSW), dealing with protected confidences in sexual offence proceedings. First, the judge refused access to the clinical records held by Sarah's general practitioner; secondly, the judge refused to admit evidence concerning the surrounding circumstances of a complaint made to her general practitioner. Ground 2 alleged error in respect of both rulings; the ground also alleged a failure on the part of the trial judge to state her reasons for refusing to grant the applications for leave. 2. Grounds 3 and 4 alleged erroneous directions to the jury. Ground 3 alleged a miscarriage by reference to directions "regarding tendency and context evidence". Ground 4 alleged a miscarriage in failing to direct the jury "regarding the forensic disadvantage occasioned by the delay in complaint and prosecution", pursuant to s 165B of the Evidence Act 1995 (NSW). 3. The final ground with respect to conviction (ground 1) alleged that the verdicts were unreasonable and could not be supported, having regard to the evidence and to the verdicts with respect to the counts of which the applicant was acquitted. 4. It may be doubted that any of these grounds involved a question of law alone for the purposes of s 5(1)(a) of the Criminal Appeal Act 1912 (NSW), with the result that the applicant required leave with respect to all grounds. The Director of Public Prosecutions noted that grounds 3 and 4 required leave pursuant to the Criminal Appeal Rules, r 4; leave was opposed. With respect to grounds 1 and 2, there was no opposition to a grant of leave. As those grounds cannot be dismissed as wholly lacking in merit, and given the seriousness of the offending, there should be a grant of leave with respect to those grounds. 5. Ground 5, relating to sentence, merely alleged that the sentence was manifestly excessive. The applicant certainly required leave with respect to the appeal against sentence. No submissions were presented in support of this ground, either in writing or at the hearing; leave to appeal should be refused. Factual background 1. The applicant commenced a relationship with Sarah's mother and moved into the household some three years before the offending commenced. They married in September 2006 and went on a honeymoon. Sarah and her sister stayed with their father whilst her mother and the applicant were away. Sarah complained that the applicant sexually abused her from the night of his return from the honeymoon until May 2007. In 2008 she went to live with her father. 2. The counts related to eight incidents involving the applicant coming into Sarah's bedroom, placing his hand inside her pyjama pants while she was asleep and inserting one or more fingers into her vagina. The remaining incident involved similar conduct, which had occurred in the bed shared by her mother and the applicant, after she had had a nightmare and went to sleep in her mother's bedroom. She was sleeping between her mother and the applicant when the applicant pulled her to him and put his hand down her pyjama pants and put a finger inside her vagina. Sarah gave evidence that the same thing had happened on at least 20 occasions. Except with respect to the occasion when the offending took place in her mother's bedroom, Sarah was alone in her own bedroom, she and her two sisters each having separate bedrooms. However, towards the end of her time living in the same house as the applicant and her mother, her twin sister Maryanne started sleeping with her. [1] 3. Sarah gave evidence that the first person to whom she complained was a friend, James Parker, to whom she said that her stepfather had sexually abused her. That conversation took place when she was 14 years old, that is some four years after the conduct had ceased. [2] She said that she had first told her mother about the abuse when she was 15 years old. [3] Her account of the latter event involved a conversation in the living room at a time when the applicant was overseas. "…I don't remember what conversation we were having but it came up, the context, and she asked us, 'Why do you hate [Kevin] so much?' and I said, 'You don't want to know' and then my sister said, ''Why do you – why did you have to bring this up?' [Maryanne] said that. And then my mum was like, 'What? What don't I want to know?' And my sister said, '[Kevin] sexually abused us'. And then my mum kind of became hysterical." [4] 1. Sarah also gave evidence of a conversation with her father which had occurred when she and her twin sister were in the car. She said the conversation occurred about a week before that with her mother. She thought that her father had overheard some part of their conversation prompting him to ask, "Did [Kevin] do something to you?" 2. Sarah gave evidence of speaking to her general practitioner about the applicant's conduct. She was imprecise as to the time of the conversation but said she was "around 14." [5] When asked what detail she had given to the doctor, she said: [6] "I think I just told him about the abuse in general. I don't remember giving him any specific details. Yeah, I don't remember telling him too much about it. Just that it happened." 1. Sarah made a statement to the police on 6 May 2014. She made a further statement on 5 August 2014, which largely accorded with the evidence she gave at trial. Ground 2: rulings on protected confidences 1. With this brief background, it is convenient to return to a pre-trial application which was disposed of on the morning of 17 August 2016, being the day on which Sarah's evidence commenced. The applicant having been arraigned in the absence of the jury on Monday 15 August 2016, the defence sought access to documents from her general practitioner produced to the Court under subpoena. The primary purpose was to obtain the circumstances surrounding her first complaint. 