Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Alexander (a pseudonym) v R [2019] NSWCCA 79 Hearing dates: 6 February 2019 Date of orders: 29 April 2019 Decision date: 29 April 2019 Before: Payne JA at [1]; Button J at [230]; Lonergan J at [231] Decision: (1) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW): (a) the appellant shall be identified in connection with these proceedings (including all proceedings in the District Court) by the pseudonym "Alexander" on the ground that this order is necessary to protect the identity of the victim of child sexual assault; (b) that publication of any information: (i) tending to reveal the identity of Alexander, a party to these proceedings, in connection with these proceedings or in connection with the evidence given in these proceedings or in connection with information about evidence given in these proceedings; or (ii) tending to reveal the identity of Alexander's family in connection with these proceedings or in connection with the evidence given in these proceedings or in connection with information about evidence given in these proceedings be prohibited; (c) the duration of this order be 20 years. (2) Order (1) shall apply: (a) to all media including but not limited to print, radio, television, internet and social media; (b) anywhere in the Commonwealth; (c) until 20 years from the date of this order. (3) Order (2) is made on the ground under s 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (NSW) that the order is necessary to protect the identity of Alexander's daughter, the victim of child sexual assault; (4) Leave to appeal granted; (5) Appeal dismissed. Catchwords: CRIMINAL PROCEDURE –Trial – Self-represented accused – judge alone trial on application of self-represented accused – duty of the trial judge to self-represented accused – obligation to ensure a fair trial CRIME – Appeals – Appeal against conviction –whether primary judge erred in failing to consider whether recorded telephone conversations were unlawfully recorded under the Surveillance Devices Act 2007 (NSW) – whether, if the recorded telephone conversations contravened the Act, the primary judge erred in failing to explain their potential admissibility under s 138 of the Evidence Act 1995 (NSW) – whether failure to do so denied the accused a fair trial – whether miscarriage of justice CRIME – Appeals – Appeal against conviction – whether Crown case shifted during the trial such that the applicant was denied the ability to deal with an issue – whether miscarriage of justice CRIME – Appeals – Appeal against conviction – whether primary judge failed to scrutinise the complainant's evidence with care – whether finding that inconsistencies between the complainant's first and second accounts of the offending did not affect the complainant's credibility was correct – whether finding that the complainant was not manipulated to make accusations was correct CRIME – Appeals – Appeal against sentence – whether, on sentencing, primary judge failed to consider the accused's "pre-existent symptoms of depression and anxiety" – no evidence that mental illness played a causative role in the offending Legislation Cited: Criminal Procedure Act 1986 (NSW), ss 133, 293 Evidence Act 1995 (NSW), s 138 Surveillance Devices Act 2007 (NSW), ss 7, 12 Telecommunications (Interception and Access) Act 1979 (Cth), s 7 Cases Cited: Bandao v R [2018] NSWCCA 181 Chamseddine v R [2017] NSWCCA 176 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Ewen v R [2015] NSWCCA 117; 250 A Crim R 544 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 R v Gommeson [2014] NSWCCA 159; 243 A Crim R 534 MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46 Mickelberg v R (1989) 167 CLR 259 MS v R [2017] NSWCCA 252 R v Kennedy [2000] NSWCCA 487; 118 A Crim R 34 R v SJH [2010] NSWCCA 32 Robinson v Woolworths Ltd (2005) 64 NSWLR 612; [2005] NSWCCA 426 Sepulveda v R [2006] NSWCCA 379; 167 A Crim R 108 Category: Principal judgment Parties: Alexander (a pseudonym) (Applicant) Director of Public Prosecutions (NSW) (Respondent) Representation: Counsel: W Terracini SC / B Pierce (Applicant) B K Baker (Respondent) Solicitors: Archbold Legal (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/00239827 Publication restriction: The identity of the child victim is protected pursuant to Pt 15A of the Children (Criminal Proceedings) Act 1987 (NSW). The names of the applicant, the child's mother and the child's aunt have been anonymised to prevent the identification of the child. Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 22 July 2016 Before: Syme DCJ File Number(s): 2013/00239827 HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, referred to as Alexander to protect the identity of his daughter, the complainant, was convicted in the District Court following a judge alone trial. Alexander was self-represented at trial. Alexander was convicted of 10 offences relating to the sexual and indecent assault of his daughter, who was aged 10 at the time of the offending. Alexander was sentenced, following his conviction, to an aggregate non-parole period of 9 years 9 months with an aggregate additional term of 4 years 3 months, being a total period of imprisonment of 14 years. Alexander appealed against his conviction and sentence on four grounds: 1. The primary judge failed to provide procedural fairness to the unrepresented appellant/applicant (in particular that the primary judge failed to assist into admission evidence of recorded telephone conversations that may have been recorded unlawfully). 2. The primary judge erred in finding count 14 of the indictment was proved on a factual basis not relied upon by the Crown. 3. The primary judge failed to scrutinise the complainant's evidence with care; 4. In sentencing, the primary judge erred in finding that there was no information that at the time of the offending the applicant was anxious and depressed. Payne JA (Button and Lonergan JJ agreeing), dismissing the appeal, held: In relation to Ground 1, particular 1: Evidence was led on appeal in relation to the six telephone conversations which established that they were recorded in contravention of the Surveillance Devices Act 2007 (NSW): [112], [116]. Thus, they were only admissible under s 138 of the Evidence Act 1995 (NSW): [113]. Bandao v R [2018] NSWCCA 181 applied. The primary judge's explanation to the applicant about the potential admissibility of one of the recorded conversations was incomplete: [130]. However, none of the recordings contained anything relevant to any issue at trial which affected the evidence given. No miscarriage of justice was occasioned: [164]-[169]. MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46; MS v R [2017] NSWCCA 252; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 applied. In relation to Ground 1, particular 2 and Ground 2: The Crown case was not limited to an allegation that the sexual assaults occurred in a particular chronological order. The indictment and the evidence of the complainant were consistent with the primary judge's finding about the sequence of the events, and no miscarriage of justice was occasioned: [179], [182]. R v Kennedy [2000] NSWCCA 487; 118 A Crim R 34 distinguished. In relation to Ground 1, particular 3: The primary judge made allowances for what the applicant described as his memory loss: [190], [193]. The primary judge raised the issue of the possible relevance of the medical reports, but the applicant did not suggest those reports were relevant to any issue in the case: [191]. The primary judge did not err in failing to admit the reports into evidence: [194]. In relation to Ground 3: The primary judge directed herself that the complainant's evidence must be scrutinised with care: [202]. The inconsistencies between the complainant's first and second interview can be explained by the difference in the complainant's age and understanding, and did not diminish the complainant's credibility: [204]-[207]. The primary judge's finding that there was not enough time for the complainant to be influenced by her aunt to make a complaint was correct: [208]. Ewen v R [2015] NSWCCA 117; 250 A Crim R 544; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 applied. In relation to Ground 4: There was no error in the approach of the primary judge on sentencing, where her Honour held that the applicant's anxiety and depression was not causative: [226]. Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 applied. Judgment 1. PAYNE JA: On 22 July 2016, the applicant, who I shall refer to as Alexander to protect the identity of the complainant who is his daughter, was convicted by Syme DCJ following a judge alone trial in the District Court at Parramatta. Alexander, who was self-represented at the trial, successfully applied for a judge alone trial over the opposition of the Crown. 2. On 14 June 2016, Alexander was arraigned on an indictment charging him with 7 counts of aggravated sexual intercourse, 3 counts of aggravated indecency and 4 counts of indecent assault against a person under 16 years of age. Some counts were in the alternative. Each offence related to Alexander's daughter who was aged 10 at the time the conduct the subject of the indictment occurred. The circumstances of aggravation alleged were that the child was under the authority of Alexander at all times relevant to the offending. 3. Counts 1-5 in the indictment related to events at Wentworth occurring in the period between 19 February 2013 and 28 March 2013. The indictment alleged that Alexander: 1. had sexual intercourse (digital penetration) with the complainant, in circumstances of aggravation (count 1); 2. did attempt to have sexual intercourse (attempted penile penetration) with the complainant, in circumstances of aggravation (count 2); 3. in the alternative to count 2, did assault the complainant and at the time of the assault did commit an act of indecency (by rubbing his penis on her) on the said complainant (count 3); 4. had sexual intercourse (cunnilingus) with the complainant, in circumstances of aggravation (count 4); and 5. did commit an act of indecency towards the complainant (masturbation in the child's presence) in circumstances of aggravation (count 5). 1. Counts 6-8 in the indictment also related to events at Wentworth occurring in the period between 19 February 2013 and 28 March 2013. The indictment alleged that Alexander: 1. did attempt to have sexual intercourse (digital penetration) with the complainant, in circumstances of aggravation (count 6); 2. in the alternative to count 6, did assault the complainant and at the time of the assault did commit an act of indecency (by placing his fingers on her genital area) (count 7); and 3. did commit an act of indecency towards the complainant (masturbating in the child's presence), in circumstances of aggravation (count 8). 1. Counts 9-12 in the indictment also related to events at Wentworth occurring in the period between 19 February 2013 and 28 March 2013. The indictment alleged that Alexander: 1. had sexual intercourse with the complainant, (fellatio of the accused by the child) in circumstances of aggravation (count 9); 2. did attempt to have sexual intercourse (attempted digital penetration) with the complainant in circumstances of aggravation (count 10); 3. in the alternative to count 10, did assault the complainant and at the time of the assault did commit an act of indecency (by touching her genital area) (count 11); and 4. did commit an act of indecency towards the complainant (masturbation in the child's presence) in circumstances of aggravation (count 12). 1. Counts 13-14 in the indictment related to events at Punchbowl between 28 March 2013 and 8 July 2013. The indictment alleged that Alexander: 1. did attempt to have sexual intercourse with the complainant (an attempt to insert a vibrator into the child's vagina) in circumstances of aggravation (count 13); 2. in the alternative to count 13, did assault the complainant and at the time of the assault did commit an act of indecency (by placing a vibrator in the child's genital area) (count 14). 1. Alexander was convicted by Syme DCJ on counts 1, 2, 4, 5, 6, 8, 9, 10, 12 and 14. On 10 February 2017, Alexander was sentenced to an aggregate non-parole period of 9 years 9 months with an aggregate additional term of 4 years 3 months, being a total period of imprisonment of 14 years to commence on 22 July 2016. Alexander appealed against his conviction and sentence. Relevant Facts 1. Because of the complex nature of the relationships in this case, combined with the use of pseudonyms, it is desirable to briefly identify the key witnesses. As I have said, Alexander is the father of the complainant. I will refer to the complainant's mother by the pseudonym Lilith. Alexander and Lilith were married but, prior to and at the time of the offending, were estranged. I will refer to Alexander's sister by the pseudonym Jennifer. I will refer to Alexander and Jennifer's mother by the pseudonym Mary. 2. The complainant was born on 2 January 2003. Lilith and Alexander were married in 2002 and separated in January 2011. The complainant remained in the care of Lilith until a few days prior to 14 February 2013. 3. Between 2002 and 2008, Lilith, Alexander and (after January 2003) the complainant resided at Alexander's parents' home in Punchbowl. In 2005 to 2006, Lilith and the complainant lived in Indonesia for about a year whilst arranging Australian permanent residency documents, before returning to Punchbowl. 4. In December 2008, Lilith sought an apprehended domestic violence order (ADVO) against Alexander. Lilith said that the context in which she had sought the ADVO was that Alexander had engaged in sexual contact against her will, during which he had called her "a fucking slut" and "an Asian bitch". Alexander tendered the application made by Lilith for the ADVO, sworn in 2008, which the primary judge found was consistent with Lilith's evidence before her. Lilith said that she discontinued the ADVO proceedings after a few weeks because Alexander threatened that, if she continued with the proceedings, she would have to go back to Indonesia and she would lose custody of the complainant. 5. After this incident, the couple were asked to leave the Punchbowl home of Alexander's parents. Alexander and Lilith then lived at Campbelltown. Lilith's 14 year old son by a previous relationship came to live with the family in 2009. 6. In January 2011, Alexander and Lilith separated and Lilith moved with the children to alternative accommodation. Lilith did not allow contact between the complainant and Alexander from the date of separation until the end of 2012. Lilith was not asked about the circumstances under which Alexander returned to the complainant's life in late 2012. Alexander gave evidence that he was invited back to visit by Lilith because the complainant had said that she missed him. 7. In February 2013, Lilith was hospitalised for two or three days during which time Alexander resided in her home and looked after the children. On 14 February 2013, when Lilith arrived home from hospital, at around midnight, she gave evidence that the complainant was still awake and told her that Alexander had cancelled school so she could stay up. Lilith was unhappy about this. Alexander and Lilith had an altercation during which Alexander pushed her over. Lilith called the police, who arrived after 1am, but left without taking any action. Alexander indicated he was going to take the complainant away and the complainant went with him in the early hours of 15 February 2013. 8. The complainant, who was then 10 years old, remained with Alexander at various places between 15 February 2013 and 8 July 2013. Lilith did not have contact with the complainant during that time. The primary judge found that there was no dispute the child was in the sole care of Alexander and under his authority during the period between 14 February 2013 and 8 July 2013. Initial report of the complainant 1. On 8 July 2013, the Family Court made an order that the complainant reside each week in the custody of Lilith from Sunday evening until Friday evening and in Alexander's custody from Friday to Sunday. On 8 July 2013, at the Family Court, Lilith was accompanied by Alexander's sister Jennifer. After the Family Court hearing Lilith, Jennifer, the complainant, and Jennifer's teenage daughter went shopping at Kmart and had dinner together. During the shopping, Jennifer and the complainant were alone and had a conversation in which the complainant said to Jennifer "please don't let anyone hurt me anymore". At the trial Jennifer stated that her recollection of this conversation was poor, but that she did not perceive the complainant to have made a complaint of sexual abuse by Alexander. Jennifer's evidence at the trial was that she did not report the conversation with the complainant on 8 July 2013 to Lilith, or to the police, as the complainant did not provide her with any information that sounded to her like an allegation of sexual assault. 2. An important context for the covertly recorded telephone calls discussed below is that as a teenager Jennifer had alleged that Alexander had sexually assaulted her. A complaint was made to police or child welfare authorities at the time, but no charges were ever laid. The relationship between Jennifer and Alexander was described by the primary judge as "poisonous" and the relationship between Jennifer and Mary was fraught as a result of the allegations Jennifer had made and the perceived lack of support for Jennifer from Mary after making those claims. 