AB v R - [2023] NSWCCA 165 - NSWCCA 2023 case summary — Zoe

NSWNSWCCA

AB v R

[2023] NSWCCA 165

Court of Criminal Appeal (NSW)|2023-03-27|Before: Beech-Jones CJ, Adams J, Yehia J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2023-03-27

Before

Beech-Jones CJ, Adams J, Yehia J

Catchwords

[1993] HCA 71 BP v R [2006] NSWCCA 172 Dhanhoa v The Queen (2003) 217 CLR 1
[2003] HCA 40 Edwards v The Queen (1993) 178 CLR 193
[1993] HCA 63 Hofer v The Queen [2021] HCA 36
(2021) 291 A Crim R 114 KE v R [2021] NSWCCA 119 Liberato v The Queen (1985) 159 CLR 507

Source

Original judgment source is linked above.

Catchwords

[1993] HCA 71 BP v R [2006] NSWCCA 172 Dhanhoa v The Queen (2003) 217 CLR 1[2003] HCA 40 Edwards v The Queen (1993) 178 CLR 193[1993] HCA 63 Hofer v The Queen [2021] HCA 36(2021) 291 A Crim R 114 KE v R [2021] NSWCCA 119 Liberato v The Queen (1985) 159 CLR 507[2000] HCA 43 WX v R (2020) 102 NSWLR 467[2020] NSWCCA 142 Zoneff v The Queen (2000) 200 CLR 234

Judgment (21 paragraphs)

[1]

Background

On 29 April 2021, AB was arraigned in the District Court on an indictment that charged him with three counts concerning a single incident, namely, that between 30 March 2018 and 31 March 2018 at Pokolbin, he: (i) had sexual intercourse with CD who was at that time under the age of 10 years, namely, 5 years of age, contrary to s 66A(1) of the Crimes Act (count 1); (ii) in the alternative to count 1, assaulted CD, a child then under the age of 16 years, namely, 5 years of age, and at the time of such assault did commit an act of indecency on CD contrary to s 61M(2) of the Crimes Act (count 2); and (iii) assaulted LL, a child then under the age of 16 years, namely, 5 years of age, and at the time of such assault did commit an act of indecency on LL contrary to s 61M(2) of the Crimes Act (count 3).

[3]

The Crown and Defence Case on Count 1

All of the incidents alleged in the indictment took place during Easter 2018 at a house rented by several families in the Hunter Valley. [3] There were at least five children staying at the premises. The two oldest children were the applicant (who was then 13 years old) and his friend EF (who was then 12 years old). CD (who was then 5 years old), [4] was also present. The applicant's sister, IB, had sometimes looked after CD but she was not present during the Easter gathering. [5]
The applicant and EF were allowed to sleep in a tent in the front yard of the house. The adults and younger children slept inside. [6] The relevant incidents occurred after dinner on the evening of the first day of the holiday while CD was in the tent alone with the applicant. [7] Given the grounds of appeal, it is only necessary to outline the Crown and defence case on count 1.
CD's evidence consisted of a recorded interview on 10 April 2018 with the police (the "JIRT interview") [8] and recorded unsworn evidence given before her Honour Judge Girdham SC in November 2020. Both recordings were played to the jury at the applicant's trial and they were provided with transcripts. [9] [10]
The incident the subject of count 1 was said to have occurred when the applicant and CD were alone in the tent. Early in the JIRT interview, CD said, "I was on holidays and we, and were, and I was in a tent and in the night someone showed me their private thing" (i.e. penis). [11] CD said this occurred at night and the applicant showed him his penis twice. [12] He said: [13] "Um, so he showed me his penis two times then he said, 'don't tell anyone' then I just told on someone then he said, um, um, um, his sister does that and how he, and he, and he said, [p]ut my, put his penis in my mouth and he said his sister does it. And his sister said, [n]o, and, and, and he was lying to me."
CD said that he, EF and the applicant were present in the tent when this incident happened, although the evidence of other witnesses, including EF himself, strongly suggested that EF had left the tent before the time the incident could have occurred. [14]
CD's reference to the applicant "lying" to him was to a supposed lie the applicant told that he (i.e. the applicant) also put his penis in his sister's mouth i.e. IB's mouth. [15] CD said this lie was told after the applicant had put his penis in CD's mouth. [16] (CD said that IB later told him that such an incident between herself and the applicant did not happen). [17] CD said the applicant told him, "[d]on't tell anyone". [18] He also said: [19] "So he [the applicant] showed me his penis then, then he said, then he puts his penis two times actually then he actually put my penis in there and then his mouth. Then he did this to his penis and he said, [j]ust do that then she said, um, um, he said, um he's lying to me then, then that's the end. Then he was being, that was a real naughty thing to do. Then my daddy [took] me out of the room and that was the end, I think."
At one point in the JIRT interview, CD was asked, "[a]nd you said your dad took you out of the tent?", to which he nodded and said, "[b]ecause I was being naughty" and "I don't know why I was being naughty". [20] CD said he was just wearing a nappy in the tent. [21] He shook his head when asked whether the applicant saw his penis. [22]
As noted, CD gave evidence in November 2020 some two and a half years after the JIRT interview. In cross‑examination, he recalled the applicant saying to him, "[d]on't tell anyone". [23] He did not recall the applicant saying to his father, "[CD] pulled my pants down and I don't know what he did". [24] The following exchange took place between CD and counsel for the applicant: "Q. I'm going to say some sentences and I want you to tell us if they're true, not true, or if you're not sure, is that okay? A. Yep. Q. So, the first sentence is, [the applicant] did not take out his penis, is that true, not true, or you're not sure? A. True. Q. The next sentence is, [the applicant] did not show you his penis, is that true, not true, or you're not sure? A. Not true. Q. The next sentence, [the applicant] did not say, 'Put my penis in your mouth?' A. True. Q. The next sentence, [the applicant] did not say anything to you about his penis, is that true, not true, or you're not sure? A. Not true."
The use of negatives in these questions robbed the answers of any real evidentiary value. In re-examination, CD said that the applicant did not say anything about his penis but did show CD his penis. [25]