2. A similar application was made in relation to records with respect to Maryanne. Access was sought to Maryanne's medical records because, based on evidence given at committal proceedings, it was anticipated that she would have problems with her memory and would attribute those problems to post-traumatic stress disorder and depression. That concern is relevant to a submission (addressed below) relying on the acquittal of the applicant with respect to the charge of abusing Maryanne, but is not relevant to the question of access to medical records relating to Sarah. 3. Part 5, Div 2 of Ch 6 of the Criminal Procedure Act deals with "protected confidences". That term is defined in s 296(1) to mean "a counselling communication that is made by, to or about a victim or alleged victim of a sexual assault offence." One category of "counselling communication" is a communication made in confidence by a person who is being counselled to the counsellor in relation to any harm the first person may have suffered. [7] Where an accused in a criminal proceeding wishes to obtain access to documents containing protected confidences, leave of the court is required to issue a subpoena. Leave is also required to adduce evidence of a protected confidence. [8] 4. The charges had been the subject of committal proceedings in which some protected confidences appeared to have been disclosed, in contravention of s 297 of the Criminal Procedure Act. The trial judge was taken to extracts from the transcript of the committal proceedings, but that material is not before this Court, except so far as it is recorded in the trial transcript. Further, prior to the trial, a judge of the District Court had granted leave to issue subpoenas to certain "protected confiders". [9] The trial judge had access to the material produced in response to the relevant subpoenas. She stated in her interlocutory judgment in refusing access to the material produced relating to Sarah that she had inspected all of the documents. This Court has not had access to that material. 5. The applicant's submissions in this Court depended almost entirely upon a repetition of the arguments made before the trial judge. It was asserted that the trial judge had erred in refusing leave, but apart from the allegation that inadequate reasons had been given for the refusal, no specific error was identified. 6. In referring to the transcript of the committal proceedings, the prosecutor had noted that, apparently with respect to Maryanne, there were various references to "psychic emergence, the psychic energy, premonitions, haunted house or perception of the house being haunted." [10] With respect to Sarah, there were references to "weird dreams having spoken with relatives namely her grandparents." In her first statement to police, Sarah, in recounting the conversation with her sister which had been overheard by their father said they had been "talking about when we had seen a psychic a couple of days before." 7. The prosecution sought to lead evidence that Sarah's first complaint of sexual abuse was made to Dr S in May 2012. There were two particular aspects of that complaint to which counsel for the accused wished to draw attention. The first was that she had been seeing Dr S (and psychologists) for a number of years following the allegations of sexual abuse, but had made no prior complaint. (That fact was conceded by the prosecutor.) Secondly, the complaint was made on the same occasion that she described having fewer psychic experiences. 8. The judge correctly identified in her reasons of 17 August the requirements of which she had to be satisfied before granting leave, set out in s 299D(1) of the Criminal Procedure Act. They included satisfaction that the evidence would have "substantial probative value", that other evidence concerning the matters was not available and that the public interest in preserving confidentiality was "substantially outweighed" by the public interest in admitting the evidence. She found that the relevant material satisfied none of the three tests. 9. In written submissions, the applicant said that the judge had concluded that "she did not need to further consider the matter, but could revisit the issue if it did arise". [11] In fact that was said only with respect to the issue concerning the evidence relating to Maryanne. 10. On the material before this Court, it is not possible to identify any error in the judgment given on 17 August 2016 with respect to the evidence involving Sarah. It is inevitable that reasons given for refusing access to protected confidences will not themselves disclose the content of that material. The complaint of failure to provide reasons was without substance. 11. The remaining element of ground 2 related to the proposed cross-examination of the complainant and Dr S about the circumstances surrounding the complaint. In cross-examination, Sarah was asked by counsel for the accused to recall discussing with Dr S a breakup with her boyfriend. [12] The prosecutor objected on the basis that it was an attempt to adduce evidence of protected confidences. Counsel for the accused then articulated his position in the following terms: [13] "I intend to ask her whether she'd previously spoken about breaking up with her boyfriend, whether she had even on this day that she made her complaint discussed the issue of her relationship with her boyfriend, had discussed a difficulty she had at a bar [bat?] mitzvah, discussed that she'd been embarrassed by a rabbi's wife and discussed that she had issues with her girlfriends and that she had been bullied by a teacher. So that's the full extent of what I intend to cross-examine her about …." The cross-examination was rejected on the basis of the earlier ruling, which counsel did not seek to revisit. 