3. On 12 July 2013, the complainant was due to go to Alexander's residence in accordance with the order made by the Family Court. On 12 July 2013, Lilith received an email from her lawyer indicating that Alexander was unable to collect the complainant due to work commitments. 4. At the trial, Lilith gave evidence that on 13 July 2013 she had a conversation with the complainant in the morning. Lilith had asked if her daughter wanted to go out and the complainant said she did not and that she wanted to speak with her. Lilith described the conversation as follows: "The complainant said "can I talk to you? You have to promise not to tell daddy". Lilith replied "OK" and the complainant said "not to tell anybody including [the] police". Lilith agreed. The complainant said "mummy, daddy touched me down there", and she looked down while holding her knees up to her chest. Lilith said "what do you mean? Of course daddy wants to hug you". The complainant replied "not like that". Lilith and the complainant began crying. The complainant then disclosed that she was "touched down below in her fou fou" (the word the complainant used for her vagina). The complainant said she was "tired of lying, cannot cover it up any more. This is not the only time he has done it to me. He put his fingers into my fou fou and it hurt, mummy". Lilith replied "what do you mean by hurt you?" The complainant said "when I woke up in the morning it hurt when I go to the toilet. And dad says keep trying. And I told him to stop. When I want to go to the toilet it burns. Dad is hurting me so much". The complainant also said "daddy is asking me to go to the toilet and the shower so nobody knows what is going on". She said she "woke up before the alarm to have a shower"." 1. Lilith gave evidence that she told the complainant that she had to speak to someone to help her. The complainant begged her not to tell anyone. Lilith telephoned Jennifer and told her about the conversation, as, Lilith said, she did not know anyone else she thought could help. 2. Jennifer and Lilith were interviewed at Campsie police station on 13 July 2013. The police observed that Lilith was "hysterical" during much of the interview. The complainant was interviewed later that evening, 13 July 2013, at Jennifer's home by SC Laura Evans and PCSC Dina Ata. For reasons that are unclear, but not the subject of any ground of appeal, the evidence of the conversation was given by SC Evans. PCSC Ata was unavailable and did not give evidence at the trial. Lilith and Jennifer were present in the home during the interview with the complainant but were in another part of the house. 3. SC Evans gave evidence that the complainant appeared to be happy to talk to the police. The complainant indicated that she knew she was being spoken to "because of what [she] told [her] mum this morning". The conversation was as follows: "PCSC Ata said "can you please tell me what you told your mum this morning?" The complainant said "can I spell it for you?" and then said "R-A-P. That's what my dad did to me". PCSC Ata said "do you know what that means?" The complainant said "it means sexual assault". PCSC Ata said "how do you know that?" The complainant said "because my dad told me he used to work for the Department of Government thing, and I've heard it on TV, a lady was raped and died". PCSC Ata said "OK". The complainant said "my brother did it to me once, but never again because my mum told him she would tell DoCS. Dad did it many times." PCSC Ata asked "do you know how many times?" The complainant said "roughly five to four times. My mum reckons dad is a bit weird because I'm his daughter. He has done this many times, to my aunty and my mum and other women". PCSC Ata said "what did he do to you?" The complainant said "he used his finger and his bottom rude part and touched my bottom". PCSC Ata asked "when you say your bottom, do you mean the front or at the back?" The complainant said "at the front". PCSC Ata said "what did he do to it?" The complainant said "he was just rubbing it". PCSC Ata said "did you have clothes on?" The complainant said "sometimes no and sometimes yes". PCSC Ata said "how did he take your clothes off?" The complainant said "I don't know, sometimes I would wake up and have no clothes on. Sometimes he would use his fingers". PCSC Ata said "OK. Can you explain what happened?"" 1. The complainant then described going to live with her father. She said "I left my mum's place, police told dad to take me. We went to grandfather's place. Two days later we went to Wentworth, near the South Australian border. He did the R word there. After he does it he says to me 'go shower so no one finds out'." 2. PCSC Ata then said: ""Do you know where this happened?" The complainant said "I slept in his bed, because I was having nightmares about spiders and snakes". PCSC Ata said "what happened when you slept in his bed?" The complainant said "he rolled me on top of his tummy with clothes on and he was moving and I don't know why". She also said "on the third or fourth night he was rubbing his fingers inside of my bottom bit under my clothes". PCSC Ata said "at the front or at the back?" The complainant said "at the front. Sometimes I say 'stop, it's hurting'. He says 'don't worry'." PCSC Ata said "how do you feel?" The complainant said "sometimes I get scared that it's going to happen again". PCSC Ata said "do you want to see your dad again?" The complainant said "no". PCSC Ata said "when you say it hurt in the front bit, did you ever see any blood?" The complainant said "not to my knowledge, because I didn't look". PCSC Ata said "how does it hurt?" The complainant said "it hurts when I piddle". PCSC Ata said "when you say his thing bit, front rude bit, are you able to draw it?"" 1. The complainant then drew a rudimentary picture of a penis, which had the appearance of being circumcised. 2. The conversation continued: "The complainant said "dad sleeps naked". PCSC Ata said "OK". The complainant said "Aw and I helped dad clean out one of his bags once. I saw he had this Lifestyle thing in a blue packet with a picture of a man and a lady on the front of it cuddling". PCSC Ata said "thank you [complainant's name]. I won't ask you any more questions as I can see that you are getting tired"." 1. The complainant was also asked if Alexander's "rude bit" went inside her and she said "No. He tried, but he couldn't". After the interview the two police officers and the complainant rejoined Lilith and Jennifer. The complainant's evidence 1. Videos of two interviews with the complainant and the New South Wales Police's Joint Investigation Response Team (JIRT) officers were played in court. The first interview was from 18 July 2013, when the complainant was aged 10 and a half. The second interview was from September 2015, when the complainant was aged 12 and a half. The initial interview with SC Evans and PCSC Ata, described above, was also in evidence. The complainant was cross-examined by an adult appointed by the Court who asked questions drafted by Alexander. First event at Wentworth (19 February 2013 – 28 March 2013) – counts 1 to 5 1. In the first interview, the complainant gave evidence that "dad just puts these two fingers in my bottom rude part" (count 1). And "he puts one and two sometimes both sometimes just one and he sometimes gets his bottom rude part and puts me over on his stomach" (count 3, alternative to count 2). In answer to what happened the first time at Wentworth, the complainant said "it just happens the same thing", she said "it repeats … one finger this and this" (count 1). She also referred to "the three courses" (referring to Alexander's use of his fingers, sucking her vagina, and placing his penis on her body). She said that "he used the same thing one finger and then two". The complainant described Alexander as having "really sharp nails just rubbing into me" and "he had really sharp fingernails. Yeah. And he doesn't stop his fingernails grow up to here". 2. The primary judge observed that the complainant was reluctant to give more detail in this interview. Her Honour stated that this may suggest the complainant was giving a version she was not sure of, or, alternatively, that she was reluctant to give details because of embarrassment or fear. The primary judge found that the latter explanation was more likely, due to the complainant's demeanour throughout the interview. The primary judge found that the complainant's description of Alexander's fingernails added a degree of authenticity as it was an unlikely detail for a complainant to specify, had this account been a fabrication. 3. The primary judge found that this, together with other evidence, presented clear evidence of penetration to some degree of the complainant's genitalia. 4. The complainant stated in her first interview that Alexander removed her pants and underpants, he "got his thing and put down there" (count 2/3), and that "he started to suck it" (count 4). When asked to give detail as to where he was sucking, the complainant indicated her genital area. She then referred to having a shower. The complainant also said "after that he got his mouth like an octopus sucking it" (count 4). The complainant confirmed that that was on her vagina. The primary judge found that this was an account of what she actually felt and her description was what one might expect from a child of that age. 5. The complainant also stated in her first interview that Alexander's "rude bit" nearly went into her "rude bit" (count 2/3), "but it didn't", she said, and she confirmed "that it nearly did". The complainant said that she "just felt pain" because "your skin separates", and that "he was just trying to push it really hard" (count 2). The primary judge found that this was a clear and age-appropriate description of a small penetration into her genital area (count 2). In her second interview, the complainant confirmed the feeling of pain at this point of the episode. 6. The complainant stated in her second interview that Alexander attempted to put his penis into her vagina at Wentworth, but that it did not happen at the other times, saying it "probably happened the first time but it never really happened". In explaining what that meant, she said "he tried to put his penis in" her vagina, that she "refused and told him 'no'" and "tried to fidget around to make him not" and then she "ended up running into her room". She stated in her second interview that Alexander said "stay still … I want my dick inside your pussy". 7. The primary judge found that the complainant did not seem to be attempting to stick to a script, and disclosed evidence of an event that she said occurred in the same way, more than once. The primary judge also noted the consistencies between the complainant's two interviews. 8. The complainant stated that these events occurred at Wentworth about three times and also at Cairns. Evidence about the Cairns incident, a time during which Alexander and the complainant lived in a trailer, was admitted only as context evidence. The primary judge found that the complainant was able to distinguish between what occurred at Cairns and what occurred at Wentworth, and that her distinctions in her description of events lent credibility to what otherwise seemed to be a repetitive complaint. The complainant's description of how long she was in Wentworth before going to Cairns corresponded with other evidence, offering a degree of confidence in the reliability of the complainant's account. 9. In the second interview, the complainant stated that at Wentworth "he tried to put his penis inside me", and confirmed that this was when she had gone to Alexander's room because she "had a nightmare". The complainant said that Alexander removed her pants and underpants, said "stay still", and put his fingers into her vagina. The primary judge found that this evidence was consistent with the details the complainant gave in her first interview. 10. The complainant also said that "he tried to put it [his fingers] inside but it didn't feel comfortable and I kicked him" (count 1). She stated that his fingers were about 5cm inside her vagina (count 1). The primary judge found that this was consistent with the version the complainant gave in her first interview two years prior, with additional detail. 11. In her second interview, the complainant gave a version of herself being more proactive in trying to avoid Alexander's actions in relation to count 1, stating that Alexander held her down by her arms, that she kicked him, and that Alexander said "I'm your fucking father". Consistent between the two interviews, however, was that she told Alexander to "stop", pushed him away, and referred to her father saying "stay still". The primary judge found that her reference to the comment "stay still" in both interviews lent authenticity to the complaint. 12. The complainant explained that, by the time the second interview was held, she was no longer frightened that her father would be angry if she told anyone, and she was therefore more expansive in her evidence. The primary judge found that this explanation enhanced the complainant's credibility and that there were no further nor different disclosures suggesting influence by others. 13. The complainant also gave evidence that Alexander "tried to put his head there and started licking it. … he actually did it" and that it was "near the vagina". She further stated that " … he started licking the vagina, and I still didn't feel comfortable and I said stop it" (count 4). She said "I tried to kick him off" but "his hands were holding my legs to stop me kicking". The primary judge found that there was no real difference between the two interviews vis a vis the description of sucking versus licking. The detail of attempted and then actual cunnilingus was consistent. 14. The complainant gave evidence that when she went to Alexander's room because she was having a nightmare he was masturbating (count 5). The primary judge stated that this was consistent with the first interview. 15. The primary judge stated that the inconsistency in the complainant's oral evidence and her interviews regarding what Alexander was wearing at the time (blue pyjamas versus not wearing anything) must be considered, but that mixing up what Alexander was wearing in the three years between her interview and her oral evidence did not detract from her credibility. Second event at Wentworth (19 February 2013 – 28 March 2013) – counts 6 to 8 1. In her first interview, the complainant said the same thing happened three times at Wentworth, confirming that it was "one finger, two finger … and then his bottom bit and he got his mouth". 2. In her second interview, the complainant said that the other times were exactly the same and that there was nothing specific about the second time except that she slept in Alexander's room not because she was having a nightmare, but because she was too tired to walk to her room to sleep. The complainant said Alexander "took her pants off", held her "like the first time" by her "arms and legs" and described and demonstrated how he held her, and how he held her feet with his feet. She said that "before [she] fell asleep he just did it to himself" (count 8). The complainant also said that she was in bed, and it happened "like the first one" when the complainant was "in bed and he said 'take off your pants' and [she] screamed 'why' … and he said 'shut up I'll do it myself'. She then described being held by her arms and legs as Alexander tried to put his fingers into her vagina but could not because she was moving. She said "he told me 'stop moving' … and then so I didn't stop moving 'cause I didn't really, like it, really so I ran, I ran outside". 3. The primary judge found that there was no definite evidence in the complainant's version on either occasion of penetration to any degree, except as it related to "the same thing happens". The actions the complainant described, however, were, in the primary judge's view, clearly an attempt (count 6). Third event at Wentworth (19 February 2013 – 28 March 2013) – counts 9 to 12 1. In her first interview, the complainant confirmed that the third event occurred in a similar way to the other offences at Wentworth (counts 10, 11 and 12). 2. In the second interview, the complainant said it happened four times, but only detailed three occasions. The complainant provided more detail about the third event; that it occurred a short time before they were due to leave Wentworth, which meant she was able to distinguish the event, and that it was "a bit different as dad used a condom". 3. The complainant stated that Alexander told her to suck his penis and took the condom off (count 9). 4. In her oral evidence, the complainant stated that on that occasion she was sleeping in his bed at the request of Alexander so that she did not get nightmares and that before she went into the bedroom he was masturbating with the assistance of butter (count 12). 5. The complainant gave evidence in her second interview that she "fell asleep on his bed and that he had taken her netball shorts off and that's when it happened". She said that she was asleep when "…he took the netball shorts off, and then he started doing it", and that "…he did the exact same thing, [s]till the touching my legs with his head and all that" (count 11). But "then he told me to suck his penis" (count 9). 