Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: JPM v R [2019] NSWCCA 301 Hearing dates: 28 October 2019 Date of orders: 19 December 2019 Decision date: 19 December 2019 Before: Simpson AJA at [1] Fullerton J at [7] Adamson J at [238] Decision: 1. Insofar as concerns Ground 1, leave to appeal is granted. 2. Insofar as concerns Ground 2, leave to appeal is granted. 3. Insofar as concerns Ground 3, leave to appeal is granted. 4. The appeal against conviction is dismissed. 5. The sentence imposed in the District Court on 5 July 2019 is confirmed subject to the following variation: the sentence of 2 years and 10 months' imprisonment with a non-parole period of 1 year and 5 months is to commence from 16 December 2019. The non-parole period will expire on 15 May 2021. The balance of term will expire on 15 October 2022. Catchwords: CRIME – appeals – appeal against conviction – assault with act of indecency on person under 16 – whether a miscarriage of justice occurred due to the trial judge failing to give a direction about the need for the jury to be unanimous about which act of touching they found proved beyond reasonable doubt – whether a miscarriage of justice occurred due to the trial judge failing to give a direction that the accused's silence was not evidence against him and could not be used to support the prosecution case – whether verdict of guilty is unreasonable and cannot be supported having regard to the evidence Legislation Cited: Bail Act 2013 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Rules (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW), s 20 Jury Directions Act 2013 (Vic) Cases Cited: Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25 Cabot v R [2018] NSWCCA 265 Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 Johnston v R [2007] NSWCCA 133 Lane v R [2017] NSWCCA 46 Lane v The Queen [2018] HCA 28 Le v The Queen [2016] VSCA 100 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Nguyen v R [2017] NSWCCA 4; (2017) 264 A Crim R 405 Obierzynski v R [2019] NSWCCA 103 Pratten v R [2014] NSWCCA 117 R v Graham [2005] NSWCCA 127 R v Richards (2002) 128 A Crim R 204; [2002] NSWCCA 38 R v SMR [2002] NSWCCA 258 R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20 Restricted Judgment [2019] NSWCCA 153 Richards [2002] NSWCCA 38; (2002) 128 A Crim R 204 RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 S v The Queen (1989) 168 CLR 266; [1989] HCA 66 SKA v The Queen (2011) 243 CLR 40; [2011] HCA 13 Thi Quyen Le v The Queen [2016] VSCA 100; (2016) 308 FLR 486 Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65 Category: Principal judgment Parties: JPM (Applicant) The Crown (Respondent) Representation: Counsel: G Bashir SC / G Huxley (Applicant) B Hatfield (Crown) Solicitors: Condon Legal (Applicant) Solicitor for the Public Prosecutions (Crown) File Number(s): 2017/226683 Decision under appeal Court or tribunal: District Court Date of Decision: 12 October 2018 Before: Girdham SC DCJ File Number(s): 2017/226683 Judgment 1. SIMPSON AJA: I have had the advantage of reading in draft the judgments of Fullerton J and Adamson J. The relevant facts and circumstances are set out in the judgment of Fullerton J. I agree, for the reasons given by her Honour, that Grounds 1 and 3 should be rejected. In respect of Ground 3 I have made my own independent analysis of the evidence and am satisfied that the verdict of guilty was open to the jury. 2. I am grateful to both Fullerton J and Adamson J for their comprehensive analyses of the circumstances that call for consideration under Ground 2, and, particularly, for their detailed discussions of relevant authority. 3. I agree with Fullerton J that Ground 2 also should be rejected. As a number of the decisions to which reference has been made emphasise, the High Court did not, in Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, make a direction concerning the in-court silence of an accused person mandatory. Rather, their Honours said that such a direction will "almost always" be "desirable". Whether, in a particular case, such a direction ought to be given will depend on all the circumstances of the case. 4. Here, the directions given by the trial judge with respect to the onus of proof, and the use to which the jury could put the applicant's recorded interview, extracted in the judgment of Fullerton J, were, in my opinion, sufficient to bring home to the jury that the applicant was under no obligation to do anything more, including give evidence. The directions concerning the recorded interview all but equated those answers with evidence. 5. In the particular circumstances of this case, to have done more would have risked undermining those powerful directions and drawn attention to the different status of the answers given by the applicant. 6. In my opinion the decision in Azzopardi does not mandate that, in the circumstances of this case, such a direction ought to have been given. 7. FULLERTON J: On 8 October 2018, the applicant was arraigned in the District Court and entered a plea of not guilty to one count of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW) (since repealed) in the following terms: Between 10 March 2016 and 8 July 2017, at Forestville in the State of New South Wales, the applicant assaulted DE, a person under the age of 16 years, namely 6 or 7 years and, at the time of the assault, committed an act of indecency on her. 1. On 12 October 2018, the jury returned a verdict of guilty. 2. On 5 July 2019, Girdham SC DCJ sentenced the applicant to 2 years and 10 months' imprisonment to commence on the day of sentence with a non-parole period of 1 year and 5 months. 3. On 8 July 2019, Turnbull DCJ released the applicant to bail under s 22 of the Bail Act 2013 (NSW). It is unnecessary to refer to his reasons for doing so. They have no bearing on the resolution of the appeal. 4. The applicant seeks leave to appeal his conviction on the following grounds. There is no appeal against sentence. Ground 1: A miscarriage of justice was caused by the failure of the trial judge to give a direction about the need for the jury to be unanimous about which act of touching they found proved beyond reasonable doubt. Ground 2: A miscarriage of justice was caused by the Judge's failure to direct the jury that the accused's silence in Court was not evidence against him, could not be used to fill gaps in the prosecution case, or support the prosecution case. Ground 3: The verdict of the jury was unreasonable and cannot be supported by the evidence. Trial procedure 1. The trial was conducted under the Child Sexual Offence Evidence Pilot Scheme in Sch 2, Pt 29 of the Criminal Procedure Act 1986 (NSW) which provided for the evidence of a child to be placed before the jury in the form of a recorded interview with an audiovisual recording of the child's pre-recorded evidence, including cross-examination. 2. DE was interviewed by members of the Child Abuse Squad on 25 July 2017 when she was aged 7 years and 10 months. The interview was conducted after the child complained to her parents on 8 July 2017 that the applicant had indecently touched her. 3. DE's evidence was pre-recorded in March 2018. She was cross-examined by the applicant's counsel, Ms Davenport SC. 4. A witness intermediary was present during the Joint Investigation Response Teams ("JIRT") interview. The same person acted as a witness intermediary during DE's pre-recorded evidence. On occasions during her cross-examination, the witness intermediary would intervene and suggest that a question be restated or suggest to the trial judge that the child was "confused". On all such occasions the question was reframed or abandoned. 5. The trial commenced before the jury on the day the applicant was arraigned, 8 October 2018. The Crown case at trial 1. It was the Crown case that the indecent assault occurred during a "sleepover" at the applicant's home when DE was sleeping (or, more precisely, according to her evidence, feigning sleep) on a trundle bed in the bedroom of the applicant's son (JM). On the Crown case, the applicant knelt down beside the trundle bed and placed his hands inside DE's pyjama pants and under her underpants and touched her on the outside of her vagina with two fingers which he then "moved around". 2. JM and DE were close school friends. The two families were on friendly terms as neighbours. 3. The Crown relied upon DE's account to police in the JIRT interview of the circumstances in which the assault occurred and her demonstration of the "touching" as the act of indecent assault after the child had complained to her parents that she had been "touched" by the applicant in her "private parts" with "two fingers". The Crown also relied upon the way the child demonstrated how she was touched when she complained to her father as consistent with the touching she demonstrated to police in the JIRT interview. 4. Although it was the Crown case at trial that the jury would be satisfied that the offence was probably committed during a sleepover on Friday 11 March 2016, the charge was framed on a between dates basis, there being uncertainty as to the precise date on which the offence was committed. 5. This issue was raised by Ms Davenport before the trial commenced. She complained to the trial judge that she had prepared for trial on the basis that the allegation of an indecent touching occurred on a specified date, namely 11 March 2016 as specified in the Crown case statement. After the trial judge permitted Ms Davenport to consider her position overnight, she informed the trial judge that she was satisfied she could meet the Crown case that the indecent assault alleged occurred on a "between dates" basis. 6. The evidence at trial was that between the dates alleged in the indictment DE slept overnight at the applicant's home on multiple occasions, although on only one or perhaps two of those occasions had she slept in JM's room on the trundle bed alone, that is, without either her sister (JE) or the applicant's younger daughter (GM) on either a separate (or second trundle bed) or on a mattress. 7. The sleeping arrangements during sleepovers was addressed, in general terms, in the applicant's account to police in an ERISP recorded on 25 July 2017. The applicant's wife gave affirmative evidence that DE never slept in her son's room alone. 8. The trial judge directed the jury that they did not need to be satisfied beyond reasonable doubt of the date the offence was committed; it was sufficient they were satisfied the offence was committed within the timeframe alleged in the indictment. 9. The first ground of appeal concerns what is said to be evidence adduced at trial through DE and in her JIRT interview, and in the way the Crown conducted the case at trial, which allowed for the possibility that some members of the jury might have reasoned to a finding that the applicant indecently assaulted DE on one occasion during the timeframe particularised and other jurors that she was touched on a different occasion in that same timeframe and that their verdict was returned by a "pooling" of those findings. In the absence of a unanimity direction, this was said to give rise to the possibility that the verdict of the jury was not unanimous as to which act of touching was proved beyond reasonable doubt, resulting in a miscarriage of justice. 10. In the context of the summing up, and the way in which the cases for the Crown and the accused were conducted at trial, the Crown submitted the jury would have been left in no doubt that the only allegation of criminal conduct with which they were concerned was the indecent touching that DE complained of to her parents on 8 July 2017 and the indecent touching she described in the JIRT interview on 24 July 2017, irrespective of the date on which it occurred. That being the case, the Crown submitted no unanimity direction was required and the first ground of appeal should be dismissed. 11. I will return to consider the submissions developed in support of the first ground of appeal. Evidence of complaint 1. DE's parents gave evidence in the Crown case. Their evidence was the subject of criticism by Ms Bashir SC who appeared for the applicant on the appeal. It is convenient to deal with those criticisms now. 2. DE's mother, JGE, gave evidence that on 8 July 2017 (a Saturday night), when she was putting DE to bed, they had the following conversation: DE: I don't want to stay at [the applicant and his wife's] anymore, Mummy. JGE: Why, Sweetheart? Why – why wouldn't you want to stay there anymore? DE: Because [the applicant] touched me. JGE: What do you mean he touched you? DE: He touched my private parts. JGE: Sweetheart, that's very serious. Are you sure? DE: Yes, Mummy. JGE: When – when did this happen? Did this happen last Saturday night. DE: Yes, it happened that night. JGE: Okay. How – how did he touch you? Can you please show me how he touched you. DE: He stroked me and patted me like this. 1. JGE gave evidence that DE put a hand on the top of her hand and used two fingers to stroke or pat it. JGE asked again whether she was sure the applicant had touched her in that way. DE confirmed she was. JGE reported the complaint to her husband, BE, who spoke to DE the following morning. 2. JGE said she spoke with her daughter again the following morning to clarify when the incident had occurred before her husband spoke with the child. In the meantime, JGE had spoken to JE, her other daughter, to inquire whether she knew anything of the incident. JGE gave evidence that DE (and on occasions JE) had slept at the applicant's house on multiple occasions both before and after 11 March 2016, including the week before the complaint was made. JE told her mother that the incident could not have happened at the sleepover the previous week because she was sharing a bed with her sister. When JGE raised the issue with DE she said that the "touching" had not happened the previous week but "on the night that Jack had visited". ("The night that Jack visited" or "the Jack Henry night" was later confirmed to be a reference to an occasion on 11 March 2016 when a friend of JGE had visited and was taken to the applicant's home where DE was "sleeping over" to be introduced to her.) JGE gave evidence that this may have been the first occasion on which DE slept over at the applicant's house - if not the first, then the second occasion. 3. JGE also asked her daughter why she had not said at the outset that the "touching" happened on the night Jack visited at which the child became very upset. JGE gave evidence that she comforted her daughter by telling her that she had done the right thing by reporting the matter. 4. JGE was asked the following questions in cross-examination: Q. When you were talking to [DE] on the following morning, you were suggesting to her that it may have happened on another night, not that night? A. That's correct. Q. And it was at that time that she then said to you, "It happened on the first time she stayed there"? A. That's correct. Q. And you knew that that was some time way back in 2016? A. Correct. 1. It was suggested by Ms Bashir in oral submissions that when JGE spoke to her daughter to seek clarification as to when the assault occurred, the child did not nominate "the night that Jack visited" but, rather, that was suggested by JGE as another occasion when the child slept over. The complaint seems to be that JGE did not challenge the child by suggesting the assault did not happen at all but that she proceeded on the assumption that it did. For my part, I do not read JGE's evidence as conveying that suggestion. Despite some lack of clarity in JGE's evidence, neither does it support the submission advanced by Ms Bashir that the child was complaining to her mother of multiple acts of touching, a submission foundational to the first ground of appeal. 2. JGE also gave evidence that later that morning, after her husband had spoken to DE, she again asked DE how the applicant had touched her. JGE gave evidence that DE "told me again that he had touched her and the way that he had touched her". DE also told her mother about the circumstances in which the touching happened. She said that JM was having trouble sleeping so the applicant lay down with him to get him to sleep. DE told her mother the applicant "thought she was asleep … and that's when he touched [me]". 3. DE's father, BE, gave evidence that when he spoke to his daughter she was "hesitant, a bit upset because she didn't want to talk about it". He said he reassured her and that she then said, "Daddy, he has touched my private parts". When BE asked what the applicant did, she performed with two fingers a circular motion on top of her vagina. He then confirmed that was what the applicant did by repeating the two-fingered motion on his daughter's clothing in the area of her crotch. 4. On the appeal, although not at trial, it was submitted that it was the child's father who first demonstrated or instigated the form of the touching, being a circular movement of fingers on top of the area of the child's vagina, and that this had the effect of undermining the integrity of DE's demonstration of the "touching" in the JIRT interview. In effect, it was submitted that DE was subject to the power of her father's suggestion. This was an argument advanced by Ms Bashir in support of the third ground of appeal. I am content to make it clear now that I do not accept the analysis of BE's evidence as proposed by Ms Bashir. 5. He was not cross-examined by Ms Davenport. Importantly, it was not put to him that he was the source of the demonstration of the two-fingered circular touching motion, something that one would have expected of trial counsel were there any suggestion of the kind arising from his evidence before the jury. 6. On 24 July 2017, DE's parents spoke with a doctor who advised them to report the matter to police. The JIRT interview on 25 July 2017 and the child's evidence at trial 1. After confirming DE's appreciation of the difference between the truth and a lie, the interviewing officers asked her what she had come to talk to police about, to which she responded, "My friend's dad touching me". When asked when that happened she said, "the first ever time I had a sleepover there". She was asked to describe what happened from "start to finish". She said: A. He said I could have a sleepover the day and I said, yes. Then we had dinner and then we had dessert, then we went to bed. I slept in my friend [JM's] room. He, um, has autism so he needs his like dad. And when I was asleep he came in and touched me. Q52. OK. So I'm going to ask you some more questions OK about what you've just told me. OK. So you started with you said you had a sleepover? A. Yeah. Q53. So where did you have a sleepover? A. Hey? Q54. Where did you have a sleepover? A. In my friend's [JM's] room. Q55. And so what happened next? A. Um, so I slept in there then, um, he waited for me until he thought I was asleep but I couldn't actually sleep and then he came in and touched me. 1. She was asked to draw a diagram of the location of JM's bedroom and a plan of the house. She identified the family members as the applicant, his wife and their two children, JM and GM. The drawings were later identified in her evidence in chief and tendered at the applicant's trial. 2. She described the events of the night she was "touched", including what they had for dinner and dessert (being ice cream with Ice Magic syrup) and that they had a bath, changed into their pyjamas and played, including sliding in their socks. Later in the interview she said they watched "Odd Squad" on Netflix. She described her pyjamas. 3. DE said she thought the touching was "last year" (being 2016) after Christmas (she later said it was after JM's birthday on 31 January 2017). She was unable to be any more specific about the date. She did say it was a school day and that she was picked up after school and went with the applicant's children to the Aquatic Centre. She also said one of her mother's friends who she had never met came over to the applicant's house where she was having dinner and it was then that she asked her mother whether she could sleep over. Her mother brought her a pillow and blanket. (This was confirmed in JGE's evidence to be 11 March 2016, the night Jack Henry visited.) DE said the next day she went to ballet. 4. She repeated that she had slept in JM's room and that he needed help falling asleep, so the applicant "came in and helped him … then he went out and then he touched me". 5. The interview continued as follows: Q228. So can you just tell me again. So you went in and you laid down with [JM]? A. Laid down. No [JM] slept in his bed. Then he was a bit scared so he came and lie in my bed. Q229. OK. A. And then [the applicant] said no, go back in his, your bed. And then when he was asleep he went out and then he thought I was asleep but I wasn't and he touched me. Q230. Yeah. OK. So can you tell me more about that? A. And he touched me and then I was like, what are you doing, in my head. And then he went to sleep. Q231. So when you say he touched you, where did he touch you? A. In the private part. Q232. OK. What's another name for your private part? A. Wee wee. Q233. Wee wee. And what do you normally do with your wee wee? A. Um --- Q234. That's OK. You can tell us. This is really important. A. You go to the toilet. Q235. Toilet. OK. And yeah, and so what do you normally do when you go to the toilet with your wee wee? A. Pee. Q236. OK. Thank you very much. So how did [the applicant] touch you? A. He just like put it there and like moved it around. Q237. What did he put there? A. His two fingers. Q238. Yeah. So you're holding up two fingers like that? A. Just like that and then he like touched it. Q239. Yeah. And so how did he touch you? A. He was like … Q240. And how long did he do that for? A. Um, I don't know. Q241. And, um, was he saying anything? A. No. Q242. Did you say anything? A. No. Q243. Was there any light in the room? A. No. Yeah. There was like the darkest light. Q244. Yeah. And how did you know it was [the applicant]? A. Because, um, I could hear, I could just feel his fat fingers. Q245. Yeah. Was there anything else that made you know it was him? A. Um, I knew because [the applicant's wife] was fast asleep and because [JM], [the applicant] was in there. Q246. Yeah. A. Yeah. Q247. You said he touched you with his fingers. Um, was that over your clothing? A. Um, no. Q248. No. What happened next? A. So he just touched it and then he went and then I fell asleep. Q249. Yeah. Did – so, did you have your pyjama pants still on --- A. Yeah. Q249. --- when he did that? A. (No audible reply) Q250. And so was it over the top of your pyjamas? A. It was under. Q251. It was under. OK. So when you say "under" can you tell me a bit more about under? A. Under my pants. Q252. Yeah. Um, and what else did you have on under your pants? A. Undies. Q253. You had undies on? A. Scungies, scungies. Q254. Yeah. Yeah. So where were his fingers in like in relation to your underpants? A. It was like this. Q255. Yeah. So it was on your private parts with nothing in between, it was just his finger on you? A. Yeah. 1. DE confirmed that she was touched on the vagina under her pyjamas. She repeated this later in the interview. When asked how it felt, she said "Weird and I didn't like it". She said later in the interview that it made her feel unsafe. She also confirmed that when the touching occurred the applicant was on his knees next to the bed she was lying on. She then went on to describe how she was lying and what the applicant was wearing: A. I was facing, I was facing that way. Q267. Yeah. And where was [[the applicant]? A. Like my head was like that way and he was like here. Q268. OK. So you were facing away from him? A. Yeah. Q269. OK. A. Well my head was. Q270. OK. So --- A. So like that. Q271. Ah, so you were laying on your back? A. Back. Q272. You're describing laying on your back and you turned your head. So why did you turn your head? A. 