[4]

CD's Father (GD)

The evidence critical to ground 1 of the appeal was given by CD's father, GD. He said that his family had lived next door to the applicant's family for a number of years. [26] GD said that after dinner on the first night of the holiday, the children were playing around the tent and, when it was nearing bedtime, CD wanted to sleep in the tent. [27] Close to bedtime, "probably" between 7pm and 8pm, GD saw EF come into the house and asked him where CD was. [28] EF said CD was in the tent. [29]
GD said that 10 or 15 minutes later he went out to check on CD. [30] GD said that as he approached the tent he was "[v]ery certain" [31] he heard the applicant say, "[d]on't tell anybody, you'll get me in trouble". [32] GD said to them, "[w]hat's going on", and undid the outer zip of the tent. [33] His evidence included the following: "Q. Was the zip open or closed when you said 'What's going on'? A. The zip was closed. Q. How loudly did you speak? A. Loud enough, loud enough to be heard. Q. How long after you said those words did you start to open the zip? A. It was probably simultaneously. Q. Then what happened? A. There was silence and then I ordered [CD] to get out of the tent. Q. You say you ordered [CD] to get out of the tent, what words did you say to him? A. '[CD], out.' Q. Can you describe your tone of voice? A. Forceful. … Q. Can I ask you this question, how long was it between the time you said those words 'What's going on' and '[CD], out'? A. Seconds. Q. Are you able to say approximately, no-one's going to hold you specifically, but how many seconds? A. Yeah literally, I would've said one or two seconds. Q. What happened after you said '[CD], out'? A. [CD] came out of the tent. Q. Then what happened? A. We proceeded to walk back to the house. Q. Did anything happen when you were walking back to the house? A. [The applicant] called out '[CD] pulled my pants down when I was asleep'. Q. How loudly was that said? A. Loud enough to, to hear. Q. How far away from the tent were you when those words were spoken? A. Again within metres. Q. Are you able to say how long it was between the time that you said '[CD], out' and [the applicant] said those words that you heard? A. Yeah, no more than probably five seconds, five, ten seconds." (emphasis added)
In cross-examination, GD denied that before he went to the tent he heard any shouting. [34] He accepted there was a chance that, as he approached the tent, the applicant could have said, "[d]on't tell anyone because we'll both get into trouble". [35] He did not accept that the applicant said anything along the lines of, "[CD] pulled my pants down and I don't know what he did". [36] GD was asked whether the applicant said "[CD] pulled my pants down" in response to his question, "[w]hat's going on". GD said, "[CD] was out of the tent and we were walking away when [the applicant] called out '[CD] pulled my pants down while I was asleep'". GD agreed that he told CD's mother that the applicant had called out, "I was asleep, [CD] was pulling my pants down". [37]

[7]