6. When asked to put this event in order, she said that she woke up and "found Dad tryin' to put his fingers in my vagina again" but that he "didn't actually do it this time" because she "got [her] hands and pushed his hand back" after which "he said 'Stay still', and he tried to put more force, tryin' to go through … to the vagina" (count 10). She gave evidence that "he started putting his head down there again, at the vagina" and that he was licking the inside of her vagina. The complainant gave evidence that she could tell it was the inside because he licked the outside first and it felt different. The complainant said that then she "accidentally kicked him in the face" and after that occurred he "told me to suck his penis" (count 9). The complainant said that before this occurred he was wearing a condom, and that he then got her head, pushed it down to his penis, forced her jaw open and then held her head and ponytail and opened her mouth and put her head onto his penis, which ended up in her mouth. The complainant gave evidence that she "accidentally hit him down there", which she clarified meant "his balls". Alexander, the complainant said, did not like that and she went to her room. The complainant clarified that the butter on the penis occurred at the time she went into his room before she went to sleep on his bed (count 12). 7. Although the complainant did not mention a condom in her first interview, she did mention it to SC Evans and PCSC Ata, and in her oral evidence she gave the detail that she found the condoms in his suitcase when she was packing up and he showed her what it was by placing it on his penis. This matched with the detail about the Lifestyle condoms from her initial interview with SC Evans and PCSC Ata, three years prior to her oral evidence. The primary judge found that this added credibility to her account. Alexander admitted that he had a package of condoms in his suitcase at Wentworth. Punchbowl (28 March 2013 – 8 July 2013) – counts 13 and 14 1. In her second interview, the complainant disclosed another event that occurred at Punchbowl (counts 13 and 14). This was not mentioned in the complainant's first interview. 2. The complainant stated that, both in Cairns and in Punchbowl, Alexander "got this green thing" which vibrated and tried to put in her vagina. The complainant said that Alexander attempted to place the "green thing" in her vagina on her grandmother's bed during the daytime while everybody else was out, that he took her skirt off and put the "green stick" in her vagina and said "stay still". She said it was "just on the top of my vagina" rather than inside her vagina (count 14). The primary judge found that there was insufficient clarity to convict Alexander of penetration to any extent and insufficient evidence for an attempt; the evidence at its highest amounted to indecent assault. 3. The complainant said that after this event occurred, the police came to the house, that her mum was there, but that she refused to go with her mum because her dad told her not to. COPS records show that Campsie police attended the Punchbowl house on 3 April 2013 (which was between the time in which the complainant and Alexander lived at Wentworth and Cairns). 4. Mary gave evidence that she was frequently away from the Punchbowl home for lengthy periods in the country training dogs. She said that she was not aware of Alexander and the complainant visiting her home except for a few hours in between Alexander's various country trips. The primary judge found that this did not diminish the complainant's version of events as those events may well have occurred while Mary was away. Additional events 1. In the second interview, the complainant referred to seeing a video on Alexander's phone of sex between her mother, Lilith, and Alexander. Other evidence shows that, on 8 August 2012, Alexander sent Lilith a video via email of them having sex. The email said "I wish I could enjoy this with you". Lilith was very upset at receiving this. Lilith told the court that she did not show this video to the complainant, but did tell the complainant that she had received a weird email from her father. Alexander denied sending this video to Lilith. The primary judge found that Alexander did send this video to Lilith, that he kept the video on his phone and that this was the video to which the complainant was referring in her evidence. Demeanour of the complainant at trial 1. The complainant gave her evidence from a remote witness room. She was aged 13 and a half at the time of the trial. The primary judge found she made an impression as being a mature adolescent who gave thoughtful and calm consideration to her evidence, agreeing to suggestions where she was able to do so and volunteering corrections when she did not agree. She maintained a calm composure throughout her evidence and, the primary judge found, she was trying at all times to give a clear account of the events. She did not at any time appear to be evasive of questions put or dissembling in her responses. The primary judge observed the complainant attempting to be accurate in her answers and noted that she corrected details if they were put to her incorrectly, for example, the date of her father's birthday and to whom she first complained. The complainant was observed to be very alert throughout, and not emotional in her responses. The primary judge found the complainant to be forthcoming in cross-examination and that she gave no impression that she was tailoring her evidence or trying to recall a script or her previous position. Credibility of the complainant 1. Although no suggestion was made by Alexander in cross-examination of either the complainant, Lilith or Jennifer that the complainant had been "coached" by anybody, the primary judge considered in detail whether the complainant made her allegations as a result of pressure from her mother or her aunt, or if she was influenced by a desire to please those adults. 2. The primary judge noted that the complaints occurred in the context of acrimonious family law proceedings, which "common sense and life experience" suggested to her Honour may mean children may become "embroiled either in conscious side taking" or be "subtly or maliciously influenced in their own beliefs and statements". Her Honour found that in this case that there was no evidence of coaching or convincing the complainant to fabricate the account, either by Lilith or Jennifer. 3. Alexander focussed on Lilith's immigration status in cross-examination. He put to her that she decided to meet him and have a child with him in order to assist her immigration status in Australia. She denied this. He raised the issue of her passport, which Lilith had given evidence that he held to stop her going back to Indonesia. He questioned Lilith about alleged impropriety in taxation and immigration matters. Lilith denied any impropriety. The primary judge stated that Alexander's view seemed to be that this was relevant to demonstrate that Lilith had a history of manipulating people for her own purposes, and (at least by implication) that she had manipulated the complainant to make false claims. 4. In relation to Jennifer, the complainant said that she did not know that her aunt did not like her father, and that her aunt had just told her to tell the truth. In her second interview, the complainant said that in addition to this she knew "it" had "happened to [Jennifer] when she was a kid with my father" and that the complainant "knew that ages ago", but then added "my dad still says that he never did that to aunty". She also told SC Evans and PCSC Ata that she knew about this. The primary judge found that the complainant knew years ago about the allegation that Alexander had sexually assaulted Jennifer when they were teenagers, including when the complainant went with her father voluntarily on 14 February 2013, and thus it was difficult to see how such knowledge would entice the complainant to make false allegations against her father at this time. 5. The primary judge found that, even if the complainant was aware of the poor relationship between Jennifer and Alexander, the complainant had no reason to seek favour from Jennifer by making allegations. The primary judge pointed out that the complainant did not make detailed allegations to Jennifer, but rather to her mother and then to the police. The primary judge found that the suggestion that Jennifer had coached the complainant did not make sense. The primary judge rejected the proposition that the complainant was told by Jennifer to make the complaint, or that the complainant spent enough time with Jennifer to concoct the detailed complaint ultimately made by the complainant to the police. Jennifer lived in New Zealand from 2014 and had no contact with the complainant prior to the second interview. The only occasion where Jennifer and the complainant were alone prior to the first interview was perhaps for half an hour during the Kmart shopping trip. The primary judge found that the allegations in the first interview were too detailed to have been implanted in that timeframe. 6. The primary judge noted that the complainant may have been untruthful to a child welfare officer on 20 June 2013, while under the control of her father, in saying that her mother was physically aggressive (which the complainant later denied the truth of in cross-examination). The primary judge found, however, that the complainant's persistence in her allegations about Alexander's conduct over three years was of a different quality to a single interview with child welfare on 20 June 2013. 7. The primary judge noted that one witness for Alexander, Mr Spary, had a dim view of the complainant's truthfulness and stated that she was capable of playing one parent off against the other. 8. The primary judge found that, considering both interviews together, the consistency of the complaint would be difficult, if not impossible, to maintain if the complainant was fabricating her evidence or had been coached. 9. While there were some inconsistencies and times at which the complainant became confused between events or resorted to saying "the same thing happened on each occasion", the complainant recalled details with respect to particular allegations and was able to distinguish between events. Delay in complaint 1. The complainant was interviewed by many people while she was with her father. She spoke to child welfare and the police on her arrival at Wentworth, and she had the opportunity of telling her mother and the police on or about 3 April 2013 and two child welfare social workers on 20 July 2013. When she arrived in Wentworth the sexual events had not occurred thus she had no reason to complain, and thereafter she said she did not want to tell anyone as she was afraid of them telling her father. The primary judge found that this was a plausible reason for her reluctance to make any disclosures at that time. 2. The interview of 20 July 2013, in particular, shows that the complainant had been told damaging things about her mother by her father; she told the interviewer her mother "only wanted her for child support", which was something said by Alexander during the trial. The primary judge did not accept Alexander's evidence that he did not denigrate Lilith to the complainant. The primary judge found that the influence Alexander had over the complainant supported the complainant's evidence that she was afraid to tell people about the sexual abuse for fear of him finding out. 3. In addition, the complainant was the subject of a confirmed sexual abuse allegation when she was about six years old perpetrated by her then 13 or 14 year old step-brother. This was relevant because between 2009 and 2011 she was in touch with child welfare's sexual assault counselling service and had received counselling. The primary judge inferred from this that the complainant knew what her father was doing was wrong and eventually said so. 4. The primary judge did not find that the complainant's delay in mentioning the Punchbowl events (for over two years after the initial interview) diminished her credibility. The primary judge stated that the nature of the Punchbowl complaint was of a different quality as the other events related to physical touching or penetration of the complainant, while this involved a different assault with a vibrator. In addition, the complainant was not asked about Punchbowl in her initial interview. 5. The primary judge found that the complainant was an impressive witness and that her evidence was well capable of acceptance beyond reasonable doubt. Alexander's case 1. Alexander stated that he suffered from memory loss as a result of work-related stress and the stress of the charges against him. The primary judge stated that she took him at his word and made allowances in the running of the trial. During the trial, the primary judge did not observe any difficulty with Alexander's level of organisation or his short or long term memory. Alexander's character witness, Ms Ryan, with whom he worked at Cooma, said that she had never observed any memory problem. Evidence led by Alexander 1. Although no suggestion was made by Alexander in cross-examination of the complainant, Lilith or Jennifer that they had "coached" the complainant, Alexander's case in closing submissions to the primary judge was that the allegations against him were fabricated by Lilith and Jennifer who had manipulated the complainant. At the trial, the primary judge stated that, as both women were important witnesses for the Crown, her Honour allowed significant evidence concerning them to be led by Alexander with the understanding that some of it may become relevant and to avoid unnecessary delay. The suggestion of "coaching", however, was not put to them. 2. Alexander gave evidence that from the commencement of their relationship, their life decisions were based largely on his work. Lilith did not work, although Alexander encouraged her to do so – he mentioned her lack of paid employment on several occasions during the trial. 3. Alexander stated that, whenever Lilith and he had a disagreement, in spite of there never being any physical or verbal aggression on his part, Lilith would call the police and claim domestic violence. Alexander stated that Lilith manufactured hysteria, and sometimes would burst out crying at minor or verbal disagreements. 4. Alexander alleged that the December 2008 ADVO sought by his wife was orchestrated by Jennifer, who he said had a personal relationship with one of the Campsie police officers. He said that this followed a verbal argument with Lilith. Alexander tendered Exhibit G, the application for an ADVO sought by Lilith, in order (he claimed) to be able to observe Lilith's lies. The primary judge found that the exhibit did not match Alexander's version of events, but stated that it was neither possible nor relevant to make a finding as to the truth of the allegations. 5. Alexander also claimed that his wife was mentally unbalanced, and that the proceedings were a culmination of the issues arising from his relationship with her and his relationship with Jennifer. He alleged that Lilith was manipulating the complainant to give evidence against him so that Lilith would "receive full child support", and that Lilith and Jennifer were "pre-fabricating the current charges", along with biased police officers at Campsie. Alexander alleged that Jennifer was trying to destroy his life and tell false stories against him, including by making allegations of sexual abuse by him against her when they were teenagers. 6. Alexander gave evidence about a prior sexual assault of the complainant by Lilith's son. This sexual assault was reported to child welfare and both children went to counselling. Lilith's son was removed from the home for 1-2 years. The primary judge referred to the s 293 Criminal Procedure Act 1986 (NSW) considerations, which needed to be taken into account. Alexander gave evidence that the aftermath of this contributed to his poor relationship with Lilith. The primary judge found that this was of some relevance when assessing Lilith's evidence. Alexander gave evidence that Lilith threatened that she would "get him back for having [Lilith's son] removed from the home", although the primary judge noted that this allegation was not put to Lilith by Alexander in cross-examination. 7. The primary judge found that it was clear that the marriage between Lilith and Alexander was unstable. Around December 2008 (about the time of the ADVO application) the family was asked to leave the Punchbowl home of Alexander's parents, and moved to an address near Campbelltown. 8. The primary judge found that Alexander was at pains to paint himself as a hardworking, caring and considerate man, and Lilith as manipulative and dishonest from the commencement of their relationship. Alexander alleged that she manipulated the marriage and birth of the complainant to enhance her immigration status, and said that he did not know that her son existed until the child came to live with them in 2009. 