'Cause it just feels uncomfortable. Q273. Yeah. A. And my ears get pretty cold so I like getting on that side. Q274. Yeah. And so you turned your head. So did you see him walk into the room? A. Yeah. Q275. Yeah. And so when did you turn your head away? A. I always was sleeping like that and I was like there and then back to this. Q276. OK. Was that when he was near the bed you turned your head? A. Um, no, when he was walking in I turned my head. Q277. OK. Do you remember what [[the applicant] was wearing that day? A. He was wearing a blue top and some white pants. Q278. Yeah. Long sleeve top? A. Short sleeve. Q279. Short sleeve? A. (No audible reply.) Q280. OK. And what about his pants, what were they? A. White. They were like short sleeve. Q281. Short sleeve. A. No, they were long sleeve track suit pants. 1. When DE was asked whether the applicant had done anything like that before she said, "No". When she was asked whether he had done anything after that she said, "Um, I don't, I don't know if he's still doing it but I'm just fast asleep so I can't feel it. But I don't know if he's still doing it or not". When she was asked whether she had ever woken up to his touching her she said, "No". 2. At the conclusion of the interview, when she was asked whether she remembered the touching being the first time she stayed at the applicant's house she said, "Or it might be the second, I don't really, I think it was the second, the second time". She confirmed she was 6 at that time (DE turned 7 in September 2016). DE's pre-recorded evidence 1. On 14 March 2018, DE was cross-examined by Ms Davenport. At that time she was aged 8 years and 6 months. 2. The cross-examination commenced with Ms Davenport inviting DE to confirm that the "touching" occurred when she was 6 and that she initially told police it happened the first time she slept over at JM's house and that later she told police that it could have happened "not on the first time … but the second time". 3. When DE was asked to confirm that she told police that the applicant only touched her once she said, "I think". The following questions were then asked: Q. The things you told the police were about [the applicant] touching you once. A. Yes. Q. And you said that [the applicant] touched you when you were in Year 1. A. Yes. 1. In the questions that followed, Ms Davenport proceeded to establish that the touching occurred on the occasion when DE met her mother's friend and, further, it was that night that she had asked her mother whether she could stay the night at the applicant's house, being the night that she slept in JM's room and her sister did not sleepover. 2. The cross-examination also focused on other occasions that DE had slept at the applicant's house in JM's room on the trundle bed and other occasions when she played with or visited the applicant's home during her first and second year at school. 3. The sleepover nights included what were referred to later in Ms Davenport's closing address as the night before the applicant's wife's birthday in September 2016 (as to which DE said she slept in JM's room on the trundle bed with JM's sister (GM) and that the applicant did not touch her) and the night of the Christmas lights in 2016, as to which she gave the following evidence: Q. And did [the applicant's wife] ask you if you would like to see the Christmas lights? A. Yes. Q. And after you had seen the lights, you slept – you had a sleepover at – A. Yeah. Q. -- [JM's] house. A. Yeah. Q. And on that night, you slept - did you sleep in [JM's] room? A. Yes. Q. And on the trundle bed. A. Yeah. Q. And [the applicant's daughter, GM] slept in the room too. A. Yes. Q. And she was sleeping on that mattress that is in the photo. A. Yep. Q. And you felt - did you feel safe staying at [JM's] house that night? A. Yes. Q. And [the applicant] didn't touch you that night? A. Yes, he did. That was the Christmas night. WITNESS INTERMEDIARY: Your Honour- DAVENPORT Q. This is the night of the Christmas lights. A. Yes. Q. [The applicant] didn't touch you that night. A. (No verbal reply) HER HONOUR: Did [the applicant] touch you. DAVENPORT Q. Did [the applicant] touch you that night? A. Yes. Q. [GM] was in the room? HER HONOUR: Was [GM] in the room. DAVENPORT Q. Was [GM] in the room? A. I don't know. WITNESS INTERMEDIARY: Just tell you Honour, "I don't know." HER HONOUR: Tell me. WITNESS: I don't know. DAVENPORT Q. Was she asleep on the mattress? A. I can't remember. 1. Having viewed the audiovisual recording of the evidence, DE refers to the touching on that night with some uncertainty, in contrast to the clear and emphatic terms in which she had earlier dealt with questions asked of her as to her memory of events and the sequencing of events. 2. The cross-examination then proceeded with DE being invited to consider other occasions when she had slept over at the applicant's house. 3. The next occasion was referred to in the trial and on the appeal as the grandparents' visit which occurred early in the first term of 2017. On that occasion, DE slept in JM's room and her sister slept in GM's room. As to that occasion, the following questions were asked: Q. When you had the sleepover with your sister when [JM's] grandparents were staying there --- A. Yeah. Q. --- did your sister sleep in [GM's] room? A. Yes. Q. And did you sleep in [JM's] room? A. Yes. Q. The next morning when you woke up --- A. Yeah? Q. --- was [the applicant's wife] in [JM's] bed? A. Yes. Q. Was that the only time that you woke up and [the applicant's wife] was in [JM's] bed? A. Yes. Q. Was that a night that you felt safe sleeping at [JM's] house? A. No. Q. Was that a night that [the applicant] touched you? A. Yes. Yes. [DE says audibly "I'm confused".] WITNESS INTERMEDIARY: Your Honour, DE has just said "confused". HER HONOUR Q. DE, did you understand that last question? A. No. [DE shakes her head.] HER HONOUR: Perhaps if you could ask it again, Ms Davenport. DAVENPORT Q. We're talking about the night that you had a sleepover --- A. Yeah? Q. --- when [JM's] grandparents were staying. A. Yes. Q. You remember that night? A. Yep. Q. You slept in [JM's] room? A. Yeah. Q. [JE] slept in [GM's] room? A. Yeah. Q. [JM's] grandparents were in the spare room? A. Yeah. Q. And [the applicant] didn't touch you that night, did he? A. No. Q. When you woke up in the morning --- HER HONOUR: Again that was a tagged question. I'm sorry to go back but could you just put that as a straight suggestion with a --- DAVENPORT Q. Did [the applicant] touch you that night? True or untrue? A. Untrue. Q. When you woke up the next morning, [the applicant's wife] was in [JM's] bed? A. Yes. Q. That was the only time that you woke up and [the applicant's wife] was in [JM's] bed? A. True. 1. The cross-examination continued with Ms Davenport asking DE about another occasion when she slept over at the applicant's house, sometime in the second term of the 2017 school year. On that occasion she slept with GM in the double bed in the spare room. DE said that there was no touching on that occasion. 2. The next occasion DE was asked to reflect upon was the night of the street party. She agreed that on that occasion she asked the applicant if she could stay the night at his house. She agreed that the applicant said she should ask his wife. The applicant's wife agreed but said DE had to ask her parents. DE said that night she slept in JM's bedroom on the trundle bed and GM slept on a mattress. She agreed that the applicant was already asleep when the children went to bed. As to that occasion, DE was asked the following questions: Q. Did you feel safe staying at [JM's] house that night? A. Yep. Q. You wouldn't ask [the applicant] if you could stay if you were scared of him, would you? A. No. WITNESS INTERMEDIARY: Your Honour --- HER HONOUR: I don't know she could --- WITNESS INTERMEDIARY: ..(not transcribable)..she..(not transcribable).. HER HONOUR: --- answer that question (as said) that you – I'm --- DAVENPORT Q. You weren't scared of [the applicant], were you? A. Pardon? Q. You weren't scared of [the applicant]. INTERMEDIARY Q. Were you? HER HONOUR Q. Were you scared? DAVENPORT Q. Were you? A. No. Q. And [the applicant] didn't touch you that night. True or untrue? A. I don't know. I can't remember. 1. Ms Davenport then turned to what she described as "the last time" that DE stayed at JM's house. DE confirmed that she stayed overnight at the applicant's house with her sister as her parents were going out for the night and that the three girls (DE, her sister, JE, and the applicant's daughter, GM) slept in the spare room whilst JM slept in his room. She agreed that the following morning she asked CM if she could sleep a second night but was told that was not possible because the family was going out. As to that occasion she was asked following questions: Q. Did you feel safe there? A. Yes. Q. And [the applicant] didn't touch you that night. True or untrue? A. (No verbal reply) Q. Did [the applicant] touch you that night, true or untrue? A. I can't remember. A little while ago. 1. She disagreed with the proposition put to her by Ms Davenport that the reason she told her mother that she did not want to have any more sleepovers was because of a rearrangement of the children's bedrooms so that the applicant's two children were sharing JM's room. 2. Ms Davenport asked DE to reflect upon an occasion when all three children were sliding around on "slippery socks" which DE said was in winter time and that it was cold, and that after sliding they watched some television for a time and then she had to go home. DE agreed that there were occasions when she watched "Odd Squad" on Netflix at the applicant's home before Netflix was connected to her home. Ms Davenport suggested to her that was in Year 2 (that is, in 2017). DE disagreed and said it was in Year 1 but, when pressed, said she could not remember. 3. After a five minute break towards the end of the cross-examination, Ms Davenport returned to the last night DE slept over: Q. [The applicant] never touched you on your private part. Is that true or not true? A. Not true. Q. Last year, when you were in year two, you told your mum you didn't want to sleep over at [the applicant and his wife's] any more. Is that right? A. Yes. Q. Your mum asked you why you didn't want to sleep there any more, didn't she? A. Yes. Q. And you told her it was because [the applicant] had touched you. A. Yeah. Q. Did Mum ask you when that had happened? A. Yeah. Q. And at first, you said it was the last time you stayed there, didn't you? A. Yeah. Q. And the last time you had stayed there was just about a week before you told Mum. A. Yep. Q. But he didn't touch you that night, did he? [DE moves her hand from side to side, signalling uncertainty.] HER HONOUR: That's a tag question. DAVENPORT Q. [The applicant] didn't touch you that night. A. ..(not transcribable).. [Intermediary asks "What night?".] Q. True or untrue? A. What night? Q. The last time you stayed. A. Yes, he did. Q. That night, you and [JE] and [GM] all slept in the spare room. A. Yes. Q. He didn't touch you that night, did he? A. No. [DE shakes her head.] 1. On my viewing of the audiovisual pre-recording of DE's evidence, there is a clear indication of both confusion and interruption from both the judge, the witness intermediary and by DE herself before ready acceptance by her that the touching did not occur on that last occasion. 2. The confusion continued, as evidenced by the following exchange: Q. Okay then. So you don't think Mum asked where you slept last time. A. Yeah. DAVENPORT Q. The next morning, you told Mum that it was another night that this had happened. A. Yeah. Q. And you told her that it had happened the first time that you stayed there. A. Yes. Q. And you thought that was the first time you had stayed there. A. Yeah. Q. That was when you were in year one. A. Yes. Q. Did Mum tell you something that made you think it didn't happen the last time you stayed? A. I'm a bit confused. INTERMEDIARY: Your Honour, just a bit confused. WITNESS: Confused. 1. The cross-examination concluded with the following questions: Q. Did Mum say something to you about the last time you stayed at [JM's] place? That is, the last time you ever stayed there. A. I don't know. Q. Did she ask you, "Where was [JE] sleeping?" A. No, no. Q. Why did you tell Mum that it happened on the last time you stayed at [JM's] place? A. Because I knew I was going to feel uncomfortable if I didn't tell her, and I knew she would eventually find out, so I just telled her - told her. Q. After you told your mum, you told your dad. A. Yep. Well, my mum told my dad. Q. And then you spoke to your dad. A. Yep. Q. Did you tell your dad when it had happened? A. Yes, yes. Q. Do you remember telling the police that it made you feel unsafe --- A. Yes. Q. --- when [the applicant] touched you? A. Yep. Q. Do you think you would want to stay at [the applicant's] house if you felt unsafe? A. No. Q. But you did stay at [the applicant's] house after you say he touched you, didn't you? You did stay at [the applicant's] house after you claim he touched you? A. No, I didn't. INTERMEDIARY: Claim, your Honour. HER HONOUR: I don't think she'll understand that, with respect. DAVENPORT Q. He didn't touch you on the last time that you stayed there. HER HONOUR Q. Is that true or false? A. (No verbal reply) DAVENPORT Q. Did he touch you on the last time you stayed there? A. Yes. True, true, true. Q. He did touch you on the last time you stayed there. A. Yeah. Q. That's just before you told your mother. A. Yep. Q. Are you confused about the times that you stayed at [the applicant's] house? A. Yeah, yeah. Q. You asked to stay at [JM's] house a lot of times, didn't you? A. Yeah. Q. And you didn't feel unsafe. A. No. Q. And on the last time you stayed at [JM's] house, you slept in the spare room with [JE] and [GM]. A. Yes. DAVENPORT: That's the cross-examination. 1. There was no re-examination by the Crown. The applicant's case at trial 1. The applicant voluntarily participated in an ERISP on 25 July 2017 in which he denied ever touching DE. He did not give evidence at his trial. His wife gave evidence. Her evidence was relied upon by Ms Davenport in her closing address to rebut significant aspects of DE's evidence and to support her submission of the improbability that the applicant indecently assaulted DE as alleged or at all. The ERISP 1. The Court was invited to view the ERISP. I have viewed it in its entirety. 2. That is significant for the following reasons. It is a version of events volunteered by the applicant to investigating police. It is also the version of events relied upon by the applicant at his trial in defence of the allegation that he indecently assaulted DE. 3. The trial judge did not direct the jury that the accused's silence was not evidence against him and could not be used to fill gaps in the prosecution case - a direction which has been referred to as the "Azzopardi direction", referencing the decision of the High Court in Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25. That was said to be the error the subject of the second ground of appeal. 4. What follows is a summary of the transcript of the ERISP. 5. The applicant confirmed that he had been cautioned by the custody manager and that he did not want to seek legal advice before he was interviewed. 6. It would appear, from the way in which the interview was conducted, that the applicant had been notified by his wife by telephone that police had attended their home and wished to speak to him. After meeting with police at his home the applicant was informed that he had been accused of the aggravated indecent assault of a 7 year old child. DE was not named as that child. The applicant did not ask the identity of the child complainant. The police advised that they would provide further details of the allegation at the police station. 7. At Question 53 of the interview DE was named as the complainant for the first time. In response to that allegation and on being asked whether he wished to say anything about it, the applicant said: A. Um, oh, I'm, I'm, I'm stunned. Yeah. Um, um, uh, yeah. I really, I don't know what to say. Q55. OK. The allegation is, um, is that you have, uh, touched [DE] on the vagina, uh, and we believe that that, that occurred on, uh, the 11th of March, 2016, when she was staying at your house one night, in, uh --- A. … Q56. --- in, in your son's room. A. Yeah. Q57. So that's --- A. They stay, yeah, I mean, they've stayed --- Q58. That's the--- A. --- but her and her sister have stayed, um --- Q59. Yep. A. --- a few times. I think [DE's] probably stayed a lot more 'cause she's a lot closer to [JM] and, and [GM], but, um --- Q60. Yep. A. … Q61. Yep. A. It's --- Q62. So, would you like, like to tell us anything about that? Um, does, does any of that sound true at all, or --- A. Oh, no, no. Q63. No. A. No, it doesn't. Q64. OK. A. No, it doesn't. 1. In response to general questioning about the sleepover arrangements, the applicant said they varied, but that if all the children were together they would have slept in JM's room because it was bigger. DE would sleep in JM's room on the trundle bed with the second trundle bed being brought in if his daughter, GM, was also sleeping in his son's room. 2. The applicant also confirmed that there were good neighbourly relations between his family and DE's family. He said that his wife decided to have an "open door policy" because of the friendship that had developed between DE and his son who had special needs. He said later in the interview that DE was "our neighbour's kid … she gets on with our kids … we [who I take to mean was the applicant and his wife] look out for her". 3. The incident described by DE as constituting the indecent assault was put to the applicant in detail. When he was told that police had "sort of pinpointed [the date as] 11th of March", coincident with the date when a friend of DE's mother had visited, he said that "rings a bell". The following questions were then asked: Q143. So, um, [DE's] indicated that she, that night that she borrowed some pyjamas off your daughter. So he had a bath, had dinner, um, and had, um, had dessert, had a bath, they played, um, and then, uh, went to bed. Um, she's, she's indicated that, uh, [JM] was restless or, like, playing up. A. Sound about right. Yeah. Q144. Playing up a bit. You went in, uh, settled him, laid down with him, just got, got him off to sleep. Um, she's indicated that you left the room for a short time, then came back, and then, uh, knelt down near her on, on the floor, and put your hand in her, in her pants. A. Mmm. Q145. And just rubbed, rubbed her on the outside of her vagina, um, for, for an unknown period of time. She couldn't really stipulate the, the length of time. And, and then that, she indicated that you, you just left the room after that. A. Yeah. Q146. Yeah, so, so that's, that's, that's why we're here, um --- A. Yeah. Q146. --- predominantly. And you're, you're telling us that, no that didn't happen? A. No, it didn't happen. Q147. It's just, like, it just, um, you've sort of agreed with a lot of the other aspects of the family --- A. Yeah. Q147. --- um, relationships. I think that, even that day in particular, you sort of recall a family friend, things like that. A. Mmm. Q148. Um --- A. I, I don't know if it's that particular day but I do remember. Q149. Yeah. A. … Q150. Yeah, sure. A. Absolutely. Q151. Sure. A. Yeah … Q152. Um --- A. Bring him over and, and introduce him, yeah. Q153. Yep. So --- A. Yeah. Q154. Um, it's, you sort of agree with all those facts, but you don't agree with the fact that, that you've, have you ever touched her --- A. No. Q154. --- in any way? A. No. No, no. 1. In answer to a question asked of him as to whether there were any circumstances where he would need to touch the bodies of children who slept over at his house, the applicant said that the only time when he would be close to touching DE would be when he was helping her out of the bath by handing her a towel, but that he had no reason to touch her genitals. He confirmed that DE used the toilet unaided and actually closed the toilet door behind her, unlike his children. 2. The applicant confirmed the general layout of his son's bedroom and that the bathroom was next to his son's bedroom. 