1. On the appeal, the applicant submitted that there had been a miscarriage in not permitting counsel to adduce evidence of "the surrounding circumstances of the complaint". [14] 2. It is true that the judge did not give reasons for rejecting the line of questioning, but that was because, as counsel for the accused implicitly recognised, the questioning, based on the confidential communications to which he had previously had access, fell within the earlier ruling. While the judge had accepted that cross-examination tending to affect the probability of a fact in issue, by challenging the credibility or reliability of a complainant, could constitute evidence having probative value, there was no discussion of why the particular questions sought to be asked would have substantial probative value. There appears to have been no issue that a complaint was made; the issue was the truth of the complaint. There was no error revealed in the rejection of the proposed questioning; it was not explained on appeal how the evidence sought to be adduced through these questions would have had substantial probative value in the circumstances. 3. Ground 2 is rejected. Ground 3: tendency evidence directions 1. As the applicant acknowledged, [15] the procedure adopted by the trial judge involved the provision of a draft tendency direction to counsel for consideration, before the jury was directed. Amendments were made at the suggestion of counsel for the accused. The applicant's submissions noted that thereafter counsel "did not revisit his concerns about the tendency direction at any later stage." [16] Although counsel for the Director pointed out that the applicant needed leave to pursue this ground in accordance with r 4 of the Criminal Appeal Rules, the applicant made no reference to that issue. Leave is clearly required. 2. Nor is the substance of the complaint entirely clear. Apart from a general claim that the direction was inadequate with respect to the particular tendency evidence, and how it might be relied upon, the primary basis of complaint appeared to be that the jury might be left in confusion as to the difference between "context evidence" and "tendency evidence". 3. With respect to context evidence, the judge gave a standard direction as to evidence adduced "to provide background to the alleged relationship between the complainants and the accused", so that "the complainants' allegations can be understood and evaluated with a complete understanding of the relationship". [17] The particular acts which did not involve the charges were then identified. The jury were given two specific warnings with regard to evidence of those other acts, namely: [18] "Firstly, you must not use this evidence of other acts as establishing a tendency on the part of the accused to commit offences of the type charged. … Secondly, you must not substitute the evidence of the other acts for the evidence of the specific allegations contained in the charges in the indictment. The Crown is not charging a course of misconduct by the accused but has charged particular allegations arising in what the complainants say was a course of sexual misconduct. You are concerned with the particular and precise occasion alleged in each charge." 1. The trial judge then gave directions with respect to tendency evidence stating: [19] "The Crown argues that the evidence establishes that the accused had a tendency to have a particular state of mind and act in a particular way, and that is to have a sexual interest in his stepdaughters, [Sarah and Maryanne], and act on that sexual interest by digitally penetrating his stepdaughters, … at night whilst in bed." The judge further stated: "The evidence that the Crown relies upon to establish the tendency is the evidence of each complainant in support of each of the counts relating to the other complainant …." 1. The jury were then given the usual direction that before another act could be relied on to support a tendency they needed to be satisfied beyond reasonable doubt that the other act had occurred and that the inference could be drawn beyond reasonable doubt that it demonstrated sexual interest in the stepdaughters. There were also the usual warnings against misuse. 2. One aspect of the complaint on appeal was that the judge referred to "other acts" both in dealing with context evidence and in dealing with tendency evidence. That was so, but it is a straightforward phrase and not a term of art. With respect to context evidence, the judge expressly identified the acts which were being addressed; with respect to tendency evidence, the judge expressly identified the evidence as to the counts on the indictment relating to the other victim. There was no room for confusion. 3. There was a complaint that the trial judge did not specify with sufficient particularity "what constituted the tendency evidence, or how the tendency evidence could be relied upon." However, that was simply not so: both aspects were expressly and clearly addressed. 4. As noted by the trial judge in discussing with counsel the particular formulation of the direction, attention had to be given to the principle stated in IMM v The Queen [20] that it is "difficult to see that one might reason rationally to conclude that X's account of charged acts of sexual misconduct is truthful because X gives an account that on another occasion the accused exhibited sexual interest in him or her." [21] 5. There may be some uncertainty as to the scope of that aspect of the reasoning in IMM; the context of the passage quoted above was the complainant's evidence of an uncharged incident being used to demonstrate a tendency and thus support her evidence of an act the subject of a charge. However, the reasoning should be the same with respect to multiple charged acts [22] and the trial judge was careful to limit the use of tendency evidence to the counts involving the other complainant, and not to apply tendency reasoning to several counts involving the one complainant. 