9. Alexander gave evidence that, towards the end of 2012 and after the two were separated, Alexander was visiting the complainant and there was an altercation with Lilith during which the police were called. Each of Alexander and Lilith alleged assault against each other, as recorded in Exhibit L. Alexander claimed that Lilith pushed the complainant down the stairs and hit her in the stomach, and that when the police were there the complainant was crying and screaming "I want to go with my dad". Exhibit L does not record any assault against the complainant but does note that the complainant was removed by her father with her consent after he gave details as to where he was going to stay; the address recorded was Alexander's parents' home in Punchbowl. When the police attended the Punchbowl address on 18 February 2013, Alexander was not there. Alexander's father contacted him and advised him of the police visit. On 19 February 2013, Alexander contacted the local police and child welfare at Wentworth. Credibility of Alexander 1. The primary judge found that Alexander was entitled to credit because of his good character. Her Honour noted that throughout the proceedings he was often emotional and crying. 2. The primary judge found that Alexander had no difficulty inventing stories for the court when he thought it was in his interests to do so, which her Honour described as "casual lies". These included painting Lilith in as bad a light as possible, insisting that he was sleeping in his car as he could not afford accommodation while in Sydney (when in fact he was temporarily residing with his mother in Punchbowl), giving different versions of evidence about when and whether he had sought to see the complainant at school, and claiming that he could not tell Lilith the whereabouts of the complainant after 14 February 2013 because he did not have means to contact Lilith, when in fact he had visited Lilith at her home and had her email address (which he had used to send her the sex video recording in August 2012). 3. Alexander put to the court that he helped Lilith in her time of need and that this showed how he cared for people. The primary judge found this not to be the case. He also submitted that his work role entailed working side by side with police; the primary judge found that this was the case, and that this fact partially explained why the complainant was so reluctant to tell anybody about the assaults. Alexander submitted that there were no expert medical reports proving the assaults; the primary judge found that this was accurate, although any medical examination months after the events would not have been able to provide any evidence. Alexander pointed out that the alleged sexual assaults against Jennifer had never been proven. The primary judge accepted that submission. 4. The remaining witnesses called by Alexander, with the exception of Mary whose evidence will be examined below, were not relevant to any ground of appeal. Conclusions of the primary judge 1. The primary judge found that, during the trial, the complainant appeared to be the person most in control of her emotions and the most forthright and least evasive in her evidence. This observation, the primary judge found, showed that there was an unhealthy role reversal between father and child and that the complainant became isolated from her usual support system when removed from her mother. The primary judge found that over the next few days and weeks Alexander began to sexualise the complainant by discussing sexual matters with her and that he took advantage of her vulnerability, after having a nightmare, by physically assaulting her. The primary judge found that, thereafter, the sexual talk and assaults continued. 2. Alexander said that there were inconsistencies in the complainant's evidence, that the Campsie police were biased against him, that Lilith needed custody of the complainant to avoid deportation and that, on the whole, the allegations by the complainant were the result of a conspiracy between Lilith, Jennifer and the complainant. No such contention was put to Lilith, Jennifer or the complainant at trial. The primary judge nevertheless considered the evidence in detail and rejected that submission. 3. In respect of each of the primary charges save for count 13, the primary judge found that there was compelling evidence supporting the allegations made by the Crown. The primary judge did not accept the evidence supporting Alexander's denials and found him not to be credible. Notice of appeal 1. The applicant seeks leave to appeal [1] on four grounds: "Conviction Appeal 1. Her Honour failed to provide procedural fairness to the unrepresented appellant/applicant. 2. Her Honour erred in finding Count 14 on the Indictment proved on a factual basis not relied upon by the Crown. 3. Her Honour failed to scrutinise the complainant's evidence with care. Sentence Appeal 4. Her Honour erred in finding that there was no information in sentencing that at the time of the offending the applicant was anxious and depressed." 1. Ground 1 was particularised by the applicant as follows: "Particular one – her Honour failed to assist the admission into evidence of a recorded telephone conversation(s) between [Jennifer] and her mother without: (a) hearing evidence whether the telephone conversation(s) were recorded unlawfully; (b) determining whether to exercise the discretion under s 138 of the Evidence Act to admit the evidence. Particular two – her Honour convicted the appellant of Count 14 on a case not relied upon by the Crown and not raised with the appellant/applicant. Particular three – her Honour made findings in relation to the appellant/applicant's memory without reports relevant to this issue being tendered." Evidence led on the appeal 1. Before addressing the grounds of appeal an additional issue needs to be determined. Ground 1, particular 1 of the appeal relates to certain telephone conversations between Jennifer and Mary which were recorded by Alexander. The ground of appeal complains that the primary judge failed to assist the admission into evidence of those recordings. Two issues are posed for determination by the applicant. The first is whether those telephone conversations were recorded unlawfully. The second is whether the primary judge denied the applicant procedural fairness by failing properly to explain the possible application of s 138 of the Evidence Act 1995 (NSW) to the evidence of the telephone recordings. 2. This issue arose in an unusual way at the trial. Although it was clear from things said to the primary judge by the applicant, particularly in the course of his application for a judge alone trial, that Alexander wished to assert that the complainant had been coached to make sexual assault allegations against him by Jennifer and Lilith, no suggestion was made by Alexander: 1. in the written questions he prepared (which were asked of the complainant by an independent third party, Ms Gray) that the complainant had been coached in the allegations she had made; 2. in his lengthy cross-examination of Lilith that Lilith had coached the complainant to lie; or 3. in his cross-examination of Jennifer that Jennifer had coached the complainant to lie. 1. Although it is now clear that Alexander had electronic copies of the recordings of the conversations between Jennifer and Mary the subject of ground 1 of the appeal on his mobile telephone at all relevant times during the trial, Alexander did not raise the issue of the recordings with any witness or the trial judge until virtually the close of the evidence. This was after Alexander had given lengthy evidence in chief and been cross-examined. 2. After the close of the Crown case and after Alexander had given his evidence, Mary was called to give evidence in the defence case. Alexander asked her in her evidence in chief about "when [she had] received telephone calls from [Jennifer] in recent times". Mary responded that she "had one Friday before Court started". 3. To give context to the exchange, Jennifer resided in New Zealand. At the commencement of the trial her position was that although she had made a statement to the police, she would not voluntarily give evidence. The Crown had informed the primary judge that they wished to call Jennifer but that she was not co-operating and as she was overseas was beyond the reach of a subpoena. In the event, however, Jennifer gave evidence in the Crown case via video link and was cross-examined by Alexander. As has earlier been noted, the topic of any recorded telephone calls was not raised by Alexander in cross-examining Jennifer. 4. After providing limited detail about the content of the call on "Friday before Court started", Mary stated that she had taped the recording. The following exchange occurred: "HER HONOUR Q. Is it fair enough to say that you've had phone calls from [Jennifer] and she was talking to you about whether she should give evidence in these proceedings or not? Is that a fair summary? A. Yes, I— Q. And you found some of the language abusive, is that a fair summary? A. Yes. I did tape it. She was advised it was being taped and I gave to her— Q. I don't need to know about that. A. I've got it here today if you want it. Q. I don't propose to allow that. That may well be in contravention of a couple of laws and we won't be going there." 1. Nonetheless, Alexander was then permitted to lead evidence from Mary about the content of her telephone calls with Jennifer. 2. After asking some further questions about conversations that Mary had had with Jennifer at family functions (which conversations were not recorded) Alexander returned to the taped conversation. Mary then gave the following evidence about the mechanism for recording the telephone calls: "Q. Okay, that's very good. Can I just go back to the telephone conversation you had with [Jennifer], okay? I'm just going to ask you a couple of questions about that specifically. A. Yes, that's all right. Q. You said that you taped a call with her? You taped it? A. Yes. Q. Who was there at the time you taped it apart from you? A. Me. Q. Just you? No one else? A. No. Q. Okay. Did you tell [Jennifer] that you were taping the call? A. Yes. The first – when – the first lot – I said, "Now, stop this, I'm going to tape it". So she told me where to go. So I slammed the phone down. I know you're just not supposed to do those things but when you've had it over a period of time you get to the end of your tether and I was not going to tolerate it. Q. Right. A. So when she rang from New Zealand, it came up "Private number". Now some of my friends have private numbers for reasons of their own. I answered it. So when she started on me again, I just picked that phone up – my mobile phone – and pressed record, like Telstra told me what to- Q. I understand how you do that, yes. A. Yes, and I had the full thing, and I said to her, "I'm sick of this. I can't stand," – whatever I said to her, and she just kept on and on at me. Q. My question is in relation to that telephone call when you pressed record. Did you tell her that you were recording that call? A. Yes. Q. Right. Did you tell her before – did you tell her at the time you pressed record, or- A. That to be quite truthful, I was so upset that she's having another go at me that I did tell her twice. If she was here and she told the truth, she would say 'yes' I did tell her. But I can't guarantee – because you said you wanted the truth, I'm telling you the truth – I don't know if I said yes, told her prior, or I actually pressed it and said it, or what. But- Q. You're saying in that telephone call somewhere you told her that 'this call is being recorded', or something like that? A. I think at the beginning, yes I did. … HER HONOUR: Madam Crown, that may or [may] not breach an Act. I think that [Alexander] is going to want to tender it. Is that right, sir? ACCUSED: Yes, your Honour, but we'll have to get the copy." 1. The primary judge and the Crown Prosecutor then had the following exchange: "HER HONOUR: Okay. In any event, Madam Crown, I can see something coming up. Obviously if the call has been recorded without the person's knowledge then there's some real difficulties in that evidence. CROWN PROSECUTOR: Yes. HER HONOUR: What I'm going to suggest – you tell me whether this works for you – is that you listen to the call and find out whether it would appear to comply with the Recording Devices Act – Listening Devices Act or not. If it does, then I might not have so much difficulty in receiving it into evidence. If it doesn't, then I guess we cross that bridge at that time. CROWN PROSECUTOR: Yes. HER HONOUR: Clearly I've heard some evidence that a call has been recorded. Clearly [Alexander] thinks it's highly relevant to these proceedings. It's obviously a long call. It relates to a witness whose evidence is relevant. Does that – are you able to do that, do you think? CROWN PROSECUTOR: Yes, your Honour." 1. The primary judge then explained to Alexander "it's actually against the law to record telephone calls except in certain circumstances. So there is no way that I am going to entertain a telephone call that has been illegally recorded as being part of evidence in these proceedings". After the luncheon adjournment, the Crown Prosecutor indicated that she and her instructing solicitor had listened to the tape, and that there was no indication at the commencement of the call that Mary told Jennifer that the call was being recorded, or that Jennifer otherwise gave her consent to being recorded: "CROWN PROSECUTOR: … During the break, [Alexander] allowed me and my instructing solicitor…just to listen to the beginning of this recording. And there's no evidence of the words being said that, "Do you agree to this recording?" Or anything about it being recorded, the first words are, "I need to speak to you", and it's from [Jennifer] to the mother. And so there's no evidence to say that it is being recorded, let alone that there's been consent from [Jennifer] as to that. HER HONOUR: Well, sometimes consent can be— CROWN PROSECUTOR: Implied? HER HONOUR: --inferred. If somebody says, "Look, I'm recording this", and they keep on talking. There's nothing like that? CROWN PROSECUTOR: But there's nothing like that. HER HONOUR: Okay, [Alexander], do you agree with that? ACCUSED: Yes, that is correct. In September 2015, it was advised to the DPP at the time that the threats and harassments of that nature from [Jennifer] would be recorded. And a warning was given that all phone calls from that point— HER HONOUR: [Alexander], do you understand what's just been said in Court? ACCUSED: Yes, I understand. HER HONOUR: Do you understand in relation to that particular piece of evidence that you want to tender that it sounds like the phone call has been [recorded] illegally. ACCUSED: Okay. HER HONOUR: Do you understand that? ACCUSED: I understand what you're— HER HONOUR: You're starting to give me a speech about harassment and DPP and all of those sorts of things. Do you understand that if a recording of a telephone call occurs without consent or implied consent of both parties, that's against the law? ACCUSED: I understand what you're saying. HER HONOUR: Okay. Well, good. So do you understand how that presents a difficulty for that telephone call? ACCUSED: Even though there was prior knowledge to the individual not to be calling? HER HONOUR: Do you understand what I've told you, sir? ACCUSED: I understand what you've mentioned. HER HONOUR: Do you understand that your mother can be charged with a criminal offence for recording a call? ACCUSED: No, I don't. HER HONOUR: Okay, well, I've told you that three times now. You understand that now? ACCUSED: I understand. HER HONOUR: Does that make a difference to what you want to do with this telephone call? ACCUSED: I understand what you're saying. HER HONOUR: Do you? Good. Okay, so do you understand why it's not admissible? ACCUSED: Yes, I do now." 1. On the application for leave to appeal affidavits from Alexander and Mary were read. Alexander's affidavit dated 5 November 2018 attaches what is said to be transcripts of six recordings as Annexure A to the affidavit. Mary's affidavit dated 6 November 2018 attaches identical transcripts of the six telephone calls as Annexure B to the affidavit. (The recordings themselves are Annexure A.) 2. This evidence is not "fresh evidence" in the sense described in Mickelberg v R (1989) 167 CLR 259 but rather is evidence relied upon by the applicant to seek to demonstrate on appeal that there has been a miscarriage of justice arising from the conduct of the trial. This Court received the affidavit evidence and permitted cross-examination of the deponents in order to determine whether a miscarriage of justice resulted from the conduct of the trial. 3. In his affidavit Alexander stated that he was at home with his mother on 10 September 2013, when his mother's landline telephone rang. He heard Mary say that the call was likely to be from Jennifer. Alexander said that he decided to record the call. He stated that he used his mobile phone, held next to the landline, to make the recording. He stated that this occurred on at least six separate occasions, and that on each occasion he held the iPhone next to the landline to record the call. Alexander's voice appears in each recording, noting the date and time of the calls and sometimes giving instructions to Mary regarding the calls. 