3. Police then asked the following questions: Q229. Um, yeah, because as a part of this, um, the allegation, [DE's] indicated, um, that after, uh, you, uh, touched her on the vagina, um, when you left the room, she said, she said you washed your hands. So she, she heard the, when you left the room that you went into, to the bathroom at the same time she heard the bathroom tap turn on. Uh, would you like to make any comment about that at all? A. Um, yeah, oh, no comment there, I suppose. Um, again, there's two bathrooms but yeah, the one closest to the , to [JM's] bedroom, um --- Q230. Yep … A. Yeah, oh, I don't really need to add to that, I suppose. Q231. Sure, yeah, yeah. A. Yeah. Q232. I'm just, I'm just telling you --- A. Yeah. Q232. --- the allegation that --- A. Yeah. Q232. --- we've gotten, and, um, um, just how it's been explained to us. A. Sure. 1. The interview concluded with the following question and answer: Q249. … so that's the allegation. [DE's] indicated that you've, you've, uh, indecently assaulted her, and that you've, we, we've conducted an interview with her and she's told us, um, that you put your hand down, down her pants, like, underneath her clothing and, and, uh, rubbed her on the outside of her vagina, uh, for an unspecified time. So before we wrap up, um, is there anything else you'd, you'd like to make further comment at all about, about, uh, what we've talked about here today? A. Um, no, other than it's pretty … Um, yeah. So, uh, I would like to talk to my wife and I suppose put her --- Q250. Sure. A. Let her know. But, uh, in terms of the allegation, it's um, it's pretty serious. 1. In the absence of any explanation from trial counsel as to why an Azzopardi direction was not sought (either at the commencement of the summing up or by way of redirection), in my view the ERISP, including the applicant's denials and the approach of police to those denials, provides some insight as to why a forensic decision might have been made to rely upon the applicant's unsworn account to police in his defence at trial and not to seek an Azzopardi direction which would inevitably have highlighted the fact that he could have given evidence but elected not to. The applicant's wife's evidence 1. A map of the applicant's home was produced through his wife (CM) and tendered in evidence. It showed a bathroom in the corridor close to JM's bedroom. CM said that it was not used by either her or her husband as they had an en suite bathroom. It would appear this was the bathroom DE heard the applicant use after she described his indecent assault of her. 2. CM gave evidence that her son was diagnosed on the autism spectrum and routine was important for him, including a domestic routine on his arrival home from school which she was responsible for managing. She said her son had difficulty getting to sleep and that there was an additional routine in that process with either her or her husband usually staying in the room with JM for up to two and a half hours until he fell asleep. While CM said she invariably took on that role, if she were unable to get her son to sleep the applicant would take over. 3. In cross-examination, whilst she confirmed that on occasions the applicant might lay down with JM to get him to sleep, she denied that if DE were sleeping over that the applicant would ever be alone with the two children. She claimed that were DE to sleep over her daughter would also sleep in JM's room. 4. CM gave detailed evidence of the after-school activities of her two children. In what she described as term one of 2016, they had occupational therapy combined with a martial arts program on a Friday afternoon. She would drive them to and from this program. She said her son had a break in term two but he resumed the program in term three of 2016. She recalled that on one occasion she was asked by DE's mother to pick DE up from school which she did. On that occasion DE went with her children to the martial arts program. 5. CM said the children had swimming lessons but not in term one. She said she did not take DE to swimming lessons. The only time DE accompanied her children swimming was in the Christmas holidays 2017. She said DE did not sleep at her home that night. 6. She confirmed that on 11 March 2016 it was possible that DE had slept over. If that had happened she said that would have been one of the first of many occasions that DE slept at their home. She said the Netflix program "Odd Squad" was first viewed in March 2017. She said she did not remember DE's mother dropping off clothes or any conversation about a friend of DE's mother visiting. 7. CM recalled six sleepovers in 2016, the first on the night before her birthday, being 27 August 2016. On that occasion she said DE slept on the trundle bed in JM's room with GM on a mattress at the end of the two beds. The next occasion was the night of the Christmas lights with the same sleeping arrangements. 8. Another occasion was when the applicant's parents attended for his birthday and stayed overnight in the spare room. She said both DE and her sister slept over one night whilst her parents-in-law were staying. On that occasion DE slept in JM's room and the other girls slept in her daughter's room. On that occasion, however, her son woke up distressed in the night and went into her bed and she slept in her son's bed. 9. The next sleepover was on 24 June 2017 after what she described as "a street neighbourhood catch up". On that occasion her daughter and DE slept in JM's room. On another occasion, sometime between April and July 2017, DE slept with her daughter in the spare room while her son slept in his bed. 10. CM gave evidence that the last sleepover was on the first weekend in July 2017. On that occasion she agreed to have DE and DE's sister stay over as their parents were going to a ball. All three girls slept in the spare room. JM slept in his bedroom. 11. The only occasion CM recalled the children sliding around on their socks was an occasion when DE did not sleep over. 12. CM said when DE visited that DE would have a general conversation with the applicant at dinner and at other times but there was no physical interaction between them. She saw nothing in DE's behaviour that made her think she was not comfortable around the applicant and she noticed no change in the child's behaviour in relation to the applicant at any time. In cross-examination she said there was never an occasion when the applicant would be in the bathroom to give DE a towel as bathing was her domain. The closing addresses of counsel The Crown's closing 1. Shortly stated, the Crown's closing submissions were to the effect that if the jury were satisfied beyond reasonable doubt that what the prosecutor described as "this touching" occurred in the way that DE said it did, the jury should convict the applicant. The only "touching" referred to by the Crown as constituting the offence charged was what DE complained of to her parents and the account she gave to the interviewing police in the JIRT interview. 2. The Crown dealt with the issue of the date of the offence by encouraging the jury not to assess the evidence of a child witness as one would an adult witness. She submitted that children do not have autonomy over their lives, including ordering their lives by reference to a calendar. After referring to the timeframe within which the Crown alleged the offence occurred, the Crown submitted as follows: It doesn't matter whether it was the first of those dates, or the last of them, or any in the middle; it doesn't matter. The Crown doesn't have to prove on which date the event occurred. It doesn't need to prove, beyond reasonable doubt, what date it occurred. It could be any of those dates … All the Crown needs to prove is the act that took place; the facts that relate to the offence. (Emphasis added.) 1. On the appeal, it was submitted that this was an invitation to the jury to choose between multiple acts of touching occurring on different dates within the particularised timeframe. Clearly, neither trial counsel nor the trial judge interpreted it that way. For my part, I do no not interpret it that way either. Other aspects of the Crown's closing were also said by Ms Bashir to invite the jury to consider multiple acts of touching as constituting the offence charged. Those submissions were developed in support of the first ground of appeal. I will return to consider the Crown prosecutor's submissions to the jury and the applicant's complaint about them when considering the first ground of appeal in detail. Ms Davenport's closing 1. Ms Davenport's closing submissions were structured to seek to persuade the jury that they would not accept DE as a reliable witness given what she submitted were grave doubts as to when "this touching" occurred. In counsel's submission these doubts flowed from the initial complaint when DE nominated the occasion when "it" occurred as an occasion when "it" could not have occurred, namely 1 July 2017 when DE and her sister were sharing a bed, and that those doubts were perpetuated thereafter, including in DE's evidence, by reference to the surrounding circumstances of what Ms Davenport described as "the one occasion that she was touched" by the applicant. 2. Ms Davenport's submissions then focused on the context in which DE had said that she was indecently touched by the applicant, including the timing of visits to the Aquatic Centre, what they watched on television and how they played before bed, to raise further doubts as to the reliability of her account. In each instance, Ms Davenport invited the jury to focus on the fact that DE's account of the touching could not have occurred in the circumstances DE described. As Ms Davenport put it, "it all goes to the reliability of her account of what happened and when it happened". 3. Later in her address, Ms Davenport reminded the jury of the seven or eight occasions that DE slept at the applicant's house between the dates particularised on the indictment. These events were referred to on the appeal as the first sleepover on 11 March 2016 (the Jack Henry visit); the second on 27 August 2016, JGE's birthday; the third on the night of the Christmas lights; the fourth on the grandparents' visit; the night between April and July 2017 when DE and the applicant's daughter slept in the spare room; the street party on 24 June 2017; and 1 July 2017 when DE, her sister and the applicant's daughter all slept in the spare room. As to the other instance of touching revealed in cross-examination, being the night of the Christmas lights, Ms Davenport said: … she claimed that he touched her on that night. That's a night when [GM], on her own version, was also sleeping in the room. And in relation to the last time, 1 July, I've already told you that her version of what happened on that night varied during the course of the cross-examination. 1. The only reference by Ms Davenport to DE's evidence was that "it" happened on other nights "as well", was again in the context of inviting the jury to question DE's reliability, as is clear from the following: In cross-examination she stated that, when she was asked about the Christmas lights, she said it happened on that night as well. And then when we came to that final night, the night of 1 July, she gave a number of different versions and this appears at the transcript of her cross-examination starting from p 40 onwards. She agreed that she, [JE] and [GM] all slept in the spare room. I asked her, "Was it true or untrue, [the applicant] didn't touch you that night" and her first answer was, "I can't remember" and that was at p 41 at line 14. I then came back to the issue of the events of 1 July and at p 54, line 15, she agreed that [the applicant] didn't touch her that night, but then at p 56, line 7, she said he did. So within that cross-examination she went from, I don't remember ‑ no, he didn't touch me ‑ yes, he did touch me. So in terms of her reliability, my submission to you is that you would look very, very closely at her versions of events because she was prepared in many aspects to agree to almost any version of events. Again, looking at that version, I don't remember ‑ no ‑ yes, in the light of her acceptance of the fact that on the following day she asked if she could have another sleepover that night but [her mother] said no because they had something on. 1. Ms Davenport then went on to submit: So my submission to you is this, that contrary to what the Crown has said, you do, the devil is in the detail. You do have to not just look at what she says, the broad allegation of, "He touched me in my private parts." You have to look at what she, the surrounding circumstances which she says led up to that. You have to look at the reliability of her version of events, when did it happen? Why did she agree with her mother when she refers to slow is that it happened on the week before because it just couldn't have happened the week before. If it did happen, why did she continue, if it did happen sometime in 2016, because her evidence is it happened when she was 6. If it did happen why did she continue to go over there? Why did she continue to want to go over there? Why did she continue, why did she, in June at the street party, ask [the applicant] if she could stay? Is that the likely behaviour of a child who's been sexually touched by this man? 1. So far as the issue of the date of the offence was concerned, Ms Davenport also submitted, "If this [the indecent assault alleged] happened in March of 2016 or August of 2016 or February of 2017, why did [DE] keep wanting to go back?". 2. Ms Davenport concluded her submissions by urging the jury to determine, having regard to DE's evidence, whether after they: … examined it in detail in terms of all the things that she said and the different versions she has given in cross-examination, and to her mother in particular about when it occurred, that [they were] satisfied beyond reasonable doubt that it in fact occurred as she said it did. (Emphasis added.) The trial judge's summing up 1. After directing the jury that their assessment of a witness's credibility was solely a question for their assessment, the trial judge gave the following direction as to how they should approach the evidence of DE as a child witness: Now, here of course, you are dealing with the evidence of a young child and you have heard submissions on behalf of the Crown and on behalf of [the accused] in relation to that. Members of the jury like adults some children will provide truthful and accurate testimony and some will not. However, children are not miniature adults, they are children and are to be treated and judged for what they are. Therefore, although due allowance must be made for the trial process for the fact that it is a child whose evidence you are scrutinising, for a child you would expect, for example, a shorter attention span than an adult's and the like. Members of the jury, none of the characteristics of childhood, and none of the special measures which apply to the evidence of children carry with it the implicit stigma that children should be deemed in advance to be somehow less reliable than adults. The purpose of the trial process is to identify the evidence which is reliable and that which is not, whether it comes from adult or a child. And so, members of the jury, [DE's] credibility is to be assessed by you, take into account every specific personal characteristic which you think may bear on the issue of credibility, maybe her age and the like, along with the rest of the available evidence. 1. The jury were also directed that they should exercise caution in their consideration as to whether the evidence relied upon by the Crown proved the applicant's guilt beyond reasonable doubt where the Crown case was dependent upon the jury accepting DE as a truthful witness. Her Honour gave the following direction: [Before convicting] the accused on the charge because the Crown case very much depends on you accepting the truthfulness and reliability of the evidence of a single witness. That evidence must establish the accused's guilt to that exacting standard of beyond reasonable doubt, and you must therefore carefully consider the evidence and the recollection of the complainant with more than the usual amount of care on that account. That being so, unless you are satisfied beyond reasonable doubt that the complainant is both an honest and accurate witness in relation to those vital elements that I have spoken to you about and the account that she has given you cannot find the accused guilty of the charge concerned. Before you can convict the accused on the charge you should examine the evidence of [DE] very carefully in order to satisfy yourself that you can safely act upon it to the high standard required in a criminal trial. (Emphasis added.) … I am not suggesting that you are not entitled to convict the accused of the charge upon the evidence of the sole complainant, and clearly you are entitled to do so, but only after you have carefully examined the evidence and satisfied yourself of it beyond reasonable doubt. 1. After identifying the constituent legal elements of an indecent assault of a child under 16 years, the trial judge said that "the alleged offence occurred between 10 March 2016 and 8 July 2017" but that the date was not an element that needed to be proved beyond reasonable doubt. 2. As to the issue of the date of the offence, the trial judge directed the jury in the following way: … the Crown has alleged that the offence occurred between certain dates, namely 10 March 2016. That is, as I understand it, the date just before Jack Henry came to stay, or visited at [DE's] home, and where [JGE] told you she was able to date that by reference to Facebook. And the next date is 1 July 2017, that being the occasion when [DE's parents] went out [and the applicant and his wife] babysat both of their children. And you will recall the evidence is that the disclosure and the complaint made by [DE] was made on 8 July, so a week later. So, you did ask a question about the dates. It is not an essential element that the Crown must establish, but in this instance it is said that the offence occurred within that time period, 10 March 2016 and 1 July 2017. (Emphasis added.) 1. Her Honour concluded her directions on the essential elements of the charge as follows: Members of the jury, I emphasise that it is only in the event that you are satisfied that the Crown has proved beyond reasonable doubt that the accused assaulted the complainant, that the assault was indecent, and at the time of the indecent assault the complainant was under the age of 16 years then the Crown has proved all of the essential facts or ingredients to make out the offence of indecent assault, and only in that circumstance should you return a verdict of guilty. 1. The directions as to the constituent legal elements of the offences are not said by the applicant on appeal to have been deficient. The directions were also reduced to writing. It is unnecessary to set them out in full. 2. In the summing up, the trial judge repeatedly used the words "the alleged offence" or "the offence" or the date "it" was alleged to have happened which, when regard is had to the summing up as a whole, can only be taken to refer to the indecent touching described in detail by DE in her interview with police and demonstrated by her in the interview, since the trial judge did not refer to the other occasions when DE said she was "touched" by the applicant. No direction was sought as to how the jury should treat that aspect of her evidence. No complaint is made on the appeal that a direction should have been given. 3. The trial judge then identified the real issue in dispute "in respect of the charge on the indictment" as whether "the Crown has proved beyond reasonable doubt that the relevant act, that is, the relevant indecent touching, took place" (Emphasis added). 4. I have referred earlier to the evidence of DE's parents which attracted a direction from the trial judge to the effect that if they were satisfied that DE complained to her parents substantially to the effect that the applicant "touched [her] on the outside of her vagina on the wee wee" (that is, that she made the allegation against the applicant and in the terms that she made that complained of to her parents), and that is "the sort of conduct you would expect of a person who has been assaulted in that way", it may be used by them to support the reliability of DE's evidence. Again, when giving that direction her Honour referred to "the touching" the subject of "the allegation". 5. When her Honour reminded the jury about Ms Davenport's submissions concerning the evidence of complaint, she made repeated reference to the date upon which "it" happened, clearly a reference to the indecent assault the child had described and demonstrated to her parents and to police as exemplified in the following extract: The defence case has been put by counsel for the accused, Ms Davenport, in the clearest of terms and that is that the evidence upon which the Crown relies which necessarily is the single witness of [DE], that that evidence is not capable of establishing to your satisfaction that the accused did the act the subject of the count. (Emphasis added.) 1. Her Honour went further and said that in contrast to the Crown case which is reliant on the jury accepting DE's evidence as truthful and reliable, the defence case is: … that she has been demonstrated to be fundamentally unreliable and any inconsistencies in her evidence are not the result of any confusion but they are fundamental to the issue to be decided by you and it [sic] could not satisfy you of the accused's guilt beyond a reasonable doubt. 1. In further elaboration of the applicant's case at trial, her Honour again referred to Ms Davenport's submission that the inconsistencies in DE's evidence in relation to the date the offence was alleged to have occurred and the circumstances surrounding it, as informing the jury's assessment of the child's credit and reliability. 