Allen v R [2020] NSWCCA 173 | Case summary

Allen v R [2020] NSWCCA 173 | Case summary | Zoe

[3]

Ground 1 - reporting counts and sexual counts on one indictment

As for ground 1, it is not a matter now of analysing the correctness at the time it was made of the interlocutory decision of the learned trial judge to permit an indictment containing both the reporting offences and the sexual offences to be placed before the one jury. Rather, it is a matter of considering whether that outcome, combined with the subsequent conduct of the trial and in particular the directions given to the jury in the summing-up, constituted a miscarriage of justice. In my opinion, it did.
To recap: 26 reporting offences were placed before the jury. There were also on the same indictment 9 counts of committing sexual offences against ZD (who at the time was 16 years of age, and therefore over the age of consent, but nevertheless not thought of as an adult for other purposes of the criminal law). There was a single count alleging that the appellant had "groomed" a separate complainant, CL, who was at the time a 15-year-old boy. Also on the indictment was a count of accessing child pornography, in the form of a photograph of the genitals of ZD.
The terms of the reporting counts themselves spoke of the appellant as being a registrable person who had allegedly failed to comply with obligations under a statute that dealt with "Offenders" who were the subject of "Registration" with regard to "Child Protection".
As part of proving those counts, documents were placed into evidence that repeatedly emphasised the connection between the appellant and that statute. They included a document containing admissions as to facts that was signed by the appellant and became Exhibit 14, and the many forms generated pursuant to the statute that became Exhibits 17 to 25.
The latter documents included or referred to (amongst other things) the requirement of the appellant to attend a police station, and to give police information about various aspects of his life; the requirement that he provide a photo of his face and other identification documents; the role of the "Crime Manager" at a police station; the fact that non-compliance with the orders would constitute a criminal offence, possibly leading to arrest and charge; the signature of a "Detective S/C Campbelltown"; an "acknowledgement form" that provided a great deal of detail about the life of the appellant, including clubs with which he was affiliated, the make and model and registration of his motor vehicles, and the name and address of his employer; the names, dates of birth, and addresses of any children with whom the appellant had had certain kinds of contact; and the question of whether the appellant had "been found guilty in any foreign jurisdiction of a registrable offence".
Quite apart from the indictment itself and those documentary exhibits that went into the jury room, there was also, of course, a deal of evidence about the reporting offences, and the parts of the addresses of both counsel that referred to them.
In my opinion, the jury inevitably came to infer correctly that the appellant had previously committed at least one sexual offence against a child; that he had been convicted of it; that the conviction was sufficiently serious to require registration; and that the appellant had as a result been subject to a statutory regime of registration that constituted a significant intrusion into his privacy and autonomy, in the interests of the protection of children. It is unrealistic to posit otherwise. That presented an obvious issue about whether any trial by jury on that indictment could be one that was fair to the appellant.
I turn now to analyse the relationship and degree of "overlap" between the two sets of offences, and whether that could constitute a countervailing factor as to all counts proceeding together.
As Bell P has recounted, evidence about the child sexual assault offences that led to the previous conviction and registration of the appellant were rejected by the trial judge when the Crown attempted to rely upon them as tendency evidence. Once that occurred, the fact that the appellant was on the Register, and had allegedly breached his obligations pursuant to it, was irrelevant to proof of the sexual offences. Having said that, I accept that some of the contact between the appellant and the two complainants that was part of proving breach of those obligations would have been admissible in proof of the subsequent sexual offences.
Analysing questions of overlap and cross-admissibility from the other starting point: the fact that the appellant was in the company of the two complainants when he allegedly committed sexual offences against them was certainly relevant to the reporting offences; with regard to some of the latter, they pertained to the trip to Coffs Harbour during which the sexual offences had been allegedly committed.
But the alleged commission of the sexual offences themselves was not the gravamen of the reporting offences; rather, it was the simple contextual fact that the appellant had been in the company of the two complainants without informing the police about it.
Before this Court, the Crown sought to suggest that the failure to comply with the reporting requirements pertaining to the Coffs Harbour trip could demonstrate a consciousness of guilt with regard to the commission of the sexual offences. But that basis for cross-admissibility as between the offences themselves was not relied upon by the Crown at trial, and I therefore put it to one side.
In other words, the one jury had placed before it a multitude of reporting offences that were irrelevant to proof of the numerous sexual offences, and vice versa. To be clear about my proposition: although the context in which each set of offences had allegedly occurred was admissible as to the other offences, the offences themselves were not.
In short, it is true that there was an evidentiary overlap between the two sets of offences, but it was not an overly compelling one. In particular, if the two sets of counts had been severed, and the trial of the sexual offences had proceeded first, at a putative second trial of the reporting offences (and even assuming that there was no way to avoid the complainants being called as witnesses again), in my opinion neither they nor any other witness would have been called upon to recount explicitly the sexual offending again, in order to establish the reporting offences.