Crown Closing

To resolve ground 1, it is necessary to outline how the Crown Prosecutor made use of GD's evidence of the applicant's alleged silence after GD said, "[w]hat's going on" and "[CD], out", and the applicant's statement, "[CD] pulled my pants down when I was asleep". The Crown Prosecutor's address was directed to two particular matters the Crown had to prove beyond reasonable doubt. The first was whether the applicant placed his penis in CD's mouth. The second was whether, given the applicant was a juvenile, the Crown could prove beyond reasonable doubt that he knew his conduct was "seriously wrong, as distinct from an act of mere naughtiness or mischief" (i.e. doli incapax; see BP v R [2006] NSWCCA 172 at [27]−[29] per Hodgson JA with Adams J and Johnson JA agreeing).
In her address, the Crown Prosecutor submitted that the jury should accept CD's account of the events (in the JIRT interview). The Crown Prosecutor then moved to the applicant's defence, noting that the applicant denied doing anything to CD and that it had been "suggested that it was [CD] that pulled down the accused's pants while the accused was asleep". [46] The Crown Prosecutor reminded the jury of CD's denial of this suggestion. The Crown Prosecutor then submitted, "there are at least eight reasons why you would not accept that [it was] even a possibility" that CD pulled down the applicant's pants. [47] When it came to the seventh reason, the Crown Prosecutor reminded the jury of GD's evidence (set out above at [20]) and continued: [48] "[GD] took [CD] by the hand and started to walk back to the house. It was only then that [GD] heard the accused finally respond to [GD]'s question. He didn't respond straight away. He did not respond when [CD] was ordered out of the tent. He didn't respond as [CD] was opening the interior zipper or when he was coming out of that tent. He didn't respond as [GD] took [CD]'s hand and started to walk back to the house. It took the accused quite some time to actually respond. If [CD] had pulled down his pants and if the accused was apparently upset enough to swear at [CD], you might think he would have immediately told [CD]'s father when h[is] father asked, but he didn't. He didn't say anything when [GD] ordered him out, when [CD] got out. He didn't say anything as they started to walk back to the house some metres from the tent and you might think the reason for this delay is because the accused was making up a story in case [CD] told his parent[s] what the accused had done." After addressing the eighth reason, the Crown Prosecutor stated, "those are [the] eight reasons why you would reject the suggestion that [CD] pulled down the accused's pants". [49]
Shortly after this statement, there was a break in the address. In the absence of the jury, counsel for the applicant raised concerns that parts of the Crown address reversed the onus of proof. The Crown Prosecutor indicated that she would address the position when the jury returned. [50] When the jury returned, the Crown Prosecutor told them: [51] "Just to be clear, by saying that the suggestion that [CD] pulled down the accused's pants doesn't explain that [later] conversation [between CD and the applicant's sister, IB]… The Crown is not for a moment suggesting that the accused has to explain or prove anything. That burden rests firmly on the Crown. The Crown says that you would reject that suggestion, that it was [CD] that pulled down the accused's pants, and that you would put it to one side, and focus on [CD]'s very powerful evidence, the Crown would say, and his very believable evidence about what the accused said in that tent about [his sister] and about [CD] speaking with [the applicant's sister] about this on 4 April, okay?" (emphasis added)
This statement does more than merely confirm there was no reversal of the onus of proof; that hardly needed to be stated. Instead, the significance of this statement is that it placed the Crown's seventh reason in context e.g. the Crown's reliance on the applicant's delay in responding to GD and him "making up a story". The Crown Prosecutor confirmed to the jury that the Crown only relied on the seventh reason to rebut the suggestion that CD pulled the applicant's pants down. The jury was told that, if the suggestion was rejected, they should "put it to one side" and focus on CD's evidence.
Immediately after this, the Crown Prosecutor addressed doli incapax. [52] The Crown Prosecutor identified 10 reasons why the jury would find that the applicant knew what he did to CD (and the alleged victim of count 3) was "seriously wrong". [53] The ninth and tenth reasons were as follows: [54] "The ninth reason the Crown suggests that you would be satisfied that the accused knew this behaviour was seriously wrong is because he said to [CD], 'Don't tell anyone. You will get me in trouble.' This shows two very important things about what the accused knew, (1) that he knew to tell [CD] not to tell anyone, that it was behaviour that needed to be kept a secret, but the second important thing about what the accused said to [CD] is he knew he would get into trouble for what he'd done. Because he knew that he would get in trouble, he knew what he was doing was wrong, wrong enough to get him into trouble, wrong enough that when [GD] entered the tent or opened the tent and asked them what was going on, he didn't say anything at all. He was silent, silent because he knew what he'd done was seriously wrong, silent until, you might think, until he managed to think up a lie in an attempt to cover up his behaviour. The tenth reason… is that the accused called out after [GD] had taken [CD] out of the tent, this story about [CD] pulling his pants down. You might think that that shows a capacity and an ability to quickly think up a false story. He not only makes up that false story, but he does this, you might think, in case [CD] told someone, told anyone about what the accused had done. So the accused understood that, if [CD] did tell someone what the accused had done, he would need a story to counter that complaint to discredit [CD] and, if he understood he needed to be this deceptive, you might think he certainly knew that what he did in that tent was seriously wrong. Members of the jury, for these reasons, some or all of them, the Crown says that you would be satisfied beyond a reasonable doubt that the accused knew what he did was seriously wrong and you would find him guilty in relation to counts 1 and 3." (emphasis added)
As the latter part of this extract makes clear, this was the final part of the Crown Prosecutor's address to the jury. No complaint was made about this submission during the trial.
The first part of this submission relied on the evidence of the applicant telling CD "[d]on't tell anyone, you'll get me into trouble", as evidence that he knew his actions were seriously wrong. No complaint is made about the making of that submission for that purpose, nor could it be. The reliance by the Crown on such evidence to rebut doli incapax is entirely orthodox.
In this Court, counsel for the applicant focussed on the balance of the Crown Prosecutor's submission that the applicant's initial silence when GD opened the tent involved him using that time to formulate the supposed lie he told shortly afterwards, namely, that CD had pulled down his pants while he was asleep. It was contended that this submission was an (emphatic) appeal to the jury to employ consciousness of guilt reasoning and use silence and an (alleged) lie as positive evidence that the applicant knew his actions were wrong and as positive evidence that he had sexually assaulted CD. This contention is further addressed below.

[10]

Ground 1: Failure to give a "lies direction"