4. Mary stated in her affidavit that she started recording calls from Jennifer because Jennifer was being abusive to her. Mary stated that she went to Telstra in Bankstown, who told her to slam the phone down or go to the police. Mary said that she also saw a solicitor, but was told that she required proof of the calls before police could take action. She stated that she started recording the calls to have "something to back [her] up". Mary stated that she made the recordings using a hand-held recording device which had a mini cassette recorder inside. Importantly, none of these recordings were before this Court and no submission was addressed to them. Mary further stated that, on 10 September 2013, she was at home with Alexander when she received a call on her landline from a private number. She said that she thought that Jennifer was calling. Alexander grabbed his mobile phone and said that he would record the call. Mary stated that Alexander then held his iPhone next to the landline, which was on speaker, to record the call. Mary said that a number of calls were recorded in this manner. 5. Other than by a process of inference based on Alexander's submissions, it remains unclear which transcripts of calls or parts of calls would have been the subject of any tender at Alexander's trial. Mary had only given evidence at the trial about a call made "one Friday before Court started" in 2016. 6. There were a number of important inconsistencies between the evidence given by Mary at trial and in her affidavits, and the oral evidence on the appeal: 1. in their affidavits, Alexander and Mary each describe various occasions where Alexander used his mobile phone to record a conversation between Jennifer and Mary on Mary's landline. Before the primary judge, Mary stated that she had made the relevant recording with her own mobile phone and was alone when she did so. Mary also stated that the recording was later transferred from her phone to Alexander's phone, explaining that "Telstra told me how to do things like that"; 2. before the primary judge, Mary testified that she pressed record on her mobile telephone "like Telstra told me what to [do]". In her affidavit Mary stated that she made earlier recordings using a hand-held recording device which had a mini cassette recorder inside; and 3. contrary to Mary's evidence at trial, there was no suggestion in any of the recordings that Jennifer was told or knew that she was being recorded. Mary makes no reference in her affidavit to having warned Jennifer that she was being recorded. None of the recordings annexed to the affidavits contain any express or implied warning that the call was being recorded. 1. In cross-examination in this Court Alexander said: 1. in relation to each of the calls transcribed and annexed to his affidavit Alexander had made the recording on his mobile telephone which was held up to his mother's landline speaker. This was contrary to the evidence he had led from Mary at the trial about one of the recordings; 2. Alexander had been told by his mother that she had recorded calls from Jennifer in the past but he had not been present for those recordings; and 3. Alexander made the recordings "just in case I needed it for my legal purposes" and "also for my mother because she's been constantly abused and threatened by my sister". 1. In cross-examination in this Court Mary said: 1. Mary had earlier recorded calls with a Dictaphone. She initially said she commenced doing so before Alexander was arrested. She later said she was unsure when she began recording the calls: "I don't know because it was happening before [Alexander was charged] and it happened after and I still get some so I can't tell you"; 2. Mary had visited a Telstra store and a Telstra representative had advised her to slam down the phone, go to the police or blow a whistle. That was the whole of the advice that they gave her, although she later said "it could be recorded but that was up to me"; 3. Mary had no clear recollection of the circumstances in which the six calls referred to by Alexander were recorded but asserted that when she answered the call she put the landline on speaker and Alexander handed her his mobile phone and she pressed record on the screen; 4. Mary agreed that she had never approached a court about Jennifer and stated that "I knew I could handle myself"; 5. Mary agreed that the calls that were made in September 2013, October 2013 and July 2016 were kept "because they were necessary for [Alexander's] court case, not necessary for any AVO that [she was] going to take out". Mary later agreed that the main reason she was recording calls with Jennifer was to help her son, Alexander, to collect evidence for his court case; and 6. Mary could give no reliable indication of when, if ever, she had advised Jennifer that her calls were being or would be recorded. She asserted, first, that she had sent Jennifer a letter to that effect but later recanted stating "I can't remember the full content, no". No letter was produced. Mary then asserted that "she [had] been told over the phone they were being recorded" but could not say when Jennifer was told that or in what terms. She ventured at one point that Jennifer was told that her calls would be recorded "just before [Alexander] went into gaol" and later that it was "before Alexander's arrest". Mary eventually contended that Jennifer was told (at some unspecified time) that calls "of this nature" (i.e. hostile calls) would be recorded in future. 1. I find, on all of the evidence, that the transcripts annexed to Alexander's affidavits are from recordings made on his mobile telephone of conversations between Alexander's mother and Jennifer which were projected by speakerphone. The only evidence said to establish consent was given by Mary. Her evidence about consent allegedly given by Jennifer to record the telephone calls was at times tentative, often contradictory and ultimately incoherent. I do not accept that there is any reliable evidence that Jennifer expressly or impliedly consented to her telephone calls with Mary being recorded by anyone. 2. Following the oral evidence in this Court it became common ground that the Surveillance Devices Act 2007 (NSW) contained the relevant prohibition. That Act provides, relevantly: 7 Prohibition on installation, use and maintenance of listening devices (1) A person must not knowingly install, use or cause to be used or maintain a listening device: (a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or (b) to record a private conversation to which the person is a party. Maximum penalty: 500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case). … (3) Subsection (1) (b) does not apply to the use of a listening device by a party to a private conversation if: (a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or (b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation: (i) is reasonably necessary for the protection of the lawful interests of that principal party, or (ii) is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation. … 12 Possession of record of private conversation or activity (1) A person must not possess a record of a private conversation or the carrying on of an activity knowing that it has been obtained, directly or indirectly, by the use of a listening device, optical surveillance device or tracking device in contravention of this Part. Maximum penalty: 500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case). (2) Subsection (1) does not apply where the record is in the possession of the person: (a) in connection with proceedings for an offence against this Act or the regulations, or (b) with the consent, express or implied, of all of the principal parties to the private conversation or persons who took part in the activity, or (c) as a consequence of a communication or publication of that record to that person in circumstances that do not constitute a contravention of this Part. 1. In Bandao v R [2018] NSWCCA 181, this Court (Hoeben CJ at CL with whom Price and Wilson JJ agreed) said: "[104] Unlike s 13 of the now repealed Listening Devices Act (LD Act), the SDA contains no provision that deals with the admissibility of a conversation that was unlawfully recorded. It is s 138 of the Evidence Act that deals with the admissibility of unlawfully recorded conversations and evidence that is obtained as a consequence. [105] Section 138 prohibits evidence obtained "in consequence of an impropriety or of a contravention of Australian law" (s 138(1)(b)). There must be a causal connection between the impropriety and the obtaining of the impugned evidence, even if only indirect: R v Dalley [2002] NSWCCA 284; 132 A Crim R 169 at [86]; R v Cornwell [2003] NSWSC 97; 57 NSWLR 82 (Howie J) at [25]-[27]; R v Xie (No 4) [2014] NSWSC 500 (Johnson J) at [170]. Answers obtained through the use in cross-examination of an unlawful recording of a private conversation would clearly be within the prohibition created by s 138(1)(b). It is to this issue that the Crown referred when he spoke of authorities regulating the cross-examination of a witness based on material that had been unlawfully obtained." 1. Section 138 of the Evidence Act provides: 138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. 1. The first question is whether the recordings or transcripts of recordings were obtained "improperly or in contravention of an Australian law". By hypothesis, the party objecting to the tender would bear the onus, on the balance of probabilities, of establishing the contravention of an Australian law: Robinson v Woolworths Ltd (2005) 64 NSWLR 612 at 621; [2005] NSWCCA 426. Once established, the party seeking to tender the recordings then bears the ultimate onus of establishing that the evidence should be admitted. 2. The contravention of s 7 and s 12 of the Surveillance Devices Act is here established unless one of the exceptions in subs 7(3) or subs 12(2) is engaged. Alexander knowingly used a listening device to record a private conversation to which he was not a party. Mary knowingly used a listening device to record a private conversation to which she was a party. 3. The applicant submitted that the evidence of Mary, if accepted, demonstrated that the recordings were made with the consent of Jennifer and thus legally obtained. I do not accept that the evidence of Mary demonstrated any express or implied consent by Jennifer to any telephone call being recorded. The applicant submitted that it was open to find that Jennifer was tacitly consenting to being recorded, having been previously made aware that the calls were going to be recorded. I reject that submission. 4. The applicant did not submit that the recordings were made to protect any lawful interest, either of Alexander or Mary. No doubt this was because there was no possibility on the evidence as it finally emerged that Mary was recording the calls for the purpose of protecting her lawful interests and the evidence did not suggest that any of the recordings was made for the protection of then existing lawful interests of Alexander: see Sepulveda v R [2006] NSWCCA 379; 167 A Crim R 108 at [142]. 5. Having found that the recordings were made in breach of the Surveillance Devices Act, the next question is whether on the hypothesis that the applicant advanced in ground 1, the primary judge denied the applicant procedural fairness in failing properly to explain s 138 of the Evidence Act. 6. That question is squarely raised by ground 1 of the appeal to which I now turn. Ground 1 of the appeal – particular 1 Applicant's submissions 1. The applicant submitted that, while it is not the role of the primary judge to be the advocate of an unrepresented accused, the Court should attempt to reduce or eliminate the disadvantages facing an unrepresented accused, including explaining to the accused his or her legal rights: MS v R [2017] NSWCCA 252 at [15]-[26]. 2. At trial, Mary gave evidence that she had "taped" at least one telephone conversation with Jennifer. The primary judge responded that she did not "need to know about that" and "it may well be in contravention of a couple of laws and we won't be going there". Mary indicated that one call concerned a conversation about whether Jennifer should give evidence in the trial. 3. The applicant submitted that, since a key part of his defence at trial was that he was the victim of a conspiracy wherein Jennifer, Lilith and the complainant had fabricated sexual abuse allegations against him, it was crucial that the full nature of the interactions between Jennifer, Lilith and the complainant be explored. The applicant submitted that the additional evidence from the recorded calls could have had a substantial effect on the credibility of Jennifer. 4. The applicant submitted that the primary judge became "fixated" on whether the calls were unlawfully recorded in determining whether it was admissible. Her Honour indicated that there was "no way" that she was going to entertain an illegally recorded call being tendered. The applicant submitted that the calls were not unlawfully recorded. I have already rejected that submission. 5. The applicant submitted that the primary judge, in failing to inform the applicant of his rights under s 138 of the Evidence Act, did not afford the applicant a fair trial: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [15]. Furthermore, the applicant submitted that even if the telephone call(s) were unlawfully obtained, there would have been powerful reasons to admit the evidence if it assisted the applicant's defence. Crown submissions 1. The Crown accepted that the trial judge was under an obligation to give an unrepresented accused such information or advice necessary to ensure a fair trial: MacPherson v The Queen (1981) 147 CLR 512 at 534; [1981] HCA 46 (Mason J). 2. The Crown submitted that the trial judge advised the applicant that recordings made of calls between his mother and Jennifer were illegally obtained and inadmissible. The Crown submitted that it is necessary to consider whether this was correct and whether any miscarriage of justice has resulted from the failure to admit the recordings. 3. The Crown submitted that the content of the recordings did not undermine Jennifer's evidence or that of Lilith or that of the complainant. The Crown further submitted that even if it is assumed that the recordings would not be excluded under s 138, the applicant has not demonstrated that a miscarriage of justice has arisen as a result of the failure to admit those recordings. Thus, in the Crown's submission, it is not necessary for this Court to resolve the question of whether the recordings contravened either Act. Consideration of ground 1 – particular 1 1. The Crown's concession that the primary judge was under an obligation to give Alexander such information or advice necessary to ensure a fair trial was correctly made: MacPherson v The Queen. 2. The primary judge's explanation to Alexander about the potential admissibility of the one recorded conversation he had asked his mother about set out at [102] was incomplete. The question of whether that recorded call was admissible involved at least three steps. First, determining how the recording was made. Secondly, (assuming that the recordings were made in contravention of the Surveillance Devices Act) determining whether there was any lawful excuse or other exception for making the recordings. Thirdly, determining whether the recordings should be admitted under s 138 of the Evidence Act. Although Mary had given evidence about the first two of these matters in relation to one call, the primary judge did not have sufficient evidence before her to answer the last of those questions. 3. In fairness to her Honour, the confused and contradictory way in which the evidence about the recordings (namely a single, unspecified call said to have been made by Jennifer from a private number) was given by Mary could reasonably have led her Honour to believe that the recording had been obtained in breach of s 7 of the Telecommunications (Interception and Access) Act 1979 (Cth). 4. I am prepared to assume, in favour of Alexander, that had her Honour explained the potential admissibility of the one recorded conversation he had asked his mother about in the way I have described at [100]-[102], Alexander would have understood that if he wished to rely upon at the trial any or all of the six recordings annexed to his affidavit in this Court he would need to tender those recordings and persuade the Court to admit the unlawfully recorded conversations into evidence. 5. I reject, however, the applicant's submission that these transcripts, even if admitted, could be used to cross-examine the complainant, Jennifer or Lilith. The existence of the transcripts was not mentioned by Alexander until after the complainant, Lilith and Jennifer had been extensively cross-examined by or on behalf of Alexander. Alexander had completed his evidence when the issue was first raised. The obligation upon the primary judge to give Alexander such information or advice so as to ensure a fair trial did not extend to giving advice and information about transcripts that her Honour did not know about and was not in a position to know about. 6. I am also prepared to assume, in favour of Alexander, that despite the fact that Alexander had not made any suggestion to the complainant that she had been coached by Lilith and/or Jennifer to make false allegations against him, the primary judge would nevertheless have been obliged to take any evidence relevant to that topic into account. This is all the more so as Alexander was unrepresented. 