6. In principle there is a difference between evidence corroborative of a complainant's credibility, which should be independent of the complaint to be probative, and tendency evidence which is not adduced to corroborate a complainant but to identify a characteristic of the accused. IMM suggests there is need for caution where the two kinds of evidence overlap and may be wrongly applied by the jury. However, the references to "uncharged" acts as involving tendency evidence may need to be distinguished from evidence of sexual interest led, as in this case, as context evidence. [23] 7. The submissions with respect to the directions do not warrant the grant of leave under r 4. Leave to rely upon the ground should be refused. Ground 4: failure to give direction as to delay 1. It is well understood that the lapse of a significant period of time between the date of the alleged offending and the charging of the accused can create "significant forensic disadvantage" in defending the charge. [24] There are circumstances in which an accused may wish to have the jury directed as to the nature and extent of the disadvantage suffered. 2. Reliance on the absence of such a direction in the present case faced three formidable obstacles. First, counsel for the accused did not seek such a direction at trial. Nor was that a mere oversight: towards the end of the prosecution case, the trial judge expressly asked counsel whether he would seek a direction under s 165B of the Evidence Act, to which he said, "No". [25] 3. Secondly, there are specific aspects of s 165B which restrict the nature of any direction which could be given. It will be appropriate to return to that point shortly. 4. Thirdly, at no stage has the applicant sought to articulate the form of the direction which might have been considered appropriate. Rather, the written submissions focused on two propositions. The first was that Sarah's evidence alleged offences which had taken place at particular times, namely the Jewish festival of Shavuot in the latter part of 2006, and New Year's Eve, 2006. With respect to count 5, which was alleged to have taken place on New Year's Eve, the accused gave evidence that he was at the Opera House with his ex-wife and his son on that night. 5. Further, when put in chronological order, the incident ascribed to Shavuot must have occurred, as Sarah agreed, between September and 31 December 2006. In fact, Shavuot fell in early June. In other respects, Sarah's evidence as to timing was imprecise. 6. It was likely that some degree of disadvantage would have been suffered unless immediate complaint had been made. It was the imprecision of the dates which directly contributed to the disadvantage, rather than the delay. The delay may have contributed to that imprecision, but some delay is a common circumstance with offences against young children. 7. The second element of the submission turned on what was said to be a change in the manner in which the prosecution case was presented. Thus, although the prosecution had opened on the basis that the offences occurred essentially in the chronological order identified in Sarah's evidence in chief, in the closing address the prosecutor suggested that the jury might be satisfied beyond reasonable doubt as to the occurrence of particular events, while rejecting Sarah's evidence as to the order in which they occurred. 8. This complaint is, possibly, of unfairness in the way in which the prosecution case was presented, but it was only remotely linked to any forensic disadvantage caused by delay in complaining. 9. These matters demonstrate the difficulty faced by an applicant for leave under the Criminal Appeal Rules, r 4 where no attempt is made to formulate the direction which should have been, but was not, sought. 10. It remains to note the terms of s 165B of the Evidence Act. The section provides: 165B Delay in prosecution (1) This section applies in a criminal proceeding in which there is a jury. (2) If the court, on application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay. (5) The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury. (6) For the purposes of this section: (a) delay includes delay between the alleged offence and its being reported, and (b) significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay. (7) For the purposes of this section, the factors that may be regarded as establishing a significant forensic disadvantage include, but are not limited to, the following: (a) the fact that any potential witnesses have died or are not able to be located, (b) the fact that any potential evidence has been lost or is otherwise unavailable. 1. There are two aspects of the provision which should be noted. First, the section itself requires a warning only where the court is satisfied that the defendant has suffered a significant forensic disadvantage, and only on an application by a party, usually the defendant. Where there is no application, the obligation in subs (2) (with the qualification noted in subs (3)) is not engaged. That would not, in terms, preclude the existence of a separate power to warn. Somewhat ambivalently, subs (5) turns the obligation in subs (2) into an exclusive power, but then says that the section "does not affect" any other power the judge may have to give a warning to the jury. 2. Relying on s 165B(5), the Victorian Court of Appeal in Greensill v The Queen [26] contemplated two possible readings of the provision. One was that, absent an application the judge is prevented from giving a warning; the alternative view was that an application was not an