Ground 1 of the Notice of Appeal contends that the trial judge's failure to direct the jury as to how an alleged lie told by the applicant could be used to support the prosecution case occasioned a miscarriage of justice.
The written submissions in support of this ground contended that the Crown Prosecutor invited the jury to conclude that the applicant's silence and alleged lie in stating that MB pulled his pants down, were both done out of fear that telling the truth would implicate him in the offence. Even though no directions were sought as to the significance of the applicant's alleged silence and alleged lie, it was submitted that to ensure a fair trial, it was essential that the trial judge give a direction on the use of lies (or silence) as evidence of a consciousness of guilt. Such a direction must precisely identify the alleged lie and direct the jury, inter alia, that before it can be used as evidence of a consciousness of guilt, it must be found to be a lie and not the result of confusion, lack of recollection or similar explanation, must relate to a "live" issue in the proceedings and must only be explicable on the basis that the accused knew that the truth would implicate him in the offence and was not told for some other reason, such as panic or wanting to escape an unjust accusation (see Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 at 210−211). In oral argument, it was contended that, in light of the Crown Prosecutor's apparent disclaimer of the use of the applicant's alleged lie as a consciousness of guilt (noted above at [27]), an alternative may have been to give the jury a "Zoneff direction" precluding the use of the alleged lie for that purpose (Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 at [23]; "Zoneff").
The Crown's written submissions in this Court contended that the Crown Prosecutor's address did not invite the jury to infer a consciousness of guilt on the part of the applicant from his silence and alleged lie that MB pulled down his pants. The submissions contended that the Crown Prosecutor's address only invited the jury to reject the applicant's assertion that CD had pulled his pants down and instead focus on CD's version of events. The Crown contended that "there is a difference between the mere rejection, or non-acceptance, of an [accused's] account… and finding that [they] lied", much less that such a lie amounts to a consciousness of guilt.
One matter of great significance as to whether an Edwards (or Zoneff) direction is required is the use sought to be made of the alleged lie by the Crown (whether in submissions or cross-examination: see Mark McKey v R [2012] NSWCCA 1 at [36]−[37] and [42] per Latham J with Whealy JA and Hislop J agreeing). Thus, in Zoneff, Gleeson CJ, Gaudron, Gummow and Callinan JJ observed (at 16]): "As a general rule… an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because… 'the accused knew that the truth ... would implicate him in [the commission of] the offence' and if, in fact, the lie in question is capable of bearing that character."
Even so, the fact that the prosecution did not seek to rely on consciousness of guilt reasoning, expressly or impliedly, is not necessarily determinative as to whether a (Zoneff) direction should be given (Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40; "Dhanhoa"). In Dhanhoa, the accused was interviewed by police and denied being at a hotel and an apartment around the time where an offence of robbery in company with wounding and kidnapping took place. At the trial, the accused gave evidence admitting that he was at the hotel and then at the unit but otherwise provided an explanation consistent with innocence. In circumstances where the Crown did not seek to rely on the accused's statements in the police interview as a consciousness of guilt, the High Court held that it was not necessary to either give an Edwards direction or a Zoneff direction (per Gleeson CJ and Hayne J at [34], McHugh and Gummow JJ at [59]; Callinan J contra at [96]−[97]). Gleeson CJ and Hayne J observed that "[w]here the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction" (at [34]). To similar effect, McHugh and Gummow JJ held that in such a case a miscarriage of justice will be established if there is a "reasonable possibility" that a failure to direct the jury may have affected the verdict, that is, if there is a reasonable possibility that the "jury may have reasoned that the accused was guilty because he had lied to the police" (at [60]).
In this case, had the Crown Prosecutor's reference to the applicant's silence and then alleged lie ceased at the point noted above at [28], then it could not be said that the Prosecutor contended that the silence or alleged lie amounted to a consciousness of guilt nor that there was a real chance or possibility that the jury might use them as such. However, the Crown Prosecutor's reference to the applicant's silence and alleged lie did not cease at that point. Instead, the Crown Prosecutor's address returned to them and made a submission in the most emphatic of terms. In that part of the address set out above at [30], the Crown Prosecutor invited the jury to find that, after GD opened the tent and spoke to the applicant and CD, the applicant "was silent" "because he knew what he'd done was seriously wrong, silent until, you might think, until he managed to think up a lie in an attempt to cover up his behaviour" (emphasis added). The Crown Prosecutor also invited the jury to find that the applicant had made up a "false story" and did so "in case [CD] told someone, told anyone about what the accused had done" (emphasis added).
The Crown Prosecutor's submission set out at [30] was made in the context of rebutting any presumption of doli incapax, but at this point that only invites an inquiry as to how the applicant's silence and alleged lie were said to demonstrate his knowledge that his actions were "seriously wrong". The chain of reasoning by which the Crown contended he had such knowledge assumes, or implicitly asserts, that the applicant's silence and alleged lie were not only evidence that he knew "what he had done" was wrong but were also evidence that he did what he was accused of doing to CD. To say that the silence and alleged lie revealed the applicant "knew that what he did in that tent was seriously wrong" only makes sense if the silence and alleged lie were also treated as revealing "what he did in that tent" (emphasis added). To say that the applicant was silent "until he managed to think up a lie in an attempt to cover up his behaviour" treats the silence and the lie as evidence that he behaved in a manner that had to be covered up. Properly analysed, the passage from the Crown Prosecutor's address was an (emphatic) appeal to consciousness of guilt reasoning (cf Dhanhoa).
The Crown further submitted that, even if the Crown Prosecutor's address did seek to engage consciousness of guilt reasoning, there was no requirement for the trial judge to direct the jury as to how to use the alleged lie to support the Crown case. This was said to be so because the assertion that CD pulled down the applicant's pants "formed the centrepiece of the defence case at trial". The submission continued: [59] "Accordingly, the issue in the trial for determination by the jury was whether the applicant sexually assaulted [CD] by convincing [CD] to fellate him, or whether the jury accepted or had a doubt that [CD] pulled down the applicant's pants while the applicant was trying to sleep. The risk of the jury reasoning that the applicant said this simply because he was guilty did not arise, because the innocent explanation for the statement was before the jury as a central dispute between the Crown and the applicant in the matter which the jury had to decide."
I do not accept this submission. As the Liberato direction made clear, the trial did not reduce to a simple binary choice as to whether the applicant sexually assaulted CD or whether CD pulled the applicant's pants down while he was asleep. A rejection of the latter did not necessarily mean an acceptance of the former. While it may be that an "innocent explanation" for the applicant's statement that CD pulled his pants down was before the jury (i.e. that it was true), that does not address other possible explanations (e.g. panic on the applicant's part that CD may have misconstrued events) nor other aspects of the Crown Prosecutor's submission which concerned the applicant's silence after GD entered the tent. One of the possible innocent explanations for that silence was raised before the jury, being the evidence of the head of learning support at the applicant's high school (see above at [24]). However, other explanations for any such silence which do not involve accepting the Crown's contention that the applicant was using the time to formulate a lie were also possible. Even if the jury were satisfied that the applicant used the silence to formulate a lie and then lied, an Edwards direction would have brought home to the jury the necessity to be satisfied that the explanation for the silence and lie was that the applicant knew that a truthful answer to GD's question, "[w]hat's going on", would "implicate him in the offence" and was not told for some other reason such as panic, wanting to escape an unjust accusation or the applicant believing he was in some form of trouble but not being sure why (Edwards at 211).