7. I am further prepared to assume in the applicant's favour that if the contents of any of those recordings could have been relevant to any issue in the trial and different in any material way to the evidence Jennifer, Lilith or the complainant had given, Alexander suffered a miscarriage by reason of the failure of the primary judge to give such information or advice to him about the Surveillance Devices Act and s 138 of the Evidence Act necessary to enable him to make a proper application to tender recordings or transcripts of those recordings. 8. The critical issue is thus whether the contents of those recordings could have been materially relevant to any issue at the trial in a way which affected the evidence, particularly that given by Jennifer, Lilith or the complainant. Senior Counsel for Alexander who appeared in this Court, Mr Terracini SC, identified three topics in the recorded calls said to be possibly relevant to the issues at trial: 1. the making of a complaint by the complainant to Jennifer; 2. Jennifer's relationship with police officers; and 3. Jennifer's information about Lilith including the relationship between Jennifer and Lilith. The making of a complaint to Jennifer 1. The applicant submitted that it was an important issue in the trial to whom the complainant made her first complaint. The applicant submitted that this was relevant with respect to the applicant's case as to whether the complainant had been schooled to make a complaint about him either by the complainant's mother or the applicant's sister or both. Two passages were relied upon which were said to be "on their face contradictory": "…I'm telling you. I have done nothing. I just turned up to court with her, that's it. She reckons he's raped [the complainant] and the kid is saying it mum. I've heard it come out of her mouth I've gone fuck wow." (Call 1, 10 September 2013 at 10.16am) and "…you need to understand part of my honest answers from what [the complainant] has told me, which was nothing of a sexual nature in any way shape or form and I will say that okay? In any way shape or form okay, could send him to jail." (Call 6, 8 July 2016 at 4.42pm) 1. I reject that submission. Neither passage, in context, has anything to do with the question of whether the complainant was schooled to make a complaint about Alexander either by Lilith or Jennifer or both. Neither passage touched upon the question of whether the complainant had made her initial complaint of sexual assault to Jennifer. 2. The first recorded conversation relied upon under this ground, on 10 September 2013, contains a lengthy conversation between Jennifer and Mary about a cancer diagnosis Jennifer had received. Jennifer had also learned that she was pregnant. Towards the end of the call, Mary raises the topic of the allegations made against Alexander by the complainant: "I'm not supposed to be talking to you or [Lilith] or anything because of the court case." 1. It will be recalled that the evidence at the trial was that the complainant had made her initial complaint to her mother and had spoken to the police on the same day, 13 July 2013. 2. What follows is in context plainly related to the family law proceedings and the custody dispute between Alexander and Lilith. Immediately prior to the part of the transcript relied upon by the applicant Alexander's mother says: "Well let's put it this way, between the two of you or whoever it is, have nearly ruined his life." 1. That is an allegation by Mary, perhaps, touching upon Alexander's theory that Lilith and Jennifer have conspired against Alexander. Jennifer's reply is a complete denial of that theory: "No, no mum I've got. I have done nothing. I know everything that's happened. And I know what's happening, but mum, I'm telling you, I have done nothing. I just turned up to court with her, that's it. She reckons that he's raped [the complainant] and the kid is saying it mum. I've heard it come out of her mouth and mum I've gone fuck wow." 1. In circumstances where Jennifer is not aware that she is being recorded she tells her mother that she has "done nothing" affecting Alexander's interests other than attend the Family Court for the custody hearing with "her", being Lilith. Lilith is plainly the "her" being referred to subsequently in this passage in contradistinction to "the kid". Jennifer was subsequently told by "her" (being Lilith) about the complainant's allegations of sexual assault against Alexander. The "her" in "her mouth" is likely, in context, Lilith. Even if I were to conclude that the second "her" in this conversation arguably referred to the complainant, the passage does not support a submission that the initial complaint of sexual assault was made by the complainant to Jennifer. 2. The transcript of 10 September 2013 is completely consistent with Jennifer's evidence at the trial. It will be recalled that Jennifer's evidence at trial was that Lilith called Jennifer immediately after the complainant disclosed the assault to her, at which time Jennifer was shocked. Jennifer was at the house later when the complainant spoke to the police. This was obviously after the initial complaint had been made. The evidence at the trial was consistent with what Jennifer said during this phone call. Even assuming that the "her" in "her mouth" refers to the complainant, the evidence provides no support for the proposition that the complainant first made a complaint of sexual assault to Jennifer. 3. The second call relied upon by the applicant under this heading, almost three years later on 8 July 2016, gives rise to no different conclusion. The context of the conversation was that Jennifer had telephoned her mother to discuss a letter received from the Director of Public Prosecutions (NSW) ("DPP") seeking Jennifer's co-operation in giving evidence at Alexander's trial (which it will be remembered properly commenced on 4 July 2016). In the introductory part of that conversation, after reading the letter from the DPP, the following conversation occurred: "Jennifer: Mum, I'm talking to you as my mother. Mum what do I do? [Alexander] wants me to be cross examined. Mary: Well I've got no… Jennifer: And [Alexander] apparently has been carrying on like an absolute pork chop all week that the whole issue with [the complainant] doing all of this is because of me. I've told her to do this. Mum I don't even talk to the fucking kid. Mary: Well [Jennifer] I can't…can't advise you on this and you put a statement. Jennifer: I'm asking you as my mother. Mary: You do what you think is correct." 1. Recalling that the relevant issue raised in this call is said to be whether the complainant had been schooled to make a complaint about Alexander either by Lilith or Jennifer or both, Jennifer says (at a time when she is not aware she is being recorded) about this precise allegation: "Mum I don't even talk to the fucking kid." 1. The particular passage relied upon by the applicant is even less helpful to the submission made: "Mary: Well [Jennifer] this is between you and your solicitor or whoever. I'm not getting… Jennifer: I don't have a solicitor involved in this mum. I am not a part of the proceedings. I'm not taking him to court. I don't have a solicitor. Mary: Well… Jennifer: I don't need a solicitor, I'm not on trial. I'm not the applicant. Mary: Well let's put it this way, my advice to you, go with what you think is correct because I can't answer that for you. Jennifer: Yeah but then mum if your son then gets convicted and gets sent to jail for ten years, you need to understand part of my honest answers from what [the complainant] has told me, which was nothing of a sexual nature in any way shape or form and I will say that okay? In any shape way or form okay, could send him to jail. Mary: Well I can't answer it and I don't intend to. I, I'm just keeping an open mind as to, it'll work itself out one way or the other. Good bad or indifferent, and I've just got to live with my decision." 1. This evidence is completely consistent with the evidence Jennifer gave at Alexander's trial. The evidence provides no support for the proposition that the complainant first made a complaint of sexual assault to Jennifer. The context is that Jennifer is pleading with her mother for advice about whether to give evidence at Alexander's trial. At a time when she was not aware she was being recorded, Jennifer stated that the complainant told Jennifer "nothing of a sexual nature in any way shape or form and I will say that okay." That was exactly the evidence that Jennifer gave at the trial. That evidence was that the only conversation Jennifer had with the complainant before 13 July 2013 (which is the critical date) was the Kmart conversation. The Kmart conversation between Jennifer and the complainant did not, according to Jennifer, involve any allegation of sexual assault, as Jennifer stated (more than once) in her evidence at the trial. Jennifer's evidence at trial was that the complainant had said to her when shopping at Kmart "please don't let anyone hurt me anymore". Jennifer did not perceive the complainant to be making a complaint of sexual abuse about Alexander (or anybody else) at that time. Jennifer only learnt of the allegations when told of them by Lilith on 13 July 2013. There is nothing inconsistent in the two passages of evidence. In context, each is completely consistent with the evidence Jennifer gave at the trial. 2. After this passage the conversation returns to the subject of Jennifer's lack of involvement with the complainant: "Mary: It's got nothing to do with the family. This is [the complainant]. Jennifer: Well it does mum this is, this, this is family. Mary: No, it's not family. Jennifer: It has everything to do with family. It's our brother and son and that goes to jail. It has… Mary: Well [Jennifer] I didn't know anything about this till [sic] whenever… Jennifer: Nor did I. Nor did I. Mary: Well. Jennifer: I'm being honest. Until [Lilith] came to me in 2013. Because I don't see him. You know I don't talk to him, you know that actually. You know I don't see the kid. I still, I don't even know where she is right now. I haven't spoken to her. I told you the last date that I had spoke to [Lilith] and that was in 2013. Mary: Well… Jennifer: I haven't seen or heard of them since." 1. At a time when Jennifer did not know that she was being recorded she asserted that she was not aware of the allegations made by the complainant of sexual assault until she was told of them in 2013 by Lilith. 2. The recorded conversations between Jennifer and Mary were not relevant to the issue now identified. They did not affect the rational probability of the asserted fact in issue, being whether the complainant had been schooled to make a complaint about Alexander either by Lilith or Jennifer or both or whether the complainant had made an initial complaint of sexual assault to Jennifer. Jennifer's relationship with police officers 1. Senior Counsel for the applicant submitted that Alexander believed that Jennifer's ties to NSW police officers were relevant to issues at the trial. For example, the applicant asked Lilith why she went to Campsie rather than Campbelltown Police Station and whether this was Jennifer's idea. Senior Counsel submitted that the following statements in the recorded conversations demonstrated that Jennifer had relevant ties to NSW police officers: "But do you see where I come from? All of a sudden, [Lilith] makes all these statements. [The complainant] makes statements to the police. I know who all the police are involved, of course I do. Mum you know how many coppers I know. I know the JIRT Office involved. I know everything. I've got all the emails." (Call 2, 10 September 2013 at 1.09pm) and "Give, give, give, give, give you know Duty Officer Geoff Harkness (?) a call. He starts at ten am tomorrow. Ask him to take one out for me. Fuck mum. Go ring my ex-boyfriend Detective Senior Constable Neil Sheldon. His name is "Snitch", they call him "Snitch". Give him a bell. Ring the boss of detectives, Evan Burus (?) Give him a call. Actually no no what about Jonno? Maybe Jonno will take it out for you. Mum, they're my friends. They would laugh in your face good luck trying, see ya." (Call 5, 23 October 2013, unknown time) 1. The context of the first conversation is that Jennifer is seeking to assure her mother that she has not complained to the authorities about Alexander: "Jennifer: Look mum I'll be honest with here, I don't like [Alexander]. I've gone through enough hell with him in my life. But at the end of the day, it is not fair [Lilith] is saying things potentially that I've been saying, that I have not said. And mum, I will correct that because that is not right to anybody. Mum, if he is guilty with what [the complainant] has said he's done, mum that's for him to fight with the police and DoCS and everything else. I am not at liberty to make that statement and nor have I. Okay. But all I'm saying is, if she is saying, if [Lilith] is saying that I have said things, mum, she can go and ride a broomstick because I'm telling you now I've said shit. I'm telling you now. Are you there? Mary: Yeah, I can't say anything your father is here. Jennifer: I know, I know, I know. You know, I'm just saying, I didn't know if it dropped out. But mum I'm telling you one hundred per cent mum, I have not done anything. I had to make a statement to the police about what [the complainant] told me, right. About [Lilith] hitting her yes, I had to do that because DoCS made me do it. They said I have to do it and I had to report it to the police, and I did. But that was about [Lilith]. And then I had to make another statement about [Lilith] ringing me and telling me about [Alexander]. To say yes, she did tell me. I don't know anything about it. No I was not present. All of that. That's all it was. But I have done nothing else mum and I am telling you the truth. Mum I know we have our differences, but I'm telling you honestly. Mum I'm telling you nothing else has happened. And I think you know mum when I'm being serious and when I'm not. I swear to you mum, nothing else has happened. I don't give a fuck what [Lilith] is saying mum. But I'm telling ya, nothing else has happened mum you have my word on that…" 1. At a time when Jennifer is not aware that she is being recorded she is asserting that she has "said shit" which in context means "said nothing" about Alexander to the police. She makes clear that she "had to make another statement about [Lilith] ringing me and telling me about [Alexander]. To say yes, she did tell me." She asserts, unequivocally "I don't know anything about it." This, again, is entirely consistent with the evidence Jennifer gave at the trial. 2. There is then a lengthy exchange about issues relevant to the custody of the complainant where Jennifer expresses the view that the complainant should not be in the custody of Alexander or Lilith: "Jennifer: Yeah. But mum do you agree basically with what I'm saying if it is true? That [Lilith] is hitting her the way she says she is and if [Alexander] has done, even a quarter of what she's made out. Mum she shouldn't be with either of them. Come on. All I'm saying mum is that you know irrelevant to me, I just want to tell you about the surgeon. But I've just been thinking about what you said today since I've hung up from you. And you, you ring Susan [indecipherable] right now. You'll tell. You… mum, I'm not lying to ya. I've rang there. I've left a message. She's in court. I'm waiting for her to call me back. Mary: Well I don't know what's going on I… Jennifer: But all I'm saying. Mum don't say anything around dad. Don't get yourself into an argument. Mary: Alls [sic] I look its um… Jennifer: But do you see where I come from? All of a sudden, [Lilith] um makes all these statements. [The complainant] makes statements to the police. I know who all the police are involved of course I do. Mum you know how many coppers I know. I know the JIRT Office involved. I know everything. I've got all the emails everything. Mary: Well I have, I have one question. Jennifer: And the only reason mum, the only reason why I was involved with her. And mum you can drive here right now, I'll show everything. And you'll see mum I've got nothing to do with it and I can prove I've got nothing to do with it. Mary: All I'm saying to you, [Lilith], [Alexander] or anyone, Solicitor, the Judge, anyone. Where should that poor little child go? Jennifer: To someone who will love her and nurture her and get her through what she's going through. Mum I can tell you now Warren could apply for her. I could apply for her and we'd probably win it. But mum, if I really wanted to fuck [Alexander] over and if I really wanted to be a bitch. Mum, I would have applied. But mum I'm not. I've got nothing to do with her. I don't care what [Lilith] and the solicitors are saying. Mum, I've got nothing to do with it. I went to court with her once that's it. Just as a support because she said, oh [Jennifer] I don't understand please can you just help me. She said please can you help [the complainant]? Please could you come for [the complainant] and I went, yeah okay fine whatever." 1. The passage contains a clear statement that Jennifer knows many police officers. She says that "I know who all the police are involved of course I do" and "I know the JIRT Office involved". The context of these claims, however, is Jennifer's statement, at a time when she is not aware she is being recorded that: "I don't care what [Lilith] and the solicitors are saying. Mum, I've got nothing to do with it. I went to court with [Lilith] once that's it." 1. That is, Jennifer was making clear to her mother that despite being familiar with many police officers, she was in no way involved in the case being brought against Alexander. 