indispensable precondition, but that any warning must be in accordance with the requirements of the section. [27] Greensill concluded that an alternative power arose under the general law. However, if the section "does not affect any other power" it is difficult to read the requirement in subs (4) as qualifying the general law. 3. In TO v R [28] this Court, rejecting the reasoning in Groundstroem v R [29] that s 165B(5) meant that the section was "the sole source of a judge's authority either to warn or inform the jury about any forensic disadvantage", appeared to hold that an alternative source of power, consistent with s 165B(5), was to be found in s 165 of the Evidence Act. The scope of s 165, however, was then addressed by reference to cases which pre-dated the enactment of s 165B. Perhaps by way of a third source, reference was made to the maintenance of common law rules in accordance with s 9(1) of the Evidence Act. The circumstances in which such a warning would be necessary or appropriate were not addressed. 4. A reading of s 165B(5) which would be consistent with its purpose and remove an apparent internal contradiction would be to treat the reference to "any other power of the judge to give any warning" as referring to warnings other than in relation to "significant forensic disadvantage because of the consequences of delay". It is incoherent to say that s 165B does not affect the general law power to give such a warning: that is its sole purpose. No court appears to have adopted that approach [30] and it was not raised in submissions in this case. It would require consideration of the interrelationship between s 165B and s 165, the latter being directed to the different topic of "unreliable" evidence. [31] 5. In fact, in seeking to address this ground, the applicant's written submissions did little more than set out the summary of the effect of s 165B in TO at [167]. [32] This approach is unhelpful, for the reasons noted in Binns v R. [33] The specific matters relied on do not demonstrate that any particular direction of the kind considered in s 165B was required in order to avoid a miscarriage of justice. 6. Leave pursuant to r 4 of the Criminal Appeal Rules should be refused with respect to this ground. Ground 1: unreasonable verdicts 1. The applicant challenged the convictions on eight counts involving his stepdaughter Sarah. He did so on two broad grounds, namely: 1. "The unreliability and inconsistency of [Sarah's] evidence, the conflict between [Sarah's] evidence and other evidence called at the trial, including that of the applicant"; and 2. Inconsistency with the acquittal on count 5 in respect of which there was independent evidence of three members of the applicant's family who were with him on New Year's Eve. 1. It is convenient to deal with these aspects globally, particularly in light of the fact that the acquittal on the sole charge involving Maryanne carried with it the consequence that there was no tendency evidence to support the allegations made by Sarah. 2. Because the attacks on Sarah's evidence raise points which could indicate unreliability or confabulation, it is appropriate to say at the outset that a reading of the whole of her evidence at trial suggests that she was a coherent and plausible witness. 3. The first matter relied upon was a challenge to the history of how Sarah claimed to have responded to the abuse. As already noted, counsel for the accused (Mr Edwards) was on the strongest ground when he challenged the allegation of an assault on New Year's Eve. The cross-examination commenced by reference to evidence given at the committal proceeding in November 2015: [34] "Q. … You were asked about 31 December 2006…: 'Q. What's your recollection of that night? A. I believe we went to a family's friend house [sic] to watch the fireworks. I remember swimming in a pool and then we would – we went home pretty late but that was the most distinguishable part of the event.' A. Correct. Q. And you said that later that night that the accused sexually assaulted you? A. Yes. Q. If I suggested to you that you weren't even with the accused on 31 December 2006, could that be right? A. It could. Look, in all honesty I remember the New Year's Eve I was about 10, 11 years old – 9 or 10 years old, it's been 10 years. And in all honesty it could have been a different New Years, I just know there was a New Years. We swam in a pool, we went home and then this happened. Q. It could have been a different New Years, but you've given evidence under oath in a court that – A. I understand, Mr Edwards, but I think you need to understand these are things that I tried to forget about my whole entire life and that I went to the police and they told me that I had to remember these things in vivid details. It's not something I ever wanted to remember, it's not something I ever wanted to remember. I never wanted to think about this, I never wanted it to happen and recall it in such vivid detail. … Q. What I suggest to you is that when you went to the police station on 5 August 2014 and you gave your statement you had no concern that date was incorrect, did you? A. Of course I had concern about that, but I wouldn't have done it I would never have signed it if I didn't – if I wasn't sure that that was correct. Obviously I'm not a computer, I can't – it was a long time ago, I had no specific – I never wrote down the dates, I never wrote down any of this. This is pure memory from 10 years ago. … Q. You gave some evidence yesterday that the first person you told was [James Parker], do you remember that? A. Mm. Q. You said that you had told him that you'd been sexually assaulted by the accused, does that sound right? A. Yes. Q. [James Parker] was a good friend of yours? A. Yes. Q. What you actually said to him, I suggest