[11]

Rule 4.15 and Miscarriage of Justice

In this Court, the Crown noted that no direction to the effect now sought on appeal was sought at the trial. The Crown referred to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) and contended that no miscarriage of justice was occasioned. The Crown's submissions noted that, at the trial, counsel for the applicant had sought a direction to the effect that the jury could use the fact that the applicant was a person of good character to support the credibility of his statement(s) that CD pulled his pants down. [60] The Crown Prosecutor submitted to the trial judge that, if such a direction was given, then the trial judge should also reiterate the eight reasons given by the Crown for not accepting the statement(s). [61] Later, in the absence of the jury, the trial judge observed that there was "force" in the Crown's submission and declined to expand the character direction in the manner sought by counsel for the applicant. [62] Counsel for the applicant did not press the issue further. [63]
The Crown contended that the applicant's trial counsel had "made a considered decision not to seek a direction that would lead to the trial judge summarising the reasons that the Crown had submitted the jury would not accept the applicant's statement that [CD] had pulled his pants down". It was submitted that for the same reason, such counsel either did not seek, or if he was aware of the issue would not have sought, an Edwards direction as that would also require a restatement of the eight reasons why the Crown said the statement was a lie. As there was, or at least appeared to be, a proper forensic basis for not seeking a direction, it was submitted that r 4.15 should be applied and there was otherwise no miscarriage of justice. [64]
I do not accept that it is proper to characterise the course of events as trial counsel for the applicant evincing an intention not to have the Crown's eight reasons reiterated to the jury at any cost. Counsel for the applicant made the application for an expansion of the character direction and never withdrew that application. It was the trial judge who expressed apprehension about repeating the eight reasons, not counsel for the applicant. In any event, this debate took place in a context whereby the Crown had expressly disclaimed consciousness of guilt reasoning but then reintroduced it when addressing the jury on doli incapax. If counsel for the applicant had been alert to the proper effect of the Crown Prosecutor's submission noted above at [30], which I doubt they were, then any reticence on their part to have the eight reasons for the alleged lie repeated may have dissipated. Further, given the Crown's earlier disclaimer, this only highlights that the proper response to the Crown's submission was to give a Zoneff direction. The giving of such a direction would not have required any recitation of the Crown's eight reasons why the applicant's statement(s) was false.
Lastly, it is pertinent to note that the accepted vice in the trial arose in circumstances where the Crown ran the trial without identifying its reliance on consciousness of guilt reasoning, made the submission noted above (at [27]), confirmed that it was not relying on such reasoning (at [28]) but then emphatically sought to rely on that reasoning to rebut the presumption of doli incapax (at [30]). Counsel for the applicant could have sought a direction to alleviate this. However, properly analysed, the defect in this trial was occasioned by the manner in which it was conducted by the Crown Prosecutor. If follows that, to the extent it may be necessary, leave should be granted under r 4.15 to raise this ground.

[15]

Majority Verdicts

Section 55F of the Jury Act relevantly provides: "55F Majority verdicts in criminal proceedings (1) This section applies in respect of a verdict in criminal proceedings where the jury consists of not less than 11 persons. (2) A majority verdict may be returned by a jury in criminal proceedings if - (a) a unanimous verdict has not been reached after the jurors have deliberated for a period of time (being not less than 8 hours) that the court considers reasonable having regard to the nature and complexity of the criminal proceedings, and (b) the court is satisfied, after examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a unanimous verdict after further deliberation."
There was, and is, no issue about the satisfaction of s 55F(2)(a). However, in relation to s 55F(2)(b), the applicant's submissions noted that the question asked of the foreperson was confined to the "current situation" and did not address the terms of s 55F(2)(b), which is addressed to an unlikelihood that the jurors will reach a unanimous verdict in the future. In oral argument, it was accepted that the subsection does not impose an obligation on the trial judge to ask a particular question or questions of the jurors who are examined on oath. Further, contrary to the manner in which the ground of appeal is expressed, it was not submitted that the trial judge did not address s 55(2)(b) (cf KE v R [2021] NSWCCA 119). However, it was submitted that, given the narrow inquiry that was made by the trial judge and the circumstances that preceded the foreperson being affirmed, it was not open to the trial judge to form the conclusion that the requirements of s 55F(2)(b) had been "satisfied". [70]
I accept that it would have been preferable if the trial judge has asked the foreperson a specific question directed to the likelihood or unlikelihood of the juror reaching a unanimous verdict if further deliberations took place. I also accept that it may have been preferable to send the jury home for the weekend without giving a majority verdict direction and allow a further period of deliberation on the Monday morning before giving that direction. However, those observations all have the benefit of hindsight. This was a short trial. It commenced on Thursday 29 April 2021. The jury retired to consider the verdict on the following Wednesday 5 May 2021. By late Friday afternoon, the jury had been deliberating for around two and a half days. The issues in the trial were not especially complex. The jury had twice told the trial judge that a unanimous verdict could not be reached. By the time the trial judge was informed on the second occasion, it had been five hours since they received the Black direction. In those circumstances, it was open to the trial judge to be satisfied that the requirements of s 55F(2)(b) of the Jury Act were satisfied.
I would reject ground 2 of the appeal.

[17]