2. The context of the second of the above extracts is that Alexander's mother had threatened to apply for an ADVO against Jennifer. Whilst demonstrating a familiarity with a number of police officers the conversation has no relevance to any issue in the trial. 3. By the time these covert recordings were revealed, Jennifer had given her evidence and been cross-examined by Alexander. Alexander did not ask Jennifer about knowing any police officers related to the case against him. Alexander did ask SC Evans about her knowledge of Jennifer. SC Evans gave evidence that, to her knowledge, Jennifer was not known by any police officers at Campsie. Perhaps by reason of this confusion the primary judge found that "Jennifer denied having any personal relationship with any police officer at Campsie". This was not correct as Jennifer had said nothing about the issue. That error was, however, immaterial. It could have had no impact on the trial judge's conclusions about the credibility of Jennifer, or anybody else. So far as the evidence reveals, none of the police officers mentioned by Jennifer in any of these recorded conversations played any part in the investigation of the complainant's allegations against Alexander. The covert recordings did not rationally affect the probability of any asserted fact in issue. Evidence about Lilith 1. The applicant submitted that the following extracts show that Jennifer potentially had useful information in relation to Lilith: "And I would support [Alexander] in court. I would write a letter for him to say what she was doing…" and "I don't care. Whatever, whatever. But whatever [Lilith] states, whatever [Alexander] states. That's between them. I really don't give a shit. But if [Lilith]'s gonna start saying I've said things and that I've put statements in or I've done this or I've done that, mum, as I've said, I will support [Alexander] to say it's the biggest load of bullshit." and "Well mum I've got everything. What I'm saying is that if [Lilith] is saying things that I have not stated, in any way shape or form mum, which I have not stated very much at all. Mum I will correct that and I will, you know support that I did not say that and I have evidence to show that I have done nothing. You know and if they can search the IP address from the computer or wherever it came from, bring it on because mum, I have done nothing. I've told you what I was involved in with when the police contacted me and asked for the statement to say did you know, [Lilith] contact you this date at this time for these reasons? And I said yes. Mum I can't lie to the police. I had to say yes." (Call 3, 11 September 2013 at 4.42pm) 1. All of these passages are consistent with the evidence Jennifer gave at the trial. It was clear and consistent in that it accorded with the evidence that the initial complaint of sexual assault was not made by the complainant to Jennifer and that the first Jennifer heard of it was when she was telephoned by Lilith on 13 July. These passages could have had no impact on the trial judge's conclusions about the credibility of Jennifer, Lilith or anybody else. 2. The applicant submitted that the following extracts demonstrate that Jennifer was downplaying her relationship with Lilith in her calls to her mother: "Oh no. That's no that's incorrect mum. I know, Dad, listen. I know you have to go but I need to tell you this. Dad told me down on Father's Day mum. I have not spoken to [Lilith] since the whole…In June and I can show you emails and everything right. She rang me and she said [Jennifer] please can you come to court one day with me please. Because I, I don't wanna go by myself. Um just be with me please. And I said look [Lilith]. I don't want to get in the middle of it you know. Because it's my family you know this, that and the other. And she said please [Jennifer] just come not ask you to cause trouble for family. She said I just don't want to be by myself I said okay. I said, fair enough, no problem. Because she was, she was really upset. I said okay no worries and um she gets there and the next minute, she's doing all this and pardon my expression mum, I'm gonna be straight out. Then she turns into this fucking bitch and tells all the lawyers and the coppers everything. I can't have anything to do with the case because I'm trying to take her daughter off her. Mum she's fucking mentally insane." and "To someone who will love her and nurture her and get her through what she's going through. Mum I can tell you know Warren could apply for her. I could apply for her and we'd probably win it. But mum, if I really wanted to fuck [the applicant] over and if I really wanted to be a bitch, mum, I would have applied. But mum I'm not. I've got nothing to do with her. I'm telling you. I don't care what [Lilith] and the solicitors are saying. Mum, I've got nothing to do with it. I went to court with her once that's it. Just as a support because she said, oh [Jennifer] I don't understand please can you just help me. She said please can you help [the complainant]? Please could you come for [the complainant] and I went, yeah okay fine whatever." and "I'm just telling you – that's, that's the last I, and she was with Dean or some DoCS worker then. Um because she asked me could I pick her up from an appointment. Um [Jennifer], I don't know where to go, can you come pick me up please. Could you help me [Jennifer]? I said where are you? She said [Jennifer] Liverpool please can you come help me. I have [the complainant] she's very upset and I said where have you been? And she said I had appointment [Jennifer], please, please can you come pick us up and I said yeah okay. I had no. I told her. I had no issue if I could help her, you know if she needed a lift somewhere or if something was wrong with the car or something, which I found out was all lies." 1. All of these passages are completely consistent with Jennifer's evidence at the trial. The fact that Jennifer believed Lilith to be a "fucking bitch" or "mentally insane" could not possibly have affected the primary judge's findings about Jennifer's credibility. Senior Counsel for the applicant did not explain how it was that this material could possibly have affected Lilith's credibility or that of the complainant. I have concluded that they could not. Conclusion on ground 1 particular 1 1. I have read all of the transcripts of the covertly recorded conversations between Jennifer and Mary carefully in the context of the evidence at the trial. None of this material could have affected the primary judge's findings about Jennifer's credibility, much less could they have affected the complainant's credibility or Lilith's credibility. Further, the recorded evidence could not have rationally affected the probability of the existence of any fact in issue. 2. First, the recordings demonstrate that Jennifer was adamant that the complainant had not made the initial disclosure of sexual abuse to her. That was Jennifer's evidence at the trial. 3. Secondly, the recordings demonstrate that Jennifer knew police officers. Jennifer was not asked about that issue in her evidence so the fact that she knew police officers could not rationally have affected her credit. The only person who was asked about a tangentially relevant subject, SC Evans, made it clear that none of the officers referred to by Jennifer in the conversations were, to SC Evans' knowledge, involved in the investigation of Alexander. 4. Thirdly, the recordings demonstrate that Jennifer was critical of Lilith and aspects of her conduct in conversations with her mother. Making every assumption favourable to the admissibility of those expressions of opinion by Jennifer, those passages were not inconsistent with any evidence given by Jennifer and it cannot sensibly be suggested that any different finding could have been made about the credibility of Jennifer or Lilith or the complainant based on those passages. 5. In context, all of the recordings are consistent with the evidence Jennifer gave at the trial. None of the recorded material throws any different light on evidence given by any other person. Critically, none of the covertly recorded conversations is capable rationally of supporting a suggestion that Jennifer had a role (whether alone or with Lilith) in coaching the complainant to make false allegations against Alexander. There is no sensible basis to suggest that the covert recordings could have had any effect upon the complainant's credibility. 6. Even making all of the assumptions favourable to the applicant about the possible admissibility of this recorded material, the applicant has not established that failure to advise the applicant about s 138 of the Evidence Act as the gateway to admissibility of the recordings gave rise to a miscarriage of justice. Ground 1 – particular 2; Ground 2 Applicant's submissions 1. It is convenient to deal with this ground together with ground 2 as the applicant relied on the same submissions in relation to ground 2 as in relation to ground 1, particular 2. The applicant submitted that the Crown case was that count 14 of the indictment was committed after the complainant had been in Cooma. It was submitted that acquittal was the appropriate order in relation to that count: R v Kennedy [2000] NSWCCA 487; 118 A Crim R 34 at [33]-[34]. Alexander's evidence was that he did not return to Punchbowl after he had been in Cooma. 2. The applicant submitted that the primary judge raised with the Crown, in Alexander's presence, that counts 13 or 14 could have occurred earlier and queried whether the complainant was, in fact, saying that the offence occurred after the complainant had already been to Cooma. The applicant submitted that the primary judge never indicated to the applicant that she was considering finding, as she ultimately found based on the applicant's financial records produced as Exhibit Z, that the offending the subject of count 14 occurred at an earlier time. 3. The applicant submitted that it was plain that the Crown case was put to the applicant on a certain basis, and, when that basis shifted, the applicant was denied the ability to deal with the issue (for example, by giving an explanation as to where he was at a certain time the offences were said to have occurred) as a result of the trial judge not assisting the applicant to say that the Crown case had shifted. 4. The applicant submitted that an unrepresented litigant would not have had a feel for the "shifting tides" of the Crown case, and that the trial judge did not sufficiently warn him that he was at risk. Crown submissions 1. The Crown submitted that the Crown case was not limited in the way submitted, nor could the applicant have misapprehended that the Crown case was so limited. 2. The Crown submitted that time was not made of the essence either by the period pleaded in the indictment, or by the evidence given by the complainant. The applicant denied that the incident alleged occurred at all. Senior Counsel for the applicant did not suggest that there is any additional submission which he could have made or evidence which could have been called if his attention had been specifically drawn to her Honour's proposed finding during the course of his closing address. The Crown submitted that the second particular of ground 1 was not established. Consideration of ground 1 particular 2 1. The indictment charged that the relevant offences occurred between 19 March 2013 and 8 July 2013. Whatever may have been the interpretation of the Crown Prosecutor, the complainant's evidence was not that the Punchbowl incident occurred after she travelled to Cooma. 2. The complainant was not cross-examined about the Punchbowl incident, other than to suggest that the incident did not occur, which the complainant denied. In his evidence, Alexander responded simply "it's not true" when the trial judge asked him what he said about the Punchbowl allegation. 3. The primary judge found, correctly, that the complainant's evidence in her initial police interview was not in chronological order, but in order of the incidents that the questioner asked about. 4. It is true that the Crown Prosecutor at the trial appears to have submitted in closing that there was "some conflicting evidence" about dates. Alexander could not, however, have been under any misapprehension that the Crown case was limited to an allegation that the Punchbowl incident occurred after the applicant had travelled to Cooma. Before the final address of the applicant, the primary judge said, in a way that Alexander could not fail to understand, that "I just can't see the sequence of where the child is referring to this sequence of events occurring between one thing and another". 5. Senior Counsel for Alexander did not suggest in this Court that there was any additional submission which could have been made or evidence which could have been called if Alexander's attention had been even more specifically drawn to her Honour's proposed finding about Punchbowl. There was no miscarriage of justice in circumstances where no arguable forensic detriment was suffered. 6. R v Kennedy is thus not relevant to the present case. There, the Court held that it was "not 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". The complainant in that case gave evidence that she was assaulted just after having seen a live broadcast of the Royal wedding. 7. In the present case, the indictment and the evidence of the complainant was entirely consistent with the primary judge's finding. There was no unfairness to Alexander in the way the primary judge addressed the issue and no miscarriage was occasioned by the finding. 8. Particular 2 of ground 1 should be dismissed. Ground 2 should be dismissed for the same reasons. Ground 1 – particular 3 Applicant's submissions 1. The applicant submitted that the trial judge seemed sceptical about the applicant's indication that he had a bad memory. The applicant submitted that the trial judge invited the applicant to tender two medical reports relating to his memory, but did not allow them to be admitted when their tender was discussed. 2. The applicant submitted that the applicant's credibility was central to the trial, and that any assessment of it, including of his memory, was likely to have a significant impact on the trial judge's findings. Thus it was vital that all information pertinent to this, which by inference included the medical records, be before the trial judge. Crown submissions 1. The Crown submitted that, contrary to the applicant's submissions, the applicant did not "forget" why he wished to tender reports relating to his memory or mental health, but rather was never able to state why the reports were relevant. 2. The applicant does not now identify any information or evidence which he neglected to give because of his memory loss, but contends that the reports would have been generally relevant to the trial judge's findings as to his credibility. The applicant tendered the report of Dr Adams, as Annexure B to the applicant's affidavit, in support of his contention that a miscarriage of justice has arisen from the trial judge's failure to admit the medical reports. The report is not tendered as fresh evidence, and the Crown does not contend that the rules in respect of fresh evidence apply. 3. The Crown submitted that particular 3 of ground 1 is not established. Consideration of ground 1 particular 3 1. The primary judge made the following findings about Alexander's memory: "[161] His degree of organisation appeared to be impeccable. Nevertheless the trial proceeded slowly, in order to give him ample time to organise himself. If he asked for more time he was given that time he requested." 1. It is clear from this passage, and from a consideration of the course of the trial as a whole, that her Honour took Alexander at his word and made allowances for what Alexander described as his memory loss. No complaint is made by Senior Counsel for Alexander about the course the primary judge took during the trial to accommodate what she accepted were Alexander's memory issues. 2. Her Honour, in fact, raised the issue of the possible relevance of the medical reports herself. Her Honour carefully explained to Alexander that the reports of Dr Adams and Dr Ahmed, which were before her Honour on Alexander's application for a judge alone trial, had not been tendered in the trial itself. Her Honour explained that if Alexander wanted the reports in evidence he would need to tender the reports and demonstrate that they were relevant to an issue in the trial. When specifically asked about why the reports were relevant to issues in the trial Alexander said "I couldn't say if [they are] or not". 3. The opinions in Dr Adams' report were entirely dependent upon self-reporting by the applicant and the limited observations of Alexander in a single consultation which occurred on 8 December 2015. Dr Adams performed no cognitive testing. The primary judge had the opportunity to observe the applicant over the course of the trial. Those observations were significantly more recent than those of Dr Adams. 