to you is: 'I've been talking to my sister about my stepfather. I thought it was a dream but when I spoke to [Maryanne] about him touching me, she said it happened to her as well. I realise now it wasn't a dream.' A. Exactly. We've never spoke about details, like I said before, she just mentioned to me, like I had said in previous – I believe I said this at the committal, it had happened to her as well, and then I started having flashbacks and remembering. We never spoke about that afterwards but I started remembering everything. Q. So she told you and then you started having flashbacks? A. Yes. Q. Do you remember when that occurred? A. I think I was 14 years old. Q. How long did it take you after you started having the flashbacks to realise that it wasn't a dream? A. Pretty soon afterwards. I didn't – I don't remember a specific timeframe. I just remember realising that it actually happened and it made sense, it made a lot of sense to me. Q. It made sense because of what [Maryanne] had told you had happened to her? A. No, it made sense because of the things I did, I was terrified of men, I didn't like being alone with any man, I was terrified of people, I wouldn't leave my house, I was scared to leave my house. I didn't understand why for a long time and I didn't – I'd pushed it so far into my brain that I tried to forget it. Q. Put [But?] when [Maryanne] told you it happened to her you say that the flashbacks came then? A. Yes. Q. Before that you thought that these things had only happened in a dream? A. I think I tried to convince myself that. Q. Because you told your mum that you thought it was a dream as well, didn't you? A. I told my mum I thought it was a dream, but as I said it – I said it to gauge how she would respond to it. We were driving in the car on the way to school and I said, I knew it had happened this time, I had never spoken to my sister about this and I was still in primary school. I said to her, 'Mum, I had a dream about it' and she basically says, 'Oh no, you must always tell me if that happens'. And I knew what it was, I just – I just said it to gauge how she would respond if I ever did tell her. … Q. Not a coincidence that you told Mr [Parker] you thought it was a dream and you told your mother it was a dream, was it? A. I'm sorry, what are you – Q. You still believe this was a dream, right up until – A. I don't believe it was dream, I tried to convince myself it was, I wouldn't be here if it was just a dream. … Q. You told your mum years earlier that you thought that it was a dream? A. Exactly. My whole life I've tried to convince myself it was. Q. It is only after you started getting these flashbacks that you decided that you thought what had happened to you was that it was the accused who had actually assaulted you? A. Of course he did." 1. The applicant submitted that Sarah's evidence was "inherently unreliable as a result of the potential for contamination due to conversation with [Maryanne], and confusion as a result of flashbacks, and the original perception that her delayed recollection of the abuse was actually recalling a dream." 2. The substance of this submission was squarely put to the jury by counsel for the accused in final address. [35] In order to assess whether the verdicts were unsafe, all of the challenges sought to be raised must be examined in order to consider their overall strength. A series of insufficient doubts may, when accumulated, give rise to a reasonable doubt. However, taken in isolation the jury might well have accepted Sarah's evidence as that of a truthful witness who was not mistaken as to what had happened. 3. Secondly, it was said to be "implausible" that assaults could have occurred on 20 occasions in the bedroom opposite that shared by the applicant with the complainant's mother. There are two responses to this suggestion: first, the jury did not have to be satisfied that similar conduct had occurred on 20 occasions, but only on those the subject of the charges; further, the evidence was that the conduct was stealthy rather than violent and that Sarah's response was similarly muted. [36] The fact of multiple such occurrences is by no means implausible. 4. The third challenge concerned count 8, being the allegation of sexual interference whilst Sarah was in bed with the applicant and her mother, and lying between the two adults. Although Sarah might have stopped the conduct on that occasion by waking her mother, she did not do so because, as she explained, she did not understand what was happening beyond a belief that it was "bad". Although she was asked a few questions about that event in cross-examination, [37] she was not questioned as to why she did not try to wake her mother. 5. To describe that complaint (count 8) as involving "an inherent unlikelihood" was not self-evidently correct. That submission was put in the final address for the accused to the jury. [38] In fact, this was the event which stood out from the others because it took place in the parents' bed rather than in her bed. According to Sarah, her mother slept very deeply. If her evidence of other events was reliable, the accused would not have expected any significant resistance or active response. In fact, the specific circumstances were such as to give, on one view, additional verisimilitude to the account. 6. Fourthly, the submissions noted that the chronology given by Sarah did not withstand scrutiny and raised "a reasonable doubt about all of the offending." That was in part because Shavuot did not fall between September and December and because the accused had an alibi for New Year's Eve 2006. 