2. DE's evidence in cross-examination was referred to in the context of her Honour's summary of the applicant's case as it was advanced by Mr Davenport on his behalf in her closing address. It is instructive to set out that aspect of the summing up in full: On behalf of the accused, Ms Davenport emphasised the inconsistencies in [DE's] evidence, and the submission made to you was that the inconsistencies in her evidence, certainly in relation to the date the alleged offence occurred and the circumstances surrounding it, would assist in your assessment of [DE's] evidence, and so those inconsistencies, the submission went, do matter because they inform the view you would take as to the child's credit and reliability. She turned first to the inconsistency in complaint. That is, when [DE] first told her mother that the accused had touched her and she agreed that it happened on 1 July 2017, and of course that was a date just a week before the complaint was made. But the next day when her mother sought to clarify this it shifted to 13 March 2016. I am sorry; Ms Davenport did not say it shifted to 13 March 2016, but that is the date that has been identified as the date that [DE's mother's friend] came to stay. The submission was made that in her account to the police the complainant said that it happened when she was six years of age, that is, before September 2016, and that it happened when her mum brought her friend to the house. Her evidence was that [the applicant's wife] had picked her up and they had gone to the aquatic centre to swim, but Ms Davenport referred you to the Martial Methods records and the evidence also of [the applicant's wife], exhibit 14, and said that she slept over that night just does not fit with that version. And just so Odd Squad, which is also a feature of the circumstances that the child said surrounded the incident, that was not accessed on Netflix until March 2017. In cross-examination [DE] had agreed that she went home after the incident when she was skating in socks, so that is contrary to her account, and that is the time that [GM] hurt herself, but that, it was pointed out, was inconsistent with what she had said in her JIRT interview. [DE] had said that the night that the offence occurred she had borrowed pyjamas from [GM] but her mother stated that, no, she had introduced her daughter to a friend. She had gone and got [DE's] clothing from her house and returned with it. And then there was the issue about [the applicant's wife] sleeping in the bed, and that [the applicant's wife's] evidence was that she slept in the spare room and only once went into [JM's] bed. The point of it is, as Ms Davenport asserts, with all this background information surrounding the night that she said it occurred, it just cannot be right. In terms of the relationship between the [M] and the [E] families the submission made is that it was clearly a good relationship, it was founded on a relationship between [DE] and [JM], and it was particularly precious because of [JM's] autism. Ms Devonport raises for your consideration why would the accused put that at risk, that it just does not pass the pub test. She also asked for you to consider if this had happened why would [DE] keep wanting to go back. On the last occasion she was there she had agreed she had asked to stay another night, in cross-examination, and in any event that was the night that three children had slept in the room. That is the night of 1 July 2017. And of course, there was the evidence that on 23 June 2016 [DE] agreed in cross-examination that she had asked the accused if she could stay. That was the night, I think, of the street party, and he had asked her to go and ask his wife, and [the applicant's wife] had said yes, and her parents agreed and so she stayed. Ms Davenport also asked you to have regard to the cross-examination wherein [DE] claimed she had been assaulted on other sleepovers despite telling the police that it had only occurred once. The first ground of appeal: A miscarriage of justice was caused by the failure of the trial judge to give a direction about the need for the jury to be unanimous about which act of touching they found proved beyond reasonable doubt. 1. On the hearing of the appeal, although not the subject of written submissions, Ms Bashir submitted that S v The Queen (1989) 168 CLR 266; [1989] HCA 66, and the principles for which that case is authority, dictate that the first ground of appeal has been made out. 2. That submission proceeded on Ms Bashir's acceptance of the proposition that the only question the jury had to decide was whether the applicant touched DE indecently, it being accepted in filed submissions that were the jury satisfied of that fact beyond reasonable doubt a guilty verdict would necessarily be returned. 3. MS Bashir submitted, however, that the way the Crown conducted its case at trial, inter alia by emphasising that it did not need to prove the date on which the offence occurred or the precise circumstances contextual to the offending, and by putting what was said to be "opportunity" at the forefront of its case, the jury were distracted from the need to reach a unanimous decision about which act of multiple acts of "touching" they found proved. That argument was in turn premised on there being evidence of multiple acts of indecent touching at the applicant's trial as part of the evidence upon which the Crown relied in proof of its case or which the jury might have considered were alternate scenarios of indecent touching. 4. Ms Bashir also relied upon Lane v R [2017] NSWCCA 46 in further support of her submission that a miscarriage of justice resulted from the failure of the trial judge to give a unanimity direction. In reply to the Crown's submission, Ms Bashir submitted that the decision of this Court in Cabot v R [2018] NSWCCA 265 was distinguishable and the Crown's reliance on the reasoning in that case in disposition of the first ground of the appeal was misplaced. S v The Queen 1. In S v The Queen the High Court was concerned with an indictment which contained three counts of incest on successive years between January 1980 in November 1982, it being the Crown case that in each of those three years the applicant had one act of sexual intercourse with the applicant's daughter which constituted each of the offences charged. The applicant's daughter gave evidence of an incestuous relationship with the applicant before she left home at the age of 17 which extended over the timeframe comprehended by the three counts on the indictment. The repeated acts of intercourse which she described in evidence were indistinguishable, one from the other, save as to them occurring on different occasions, "every couple of months" during each of the three years covered by the indictment. The closest the complainant came to identifying any specific occasion when intercourse occurred was a reference to the first occasion and the first time the applicant put on his wife's underclothing. In regards to the other acts of intercourse, the complainant gave evidence that they occurred over "the next two years". 2. The Crown declined to furnish particulars of the offences alleged. An application to the trial judge that the Crown provide particulars was also refused, the trial judge apparently accepting that the Crown was not in a position to provide further particulars of the offending the subject of any of the three counts and was unable to nominate or identify with particularity the acts of intercourse the subject of each of the three counts. In the result, the applicant only knew that what was alleged against him was that on an unspecified occasion in each of the 12-monthly periods comprehended by each of the three counts on the indictment he had carnal knowledge of his daughter. 3. The trial judge summed up to the jury on the basis that it was sufficient for them to be satisfied beyond reasonable doubt that on at least one occasion during each of the three years there was an act of incestuous intercourse without any guidance as to what the evidence revealed about any of those three occasions. 4. The argument advanced in the High Court was based on the proposition that where a count in an indictment alleges one specific offence, it is not open to the Crown to lead evidence of a number of acts which amount to the actus reus of the offence charged, and then to invite the jury to convict on the basis of proof of the acts led in evidence. 5. As Toohey J saw it, the issue was not that the indictment was open to challenge on the ground of duplicity or a failure to provide adequate particulars; the issue was that the accused did not know, with any certainty, the charge he had to meet. As his Honour noted at 281, that had been considered by Dixon J in Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 where his Honour said: … the question is whether the prosecutor should not be required to identify one of a number of sets of facts, each amounting to the commission of the same offence as that on which the charge is based. In my opinion he clearly should be required to identify the transaction on which he relies, and he should be so required as soon as it appears that his complaint in spite of its apparent particularity is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged, but also of the particular act, matter or thing alleged as the foundation of the charge. 1. Toohey J went on to say at 282: Of course this does not mean that the prosecution must specify a particular date as the occasion on which it relies. But it does mean that, as soon as it appears that a count in the indictment is equally capable of referring to a number of occasions, each of which constitutes the offence the legal nature of which is described in the count, the prosecution should identify the occasion which is said to give rise to the offence charged. This did not happen in the present case nor did the trial judge adequately convey to the jury the difficulties facing the applicant by reason of the failure to do so. The matter was left to the jury on the basis that so long as they were satisfied an act of carnal knowledge occurred during a period specified in a count in the indictment, they could convict the applicant on that count. The trial miscarried for that reason. 1. In declining to apply the proviso, Toohey J said at 283: This trial was fundamentally flawed in that the jury were invited to convict the applicant so long as they were satisfied that within any of the periods specified in the indictment the applicant "carnally knew" the complainant. Put that way, the acts of intercourse described in the generalized evidence were available, not merely as going to prove any of the offences charged against the applicant but as the offences themselves. In respect of each count, the jury were not required to direct their attention to any particular occasion and to satisfy themselves, beyond reasonable doubt, that there was such an occasion and that it occurred within the period specified in the count. There was a real likelihood that they would convict the applicant on the basis that since acts of carnal knowledge were frequent, an act must have occurred during each of the periods mentioned in the indictment. In those circumstances it is inappropriate to apply the proviso. There should be special leave to appeal and the appeal allowed. There should be an order for a new trial though the Crown will have to consider whether, in all the circumstances, there can be a new trial which will not miscarry as this trial miscarried. 1. Dawson J considered that the three counts on the indictment were framed in a permissible way and that each charged only one offence and gave rise to no duplicity for that reason. Had the evidence adduced at trial revealed only one offence in each of the three years in question, his Honour was satisfied there could have been no complaint about the form of the indictment. He observed, however, that although each count charged only one offence of carnal knowledge, the evidence revealed multiple instances of intercourse with nothing to identify any one of them as the offence with which the applicant was charged in any particular count. 2. His Honour went on to say at 273: No application was made that the prosecution be put to its election for the purpose of identifying the specific occasions upon which it relied as constituting the offences in question, nor did the trial judge put the prosecution to its election. Instead, he left it to the jury "to determine … whether on the three occasions cited in the indictment, the accused did have carnal knowledge of his daughter … ". The indictment, of course, did nothing to specify which of the multiple acts of intercourse were those alleged to constitute the offences with which the applicant was charged. The applicant was convicted upon all three counts. 1. He concluded that what he described as the "latent ambiguity" in each of the three counts required correction if the applicant was to have a fair trial. 2. It was only in the judgment of Dawson J that the issue of unanimity was discussed. In that regard his Honour said at 276: The case having proceeded as it did, it is theoretically possible that individual jurors identified different occasions as constituting the relevant offences so that there was no unanimity in relation to their verdict. That, of course, would be unacceptable, but it is more likely that the jury reached their verdict without identifying any particular occasions. Indeed, that is virtually inevitable because no means were afforded the jury whereby they could identify specific occasions. As I have indicated, such a result is tantamount to their having convicted the applicant, not in relation to identifiable offences, but only upon the basis of a general disposition on his part to commit offences of the kind charged. 1. In the joint judgment of Gaudron and McHugh JJ, their Honours regarded the issue raised by the appeal as a case where the prosecution led evidence from the applicant's daughter of multiple acts of intercourse answering the description of the three offences of carnal knowledge on the indictment. This was said to be similar to a count on an indictment which is bad for latent duplicity and productive of prejudice for that reason. 2. Their Honours went on to say at 286: The question of prejudice goes somewhat deeper than the question whether there was an effective denial of an opportunity to call alibi evidence. The evidence of a number of offences said to have been repeated at two-monthly intervals over a period of one year (which period might fall anywhere within a period of almost three years) had the same practical effect that was noted by Evatt J. in relation to the course proposed in Johnson v. Miller . Effectively, the applicant was required to defend himself in respect of each occasion when an offence might have been committed. Additionally, by reason that the offences were neither particularized nor identified, the accused was effectively denied an opportunity to test the credit of the complainant by reference to surrounding circumstances such as would exist if the acts charged had been identified in relation to some more precise time or by reference to some other event or surrounding circumstance. 1. And further, at 287: The trial of the applicant was fundamentally flawed by the admission of evidence of multiple acts of carnal knowledge and by the way in which such evidence was left to the jury. The rule as to the admissibility of evidence of offences, not being the offences charged, is clear. Such evidence, whether identified as similar fact evidence or by some other description, is only admissible if it has probative value such that it raises the objective improbability of some event having occurred other than as alleged by the prosecution. 1. In the applicant's trial, the evidence of other acts of touching was not only adduced by defence counsel in cross-examination, as I have already noted, no directions were sought or given to ensure the jury did not use that evidence for tendency or propensity purposes. On the appeal no complaint was made that a direction in those terms should have been given. 2. Although Brennan J dissented on the question whether the trial involved a substantial miscarriage of justice, his Honour also considered that by allowing the trial to proceed without confining each count on the indictment to a single act of intercourse was an error of law. He accepted the applicant's submission that it was not open to the Crown to lead evidence of the number of acts which amount to the actus reus of an offence and then to invite the jury to convict on any one of those acts. At 269, his Honour accepted that each count on the indictment was regular on its face but, "it referred indifferently to a number of acts of intercourse indistinguishable one from another save as to the different occasions of their occurrence". That being the case, his Honour considered that the facts revealed by the evidence disclosed, in respect of each count on the indictment, a latent ambiguity which was not removed by the provision of particulars nor by an election by the prosecution to proceed to prove its case on a particular act falling within the period specified in the count. 3. In the course of oral argument Ms Bashir accepted that in order to make good her submission that the reasoning of each of the judges in S v The Queen that the trial of the accused was fundamentally flawed dictated that the first ground of appeal must succeed for that reason, she was obliged to demonstrate that DE gave evidence of repeated acts of indecent touching within the timeframe specified in the count on the indictment, and that each of those acts was capable of constituting the offence of indecent assault the subject of the single count on the indictment upon which the accused was convicted. 4. It was submitted that the JIRT interview was a source of evidence that acts of indecent touching occurred on more than one occasion and that DE's evidence in cross-examination was affirmative evidence of that fact. The JIRT interview 1. The questions and answers in the JIRT interview relied upon in support of that submission are as follows: Q48. OK. Your friend's dad touching you. And where did that happen? A. When I was having a sleep over. Q49. And when did that happen? A. The first ever time I had a sleep over there. … Q346. Sorry. Just before we finish [DE]. So you mentioned that this, you remember this being the first time --- A. Time. Or it might be the second, I don't really, I think it was the second, the second time. Q347. The first or second time that you ever --- A. Yeah. Q347. --- stayed at their house? A. Yeah. 1. I do not regard the applicant's interpretation of these questions as suggesting acts of indecent touching on successive sleepovers as sustainable. When being asked by the interviewing officer towards the end of the interview whether it was "the first or the second time" that the incident she had described occurred, DE merely conceded the possibility that it was one time or the other. At no time had she suggested it was on both occasions. 2. The following questions asked of DE in the JIRT interview were also relied upon as suggesting touching on multiple occasions: Q330. Has [the applicant] ever done anything like that before? A. No. Q331. Anything after that? A. Um, I don't, I don't know if he's still doing it but I'm just fast asleep so I can't feel it. But I don't know if he's still doing it or not. Q332. So when you say you don't know if he's still doing it --- A. 'Cause I'm fast asleep so I can't feel like hear anything or feel anything so I don't know if he's still doing it but I'm just fast asleep. Q333. Have you ever woken up and he's doing that? A. No. 1. I do not regard those questions as suggesting any more than the obvious and somewhat insightful proposition that DE would be unaware of something happening to her were she asleep. To the extent that this evidence might have been thought to have operated to the applicant's prejudice at his trial, an application to edit the JIRT interview could have been made. It was not. No reference was made to it by counsel in their addresses or by the trial judge. 2. The only episode of touching the child describes in the JIRT interview is the occasion described in detail at [45] above. The child's evidence in cross-examination 1. Despite the child's account to police in the JIRT interview that she was only touched ("like that") once by the applicant, in cross-examination she said she was "touched" by the applicant on three of the seven occasions she slept over at the applicant's house, that is, two occasions additional to the Jack Henry night (11 March 2016), being the night of the Christmas lights (of 2016) and the last sleepover on 1 July 2017. The seven occasions sourced from the evidence of the applicant's wife and questions asked of DE in cross-examination, obviously on instructions. 2. DE's evidence of other occasions of "touching" was before the jury in response to leading questions put to her by Ms Davenport, apparently with the intention of confirming that the applicant had not "touched" her on any other occasion so as to provide a basis for a submission that the child returned to the applicant's house for sleepovers on multiple occasions after 11 March 2016 before making a complaint to her parents on 8 July 2017, ultimately to undermine the reliability of the child's account that she was touched at all. 3. Of significance, Ms Davenport did not ask the child to identify or describe the "touching" on the night of the Christmas lights or the last sleepover or where or when or how the touching occurred or what it entailed. After having confirmed with the trial judge before the trial commenced that she was in a position to meet the Crown's case of a single act of "touching" on a between dates basis, that Ms Davenport did not ask further questions about the touching is hardly surprising. Even accepting that the concept of touching used by Ms Davenport in cross-examination of DE to confirm that the applicant did not touch her on the occasion of successive sleepovers after 11 March 2016 should be understood as "indecent touching", without any details of the circumstances in which that touching occurred, or the way in which the child was "touched", it remains the fact that the only incident of indecent touching the child ever described or demonstrated was the incident she described initially to her parents and then later in the JIRT interview. 