4. Most importantly, however, the observations of Dr Adams and Dr Ahmed were not relevant to any issues at trial. Senior Counsel for the applicant could not identify any relevant issue addressed by the medical reports. The primary judge "took [Alexander] at his word" and made allowances in the trial and in how her Honour approached Alexander's evidence in relation to what he claimed was his poor memory. No complaint based on Alexander's poor memory was made about how her Honour conducted the trial or considered Alexander's evidence. 5. Alexander has not demonstrated that the primary judge erred in failing to admit the reports of Dr Adams or Dr Ahmed into evidence at the trial. Ground 3 1. The applicant submitted that the primary judge's direction to herself to scrutinise the complainant's evidence with care was correct: Ewen v R [2015] NSWCCA 117; 250 A Crim R 544 at [143] (Simpson JA). 2. The applicant submitted that the primary judge should have taken into account a warning such as would have been given to a jury (as mandated by s 133 of the Criminal Procedure Act) about the fact that the complainant had contemporaneously denied the offending to the police and DoCS, had provided different versions at different times of what allegedly occurred, and there were doubts in relation to the content of her complaint and to whom she had first made it. 3. The applicant noted that the primary judge drew attention to the fact that additional and more specific allegations were made by the complainant in her second interview than had been made in her first interview, but, the applicant submitted, the trial judge failed to comment specifically on a serious and particularly heinous allegation that the complainant raised for the first time in her second interview. 4. The applicant submitted that the primary judge's reasoning, that the complainant's second interview was an elaboration of her first, was entirely inadequate. The applicant submitted that, if the primary judge was scrutinising the evidence with care, her Honour should have mentioned the new, specific allegation raised by the complainant in the second interview. 5. The applicant also submitted that the primary judge, in finding that Jennifer did not have the opportunity to manipulate the complainant, did not deal with the fact that most of the interactions between Lilith, Jennifer and the complainant were not within the knowledge of the applicant. Further, the applicant submitted that four days (between when the complainant was returned to Lilith by the applicant and when the complainant was taken to the police) was a long enough opportunity for a story to be concocted. Crown submissions 1. The Crown submitted that the trial judge addressed in detail the fact that the complainant did not complain of the Punchbowl offence until the second interview. The primary judge also observed that the complainant was two years older when the second interview was conducted and was "far more articulate and her level of confidence much improved". She was no longer afraid that her father would be angry if she reported the incidents. For these reasons, the primary judge found that the complainant's failure to disclose the Punchbowl incident in her first interview did not impugn the complainant's credibility. 2. The Crown submitted that these reasons applied with equal force to the fellatio complaint. The Crown submitted that in circumstances where the primary judge had given detailed reasons as to why the complainant's failure to disclose the use of a vibrator in her first interview did not impugn the complainant's credibility, it was not necessary for the trial judge to repeat those reasons in respect of the complainant's failure to disclose this other incident. Consideration of ground 3 1. The starting point for consideration of this issue is that the primary judge emphatically directed herself that the complainant's evidence must be scrutinised with care. That is not a promising basis for a submission that her Honour failed to do what she had explicitly reminded herself she must do. 2. It is correct that in the second interview the complainant mentioned that she had been forced to perform fellatio upon Alexander and in the first interview she did not. It is also correct that the complainant had not mentioned that Alexander used a vibrator on her at Punchbowl during the first interview. 3. The primary judge considered these matters. Her Honour saw the complainant give evidence and considered at some length the video recorded interviews with the complainant. Her Honour found that the reluctance of the complainant to disclose her complaints during the first interview was "obvious". Her Honour did not conclude that the absence of reference to this incident in the first interview diminished the complainant's credibility. 4. This was because the complainant was not asked anything about Punchbowl during the first interview, not because the complainant had hidden anything during the first interview. The interviewer did not take up the invitation from the complainant to provide a list of places she had been during this period with Alexander and thus was not asked by the questioner if anything happened at Punchbowl. 5. The primary judge also observed that the complainant was uncomfortable discussing the subject matter of the complaints during the first interview when she was 10 years old. The second interview was conducted when the complainant was 12 and a half and the primary judge found at that time that the complainant was "far more articulate and her level of confidence much improved". The primary judge found that by the time of the second interview, the complainant was no longer afraid that Alexander would find out what she had said and be angry. 6. The failure to mention the incident with the vibrator at Punchbowl fell into the same category as the failure to mention the forced fellatio during the first interview. It was not necessary for the primary judge specifically to repeat her conclusions about fellatio having addressed the vibrator incident, both of which were omitted from the first interview. 7. The other matter the subject of complaint, her Honour's finding that Jennifer did not have the opportunity to manipulate the complainant, must be rejected. It cannot be concluded that the primary judge's factual finding that there was not enough time for Jennifer to conspire with the complainant to fabricate an allegation was "not reasonably open". It was open to the primary judge to accept the evidence that Jennifer and the complainant only spent half an hour together before the complainant gave her account to police, and there was no evidence to the contrary. I would go further. On the available evidence that finding was correct. 8. In Filippou v The Queen, French CJ, Bell, Keane and Nettle JJ stated: "[56] Starting with the first of the judge's supposed errors, the question for the Court of Criminal Appeal was not whether it was "satisfied that the judge's account was correct" but whether her Honour's findings as to the sequence of events were not reasonably open. And, plainly, they were open. Contrary to the Court of Criminal Appeal's reasoning, the judge's analysis of the pertinent evidence did not overlook that Allen did not look out of his window until after the first two shots had been fired. Allen's observation of the appellant going into the house after the third shot had been fired (which, on Mrs Filippou's version of events, would have been the second occasion that the appellant went back into the house) was of the appellant walking calmly inside, then coming out again, and then crouching over the deceased and using his arms in a pulling motion. As the judge rightly observed, that version of events was starkly inconsistent with Mrs Filippou's recollection that the appellant had run or walked back in quickly on the second occasion in an agitated state of mind and then driven away in his utility. Thus, for the reasons which her Honour gave, she was entitled to prefer Allen's version of events over Mrs Filippou's variously stated recollections." (Footnotes omitted.) 1. Jennifer and the complainant each gave evidence, which was not challenged, that they had spent only half an hour together (during the shopping trip at Kmart, referred to at [16]) before the complainant gave her account to the police. There was simply no evidence that they had spoken other than at that time. 2. Ground 3 should be dismissed. Ground 4 – sentence appeal Applicant's submissions 1. The applicant submitted that, while the primary judge found that there was no evidence prior to the offences that the applicant was suffering from anxiety or depression, the evidence before her Honour in the form of a psychologist's report dated 6 December 2016 by Dr Watson-Munro established that the applicant had "pre-existent symptoms of depression and anxiety". 2. The applicant relied upon three cases as "comparable" in re-sentencing: 1. R v SJH [2010] NSWCCA 32, in which the respondent pleaded guilty to 8 child sexual assault offences, with a further 9 offences taken into account on a Form 1. The child was aged between 7 and 13. The respondent was sentenced to 9 years with a non-parole period of 5 years. The Crown appealed successfully and a sentence of 12 years with a non-parole period of 8 years was imposed; 2. Chamseddine v R [2017] NSWCCA 176, in which the appellant was found guilty at trial of 6 counts of child sexual assault involving a child aged either 10 or 11 and was sentenced to 15 years imprisonment with a non-parole period of 10 years. The sentence was found to be manifestly excessive and the appellant was resentenced to 12 years with a non-parole period of 8 years; 3. R v Gommeson [2014] NSWCCA 159; 243 A Crim R 534, in which the respondent was sentenced for 20 offences involving seven victims ranging in age from 10 to 15. The respondent pleaded guilty and a further 11 offences were taken into account on a Form 1. The respondent was sentenced to 12 years and 6 months with a non-parole period of 8 years and 6 months. The Crown appealed successfully and this was increased to 17 years with a non-parole period of 12 years. Crown submissions 1. The Crown submitted that Dr Watson-Munro's evidence was that the applicant's acute depression was aggravated and escalated by the charges, the Court's verdict and the applicant's incarceration. The Crown submitted that there was no evidence before the Court that the applicant was displaying symptoms of depression at the time of the offences, nor could depression or anxiety be said to be causative of the offences, or have the effect of reducing the need for general or specific deterrence or denunciation: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. 2. The Crown submitted that, contrary to the applicant's supplementary submissions, nothing that was said in the report of Dr Adams alters this position. Dr Adams observed the applicant in December 2015 when the trial was imminent. Dr Adams stated the applicant had reported improvement of his mental health in 2011 and 2012 and that the applicant believed he was "80% or so back to his premorbid state". 3. The Crown submitted that, in these circumstances, no error has been shown in the approach of the sentencing judge to the applicant's mental illness. 4. In the alternative, the Crown submitted that even if error is shown, no lesser sentence should be imposed. The offences were objectively serious: the complainant was 10 years old, at the time of the offending the complainant was isolated from her mother and friends and was entirely reliant on the applicant, all offences except count 14 occurred at night in the complainant's home at that time. The applicant's subjective circumstances do not significantly mitigate the sentence: the applicant maintained his denial of the offences, had no remorse, and the sentencing judge determined that there was no evidence that mental illness had a causative role in the offending. 5. The Crown submitted that the applicant's appeal against sentence should be dismissed. Consideration of ground 4 1. Alexander was sentenced to an aggregate sentence of 14 years imprisonment. A finding of special circumstances was made. The aggregate non-parole period was 9 years and 9 months. 2. It will be recalled that the sentence appeal is limited to the following ground; that "her Honour erred in finding that there was no information in sentencing that at the time of the offending the applicant was anxious and depressed". 3. The ground of appeal does not accurately record what her Honour found. The primary judge noted in her reasons for sentence that "there [were] no issues relevant to the commission of the offence which directly relate to [the applicant's] current mental health presentation or any other features relating to his mental capacity", and "the mental health issues as observed by Dr Watson-Munro will be taken into account on sentence but Dr Watson-Munro does not suggest that there are any mental health factors which would impact on his understanding of the nature and quality of his actions while he was committing [the] offences. There are no issues of mental illness or intellectual disability [which were] causally related to the commission of the offences". 4. Under the heading "special circumstances – subjective matters", her Honour stated that: "[The applicant] was observed by [Dr] Watson-Munro and also by me during the course of the trial to be emotionally labile, frequently crying…[Dr] Watson-Munro is of the opinion that he is both anxious and depressed seemingly as a result of the commission of these offences and the consequences of his offending. There is no information that prior to the commission of these offences he was suffering from any such mental fragility. [Dr] Watson-Munro did not administer any form of testing procedure and made his diagnosis on observation only". 1. Dr Watson-Munro had stated that "the finding of this Court and his incarceration have aggravated and escalated [the applicant's] underlying symptomology". 2. Dr Watson-Munro's evidence was that the applicant's acute depression was aggravated and escalated by the charges, the Court's verdict and the applicant's incarceration. There was no evidence that Alexander displayed symptoms of depression at the time of the offences, nor could depression or anxiety be said to be causative of the offences, or have the effect of reducing the need for general or specific deterrence or denunciation: Director of Public Prosecutions (Cth) v De La Rosa at [177]. 3. Nothing that was said by Dr Adams was inconsistent with this conclusion. Dr Adams observed the applicant in December 2015 when the trial was imminent. Dr Adams stated that the applicant had reported improvement of his mental health in 2011 and 2012 and that the applicant believed he was "80% or so back to his premorbid state". 4. No error has been shown in the approach of the sentencing judge to the applicant's mental illness. Her Honour took into account what she described as Alexander's "mental fragility" in the sentence she imposed and in the finding of special circumstances. Her Honour found that there was "no information that prior to the commission of these offences he was suffering from any such mental fragility". On the evidence, that finding was correct. 5. These offences were objectively very serious. The complainant was 10 years old at the time of the offending. She was isolated from her mother and friends and was entirely reliant on Alexander. All of the offences except count 14 occurred at night in the complainant's home at that time. The applicant's subjective circumstances do not significantly mitigate the sentence. Alexander maintained his denial of the offences, had no remorse, and the sentencing judge determined that there was no evidence that mental illness had a causative role in the offending. 6. Ground 4 should be dismissed. Conclusion and orders 1. I propose the following orders on the conviction and sentence appeals: 1. pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW): 1. the appellant shall be identified in connection with these proceedings (including all proceedings in the District Court) by the pseudonym "Alexander" on the ground that this order is necessary to protect the identity of the victim of child sexual assault; 2. that publication of any information: 1. tending to reveal the identity of Alexander, a party to these proceedings, in connection with these proceedings or in connection with the evidence given in these proceedings or in connection with information about evidence given in these proceedings; or 2. tending to reveal the identity of Alexander's family in connection with these proceedings or in connection with the evidence given in these proceedings or in connection with information about evidence given in these proceedings be prohibited; 1. the duration of this order be 20 years. 1. Order (1) shall apply: 1. to all media including but not limited to print, radio, television, internet and social media; 2. anywhere in the Commonwealth; 3. until 20 years from the date of this order. 1. Order (2) is made on the ground under s 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (NSW) that the order is necessary to protect the identity of Alexander's daughter, the victim of child sexual assault; 2. Leave to appeal granted; 3. Appeal dismissed. 1. BUTTON J: I agree with Payne JA. 2. LONERGAN J: I agree with Payne JA. ********** Endnote 1. None of the grounds of appeal involve a question of law alone: Criminal Appeal Act 1912 (NSW), s 5(1). 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: 29 April 2019