7. The cross-examination with respect to the chronology has been set out above. The jury acquitted on count 5, being a charge which identified a specific date in a specific year, for which the accused had an alibi. In doing so, the jury discriminated on the basis of evidence which was available to raise a reasonable doubt as to the detail of that charge. Unlike the event said to have taken place at Shavuot, it was not simply a matter of the complainant possibly having her chronology out of order. The jury had been directed to consider each specific charge separately; if the evidence of the complainant did not satisfy them beyond reasonable doubt of one specific event, it did not follow that they could not properly be satisfied with respect to other counts where there was a reason to distinguish extraneous to her general credibility. 8. Fifthly, the applicant relied upon the unavailability of permissible tendency reasoning which would have been available had the jury been satisfied beyond reasonable doubt as to Maryanne's complaint. However, there were significant reasons to doubt the reliability of Maryanne's evidence. Much of the dispute with respect to the protected confidence evidence was based upon an expectation that if Maryanne were tested as to her memory, she would accept that her memory was faulty and claim that it resulted from post-traumatic stress disorder and depression. It is not necessary to review her evidence for present purposes, but she made more florid claims than Sarah. In particular, she claimed to have had a "premonition of being sexually assaulted by the accused three years before … it actually happened"; [39] and she also claimed that she did not complain of the one attack on her because she was "worried that the accused would kill [her]." [40] Again, the jury were discriminating in an entirely comprehensible manner in rejecting her evidence as not establishing her complaint beyond reasonable doubt. However, in circumstances where her evidence only related to one event, the absence of the tendency evidence could not realistically be said to "substantially weaken" the prosecution case in relation to Sarah's evidence, which was far more extensive and was inherently plausible. 9. A further set of particulars relied upon what might be described as context evidence favourable to the accused. This included, first, a trip to Israel with the family group, including the accused, in 2011. Sarah agreed she went on the flight with the accused but said that they separated at the airport. [41] She agreed that she and her sister visited his hotel room, but denied that they did so at times when he was there. She was asked: [42] "Q. You went into his room with him? A. For a small amount of time. I was with my sister. Like what was he going to do with the two of us fully grown. … Q. I thought you just said he wasn't there? A. He left, he let us into the hotel and he left. Q. You just said you went into the room with him? A. Momentarily yes, and then he left. Q. You say you wouldn't have wanted to stand the sight of him if you'd believed that he'd done this to you? A. I was being civil for the sake of my mother. I was civil to him for all those years because of my mother. I didn't want to start a feud if I had to see him regularly. … Q. Not that you actually still believed that it was a dream at this stage? A. No, I understood what it was." This evidence of subsequent coexistence did not cast serious doubt on the credibility of Sarah. 1. Secondly, Sarah was taken to a card she had sent the accused in 2011 for his sixtieth birthday. It read "Thanks for all you've done for us". She was asked if she recalled doing that and said: [43] "A. I never wanted to send any birthday card or be nice to him, I did it for my mother or if she forced me she would have bought me that card to write on it. Q. Forced you? A. She would have. It's impolite, she didn't know. It's impolite if you don't send someone a birthday card. Q. It's not about being impolite, it's about what you've written I suggest to you, 'Thank you for all you've done for us and given us'? A. He was generous. I was being thankful." 1. This evidence of ongoing contact with the accused was most unlikely to have cast doubt on the account given by Sarah of the abuse. 2. In other respects, the particulars upon which the applicant relied were of a general nature, referring to the mother's evidence that she did not believe the applicant would sexually abuse her daughters, the lack of detail in the complaints and the "ambiguity of some of the context evidence." No further detail was provided. 3. It was entirely correct to say that the prosecution evidence with respect to the charges for which the applicant was convicted depended on the evidence of Sarah. That evidence recounted events which were of a particular kind, being conduct repeated on nine specific occasions the subject of the counts and possibly occurring on other occasions. The similarity of the complaints may well have been seen by the jury as plausible. Any lack of further detail was a function of the nature of the offending. 4. The accused gave evidence about the family situation. He denied any sexual assaults; he gave evidence of his activities on New Year's Eve, 2006. He also gave evidence of the travel arrangements when the family went to Israel. He was asked whether he had a discussion with the girl's mother "about you touching the girls" and replied: [44] "A. Yes, I recall a conversation, and I'm not a hundred percent sure of when, but probably I would think around 2008, probably the beginning, where [their mother] said the girls had asked her to tell me to stop touching them, which at that point I said 'fine, if that's their wish'. She put it in the context that the girls were starting to mature early, that they were prepubescent and that this was not unusual for that sort of comment to be made." 1. He was cross-examined at some length about the home arrangements and repeated his denials of the sexual assault allegations. 