And in any event, bearing in mind that the reporting offences were "Table 2" offences pursuant to the Criminal Procedure Act 1986 (NSW), there were other ways to solve the problem of repetition of evidence. One of them that comes to mind is not electing to have those offences dealt with on indictment; placing them on a certificate pursuant to Division 7 of Part 3 of the Criminal Procedure Act; and asking the trial judge to determine them exercising Local Court jurisdiction at the conclusion of the trial by jury of the sexual offences. After all, the jurisdictional limit in terms of cumulative sentences that would have been reposed in the trial judge would have been significant, pursuant to s 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW). There are in all likelihood other satisfactory alternatives as well.
In short, in my opinion the state of the indictment presented a real risk that the trial of the appellant would not be a fair one, and any overlap of evidence was no great justification for the indictment remaining as it was.
Separately, speaking generally of course it is not uncommon that a jury has placed before it evidence that reflects negatively upon the past actions of an accused person. Leaving aside cases in which tendency evidence, context evidence, bad character evidence and other categories of evidence are admissible with regard to a count on the indictment, very often the necessary context of the commission of the alleged offence itself will inevitably have that effect.
The quintessential example is a murder alleged to have been committed in a maximum security prison. Establishment of the physical setting of the alleged offence, the calling of evidence from prison officers and perhaps prisoners, the tender of maps and photographs of the relevant part of the gaol, all mean that it is inevitable that the jury will infer that the accused has previously been convicted of a serious offence that has been punished by a lengthy term of imprisonment. The drawing of that inference can only be dealt with by way of directions by the trial judge, no doubt with significant input from defence counsel as to the best way forward.
Even so, there were specific aspects of this matter that made the prejudice arising from the single indictment extreme. They were as follows.
First, child sexual assault is a crime about which the public is continuously and severely concerned. In recent years, the damage that it does to its victims has become more deeply understood and more widely publicised. And it is a crime from which members of the community recoil.
Secondly, the offence that the jury would have correctly inferred that the appellant had previously committed was, in a practical sense, identical with the sexual offences alleged in the trial, even accepting the fact that the complainant ZD was over the age of consent, in that he was in his 17th year. The understanding of the members of the jury about the connection between the prior offending of the appellant and the sexual offences was surely specific, not some impression of prior criminality generally.
Thirdly, as I have said, the way the trial was run, a plethora of documents was placed before the jury that highlighted the nature and gravity of the previous offending.
Fourthly, as Bell P has explained, the directions given about the way in which the jury was to approach the multiplicity of counts on the indictment were, whilst free from error, standard ones, rather than directions that powerfully drew attention to the inevitable inference and thereafter asking the jury to disregard it completely (as can be seen from my explanation below, in contrast to his Honour, I regard that characteristic of the directions as being merely a significant factor, and not the nub of the success of ground 1).
To develop then the analogue based upon the trial by jury of a murder alleged to have been committed in a maximum security prison: here, it is as if the jury not only must have inferred that the putative accused had already been imprisoned for the specific offence of murder (as opposed to, for example, multiple armed robberies), but also had that conclusion repeatedly reinforced by numerous documents that went into the jury room and were there during deliberation.
The Crown before this Court sought to resist the effect of all of that by relying upon the proposition that juries are to be understood to obey the directions that they are given. It was also said that it was a sound tactical decision for defence counsel not to seek precluding directions of greater specificity.
The former proposition is certainly generally correct. As McHugh J said two decades ago in Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 at [31], if it is not to be accepted to be correct, the criminal justice system should find some alternative procedure for determining guilt or otherwise of serious criminal charges. (I hasten to add that I do not suggest for a moment that it should do so.)
But acceptance of the proposition that juries generally follow directions given to them by trial judges, and that that obedience will often solve problems of prejudice against an accused person, has its limits. The following well-known aspects of the practical operation of the criminal justice system demonstrate the existence of those limits.
First, the rule of exclusion to be found in s 137 of the Evidence Act 1995 (NSW) is applied by judges in trials by jury every day throughout New South Wales. Its existence inherently demonstrates that Parliament and the criminal justice system proceed upon the proposition that juries will not always obey all directions that they are given about any and all evidence. The effect of the provision is that, sometimes, evidence that is relevant and probative - perhaps highly probative - is nevertheless excluded. Nor is the proposition a new one - the discretionary progenitor of that rule of exclusion first appeared in the Anglo-Australian rules of evidence well over 100 years ago: see R v Christie [1914] AC 545.