4. Furthermore, as the Crown pointed out on the appeal, in Ms Davenport's closing address she referred to the Christmas lights "touching" and the 1 July 2017 "touching" (being the last sleepover) merely as illustrations of the child's unreliability. Ms Davenport invited the jury to find that the child's contradictory versions of touching or not touching on the last night (as reflected in the evidence extracted at [63]) indicated the child's willingness to agree to almost any version of events as evidence of her unreliability and, as concerns her evidence of being touched on the occasion of the Christmas lights as a further example of her unreliability since GM was sleeping in JM's room with DE that night and the child had given evidence that when the applicant touched her on the vagina she was sleeping alone on the trundle bed. 5. Despite the fact that DE said, in contradicting leading questions asked of her that she was not "touched" by the applicant on occasions other than the occasion of the Jack Henry visit, that she was touched on the night of the Christmas lights and the last night she slept over at the applicant's house, her complaint to her parents on 8 July 2017 and her account in the JIRT interview of the applicant returning to JM's bedroom after the applicant had settled him to sleep and kneeling down beside her on the trundle bed and touching her on her vagina with two fingers in a circular motion under her pyjamas and underwear while she appeared to be sleeping, was not the subject of any questioning in cross-examination, save as to suggest to her that the incident did not happen at all, which she denied. 6. Although the jury were not directed they must not substitute the evidence the child gave under cross-examination of being "touched" on those two other occasions for the specific and detailed allegation of indecent assault upon which the Crown relied in proof of its case, neither was a direction of that kind sought. In my view, the failure of trial counsel to seek that direction is a further indication that in the context of the trial and the way it was conducted, a unanimity direction was neither called for nor has a miscarriage of justice resulted from it not being given. The Crown's address on the issue of multiple acts of touching 1. That the Crown invited the jury to focus on the particular event described by DE to her parents and in her JIRT interview as the act constituting the indecent assault charged is clear in the following extract from the Crown prosecutor's address: The Crown does not have to prove on which date this offence occurred. What the Crown needs to prove beyond reasonable doubt are the facts that appear, conveniently, in this interview, which you've seen. You can ask to see it again, but here it is. I'm going from question 228. These are the facts. It doesn't matter when they occurred. It doesn't matter if you're not satisfied as to the precise circumstances which occurred, whether she had ice cream before this happened or whether she didn't, whether she had a bath before this happened or whether she didn't, or whether she'd been swimming that day or she hadn't; it doesn't matter. What you need to be satisfied of are these facts; from question 228, "Q. So, you went...the private part." Just pausing there, it doesn't matter whether she had ice cream this night, or whether she'd been to swimming this night, or whether she'd been somewhere else this night; it is unmistakable that that is an act of indecent assault. Unmistakable. It doesn't matter whatever happened either side of it. There's no doubt, there's no ambiguity about the fact that that is a statement by a child who is alleging that [the applicant] touched her in the private part and that's what the Crown has to prove. 1. The Crown prosecutor then proceeded to remind the jury of DE's account in the JIRT interview, commencing with Question 228 (extracted above at [45]), pointing out the details of the act of indecent assault which DE volunteered in answer to non-leading questions asked of her by police, as eloquent of her reliability, even if she was inaccurate when recounting the sequence of events on the night of that sleepover, and even if the sequence of events that were common or routine at sleepovers on other occasions was confused or she was unable to reconstruct particular events under cross-examination. 2. One of the particular features of the sleepover on the night she was assaulted that the Crown prosecutor did emphasise in her closing address was DE's drawing of where the applicant was positioned relative to her in the trundle bed when he touched her. The Crown advanced the following submission: Remember she drew for the police officer a sketch of what she was indicating here. The questions by the police officer are completely open‑ended, there's nothing leading in them at all. This is all volunteered by the child, nothing leading in it at all. "Q. So you're indicating with your fingers like that, so was he on the bed? A. Yeah ‑ no, he was ‑ like ‑ next to the bed. Q. So he was on the floor was he? A. (No verbal reply) Q. Okay, was he standing or sitting? A. [She answers neither]. He was on his knees." It's the detail that she's giving, "He was on his knees." "Q. Was he standing or sitting? A. He was on his knees." And she draws a diagram of where he was in relation to her, next to the mattress, on his knees, ladies and gentlemen. Does that sound like the sort of detail you'd expect would just be pulled out of the air, out of the blue. "Was he standing or sitting" the police officer asked, neither of those, he was on his knees and that fits with the position and the geography of the place and the mattress on the floor. "Q. So could you just explain how you were facing, where you were ‑ like ‑ were you facing him? A. I was facing [and she draws this diagram] ‑ I was facing that way." You can see for yourself when you watch it how completely persuasive she is when she gives this account. "Q. Yeah and where was [the applicant]? A. Like ‑ my head was ‑ like ‑ that way and he was ‑ like ‑ here." The Crown's address on the issue of opportunity 1. I do not regard the way in which the Crown addressed the jury on the issue of opportunity as advancing the applicant's submission on the appeal that without direction from the trial judge as to the necessity for unanimity, and without election by the Crown as to which acts of "touching" it relied upon to prove its case, there was a theoretical possibility that individual jurors would regard the different occasions of touching as constituting the offence of indecent assault charged. 2. When considered in the context of her address as a whole, when the Crown prosecutor addressed the jury on the issue of opportunity, in my view, she must be taken to have been referring to the "opportunity" the applicant had to commit the particular offence the child had complained of to her parents and police, an assault that occurred when the applicant took the opportunity to assault the child because he was the last in the room alone with her that night having successfully settled his son to sleep and believing she was asleep. 3. This much is clear from the following extract from the Crown's closing address: Opportunity is everything in this case. I mean, you've heard the evidence that in respect to settling [JM] down there was an arrangement between [the applicant and his wife], she would go in first, generally trying to calm him down, and then [the applicant] would come in last. That placed him last in time within that room, alone with those children, with [DE]. No matter what detail might be suggested in any way surrounding the events of the early afternoon or when they were taken to swimming or when they were taken to some other activity, nothing is going to change the fact that on every occasion during the sleepover the accused had opportunity to be alone with [DE] in that room. Nothing's going to change it, it happened every time [DE] stayed over, a sleepover, he had opportunity every time, clean opportunity. Nothing stood between him and the path into that room to be alone with [DE] in every occasion and he had great advantage because he was in a relationship, she trusted him. She loved [JM], she loved being there and she loved sleeping over there. Opportunity. 1. The applicant also relies upon the Crown prosecutor's specific reference to the possibility of touching during bath time that invited the jury to speculate that the indecent touching the subject of charge may have occurred at that time, thereby raising the theoretical possibility that the jury, without guidance from the trial judge in the form of a unanimity direction, convicted the applicant based upon that scenario or any one of multiple acts of touching which the child said occurred in cross-examination without being unanimous as to which act of touching was proved beyond reasonable doubt. 2. In the Crown prosecutor's closing address, she said: Next point, number 7. When the accused was interviewed by police, they asked, well is there any reason why you would be with the child in any way where she might be exposing her genitals or anything like that. I'll just take you to the record of interview, if you go to question 157. You remember [the applicant's wife] gave evidence yesterday that in no way was her husband involved in any bathing of children, never. Never in the bathroom at all, never happened. The police say: [ERISP transcript read out] Now, if that's the case [the applicant's wife] didn't know about it, well that's what the accused says to the police. But if that's the case [the applicant's wife] didn't know, when I asked her about it yesterday, she was completely rejecting the whole notion that her husband went near this child in the bathroom or anything. So not all is as it seems. I mean there's a big inconsistency in that, it's an important one, because it's not his, in his own account she's in the bath, this child's getting out of the bath, giving her a towel and that's not, [the applicant's wife] completely rejected that notion, plainly knew nothing about it. A demonstration of opportunity, opportunity ladies and gentlemen. Plenty of it. There's not going to be anything that stands in the path of the commission of this sort of opportunism, this opportunistic indecent state of mind that took him to touch a child. There's nothing to stand in the path. 1. The issue of bathing was raised with the applicant in the ERISP in the following series of questions and answers: Q159. Well, when, when they're having sleepovers is there, is there any reason, in any sense, that you would need to touch the neighbours' bodies? Like, bathing them, helping them clean. A. Um, oh, maybe, um, helping her get out of the bath. Q160. Yep. A. You know, give her a towel. Um, but that's, that's it, you know? She can … she dries herself, she gets herself ready for bed. Q161. Yep. A. Um, yeah, there's that, that would be the only time, I suppose, where, um, I'd be, I suppose, close to touching her, or like, you know? Q162. Yep. A. Giving her a towel. Q163. So is there any reason that you can think of, of you needing to touch her genitals? A. No. Q164. OK. A. No. 1. There was nothing in the JIRT interview or in DE's evidence to suggest that she was ever indecently assaulted during bath time. She was asked no questions about it in the JIRT interview or in cross-examination. That being the case, it is unclear why the issue acquired any currency in the trial or in the Crown prosecutor's closing address. 2. Whatever else might be said about the Crown prosecutor's emphasis on the issue of opportunity, including, it must be said, her suggestion that there was an opportunity for indecent touching at bath time, there was simply no evidence in the trial for the jury to proceed to consider guilt on the basis of some alleged act of indecent touching at bath time. This much was emphasised by Ms Davenport. 3. I am not of the view that there is a theoretical possibility that any member of the jury could have understood that an indecent touching at bath time was a finding of fact open to them upon which they might return a verdict when there was simply no evidence at all upon which to do so. Consideration of the authority of S v The Queen 1. Having reviewed the Crown's address concerning DE's evidence and the defence address in response to it, I am not persuaded that the Crown went to the jury on the basis that there were multiple factual bases upon which the jury could convict the applicant, or that there was any occasion during the course of the trial when the Crown ought to have been invited to elect as to what occasion of touching it relied upon in proof of its case. As reflected in the Crown's closing address, the way the Crown case was conducted was that there was a single act or incident of indecent assault which the Crown relied upon to prove its case. The Crown acknowledged, however, that given the many occasions when DE slept over at the applicant's home in the particularised timeframe on the indictment, the particular sleepover when he assaulted her and in the way that she described to her parents and police could not be appointed with absolute certainty. 2. In addition, in circumstances where the jury were directed, in clear terms, that the precise date of the indecent assault that was alleged was not a matter about which they needed to be satisfied in returning a verdict, and where both counsel focused their closing addresses on the single incident of indecent assault DE had complained of to her parents and which she repeated and elaborated upon in the JIRT interview, I am satisfied the jury would have been in no doubt that the only incident of touching they needed to be concerned with, that is, the only act of indecent assault they needed to be satisfied of beyond reasonable doubt were they to return a verdict of guilty, was what DE described to her parents and to interviewing police. Other authorities referred to in argument 1. The applicant's reliance in written submissions on Lane v The Queen [2018] HCA 28 does not alter my view. In that case this Court found error in the trial judge's failure to give the jury a unanimity direction as to the factual basis upon which they might convict the appellant of manslaughter was affirmed, but the Court's application of the proviso (by majority) was overturned. 2. It is sufficient for present purposes to refer to the judgment of Meagher JA and Davies J in Lane v R [2017] NSWCCA 46 where the error in the failure to give a unanimity direction was discussed by their Honours at [18]: … There is no issue between the parties as to the relevant principles which for present purposes are sufficiently summarised by Phillips and Buchanan JJA (Ormiston JA agreeing) in R v Walsh [2002] VSCA 98; 131 A Crim R 299 at [57]. In that passage, their Honours address two of the more common situations in which the need for a specific direction as to jury unanimity may arise: " … The first is that exemplified by the cases concerning murder and manslaughter, where, when alternative legal bases of guilt are proposed by the Crown but depend substantially upon the same facts, there is no need for a direction on 'unanimity' about one or other or more of those bases, at least if they do not 'involve materially different issues or consequences'. (How far in cases of murder or manslaughter this qualification extends - having regard especially to Clarke and Johnstone which has been long accepted in Victoria and to the similar practice in New South Wales - is of no present relevance). The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend 'upon the precise nature of the charge, the nature of the prosecution's case and the defence and what are the live issues at the conclusion of the evidence'. … " 1. Their Honours went on to note that this statement of principle had been approved and applied by this Court in Pratten v R [2014] NSWCCA 117 and in other state courts. 2. I note that the same extract from Walsh was extracted in the judgment of Meagher JA in Pratten at [45] as a case exemplifying the circumstances where a unanimity direction is required and the cases where that principle has been applied. Those cases were also cited by his Honour in Lane at [47]-[51]. 3. In Pratten (Hamill and Fullerton JJ agreeing) convictions were overturned where the evidence adduced by the prosecution in proof of a number of counts laid contrary to s 134 of the Criminal Code Act 1995 (Cth), alleging the dishonest obtaining of a financial advantage from the Commonwealth by deception in the lodging of tax returns over successive financial years, disclosed various payments, some of which were income and some of which may not have been income. No direction was given that the jury needed to agree as to which of the multiple payments in any given year were income in order to return verdicts on that count. At [78] the need for unanimity was made clear: It was possible that seven jurors might have been satisfied that the direct payments were income whilst five, accepting those payments to be made by way of loan were not satisfied that they were income, but were satisfied that the indirect payments were income. All of the jurors might have concluded that the appellant was guilty of the first offence charged. The seven might have reasoned that there was a dishonest financial advantage obtained by the intentional deception involved in not disclosing the amount of the direct payments as income. The remaining jurors might have reached a similar conclusion but in relation to an intentional deception based on different income not being disclosed. The financial advantage dishonestly obtained is different in each case. For the seven jurors it would have been the appellant not being assessed as liable to pay the additional income tax due if the direct payments had been disclosed. For the remaining jurors it would have been the appellant not being assessed to pay the additional tax due if the third party payments had been disclosed as income. While there would have been unanimity as to the intentional deception that resulted in the obtaining of the financial advantage as between the seven jurors and unanimity as to the dishonest obtaining of the different financial advantage found by the remaining jurors, there would not have been the unanimity essential to a finding of guilt. 1. Further, in both Pratten and Lane the Court was concerned to emphasise that cases where a unanimity direction is required will depend upon the nature of the charge, the way in which the prosecution and defence cases were conducted and what were described as "the live issues at the conclusion of the evidence". 2. In both Pratten and Lane (in each case requiring a unanimity direction) there was a factual question central to proof of the elements of the offences charged which was put in issue in the way the trial was conducted. 3. In Lane it was submitted that the need for the trial judge to give a unanimity direction arose because of a change in the way the Crown put its case at trial, from relying on a single act as the act causing death to relying on the accused's conduct at two separate points in time, without the jury being directed of the need to be in agreement as to the same voluntary act which caused death before a verdict of guilty could be entered. Although the trial judge's general direction that the jury might return a verdict even if different members of the jury followed a different path of reasoning to that conclusion, because the facts were capable of supporting alternative legal bases of guilt, a unanimity direction was necessary. The decision of the jury was found to be defective because no direction was given. 4. Similarly, in Pratten it was the approach of the Crown, and the way in which it led evidence in its case of multiple payments in the timeframe of each count, that gave rise to the need for a unanimity direction. 5. On the applicant's case at trial, for the reasons already discussed, I am not persuaded that the Crown went to the jury on the basis that there were multiple possible factual bases upon which the jury could convict the applicant of the one count of indecent assault charged against him, or that the other instances of touching were live issues at the trial in the way contended for on the appeal. The Crown prosecutor invited the jury to treat DE's evidence as descriptive of a single incident of indecent touching by the applicant (being the incident described in detail by her in the JIRT interview) despite the fact, as the Crown accepted, that she had given different descriptions of the events of the night on which that incident occurred and different descriptions of the occasions when she slept over. 6. A similar approach was taken by this Court in Cabot. In that case, the applicant was convicted of one count of committing an indecent assault (by touching a child on the penis). The jury returned verdicts of not guilty in respect of other counts of sexual misconduct involving the same child and failed to reach a verdict in respect of other counts, also involving the same child. 7. On the appeal, but not at trial, it was submitted that inconsistencies in the child's evidence as to the time of day that the offence was committed gave rise to the possibility that the child was describing two separate incidents constituting a charge of indecent assault, albeit committed on the same day, one in the morning and one in the evening, and that the failure of the trial judge to direct that the jury must be unanimous as to the particular occasion that the applicant indecently assaulted the child constituted a miscarriage of justice. In Cabot it was submitted that the decision of the High Court in Lane dictated that the failure to give a unanimity direction was fundamental and that the proviso could not stand in the way of the verdict being set aside. 8. Leeming JA (McCallum and Bellew JJ agreeing) did not uphold that ground of appeal. It is accepted that, while the child was clearly confused about the time of day the applicant touched him on the penis (as the Crown conceded), the way the case was run at trial, including the Crown's closing address, made it clear that the conduct the subject of the charge was "anchored" in a single incident, namely that it occurred in the child's bed when his mother was at the gym (an account he had given to police in the JIRT interview). The Crown also submitted, and this Court accepted, that the failure to take the point at trial indicated that in the atmosphere of the trial and then the way in which the parties conducted their respective cases, that issue was not considered to be important such as to support any suggestion that a miscarriage of justice had occurred. Emphasis was given in that connection to the way in which defence counsel addressed the jury, by emphasising that the child's inconsistent answers as to whether his mother was at the gym when he was assaulted and whether it was at night or in the morning that he was assaulted were identified as features which would leave the jury in doubt as to whether the offence was proved. 