Principles

Section 6(2) of the Criminal Appeal Act 1912 (NSW) provides that "[s]ubject to the special provisions of this Act, the Court shall, if it allows an appeal under section 5(1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered." One of the "special provisions" to which s 6(1) refers is s 8(1). It provides: "On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make."
I addressed the operation and application of these provisions in a very similar case, WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142 ("WX"), at [93]−[96] as follows: "The principles governing the exercise of the power to order a new trial under s 8(1) were distilled by McClellan CJ in Gilham v R [2012] NSWCCA 131 at [648] to [660] ("Gilham"). It can only be exercised if the evidence presented at trial was sufficiently cogent to justify a conviction (Gilham at [648]) which in this case it was. Otherwise, unless the interests of justice require the entry of an acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of that charge has been set aside but there is evidence to support the charge (Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 at [104]; "Spies"). In this case there are powerful considerations in favour of entering acquittals. The Appellant was aged 15 at the time of the events the subject of the charges against him. He is now 21 years old. The fact that he has already served the non-parole period of his sentence is a very significant factor in favour of entering an acquittal (Jiminez v The Queen (1992) 173 CLR 572 at 590; [1992] HCA 14 per McHugh J). Having regard to the principles applicable on sentencing after a further trial there is no prospect of the Appellant being returned to custody. Of particular concern is the potentially oppressive effect of putting the Appellant to the expense and worry of a further trial (Spies at [103]). In his case it would be his fourth trial not including the trial that was marked 'not reached'. In Gilham, McClellan CJ at CL referred to various cases that declined to order a third trial of an accused (at [658]). If the Appellant is to stand trial again, it is unlikely to take place before 2021 which will [be] around four years after he was first arraigned in the District Court. Such a trial will impose a heavy burden on a person charged with an offence they allegedly committed as a juvenile. Against these factors is the seriousness of the charges laid against the Appellant (Haoui v R [2008] NSWCCA 209; (2008) 188 A Crim R 331 at [164] per Johnson J), the public interest in the due prosecution and conviction of offenders (R v Taufahema (2007) 228 CLR 232; [2007] HCA 11 at [49]; "Taufahema"), as well as the public interest in not usurping the role of the Director of Public Prosecutions ("DPP") in deciding to prosecute and the role of the jury in determining the guilt or innocence [of] an accused (Taufahema at [51]). I have not found this aspect of the appeal easy to resolve. In the end result, the decisive factor in my declining to enter acquittals is the nature of the error that has led to the jury's verdicts being set aside (ALS v R [2013] NSWCCA 63 at [115]). The error did not relate in any way to the nature or quality of the evidence that was led or available to be led in support of the Crown case, but instead concerned the legal test applicable to an interlocutory application to recall CD. Given an error of that kind, the decision as to whether to place the Appellant on trial should be left to the exercise of the DPP's discretion rather than pre-empted by this Court. Needless to say, that discretion should only be exercised after very careful consideration." (emphasis added)
The reasoning of N Adams J in ordering a retrial in WX was to similar effect (at [99]−[100]). Payne JA disagreed. As a retrial in WX would have been the fourth trial for the applicant and there was no prospect of the applicant being returned to custody, his Honour would have ordered that an acquittal entered (at [1]).
Four further matters affecting the power to either order a new trial or enter an acquittal of relevance to this case should be noted.
First, in Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43, the High Court ordered a new trial of the appellant on a charge of improperly using his position as a director of a company under former s 229(4) of the Companies (New South Wales) Code 1981 (NSW), notwithstanding that it was "unthinkable" he would receive "any additional punishment" if he was convicted (at [103] per Gaudron, McHugh, Gummow and Hayne JJ). Their Honours noted that the case against the appellant was "strong" and that "members of the commercial community as well as the general public have a vital interest in ensuring that the directors who abuse their office and breach the criminal or company law do not escape conviction" (ibid).
On some occasions, the sentencing of an offender following conviction for sexual offences can engage legislative regimes that are designed to protect the community beyond simply incarcerating the relevant offender (see, for example, s 3A of the Child Protection (Offenders Registration) Act). In a particular case, the possibility that entering an acquittal on an otherwise strong case might preclude the engagement of statutory provisions designed to protect the community could be a factor in favour of ordering a new trial. It is unnecessary to consider this further given that, in this case, the trial judge made a declaration that had the effect of excluding the applicant from the operation of the Child Protection (Offenders Registration) Act. In those circumstances, it seems extremely unlikely that such an order would be made if the applicant was convicted at a retrial.
Second, as the above discussion indicates, one factor in favour of ordering an acquittal is that a particular appellant has served all, or perhaps much, of their sentence. In this case, the appeal is being determined when the applicant has served almost two-thirds of his community corrections order. However, the fact that the appeal is being determined so close to the end of the applicant's sentence is principally due to the delay on his part, or more accurately his lawyers' part, in pursuing the appeal (see above at [8]). At least in circumstances where an appellant is not serving a custodial sentence, the fact that most, if not all, of the "sentence" has been served by the appellant when the appeal is decided, and which is principally due to delay on their part in the prosecution of the appeal, is a factor weighing against the entry of an acquittal. As a general proposition, in such cases, persons who do not appeal their convictions with diligence should not be placed in a superior position to those who do.
Third, as noted in WX, I considered the "nature of the error" which vitiated the conviction was a matter affecting whether to order a new trial or enter an acquittal. The error in WX was a misconstruction by the trial judge of s 306J of the Criminal Procedure Act 1986 (NSW) in determining not to allow further cross‑examination of a complainant at a retrial. That error did not affect the "nature or quality" of the evidence that was lead at the trial and it was not inevitable that, had the error not occurred, leave to cross-examine the complainant at a retrial would have been granted (WX at [96]). In this case, the error concerned the use that could have been made of the applicant's alleged silence and alleged lie by the jury. It seems likely that, if pressed, the Crown would have agreed to a Zoneff direction which would have restricted the use that could be made of the silence and alleged lie. That said, even if the silence and alleged lie were not relied on as evidence of a consciousness of guilt, the Crown case remains reasonably strong.
Fourth, in some cases, it will also be necessary to consider how the relevant error occurred and who was responsible for it. This is famously illustrated by Gleeson CJ's reasons for not ordering a retrial in Anderson v The Queen (1991) 53 A Crim R 421 at 453 where his Honour observed: "The trial of the appellant miscarried principally because of an error which resulted in large part from the failure of the prosecuting authorities adequately to check aspects of the Jayawardene theory [being the case theory ultimately relied on by the Crown]. This was compounded by what I regard as an inappropriate and unfair attempt by the Crown to persuade the jury to draw inferences of fact, and accept argumentative suggestions, that were not properly open on the evidence and that were in some respects contrary to the evidence. I do not consider that in those circumstances the Crown should be given a further opportunity to patch up its case against the appellant. It has already made one attempt too many to do that, and I believe that, if that attempt had never been made, there is a strong likelihood that the appellant would have been acquitted."