Secondly, the test for the admission of tendency or coincidence evidence to be found in sections 97, 98, and 101 of the Evidence Act, and which is, after all, merely a stricter variant of the rule of exclusion discussed above, is of central importance to the criminal justice system. Its application can determine the outcome of criminal trials, and whether or not an accused person is to serve many years in prison. And it proceeds on the same assumption: there are indeed circumstances in which prejudice arises that prohibits the placing of tendency or coincidence evidence before the jury, no matter how forceful the directions that may be able to be given about that evidence. Indeed, the rejection of the proffered tendency evidence in this trial provides a good example of that very determination.
Thirdly, speaking more generally about the conduct of criminal trials, a trial judge would never knowingly permit a juror to be empanelled who is a friend or family member of the accused, or the complainant, or the deceased, whatever powerful directions might be able to be given. Nor would a trial judge permit such a state of affairs to remain until verdict if it was discovered after empanelment. It would simply be assumed without argument that the juror would be incapable of deciding the matter impartially, no matter what directions were able to be given to the juror. It would be implicitly assumed by everyone in the courtroom that justice would neither be done, nor seen to be done, in such circumstances.
Fourthly, criminal trials are sometimes transferred away from regional centres to Sydney or elsewhere because of the possibility of very firm public opinion for or against the accused in the area in which the offence was alleged to have occurred, and from which the jury will be drawn. Such orders are rare, but by no means unheard of. Two recent examples of which I am aware are referred to in R v Turnbull (No 1) [2016] NSWSC 189, and R v Jacobs (No 4) [2013] NSWSC 945. Again, the order for transfer is made on the presupposition that there will sometimes be circumstances in which the most forceful directions are inadequate to overcome the possibility of prejudice denying either the Crown or the accused a fair trial.
Fifthly, practical steps are very often taken in criminal trials not to let the jury understand that the accused is in custody; if that is inevitable, at the least, steps are taken not to emphasise repeatedly that fact.
Sixthly, even when two or more accused persons are alleged to have committed a crime together, and despite the undoubted advantages in there being a single trial, circumstances sometimes arise in which two separate trials are necessary in order to do justice: for a recent example see Decision Restricted [2019] NSWCCA 276.
Seventhly and finally, it is not uncommon for juries to be discharged because of irremediable prejudice having arisen in the course of the trial. That can arise in any number of ways: very negative publicity during the trial, something having been blurted out in the witness box that is inadmissible but harmful, a juror having brought into the jury room adverse material about the accused that is no part of the evidence, and so forth. It is true that the test for the discharge of a jury during a criminal trial is that of a high degree of necessity: see Crofts v R (1996) 186 CLR 427; [1996] HCA 22. Even so, the test is commonly met on the simple basis that no direction will solve the problem. I daresay that every counsel and judge experienced in trial by jury has "lost a jury" for some such reason. Yet again, the presupposition is that, in some circumstances, directions of the greatest firmness are insufficient to do justice, and the trial simply must start again in front of a different jury.
No doubt there are many other circumstances in which the criminal justice system implicitly evaluates directions to be inadequate to cure prejudice. I have recounted seven of them, not to cavil with the general proposition that jurors are understood to obey judicial directions. Rather, I do so simply to show that the practical reality of human nature, and the way in which the criminal justice system reflects it in its actual operation, readily demonstrate that judicial directions to juries are not to be thought of as an unfailing panacea for all forms of prejudice. They are not.
Here, as Bell P has written, the directions given were, with respect, clear, correct, and repeated. They were also generic, in that they did not specifically direct the jury not to use any inference arising from the presence of the reporting offences on the indictment directly or indirectly in proof of the sexual offences. The point at which I respectfully diverge from the analysis of his Honour is that I consider that ground 1 should be upheld not on the basis of the inadequacy of the directions, but rather on the anterior basis of the presence of the reporting offences on the indictment. In my opinion, the ultimate submission of counsel for the appellant is correct: any specific direction would have run the very real risk of simply exacerbating the problem, rather than ameliorating it.
Finally, in my opinion the submission made by the Crown in this Court that it is important that, despite the presence of the reporting counts, the jury nevertheless acquitted the appellant of some of the sexual offences, has force. But, for the reasons given by his Honour, it is not a complete answer to the ground: the inference inevitably to be drawn from the presence of the reporting counts could well have unconsciously "tipped the balance" on the counts upon which a verdict of guilty was returned.
In short, I consider that the presence of the reporting offences on the indictment denied the appellant a fair trial of the sexual offences. Neither the directions given nor any other directions could have overcome the prejudice arising from their presence. There was a wrong decision of a question of law when the trial judge refused to accede to the application to sever the counts. In my opinion, that wrong decision has led to a miscarriage of justice. I cannot be satisfied that no substantial miscarriage of justice has actually occurred.