9. Leeming JA also observed, albeit in obiter dicta, that given that the issue of unanimity was not raised at trial, there may have been good reason why a direction was not sought. His Honour said at [84]: The premise of such a direction would be that there was evidence capable of leading the jury to find that there had been an indecent assault in the morning and in the evening. That would have been antithetical to the main thrust of the defence, which was that the evidence was so uncertain and inconsistent that the jury could not be satisfied to the criminal standard that any of the indecent assaults or sexual assaults had occurred. 1. The same observation is apposite in this case. 2. In the result, I am satisfied that, given the issues that were litigated and the way in which the cases were conducted on behalf of the Crown and the accused, there was nothing to raise the theoretical possibility that the jury might have "pooled" together individual conclusions as to different occasions when they were satisfied the child was "touched" to reach the unanimous view that the applicant's guilt on the one count of indecent assault with which he was charged had been proved. I am not persuaded that there is the level of necessary uncertainty as to the acts of the applicant upon which the jury's verdict was based to undermine the verdict, or that the absence of the unanimity direction was productive of a miscarriage of justice. The second ground of appeal: A miscarriage of justice was caused by the judge's failure to direct the jury that the accused's silence in Court was not evidence against him, could not be used to fill gaps in the prosecution case, or support the prosecution case. 1. This ground of appeal concerns what is said to be trial judge's failure to direct the jury in accordance with Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25 to the effect that the accused's election not to give evidence is not evidence against him and does not constitute an admission by him of his guilt. The complaint is also made that there was no direction that the applicant's silence may not be used by the jury to fill any gaps in the evidence relied upon by the Crown to prove its case, or used by them as a "make weight" in assessing whether the Crown has proved its case beyond reasonable doubt. 2. In Azzopardi, Gaudron, Gummow, Kirby and Hayne JJ said at [51]: In the course of argument of the present matters it was suggested that if a judge said nothing to the jury about the fact that an accused had not given evidence, the jury may use the accused's silence in court to his or her detriment. Plainly that is so. It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt. It by no means follows, however, that the judge should go on to comment on the way in which the jury might use the fact that the accused did not give evidence. 1. Ms Davenport, an experienced senior trial counsel, did not seek an Azzopardi direction. Accordingly, leave under Rule 4 of the Criminal Appeal Rules (NSW) is required to permit the applicant to raise the matter on appeal. The applicant's senior counsel on the appeal, Ms Bashir, submitted that because the Azzopardi direction relates to the onus and standard of proof, if there is merit in the applicant's argument that the direction should have been given, leave under Rule 4 should be granted. 2. The Crown submitted that where the issue at trial was whether DE's account of the indecent "touching" was reliable - a matter about which the trial judge directed the jury they would need to be satisfied if they were to return a verdict of guilty - and where Ms Davenport's address focused on a wide range of features of DE's evidence which she submitted were eloquent of DE's unreliability, to seek an Azzopardi direction might well have been considered by trial counsel to be uncalled for or even unwise. 3. The Crown further submitted that, having regard to the way in which the applicant's case was conducted at trial, it would be open to this Court to conclude that the decision that the applicant would not give evidence was made in circumstances where trial counsel considered that the trial judge's directions as to how the jury should approach their assessment of the applicant's ERISP were sufficient to emphasise that his denials of any indecent touching were part of the evidence available to the jury to consider on the question of whether the Crown had proved guilt beyond reasonable doubt, and that an Azzopardi direction would inevitably draw the jury's attention to the fact that the applicant could have given sworn evidence but chose not to, which might operate to his detriment, notwithstanding that the trial judge would warn the jury against that fact being used adverse to him. 4. The Crown submitted that, even were leave granted under Rule 4 to permit the applicant to pursue this ground of appeal, the applicant has not demonstrated that the failure to give an Azzopardi direction has led to a miscarriage of justice, in the sense that it led to a loss of a chance of an acquittal and, for that reason, the first ground of appeal should be dismissed. 5. The trial judge's direction concerning the ERISP was as follows: Here, members of the jury, the accused gave a version of the events. He took part in a recorded interview with investigating police. And, of course, you are aware that he denied the offending. The accused is entitled to rely upon that account and ask you to take that into consideration with the other evidence called by the Crown. The accused is not required to prove that this account is true. The Crown in discharging its obligation to prove the accused's guilt must satisfy you that it is a version of events that could not reasonably be true. Members of the jury, during the course of the trial the accused has called evidence. The fact that the accused has called evidence before you, namely the testimony of his wife … does not alter the burden of proof. The accused does not to prove that her version is true. Members of the jury, the fundamental proposition is that it is for the Crown to prove the guilt of the accused. 1. After the jury retired, they asked to view DE's JIRT interview and her pre-recorded evidence. Before the pre-recorded evidence was played in open court (the other items being exhibits in the trial provided to the jury for their continued deliberations) the trial judge gave the following further direction: Now, I must warn you that you must be careful not to give the evidence any greater weight than you would any other part of the evidence in the case. It is one part of the evidence and you must, in relation to this trial, consider all the evidence when making your decision, and in particular you must also give consideration to the accused's account when he spoke to the police and in which, of course, he completely denied touching [DE] in a sexually inappropriate manner. (Emphasis added.) 1. In reminding the jury of Ms Davenport's closing address, she said: In relation to the accused and the account that he had given in his recorded interview, Ms Davenport raised for your consideration the issue of why volunteer the information about being in the bathroom, and the submission made was that it demonstrates he was open and forthright, and this was the submission made he would not have offered if he had a guilty mind. 1. The Crown submitted that even accepting that this Court has recognised, consistent with what was said in Azzopardi at [51], that it is desirable that a jury is directed that where an accused does not give evidence that cannot be used in any way adverse to the accused, the direction is not mandatory and has not been treated as such in any of the authorities that have had occasion to consider it. The Crown submitted that where no evidence has been adduced on the appeal from Ms Davenport or her solicitor to explain her failure to seek a direction, and where the error now contended for could easily have been cured were the trial judge's attention drawn to it, the Court would more readily conclude that there was an informed forensic decision made, in the atmosphere of the trial, by an experienced trial counsel not to seek a direction and, in those circumstances, no miscarriage of justice has resulted from the direction not being given. The authorities 1. The applicant accepts that there is no absolute rule that an Azzopardi direction must be given where an accused does not give evidence at trial (R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20). 2. In Wilson, the complaint was that the trial judge had misdirected the jury by failing to give the full complement of what has become known as the "Azzopardi direction", as distinct from the complaint made here that the trial judge was in error in not giving an Azzopardi direction at all. In concluding that the error contended for had not been made out, Hunt AJA, with whom Grove and James JJ agreed, said at [15]: The High Court in Azzopardi's case did not make it compulsory to give the suggested direction to be given in every case, or even in almost every case. Unlike the judgment in (for example) Dominican v R (1992) 173 CLR 555 at 561–562, which laid down "special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue", the majority judgment in the Azzopardi case very carefully said only that it will "almost always be desirable" for the warning to be given where there is no evidence from the accused. (I have added the emphasis in both cases.) In my view, the difference is important — particularly where, as in the present case, no complaint was made by counsel for the appellant at the trial. 1. Grove J went further and emphasised that was an approach which had been adopted by the Court in most of the cases where the absence of an Azzopardi direction has been said to be an error. 2. In R v SMR [2002] NSWCCA 258, at [105], Carruthers AJ (Mason P and Hidden J concurring) observed that not only was an Azzopardi direction not considered mandatory in every case, but that in some cases defence counsel might consider the accused not well served by a direction. In R v Richards (2002) 128 A Crim R 204; [2002] NSWCCA 38, Levine J (Hodgson JA and Howie J agreeing) said of the submission that a failure to give an Azzopardi direction went to matters fundamental to a fair trial: [29] … The first observation that can be made, in my view, is that even in Azzopardi the High Court cannot be taken to have ruled that in every case it is compulsory let alone desirable, in terms of the fundamental requirements of justice, for a direction of the kind now sought, to be given. [30] Secondly, here this Court is concerned with the complete absence of directions. It must be borne in mind (though taking into account that each trial and appeal will depend upon its own circumstances), that misdirections on matters said to be "fundamental" neither necessarily nor as a matter of course can be characterised as going to the core of the trial or amounting to a fundamental defect … 1. In R v Graham [2005] NSWCCA 127, both Wilson and SMR were cited. The accused was convicted of knowingly taking part in the supply of heroin. She had given a lengthy interview with police in which she denied any knowledge of the presence of narcotics in the parcel in her possession. The trial judge had given a direction to the jury consistent with the direction by the trial judge at the applicant's trial emphasising that the Crown had the burden of proving the essential elements of the offence beyond reasonable doubt and that the accused's ERISP was evidence in the case and available to the jury to evaluate in the context of all of the evidence. As Grove J emphasised at [17], there was nothing in the trial judge's remarks that would qualify the evidential value of the record of interview and nothing said to draw attention to the fact that the ERISP was not the subject of cross-examination. Despite an affidavit from trial counsel read on the appeal in which counsel explained the failure to seek an Azzopardi direction as an oversight and not the result of a tactical decision, leave under Rule 4 was refused. The Court was not satisfied that a miscarriage of justice had occurred. 2. As to the operation of Rule 4 Grove J said at [26]: It is acknowledged that Criminal Appeal r 4 applies by reason of the absence of any application for his Honour to give the direction now canvassed. When leave is required under r 4 it is for the appellant to persuade the Court that miscarriage of justice may have occurred: R v Tripodina 1988 35 A Crim R 183. It is once again apt to repeat what was said by Hunt J in R v Abusafiah 1991 24 NSWLR 531: The requirements of r 4 of the Criminal Appeal Rules do not constitute some mere technicality which may simply be brushed aside. One purpose of the requirement that no misdirection or non-direction may, without leave, be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury. If a summing-up contains some error which could easily have been cured once the judge's attention had been drawn to it, and if counsel for the accused to whose detriment the error operates fails to comply with his or her duty to draw the judge's attention to that error R v Knight (Court of Criminal Appeal, 18 December 1990, unreported at 46), any suggestion that such detriment automatically entitles the accused to a new trial does not strike a sympathetic chord in the hearts of those who see the right to a fair trial as operating in favour not only of the accused but also of the Crown, which prosecutes on behalf of the whole community. The Criminal Appeal Act 1912 does not exist to enable an accused who has been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial. 1. At [25], Grove J said of the facts that were in issue in that trial: In the present case the appellant had before the jury a lengthy video taped interview in which she emphatically denied the issue contended against her by the Crown that she had knowledge of the presence of drugs in the package. As I have pointed out it was available to the jury without limitation as to its quality. Given the narrow issue of knowledge, the applicant already had the advantage of the invitation to treat her denial in the interview as evidence in the same category as the evidence in the case otherwise. In those circumstances I am unpersuaded that the absence of direction of the type now sought led to miscarriage of justice. The applicant's submissions 1. In short, Ms Bashir submitted that the trial judge was obliged to direct the jury in accordance with Azzopardi and that a failure to do so has been productive of a miscarriage of justice. She submitted that to suggest, as the Crown has submitted, that trial counsel may have perceived a forensic advantage in not seeking an Azzopardi direction is "unfathomable" since by failing to ensure that the jury, under judicial direction, did not use the accused's silence in any way adverse to him was "simply perilous". Without any explanation from experienced trial counsel as to why a direction was not sought, whether because of error or inadvertence, the submission that there was no conceivable forensic advantage that would have justified a decision not to seek a direction is not, in my view, a submission that carries any weight. 2. The applicant relied upon five aspects of the trial which were said to have obliged the trial judge to give an Azzopardi direction. 3. First, the JIRT interview and DE's pre-recorded evidence, is the only direct evidence of the offence. This was said to be in stark contrast to the applicant's case where he was asked questions by interviewing police officers in the ERISP but did not give evidence. I do not consider that as a factor of any significant weight. It is frequently the case that a complaint about the failure to give an Azzopardi direction is where the accused has given an unsworn account to police denying the offence (see for example Graham). 4. Secondly, because the applicant's wife gave evidence in the defence case this would inevitably have raised a question in the minds of the jury whether the applicant elected not to give evidence because he had something to hide. Where there was nothing said or suggested by either counsel to that effect, and nothing said by the trial judge, the argument lacks substance. 5. Further, if it were sufficient for this ground of appeal to be made out that the applicant is able to satisfy the Court that it was "desirable" in the circumstances of his trial that an Azzopardi direction was given, it would seem to me to follow that what has not hitherto been treated as a mandatory jury direction has become mandatory by default. I do not understand what McClellan CJ at CL said in Johnston v R [2007] NSWCCA 133 at [13] to suggest otherwise. 6. In that case the appellant participated in an ERISP in which he denied his involvement in a robbery. The ERISP was tendered. The appellant did not give evidence. In her closing address, the appellant's counsel alerted the jury to the directions she anticipated the trial judge would give on the accused's right to silence. The trial judge did not give that direction and no re-directions were sought. McClellan CJ at CL (with whom Hulme and Hislop JJ agreed) was satisfied that when the trial judge failed to give what was referred to as "the right to silence" direction, counsel's failure to raise the matter with the trial judge was an oversight. He rejected the suggestion, advanced by the Crown on the appeal, that there may have been a tactical reason for counsel not seek a redirection. On that basis, leave under Rule 4 was granted. 7. His Honour then made the following observation at [13]: This Court has on many occasions considered the directions which a trial judge should give when an accused person does not give evidence at his or her trial. It has been recognised, as in my opinion, must be plain, that most people would assume that if a person who has been accused of a crime remains silent it is because they cannot adequately explain the situation. Although the ordinary person may not conclude from the mere fact of an accused's person's silence that he or she is guilty, if there is evidence indicating that an accused may have committed the crime a failure to respond would make it, at least, more likely that a person would conclude that the accused committed the crime. 1. To the extent that those obiter remarks are taken to be some endorsement by this Court that a trial judge is obliged to give an Azzopardi direction where there is evidence indicating that an accused may have committed a crime and where the accused's denial has not been the subject of sworn evidence, that is an analysis with which I respectfully disagree. If the test as to whether an Azzopardi direction should be given is that where an accused does not give evidence a jury might conclude that the accused committed the offence, an Azzopardi direction would be given in every case. 2. Thirdly, it was submitted that in order for the jury to be satisfied beyond reasonable doubt of the applicant's guilt, it was essential that they accepted DE as a witness of truth and rejected the applicant's denials to police that he had ever indecently touched the child. In those circumstances, counsel submitted that there was a significant risk that the fact that the applicant did not give evidence would be used by the jury to reason to the conclusion that they should accept DE's evidence and more readily reject his denials. It was submitted that the trial judge's direction that the Crown must satisfy them that the applicant's version of events could not reasonably be true in order to prove the accused's guilt was not sufficient to ameliorate the risk that they would impermissibly use the applicant's election not to give evidence to undermine the force of that direction in their deliberations to verdict. I do not regard the trial judge's directions to have left open that approach. The trial judge's directions were clear and unambiguous as to the burden and standard of proof. Nothing was advanced on the appeal to suggest otherwise. 3. Fourthly, it was submitted that by directing the jury about the special circumstances in which DE gave evidence (namely, by the tender of her pre-recorded evidence) the fact of sworn evidence being the "normal course" in which trials are conducted was emphasised. Again, I do not read the trial judge's directions as having that effect or carrying a risk of that kind. 4. Finally, it was submitted that DE's nomination in cross-examination of other occasions where she claimed to have been "touched" by the applicant, being occasions she had not nominated in the JIRT interview and that had not been dealt with in the applicant's ERISP, meant that there were aspects of her evidence the applicant neither answered nor explained in the ERISP. The applicant submitted that although the answers given in the ERISP were capable of constituting a general denial to indecently touching DE on any occasion, because, in cross-examination, she nominated other occasions of "touching", this was an aspect of this trial which distinguished it from other cases where an accused's account in the form of an ERISP addressed all matters of contested fact. 5. The difficulty with that submission is that it proceeds on the assumption that the other instances of touching were matters the parties treated as significant issues for the jury to consider and that they were put in issue in the applicant's trial for that reason. The fact is the other instances of touching attracted no comment from the Crown, and were referred to only peripherally by defence counsel in the context of her challenge to DE's credibility, and attracted no direction from the trial judge. In my view, this is strongly suggestive of the fact that the other instances of touching were not treated by the jury with the significance the applicant contends for on the appeal. 