[18]

Evidence

At the hearing of the appeal, the applicant was granted leave to file an affidavit from the applicant's mother concerning the effect of the proceedings on him. The Crown filed supplementary submissions indicating that it did not oppose the affidavit being read as it could be said to be "necessary or expedient in the interests of justice" (Criminal Appeal Act, s 12(1)). However, the Crown objected to portions of the affidavit on the basis that they were mere expressions of suspicion or belief [71] or were not relevant in that they appeared to be directed to the stress and anxiety of the applicant's mother had experienced from the proceedings rather than the position of the applicant. [72] I would uphold those objections, save for so much of par 8 of the affidavit and annexure A that are objected to which recites that, following his conviction, the applicant was required to leave his school, which he had attended since Year 5, and its effect on his education.
The affidavit addresses the effect on the applicant of the stress of court proceedings over a number of years and as well as during the period after he was convicted. His mother observed him to be become withdrawn, stressed and sleep deprived. She said that after his conviction the applicant had to leave his school and his condition worsened. His only educational option was to enrol in TAFE, which became even more difficult than it otherwise would have been because it had to be delivered online during the pandemic. The applicant's mother says that at one point he developed what appeared to be "black outs" from stress-related migraines. In March 2022, he self-harmed by cutting his wrists and arms.
There is no doubt that in determining whether to order a new trial or enter an acquittal, this Court can consider the fact that the applicant was a juvenile at the time of the alleged commission of the offence and throughout the period leading up to his conviction. However, the extent to which material of the kind referred to in his mother's affidavit can be considered in determining whether to enter an acquittal or order a new trial is not clear. Presumably, there must be some dividing line between material bearing on the exercise of the Court's powers and material to be considered in the exercise of prosecutorial discretion. It is not necessary to consider this further as I will proceed on the basis, favourable to the Crown, that when it comes to determining whether a person should or may face another trial, subjective material beyond the status of the applicant as a juvenile are matters that only the Director of Public Prosecutions ("DPP") can consider and not this Court.

[21]

Endnotes

Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A.
Appeal Book ("AB") 5.
30 April 2021 T27.31.
30 April 2021 T27.16.
CD JIRT interview Q/A 65, Q/A 136; 13 November 2020 T2.12-16.
30 April 2021 T29.8.
30 April 2021 T29.49-30.30, T36.32-35.
Exhibit 6 (disc); part of MFI E (transcript).
4 May 2021 T14-23; 5 May 2021 SU 82-83, SU 89-92, SU 97-98; 6 May 2021 SU 99.
Exhibit 7; part of MFI E (transcript).
CD JIRT interview Q/A 45, Q/A 92.
CD JIRT interview Q/A Q/A 45, Q/A 94.
CD JIRT interview Q/A 109.
30 April 2021 T31.11-22; 3 May 2021 T54.11-21, T65.47-66.13.
CD JIRT interview Q/A 141-143.
CD JIRT interview Q/A 143-147.
CD JIRT interview Q/A 109; AB 964.
CD JIRT interview Q/A 149-150.
CD JIRT interview Q/A 160.
CD JIRT interview Q/A 197-199.
CD JIRT interview Q/A 217-218.
CD JIRT interview Q/A 223.
AB 86.40.
AB 87.10.
AB 93.
30 April 2021 T28.30
30 April 2021 T30.30
30 April 2021 T31.10-15
30 April 2021 T31.15
30 April 2021 T31.38-39
AB 314.9.
30 April 2021 T31.48-32.3, T44.44
30 April 2021 T32.12-13.
30 April 2021 T40.10-13.
30 April 2021 T41.21-23, T44.46-445.4.
30 April 2021 T41.28-39.
30 April 2021 T42.27-34.
AB 337.20.
AB 349.5.
AB 319.42.
AB 319.
AB 373.
AB 375.1.
AB 375.32.
AB 377.18.
AB 433.14.
AB 433.18.
AB 435.
AB 436.18.
AB 440 to 441.
AB 442.
AB 442.
AB 442.34.
AB 449.
AB 452 to 457.
AB 457.15.
AB 457.15.
AB 523.
Crown submissions at [55].
AB 527.3.
AB 527.6.
AB 545.9.
AB 546.
Crown subs at [66]−[71].
AB 569.3.
AB 578.1.
AB 578.3.
AB 581.1.
AB 581 to 584.
Tr 27/03/2023 p 12; Applicant's submissions at [58].
Crown supplementary submissions at [6(a)].
Crown supplementary submissions at [6(b)]. 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: 03 July 2023

Parties

Applicant/Plaintiff:

Respondent/Defendant:

Legislation Cited (8)

(Crimes (Sentencing Procedure) Act 1999(NSW)

Crimes Act 1900(NSW)

Jury Act 1977(NSW)

Child Protection (Offenders Registration) Act 2000(NSW)

Children (Criminal Proceedings) Act 1987(NSW)

Criminal Appeal Act 1912(NSW)

Criminal Procedure Act 1986(NSW)

Supreme Court (Criminal Appeal) Rules 2021(NSW)

Cases Cited (28)

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2020/270252 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: [2021] NSWDC 829 Date of Decision: 10 September 2021 Before: Sutherland SC DCJ File Number(s): 2020/270252