2. The jury were faced with the task of considering the evidence of Sarah, and the evidence of the accused, and determining whether they were satisfied beyond reasonable doubt as to the allegations contained in Sarah's evidence. There was some objective evidence to support the prosecution case. This included the girls' move to stay with their father in 2008, the relatively limited contact with the accused thereafter and the accused's acceptance that at some stage the mother had conveyed the girls' dislike of him touching them. Significantly, there was no suggestion of any motive to construct false allegations. Sarah's evidence that she was concerned about her mother's response to any complaint was inconsistent with, for example, any intention to destroy her mother's relationship with the applicant. The manner in which the complaints to Mr Parker, the overhead conversation in the car and the complaint to Dr S arose was indicative of a slow acceptance of the harm done by the applicant and was less consistent with conscious fabrication or unconscious reconstruction of dreams, as suggested by the defence. 3. It was not suggested that there was anything in the manner in which Sarah gave evidence which should have given rise to a reasonable doubt on the part of the jury, although such a complaint would be hard for this Court to evaluate. The evidence was plausible and undoubtedly provided an adequate basis for conviction, if accepted. To the extent that the jury discriminated between the counts of which it convicted, on the one hand, and the counts of which it acquitted, on the other, the differing evidence suggested careful discrimination on the basis of the available evidence, rather than some compromise or irrational outcome. 4. The jury which heard the evidence and saw the witnesses was entitled to convict on each of the eight counts with respect to Sarah. I am not satisfied that the convictions were either unsafe or unsupported by the evidence. Ground 1 should be dismissed. Conclusion 1. Pursuant to r 4, leave should be refused to rely upon grounds 3 and 4. With respect to grounds 1 and 2, there should be leave to appeal against the convictions, but the appeal should be dismissed. 2. Leave to appeal against sentence was not pursued and should be refused. 3. JOHNSON J: I have had the advantage of considering the judgment of Basten JA. I agree with his Honour's reasons and proposed orders. 4. With respect to Ground 1, having considered the record of the trial, I am satisfied that it was clearly open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt on each count where a conviction was recorded. It has not been demonstrated that those verdicts were unreasonable or not supported by the evidence. 5. CAMBPELL J: I agree with the orders proposed by Basten JA for the reasons his Honour gives. On my own review of the materials I am not persuaded that the verdict was unreasonable or against the evidence. The arguments relevant to this ground were mainly centred on questions of the reliability, or acceptability, of the complainant's evidence. As I have said I agree with what Basten JA has written. Moreover the assessment of the complainant's evidence was a matter for the jury who had the advantage, which cannot be recreated in this Court, of seeing all of the lay witnesses give evidence. They were therefore better placed to make that assessment. ********** Endnotes 1. Tcpt, 17/08/16, p 53(40). 2. Tcpt, pp 55(40)-56(4). 3. Tcpt, p 56(7). 4. Tcpt, p 56(15)-(25). 5. Tcpt, p 57(50). 6. Tcpt, p 58(20). 7. Criminal Procedure Act, s 296(4). 8. Criminal Procedure Act, s 298. 9. Criminal Procedure Act, s 295(1). 10. Tcpt, 15/08/16, p 11(15). 11. Applicant's written submissions, par 215. 12. Tcpt, 18/08/16, p 87(31). 13. Tcpt, p 88(5). 14. Applicant's written submissions, par 224. 15. Applicant's written submissions, par 228. 16. Applicant's written submissions, par 229. 17. Summing up, 01/09/16, p 53. 18. Summing up, pp 56-57. 19. Summing up, p 58. 20. (2016) 257 CLR 300; [2016] HCA 14 at [62]-[64] (French CJ, Kiefel, Bell and Keane JJ); see also [107] (Gageler J). 21. These have been described as single source tendency cases. 22. RMD v State of Western Australia [2017] WASCA 70 at [191] (Beech J), cf [52], [70] (Buss P); Packard v The Queen [2018] VSCA 45 at [51] (Priest JA, in dissent on the outcome); R v O'Brien [2017] NTSC 34 at [20] (Grant CJ). 23. Director of Public Prosecutions v Martin [2016] VSCA 219 at [105]-[107] (Redlich, Weinberg and McLeish JJA). 24. Evidence Act, s 165B; and generally, N Williams, J Anderson, J Marychurch and J Roy, Uniform Evidence in Australia (LexisNexis, 2015) pp 946-947. 25. Tcpt, 22/08/16, p 184. 26. (2012) 37 VR 257; [2012] VSCA 306 (Redlich, Osborne and Priest JJA). The Victorian s 165B differed from the NSW provision, but not materially; it has since been replaced by Pt 4, Div 5 of the Jury Directions Act 2015 (Vic). 27. Greensill at [46]-[47]. 28. [2017] NSWCCA 12 (Price J, Button and Fagan JJ agreeing). 29. [2013] NSWCCA 237 at [55] (Adams J, Macfarlan JA and Button J agreeing). 30. But see MWL v The Queen [2016] NTCCA 6 at [149] (Hiley J). 31. Sections 165(5), 165A(3) and 165B(5) should be read together. See also Jury Directions Act 2015 (Vic), s 40. 32. These also appear in the Criminal Trial Courts Bench Book (NSW) at [2-640]. 33. [2017] NSWCCA 280 at [10]-[11]. 34. Tcpt, 18/08/16, p 82. 35. Tcpt, 25/08/16, pp 323(40)-324(30). 36. Tcpt, 18/08/16, p 86(23)-(45). 37. Tcpt, pp 85(46)-86(15). 38. Tcpt, p 326(5)-(35). 39. Tcpt, 18/08/16, p 108(45). 40. Tcpt, p 110(48). 41. Tcpt, 18/08/16, p 89(45). 42. Tcpt, p 90(22). 43. Tcpt, p 91(35). 44. Tcpt, 24/08/16, p 212(25). 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: 01 June 2018