6. In the applicant's submissions in reply to the Crown's submissions, a further basis upon which it was submitted an Azzopardi direction was essential was advanced. This was said to be the weaknesses in the Crown case and the importance of the jury being warned not to use the applicant's election not to give evidence to make up for those weaknesses. The applicant also emphasised that the jury's request for the child's evidence, her JIRT and the applicant's ERISP would inevitably have served to highlight the difference between the child's evidence and the applicant's unsworn account. The difficulty with that submission is the direction the jury were given when DE's pre-recorded evidence and the JIRT interview were supplied to the jury at their request: Now, I must warn you that you must be careful not to give the evidence any greater weight than you would any other part of the evidence in the case. It is one part of the evidence and you must, in relation to this trial, consider all the evidence when making your decision, and in particular you must also give consideration to the accused's account when he spoke to the police and in which, of course, he completely denied touching [DE] in a sexually inappropriate manner. And in particular you would also recall the evidence of [CM] as to the issue of opportunity and the sleeping arrangements and the submissions that have been made by the parties in relation to [DE's] evidence. The Victorian authority of Le v The Queen 1. Both parties referred to the decision to the Victorian Court of Appeal in Le v The Queen [2016] VSCA 100. In that case, the Court dismissed a ground of appeal where the applicant submitted that a substantial miscarriage of justice had occurred as a result of the failure of the trial judge to give an Azzopardi direction. 2. In any event, the question for this Court is whether, in the context of the trial and the issues that were engaged by the evidence, and having regard to counsel's submissions about the evidence and the trial judge's directions about the use the jury could make of the applicant's ERISP, an Azzopardi direction was essential. I am not satisfied it was. I would reject the second ground of appeal. Neither am I satisfied any miscarriage of justice has resulted. 3. The Crown relied upon Le in further support of its contention that where a forensic advantage in not seeking a direction can objectively be discerned, a trial judge will not be in error in failing to give a direction (particularly where counsel specifically asks that it not be given, as was the case in Le) and where, as the Court noted, the giving of an Azzopardi direction is not mandatory. As to that issue, the Court observed: [39] It needs to be recognised that the giving of an Azzopardi direction is not mandatory. While it 'will almost always be desirable' to give a warning to the jury that the accused's silence cannot be used against him, whether defence counsel requires it, and whether it is necessary to avoid a risk of a substantial miscarriage of justice will depend upon the circumstances of the case. [40] The reasoning in Azzopardi rests upon the fundamental proposition that as a criminal trial is an accusatorial process, in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt, the fact that an accused does not give evidence at trial cannot be used against him, is not an admission of guilt by conduct and cannot fill in any gaps in the prosecution case. The fact that the jury might be so instructed will not necessarily dispel defence counsel's misgivings that jurors, using their common sense, will consider it safer to act upon uncontradicted evidence, and will employ the logical process of reasoning identified by Mason CJ, Deane and Dawson JJ in Weissensteiner v The Queen (1993) 178 CLR 217 that: the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused. [41] It appears that the risk of such reasoning led Jerrard JA (with whom Macpherson JA and Jones J agreed) in R v Surrey [2005] 2 Qd R 81, to state that whilst the law had not to date developed in this way, in an appropriately strong circumstantial case where there has been no explanation from the defendant put before a jury, it would be better if that point (a full Azzopardi direction) were not made by the trial judge to the jury. His Honour also concluded that the fact that trial judge did give a 'micro-Weissensteiner' direction, may have encouraged the jury to draw a conclusion which was in fact inevitable. 1. The Court ultimately concluded that because the Crown case was based on circumstantial evidence with the focus of the defence on explanations available to the jury consistent with the accused's innocence, there was a discernible advantage in trial counsel not inviting the jury to focus attention on the fact that those explanations had not been proffered by the accused in evidence. 2. The same analysis can be deployed here. The applicant had the advantage of the trial judge's directions as to how the jury should deal with his denials of any indecent touching in the ERISP and a direction that they could not convict the accused unless they accepted the child's evidence beyond reasonable doubt. To focus on the fact that the applicant might have given a sworn account of his denials, but chose not to, may have been thought to undermine his prospects of an acquittal. 3. The applicant sought to distinguish the decision in Le not only on the basis that the Court was concerned with a case based on circumstantial evidence, in contrast with the applicant's trial which was based on the direct evidence of DE (in my view, in the way the trial was conducted, a distinction without a difference), but also on the basis that the Jury Directions Act 2013 (Vic) imposed a statutory regime which has brought about significant changes to the law in Victoria as it relates to trial process. At [27]-[30], the Court observed: [27] The provisions under pt 3 of the JDA [Jury Directions Act 2013 (Vic)], place immediate responsibility upon counsel for the parties to ensure that the jury are given all directions that are necessary to deal with the issues in the case. The provisions are also designed to assist the trial judge in determining the appropriate jury directions to be given, and to ensure that counsel give the trial judge sufficient assistance in determining what directions should be given. [28] Section 11 of the JDA provides that both the prosecution and defence counsel are required to request that the trial judge give, or not give, jury directions in relation to the matters in issue or the evidence in the trial relevant to a matter in issue. Section 13 provides that a trial judge need not give a direction that relates to matters not in issue, or directions that are not requested. Section 15 operates as an exception to s 13, in that even if counsel state that a particular direction is not required, a trial judge is obliged to give any direction that may be necessary to 'avoid a substantial miscarriage of justice.' [29] As we have said, defence counsel, when asked if he would like 'an Azzopardi direction about the failure of the accused to give evidence' replied that he did not ask for such a direction. Although no exception was taken to the judge's charge, it is now said on appeal that the trial judge should have appreciated that an Azzopardi direction was necessary to avoid a substantial miscarriage of justice, and was therefore obliged by virtue of s 15 of the JDA to have given such a direction. [30] The rationale for the giving of an Azzopardi direction is to ensure that an adverse inference is not drawn against an accused in a criminal trial because they exercise their right not to give evidence. In Azzopardi v The Queen, Gaudron, Gummow, Kirby and Hayne JJ, stated that in an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of evidence at trial. These matters must be assessed by the jury against the requisite standard of proof, without regard to the fact that the accused did not give evidence. They said: [i]t follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make‑weight in assessing whether the prosecution has proved its case beyond reasonable doubt. It by no means follows, however, that the judge should go on to comment on the way in which the jury might use the fact that the accused did not give evidence. 1. After referring to the High Court decision in Azzopardi and the seminal passage at [51] of the judgment, as the Court saw it there was a need to discern whether, objectively, there was or was not a forensic advantage as trial counsel saw it, in not seeking an Azzopardi direction. The Court was of the view that if a forensic advantage is able to be discerned then it will be assumed that it was that which motivated counsel to ask the judge not to give the direction. 2. In my view, the same analysis is available here. It is not an analysis which is novel. In considering the application of Rule 4 it is not infrequently the case that the Court has sought to discern why counsel might have failed to seek an Azzopardi direction in those cases where no explanation is forthcoming. 3. As the Crown urged in its submissions, the basis upon which it was submitted that the trial judge was obliged to give an Azzopardi direction needs to be considered in the context of the way the trial was conducted on behalf of the applicant by his trial counsel. The Crown, in its submissions, has sought to identify, objectively, a rational forensic advantage that might have been perceived by trial counsel in not seeking an Azzopardi direction. 4. In the absence of an explanation from trial counsel that she saw no forensic advantage in not seeking an Azzopardi direction but failed to do so through error or oversight, I am disposed to accept that it was a rational choice of trial counsel not to seek a direction and, in those circumstances, that it is not open to the applicant now to complain that there has been a substantial miscarriage of justice. 5. Given the extensive discussion this ground of appeal has attracted, I would grant leave under Rule 4 but dismiss the ground of appeal. The third ground of appeal: The verdict of the jury was unreasonable and cannot be supported by the evidence. 1. The principles to be applied by an appellate court when considering a ground of appeal that alleges an unreasonable verdict which cannot be supported by the evidence are settled. They have been most recently restated in Obierzynski v R [2019] NSWCCA 103: [59 When considering whether a verdict was unreasonable, the Court is to make its own independent assessment as to the sufficiency and quality of the evidence. The question for this Court is "whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty": Baden-Clay at [66]; see also M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. The burden of persuasion that appellate interference is required rests with the person who impugns the verdict: Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 at 370. [60] In performing this "independent assessment" of the evidence, this Court "must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses": M v The Queen at [7]. As the High Court said in Baden-Clay: "[65] Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is 'unreasonable' within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. … [66] With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury." [61] See similarly Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113]; MFA at 624 and Atai v R [2014] NSWCCA 210 at [134]. 1. Ms Bashir identified five points which, in her submission, made it "fundamentally improbable" that the indecent assault which DE described to her parents and to police in the JIRT interview occurred on either the first occasion she slept over at the applicant's house (being 11 March 2016), the date which the Crown submitted was more probably than not the date when the assault occurred, or at any other time. 2. The first, second and fourth points are allied. It was submitted that for the child to have returned on repeated occasions for sleepovers after 11 March 2016, and on some occasions to have actively sought permission to sleepover, raises a serious doubt as to whether she was assaulted on the first sleepover or on any subsequent occasion. It was further submitted that the sheer improbability of the applicant assaulting her in the manner alleged, of itself justified the jury having a reasonable doubt as to guilt. 3. As the Crown submitted, and I accept, what has to be factored into that analysis is that DE had a very close connection with the applicant's son and apparently enjoyed sleeping over at his home. The Crown submitted that DE's obvious pleasure and enjoyment, as a very young child, at the opportunity to sleep at her friend's house, could have overridden any feelings of unease when sleeping in her friend's bedroom, even despite an awareness that the applicant rubbing his fingers on her vagina was wrong. 4. The third and fifth points raised by Ms Bashir are also allied. They focused on what was said to be the improbability of the applicant assaulting DE with the risk that the child would complain, putting to an end the relationship between DE and his son. Proceeding on what I regard as the reasonable assumption that the applicant assaulted DE believing she was asleep, I do not regard his choice of his son's bedroom as the place to assault her, or the potential consequences were she to have awoken and screamed out when she was touched, or the risk that she may have complained of the assault the following morning, as impacting on the reliability of DE's evidence or rendering the circumstances in which she was assaulted so improbable such as to undermine the jury's verdict. 5. Ms Bashir also submitted that DE's failure to be able to give a cohesive account of the circumstances contextual to the occasion that she described being touched by the applicant; significant inconsistencies on the dates of the sleepovers, and the seven occasions when it was confirmed DE had slept over at the applicant's house and where, according to the applicant wife, there was no possibility of the applicant ever being alone with DE in her son's room, rendered her evidence so fundamentally unreliable that the jury could not rationally convict upon it. 6. In my view, it was open to the jury to give preponderant weight to DE's evidence when reasoning to the conclusion, and beyond reasonable doubt, that the applicant re-entered his son's bedroom and assaulted her without his wife's knowledge, just as it is open to this Court to take that approach in undertaking its independent assessment of the child's evidence in determining whether the third ground of appeal is made out. 7. In the context of this trial, the inconsistencies in the child's evidence with respect to the circumstances in which the assault occurred, including the particular Friday night sleepover when the assault occurred and the events contextual to it, were issues the jury was alive to. They were dealt with extensively in cross-examination and referred to at length in defence counsel's address in support of the submission that the level of vagueness and uncertainty in DE's evidence generally should raise a reasonable doubt that the incident she described to her parents and police occurred at all. 8. In Cabot at [59], Leeming J made the following observations about the issue of reliability generally: In almost every case which depends on testimonial evidence, witnesses will give inconsistent evidence. That is especially so in any case where the witness originally makes a complaint and later is asked to give evidence about it and is cross-examined about it. Material inconsistencies can of course detract from the probative value of a witness's testimony. However, the mere fact of inconsistent evidence does not of itself entail that a verdict cannot be sustained. Indeed, if the witness is capable of a mechanically perfect reproduction of evidence originally given in an interview or a statement months or years before, the appropriate inference may be that the witness has learned his or her lines but has little actual recollection of what occurred. 1. As with Cabot, this is a case where I am satisfied that, in discharge of their function and under direction from the trial judge, the jury must be taken to have considered the inconsistencies in DE's evidence which had been drawn to their attention in considering whether the Crown had established the elements of the offence charged to the criminal standard. Consistent with the approach an appellate court is obliged to take in assessing the sufficiency and quality of the evidence in determining whether the verdict of a jury is unreasonable, due consideration must also be given to the advantage the jury had in assessing the sufficiency and the quality of DE's evidence for itself (M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 494-5 and SKA v The Queen (2011) 243 CLR 40; [2011] HCA 13 at [13]. 2. I am not of the view that DE's evidence generally, or issues as to her reliability as a child witness (such as they were), detracted from the quality and sufficiency of her evidence that was she indecently assaulted in the manner that she described to her parents and interviewing police, or in the circumstances in which she said that assault occurred, namely when the applicant returned to his son's bedroom after he had settled his son to sleep, at a time when she gave the appearance of being asleep. Neither does her account suggest the assault is so inherently improbable that a jury should have rejected it. 3. DE's account to police when she was aged 6, inclusive of the relatively matter of fact way in which she described the assault, including, in my view, her apparent lack of comprehension of the significance of the applicant's use of two fingers in a circular motion when touching her vagina, have all the hallmarks of an incident remembered and not imagined. It is those features of her evidence, and not the contextual details or events in the sleepover itself, that, in my assessment, reflect her honesty and reliability as a witness, an assessment the jury were directed they were obliged to make in the context of the issues that had been ventilated fully for their consideration in the case advanced on the applicant's behalf. I am not satisfied that there is any reasonable possibility that either DE was "making up" her evidence of being indecently assaulted or that her evidence was not a "genuine memory" of an actual event or that she was simply wrong and the act of indecent assault did not happen at all. 4. After a full review of all of the evidence, and after what I am satisfied are both understandable mistakes the child made as to events of the night of the assault (including how she played with her friends and what they watched on the television) and the likelihood of her conflation of these events across various of the sleepovers during the timeframe particularised on the indictment, I am not persuaded that there is a significant possibility that the applicant was wrongly convicted (see M at 494; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [56]) 5. The third ground of appeal is not made out. Orders 1. Accordingly, the orders I propose are: 1. Insofar as concerns Ground 1, leave to appeal is granted. 2. Insofar as concerns Ground 2, leave to appeal is granted. 3. Insofar as concerns Ground 3, leave to appeal is granted. 4. The appeal against conviction is dismissed. 5. The sentence imposed in the District Court on 5 July 2019 is confirmed subject to the following variation: the sentence of 2 years and 10 months' imprisonment with a non-parole period of 1 year and 5 months is to commence from 16 December 2019. The non-parole period will expire on 15 May 2021. The balance of term will expire on 15 October 2022. 1. ADAMSON J: I have had the benefit of reading Fullerton J's reasons in draft and am indebted to her Honour's summary of the trial and the appeal. I agree with her Honour's reasons with respect to ground 1. Ground 3: alleged unreasonable verdict 1. I agree with the reasons given by Fullerton J with respect to ground 3 and wish to add the following further reasons of my own with respect to that ground. 2. I confirm that I have considered the evidence at the trial, including the appellant's recorded interview. At the Crown's request I have not only read the transcript of the complainant's interview and her evidence but I have also viewed the footage of the interview of the complainant and her evidence: cf. SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [27]-[35] (French CJ, Gummow and Kiefel JJ). I discern nothing about the complainant's evidence, taken by itself or in the context of the whole Crown case, which leads me to entertain a doubt about the appellant's guilt, much less one that the jury might not have been able to resolve, having regard to their advantage of seeing and hearing the witnesses. The most significant evidence in the trial was the complainant's evidence and the denial by the appellant in the recorded interview, in respect of which the jury did not have an advantage as this evidence was pre-recorded. I am satisfied that on the whole of the evidence it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt. Accordingly, ground 3 has not been made out. Ground 2: alleged failure to give an Azzopardi direction 1. I respectfully disagree with her Honour's reasons with respect to ground 2 and, accordingly, with her Honour's orders. The reasons for my view, which is a dissenting one, are as follows. 2. Ground 2 raises the extent to which the jury should be directed regarding an accused's choice not to give evidence at trial. The starting point is that the right to silence and the presumption of innocence are fundamental principles in a criminal trial. It was common ground that the trial judge directed the jury correctly as to the presumption of innocence and the onus of proof. The issue was whether her Honour was required to give a further direction, known as the "Azzopardi direction" (after Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25) (Azzopardi)). In the present case no issue arose which attracted the principles set out in Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65 or RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3. Accordingly, it is not necessary to consider these two authorities. Nor did any issue arise concerning the qualified prohibition in s 20(2) of the Evidence Act 1995 (NSW) on any comment being made on the failure of the accused to give evidence. Azzopardi v The Queen 1. In Azzopardi, the majority of four judges (Gaudron, Gummow, Kirby and Hayne JJ) said at [51]: "In the course of argument of the present matters it was suggested that if a judge said nothing to the jury about the fact that an accused had not given evidence, the jury may use the accused's silence in court to his or her detriment. Plainly that is so. It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt. It by no means follows, however, that the judge should go on to comment on the way in which the jury might use the fact that the accused did not give evidence." [Emphasis added.] 