HEADNOTE [This headnote is not to be read as part of the judgment] On 10 May 2021 a jury found the applicant, AB, guilty of one count of having sexual intercourse with a child under 10 years contrary to s 66A(1) of the Crimes Act 1900 (NSW) (count 1). He was acquitted by the jury of another offence (count 3). The trial judge had previously directed the jury to return a verdict of not guilty on a third count on the indictment (count 2). On 10 September 2021, the applicant was sentenced to a community correction order for 3 years commencing on that same date. The counts on the indictment related to alleged incidents that took place during Easter 2018 at a house rented by several families in the Hunter Valley. The applicant was 13 years old at the time. The victim, CD, was 5 years old. The applicant and his friend, EF, were allowed to sleep in a tent at the front of the house. After dinner on the evening of the first day, CD was alone with the applicant in the tent. CD's father, GD, gave evidence that when he approached the tent to check on CD he was "[v]ery certain" he heard the applicant say, "[d]on't tell anybody, you'll get me in trouble". GD's evidence was that he said to them, "[w]hat's going on", and undid the outer zip of the tent. After "one or two seconds", GD said, "[CD], out". GD gave evidence that after approximately "five, ten seconds" of silence (the silence), as he and CD were walking back to the house the applicant called out, "[CD] pulled my pants down when I was asleep" (the alleged lie). Evidence was also given by the head of learning support at the applicant's high school who said the applicant had a "auditory processing disorder" and "moderate expressive language delay". Counsel for the applicant relied on this evidence as an explanation for the applicant's silence and maintained in the trial that CD had come into the tent and pulled down the applicant's pants while he was sleeping. The Crown Prosecutor addressed the applicant's silence and alleged lie in closing submissions. The Crown Prosecutor told the jury there were eight reasons to not accept the applicant's suggestion that CD pulled the applicant's pants down. When giving the seventh reason, the Crown Prosecutor said, "[the applicant] didn't say anything as they started to walk back to the house… you might think the reason for this delay is because the [applicant] was making up a story in case [CD] told his parent[s] what the [applicant] had done." After concern was raised by Counsel for the applicant, the Crown Prosecutor told the jury that if they rejected the applicant's suggestion that CD pulled his pants down, they should "put it to one side" and focus on CD's account. Later in their address, the Crown Prosecutor then sought to rebut the presumption of doli incapax by identifying 10 reasons why the jury would find that the applicant knew his behaviour was "seriously wrong". In addressing the 9th and 10th reasons, the Crown Prosecutor submitted that the applicant "was silent… until he managed to think up a lie in an attempt to cover up his behaviour" and his alleged lie was a "false story… [told] in case [CD] told someone, told anyone about what the [applicant] had done". The jury retired to consider the verdicts at around 1:00pm on Wednesday 5 May 2021. On Friday 7 May 2021, at around 11:00am, the jury sent a note stating, that they could not agree on an unanimous verdict on counts 1 and count 3. The trial judge gave a "Black direction". At around 3:40pm that same day, the jury sent another note confirming it was still unable to reach a unanimous decision. At around 4:20pm that same day, the trial judge asked the foreperson of the jury on oath, "I have received a note… that says that: 'After further deliberation, we the jury have been unable to come to a unanimous decision on the two counts, namely 1 and 3'. That is the present situation is it?". The foreperson said that it was. The trial judge then gave the jury a majority verdict direction and sent them home for the weekend. On the following Monday, the jury returned a majority verdict of guilty on count 1 and a unanimous verdict of not guilty on count 3. The principal issues on appeal were:

Cited By (2)

LH v R

MM v R

whether a miscarriage of justice was occasioned by the trial judge's failure to give a "lies direction" (or a "Zoneff direction") as to how the applicant's silence and alleged lie could be used to support the prosecution case (the silence and alleged lie issue);
whether it was open to the trial judge to conclude that the preconditions for the taking of a majority verdict under s 55F(2)(b) of the Jury Act 1977 (NSW) were satisfied (the majority verdict issue); and
if either ground is upheld, whether to enter a retrial or acquittal (the appropriate order issue). The Court held (per Beech-Jones CJ at CL, N Adams and Yehia JJ agreeing), granting leave to appeal, allowing the appeal and entering a verdict of acquittal: As to the silence and alleged lie issue
The chain of reasoning by which the Crown contended that the applicant knew his actions were "seriously wrong" assumed, or implicitly asserted, that the applicant's silence and alleged lie were not only evidence that he knew "what he had done" was wrong but that he did what he was accused of doing to CD. The Crown Prosecutor's address was an emphatic appeal to consciousness of guilt reasoning. Even if the jury were satisfied that the applicant used the silence to formulate a lie and then lied, an Edwards direction would have brought home to the jury the necessity to be satisfied that the applicant did so because he knew that truthfully answering GD's question, "[w]hat's going on", would implicate him in the offence and that his conduct was not engaged in for some other reason: [45] and [47] (N Adams J agreeing at [79]; Yehia J agreeing at [80]).
The Crown ran the trial without identifying its reliance on consciousness of guilt reasoning, confirmed to the jury it was not relying on such reasoning but then emphatically sought to rely on that reasoning to address doli incapax. The defect in this trial was occasioned by the manner in which it was conducted by the Crown Prosecutor. To ensure a fair trial, it was necessary for the trial judge to have either given an Edwards direction or a Zoneff direction. The failure to do so had a "real chance" of affecting the jury's verdict and "realistically [could] have affected the verdict of guilt" and constituted a miscarriage of justice: [50]−[52] (N Adams J agreeing at [79]; Yehia J agreeing at [80]). Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63; Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28; Hofer v The Queen [2021] HCA 36; (2021) A Crim R 114, applied. Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, distinguished. As to the majority verdict issue
There is no express requirement that a trial judge ask the foreperson of the jury or another juror whether it is unlikely that the jury will reach a unanimous verdict after further deliberation before directing the jury that they can give a majority verdict. The trial was short, and the issues were not especially complex. The jury twice told the trial judge that a unanimous verdict could not be reached. By the time the trial judge was informed on the second occasion, it had been five hours since they received a Black direction. In those circumstances, it was open to the trial judge to be satisfied that the requirements of s 55(2)(b) of the Jury Act 1977 (NSW) were satisfied: [60] (N Adams J agreeing at [79]; Yehia J agreeing at [80]). As to the appropriate relief issue
The applicant has almost served two-thirds of his community corrections order, though this was principally due to delay on his (lawyers') part in pursuing the appeal. While there remains a reasonably strong Crown case and the charge is undoubtedly serious, it is the cause of the error that vitiated the conviction that tips the balance in favour of an acquittal. Having initially told the jury to the contrary, the Crown Prosecutor invited the jury to rely on the applicant's silence and alleged lie as a consciousness of a guilt. The Crown should not be given a further opportunity to pursue a case against the applicant: [69], [75]−[76] (N Adams J agreeing at [79]; Yehia J agreeing at [80]). WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142; Spies v The Queen (2020) 201 CLR 603; Anderson v The Queen (1991) 53 A Crim R 421, considered.