1. As is apparent from this extract, there are four aspects to the direction: namely, if the accused chooses not to give evidence, the accused's silence: 1. is not evidence against the accused; 2. does not constitute an admission by the accused; 3. may not be used to fill gaps in the evidence tendered by the prosecution; and 4. may not be used as a "make-weight" in assessing whether the prosecution has proved its case beyond reasonable doubt. 1. The statement in the passage extracted above from Azzopardi that "it will almost always be desirable" to give such a direction has resulted in consideration being given to the circumstances in which the direction is required to be given. Before turning to the circumstances of the present case, I propose to address decisions of this Court in which the Azzopardi direction has been considered. R v Wilson 1. In R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20 (Wilson), the appellant was acquitted of murder but found guilty of the manslaughter of a two-year-old boy who was in her foster care. The Crown case was circumstantial. The injuries causing death indicated that the child had been shaken shortly before death and that only the appellant was present at the relevant time. The appellant gave a version to police in an Electronically Recorded Interview of a Suspected Person (ERISP) to the effect that the deceased's five-year-old sister was in a different room at the relevant time. Her ERISP was tendered by the Crown. The location of the deceased's sister was relied on as an admission, as it tended to exclude the sister as the person responsible for the shaking. The trial judge gave directions in accordance with (1) and (2) above but not (3) or (4). 2. It was argued in Wilson that the "gap" in the Crown case was the absence of direct evidence or admission that the child had been shaken or that it was the appellant who had shaken him. It was further submitted that the omission of directions (3) and (4) caused a miscarriage of justice because the giving of such directions would have ensured that the jury did not treat the appellant's silence in court as an admission that she was the one who had shaken the child. The Court held that it was not necessary that the trial judge give directions (3) and (4) as the jury had been directed, first, that no inference could be drawn against the appellant for not having given evidence and, secondly, that she had not admitted or confessed anything by declining to give evidence. 3. This Court in Wilson regarded it as significant that there was no complaint at trial about the lack of directions in accordance with (3) and (4). Their Honours (Hunt AJA, Grove and James JJ agreeing) referred to rule 4 of the Criminal Appeal Rules which relevantly provides: "Exclusion of certain matters as grounds for appeal etc No direction, omission to direct … given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal." 1. The Court said, at [20], that leave to rely on an error where no point was taken at the trial will be granted only where the appellant can demonstrate that the error led to a miscarriage of justice. It also referred to the "more onerous test" of whether there has been a departure from the requirements of the law that goes to the "root of the proceedings". Their Honours cited Mraz v The Queen (1955) 93 CLR 493 at 514; [1955] HCA 59 in support of the proposition that there is a miscarriage of justice where, by reason of the error made, the accused may have lost a chance fairly open to him of being acquitted. The Court in Wilson refused leave under rule 4 to rely on the ground. R v Graham 1. In R v Graham [2005] NSWCCA 127 (Graham), the appellant was convicted of a single count of knowingly taking part in the supply of a prohibited drug, heroin. The issue at trial was whether the appellant knew that the relevant package contained a prohibited drug. The appellant participated in an ERISP in which she denied any knowledge of the presence of drugs in the parcel but gave inconsistent details about its collection. The Crown tendered the ERISP. At the close of the Crown case, the appellant's trial counsel said, in the presence of the jury: "The accused will be relying on her record of interview and other evidence in the case as far as her case is concerned." 1. The trial judge then said, as reported at [17] of this Court's judgment in Graham: "I will make this clear to you in my summing up to you, but he [appellant's trial counsel] having just made that remark, I will make the point now, that it is not for the accused to prove anything in the case. It is for the Crown to prove the case, to satisfy what I will identify to you as the essential ingredients of the case beyond reasonable doubt. The record of interview has been played for you and that is evidence in the case which you take into account in the same way as you evaluate any other evidence that you have heard." [Emphasis added.] 1. The appellant neither gave, nor adduced, any evidence in her case. This Court (Grove J, Howie and Hall JJ agreeing) dismissed the appeal against conviction. Its reasons were as follows: "[18] The final sentence of his Honour's remarks did not qualify the content of the interview by referring to its hearsay nature or the absence of subjection to cross examination. To that extent, it was more favourable to the appellant than an application of her strict entitlement. [19] However, in the course of his summing up, the learned trial judge did not return to the absence of testimony from, or evidence on behalf of the appellant. This was not the subject of complaint or application by counsel appearing at trial. An affidavit by counsel states that the absence of seeking directions concerning the fact that the appellant did not give evidence was an oversight and not the result of a tactical decision. … [25] In the present case the appellant had before the jury a lengthy videotaped interview in which she emphatically denied the issue contended against her by the Crown that she had knowledge of the presence of drugs in the package. As I have pointed out it was available to the jury without limitation as to its quality. Given the narrow issue of knowledge, the applicant already had the advantage of the invitation to treat her denial in the interview as evidence in the same category as the evidence in the case otherwise. In those circumstances I am unpersuaded that the absence of direction of the type now sought led to miscarriage of justice." [Emphasis added.] Johnston v R 1. In Johnston v R [2007] NSWCCA 133, the appellant was convicted of robbery in company inflicting grievous bodily harm. He participated in an ERISP in which he denied the assault or robbery which was tendered in the Crown case. The Crown at trial contended that the appellant's lies in the ERISP amounted to a consciousness of guilt. 2. The sole ground of appeal was that no direction had been given concerning the fact that the appellant had not given evidence at trial. It was common ground that no such direction had been given, although it had been anticipated in the address given by appellant's trial counsel as follows: "Mr Johnston has come before you and has told you that he is not guilty of this charge. You have seen his evidence in the form of the ERISP and his Honour will give you directions about the right to silence and the right that we all share of being under questioning by police officers (sic) none of us have to say anything. But Mr Johnston, having been properly cautioned, chose to give the police his version of events and you are to assess what he told the police officers as you do any other witness. Although he has that right, once he gave that right up he is to be assessed like anyone else and I would suggest to you that his demeanour on that tape was of a calm, sensible, hardworking young man who was telling the truth." 1. This Court (McClellan CJ at CL, Hulme and Hislop JJ agreeing) was satisfied that the omission was an oversight by the trial judge, the prosecutor and defence counsel and that the failure of the appellant's trial counsel to raise it was not a tactical decision. McClellan CJ at CL said, at [13]: "… It has been recognised, as in my opinion, must be plain, that most people would assume that if a person who has been accused of a crime remains silent it is because they cannot adequately explain the situation. Although the ordinary person may not conclude from the mere fact of an accused's person's silence that he or she is guilty, if there is evidence indicating that an accused may have committed the crime a failure to respond would make it, at least, more likely that a person would conclude that the accused committed the crime." 1. This Court found that the need for an Azzopardi direction "became undoubted" in circumstances where the Crown relied on lies in the ERISP as a consciousness of guilt: [17]. Accordingly, leave to raise the issue was granted, the appeal allowed, the conviction quashed and a new trial ordered. Restricted Judgment [2019] 1. In Restricted Judgment [2019] NSWCCA 153: [111]-[118] (Restricted Judgment [2019]), this Court overturned the convictions for murder of both appellants on the basis that the trial judge had failed to give directions in accordance with (3) and (4) of the Azzopardi direction. In that case, the directions were held to be necessary because of the following four factors: 1. appellant J, who was a co-accused, had given evidence in the joint trial thereby highlighting the circumstance that appellant W could have given evidence; 2. the trial judge had directed the jury that it could use the evidence of appellant W's threats, if accepted, as evidence of his consciousness of his guilt of one or both of the offences with which he was charged. The giving of a full Azzopardi direction would have ensured that the jury did not use appellant W's absence from the witness box as a consciousness of guilt; 3. there was no evidence before the jury of ERISPs in which appellant W denied the Crown's allegations; and 4. although, as the Crown contended, a direction about appellant W's silence in court would have highlighted the disparity between his silence and appellant J's decision to give evidence, the disparity would already have been obvious to the jury and should have led to a full Azzopardi direction being given to protect appellant W. The present case 1. The present case is to be distinguished from Wilson, Graham, Johnston and Restricted Judgment [2019]. Unlike in Restricted Judgment [2019], there was no disparity between the position of the appellant and that of a co-accused to address as the appellant was the sole accused. Unlike in Wilson, the Crown case was not circumstantial. As in Wilson, Graham and Johnston, the appellant denied his guilt in an ERISP which was tendered by the Crown: cf. Restricted Judgment [2019]. In the present case the Crown did not rely on the appellant's answers in the recorded interview as amounting to a consciousness of guilt (as it did in Johnston) or as admissions (as in Wilson). As in Johnston, no aspect of the Azzopardi direction was given in the present case, which is to be compared with Graham, Wilson and Restricted Judgment [2019] where some variant of Azzopardi which fell short of the full direction was given. 2. The cases in which it will be necessary to give the full Azzopardi direction are not to be categorised by reference to individual factors. Ultimately, the question whether such a ground is made out is to be answered by reference to the directions actually given, the circumstances of the case and the conduct of counsel at the trial: Thi Quyen Le v The Queen [2016] VSCA 100; (2016) 308 FLR 486 at [36] (Weinberg AP and Redlich JA). 3. In the present case, both the appellant and the complainant gave versions which had been recorded at a time which was broadly contemporaneous with the first complaint about the alleged offending conduct. 4. The complainant was interviewed by police on 25 July 2017. The film of the interview was played to the jury and a transcript of the interview was MFI 2. The diagrams which the complainant drew were marked for identification. The complainant was cross-examined on 14 March 2018. Her cross-examination was filmed. The transcript of her cross-examination was MFI 4. 5. The trial commenced on 8 October 2018. The complainant's version to police became her evidence in chief and was played to the jury. MFI 2 was provided to the jury. The diagrams which the complainant had drawn in the interview were tendered. The cross-examination of the complainant was also played to the jury. Documents which had been shown to the complainant in cross-examination were tendered. The complainant's mother and father each gave evidence. Detective Senior Constable Hall was also called in the Crown case to prove the complainant's birth date, the arrest and charging of the appellant on 25 July 2017 and his recorded interview later that day. The Crown tendered the ERISP of the appellant in its case, although it did not rely on any statements as amounting to either express admissions or a consciousness of guilt. The ERISP was played to the jury and a copy of the transcript was marked for identification and provided to the jury. The Crown case closed on 10 October 2018. 6. On 10 October 2018, the appellant's wife gave evidence and was cross-examined. The accused's case closed. The proceedings were adjourned to 11 October 2018 for addresses. The addresses concluded before the luncheon adjournment on 11 October 2018 and the summing up concluded before 3pm, at which time the jury was sent out to consider its verdict. 7. It can be seen from this narrative that the jury saw and heard recordings of both the complainant and the accused being interviewed. They also saw and heard a recording of the complainant being cross-examined at a prior date. The trial was one of "word against word" since the complainant gave evidence that she had been sexually assaulted by the appellant and the appellant denied it. Despite the similarities (the complainant and the appellant had each given versions which had been recorded on a prior date), there was a stark difference between them in that the complainant was subject to cross-examination but the appellant was not. 8. It is important to examine the detail of the directions given by the trial judge on the question. Her Honour (Day 1, 11.10.19, SU, page 2), when referring to the evidence in the trial, said: "You will have the typed [sic, taped] interview with the accused which you have seen and is the exhibit in this trial, and you have a transcript as an aide of that video record of interview that was conducted with him on 25 July. … Now, all of this material will be with you when you retire to deliberate in a jury room, and there will be facilities there for you to play the interview that became an exhibit with the accused." 1. Her Honour (Day 1, 11.10.19, SU, pages 11-12) also said: "Now, another essential feature of our system of criminal justice is the subject of the next direction I am going to give you, and it is this, that [the applicant], as the accused in this trial, is presumed to be innocent. The presumption of innocence means that all persons tried in this Court are presumed to be innocent unless and until they are proved by the Crown to be guilty beyond reasonable doubt. Now, that leads me to my next direction which relates to the onus or burden of proof. The job of proving guilt beyond reasonable doubt rests on the accuser in our system of criminal justice, and in our system the accuser is the Crown through the services provided by the Office of the Director of Public Prosecutions. Mr Crown, as he has been known during the course of the trial, is a barrister who appears on behalf of the Office of the Director of Public Prosecution, and he has assumed the job in this trial as the prosecutor does in any criminal trial of proving the guilt of the accused. It is precisely because the Crown bears the onus of proof that there is no burden of proof on the accused to prove that he is not guilty. That burden rests upon the Crown in respect of every element or essential fact that makes up the offence with which the accused has been charged. That burden never shifts to the accused. There is no obligation whatsoever on the accused to prove any fact or issue that is in dispute before you. Here, members of the jury, the accused gave a version of the events. He took part in a recorded interview with investigating police. And, of course, you are aware that he denied the offending. The accused is entitled to rely upon that account and ask you to take that into consideration with the other evidence called by the Crown. The accused is not required to prove that this account is true. The Crown in discharging its obligation to prove the accused's guilt must satisfy you that it is a version of events that could not reasonably be true. Members of the jury, during the course of the trial the accused has called evidence. The fact that the accused has called evidence before you, namely the testimony of his wife … does not alter the burden of proof. The accused does not to prove that her [the applicant's wife's] version is true. Members of the jury, the fundamental proposition is that it is for the Crown to prove the guilt of the accused." 1. The trial judge gave the jury a document (MFI 3) which set out jury directions. Of present relevance, the directions included the following: "The Crown has the obligation of proving the guilt of the accused based upon the evidence placed before the jury. This obligation continues throughout the whole of the trial. The accused is not required to prove any fact or to meet any argument or submission made by the Crown. The accused is to be presumed innocent of any wrongdoing unless and until a jury finds his or her guilt proved by the evidence in accordance with the law." 1. Although the trial judge directed the jury as to the presumption of innocence and the onus of proof, her Honour did not direct the jury as to any of components (1)-(4) in the Azzopardi direction set out above. 2. There is no evidence in the present case as to whether the appellant's counsel chose, as a tactical decision, not to ask for such a direction, or whether she, through inadvertence or oversight, simply failed to ask for it. Nor is there any indication whether the trial judge decided that it would not be in the interests of the appellant to give the direction or simply forgot to give the direction. 3. It is conceivable that the appellant's trial counsel did not ask for the direction because she did not want to emphasise to the jury that the appellant had a right to give evidence which he chose not to exercise (and a right to silence, which he did choose to exercise). However, I consider that the pre-trial filming of the complainant's version, her adoption of this version in evidence and her cross-examination, when compared with the filming of the appellant's recorded interview with police, would have been more than sufficient to alert the jury to the fact that the appellant, by choosing not to give evidence at the trial, had not rendered himself susceptible to cross-examination. Further, the fact that the appellant was in court in the dock and that the complainant's parents and the appellant's wife gave evidence in court and were cross-examined would have served to highlight the appellant's in-court silence. 4. These objective matters make it less likely to have been a tactical decision by the appellant's trial counsel. In any event, evidence from trial counsel as to tactical choices is not determinative and may be of little or no assistance: Richards [2002] NSWCCA 38; (2002) 128 A Crim R 204 at 209-210 (Levine J, Hodgson JA and Howie J agreeing). I am not persuaded that there was any objective forensic advantage to the appellant in the Azzopardi direction not having been given. Although the giving of the Azzopardi direction would have highlighted the appellant's undoubted right to give evidence, it would have bound the jury not to take the appellant's choice not to give evidence into account against him. 5. I consider that, in these circumstances, there was such a substantial risk that the jury would have assumed that the appellant's silence in court could be taken into account against him because if he were innocent, he would have given evidence, that it was incumbent on the trial judge to give the Azzopardi direction. This is not a case where it could be said that there was no real likelihood that the jury would misuse the in-court silence of the accused: cf. Nguyen v R [2017] NSWCCA 4; (2017) 264 A Crim R 405 at [71] (Basten JA). Her Honour's directions about the presumption of innocence and onus of proof were not, in my view, sufficient to direct the jurors that they were prohibited from inferring guilt from in-court silence. 6. I consider that the failure to give such a direction occasioned a miscarriage of justice. By reason of the omission, the jury might have used the appellant's silence either as an indication that they could more readily accept the complainant's evidence or as an additional factor which satisfied them of the appellant's guilt beyond reasonable doubt. Both these inferences were erroneous. Had the jury been properly directed, the jury would have appreciated that such reasoning was prohibited and would have been bound to act in accordance with the direction. Accordingly, I am persuaded that the trial judge's failure to direct the jury as to the appellant's in-court silence caused him to lose a chance, which was fairly open to him, of being acquitted. In these circumstances, I am persuaded that leave pursuant to rule 4 ought be granted and the appeal allowed. By reason of my view as to ground 3, I consider that this Court ought order a re-trial. Proposed orders 1. In relation to ground 2, I propose the following orders: 1. Grant leave pursuant to rule 4 of the Criminal Appeal Rules to rely on ground 2. 2. Allow the appeal. 3. Quash the conviction. 4. Order a new trial. ********** 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: 19 December 2019