Parties

Applicant/Plaintiff:

Allen

Respondent/Defendant:

Legislation Cited (5)

Child Protection (Offenders Registration) Act 2000(NSW)ss 17(1), 19

Crimes (Sentencing Procedure) Act 1999(NSW)ss 53A, 58

Criminal Appeal Act 1912(NSW)ss 5F, 7(1A)

Criminal Procedure Act 1986(NSW)ss 21(2)(a), 29(1), Pt

Evidence Act 1995(NSW)ss 97, 98,101, 136, 137

Cases Cited (72)

Application to sever

Prior to the trial, a notice of motion was filed on behalf of the Applicant seeking to sever the reporting offences from the other offences charged. The grounds for severance as set out in the notice of motion were as follows: "The Accused shall be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment: section 21(2)(a) Criminal Procedure Act. The joinder of counts shall prejudice or embarrass the Accused in his defence as follows: 1. The joinder has the effect that, at least in relation to some of the charges in the indictment, the jury is exposed to evidence that is not admissible in relation to those charges. This situation arises because the evidence in respect of some or all of the charges in the indictment is not admissible in respect of all the other charges in the indictment. [2]. The joinder will give rise to prejudice or embarrassment because Counts 1 - 26 and Count 38 all pursuant to s17(1) Child Protection (Offenders Registration) Act 2000 will disclose that the Accused has a prior conviction for a serious child sexual offence." (The reference to count 38 was to a count to which the Applicant pleaded guilty, together with count 37, on 8 November 2018).
Argument on the notice of motion occurred after the Applicant had been arraigned on 8 November 2018.
Severance was opposed by the Crown essentially on the basis that ZD and CL who, by the time of the trial, were both over 16 years, would be required to give evidence twice in the event that the reporting offences were severed, as 10 of the 25 reporting offences involved the Applicant's unreported contact with them. It may also be observed that, to the extent that other reporting offences were in relation to the Applicant's failure to report on his contact with other children on particular occasions, these were occasions when ZD and/or CL were also present, and thus were capable of giving evidence which placed the Applicant in the presence of these other children.
Mr Brassil, who appeared for the Applicant at the trial, countered this opposition by submitting that, whilst the complainants would have to give evidence twice, it would be "[e]ssentially about different things" and "[o]verwhelmingly about different events".
Part of the rationale advanced in support of severance was a concern that the Crown would be given leave to admit tendency evidence in the form of the evidence of a person (LB) who had been sexually assaulted by the Applicant approximately 20 years earlier and whose sexual assault was what had led to the Applicant's name being initially placed on the Register. As has already been noted at [16] above, the Crown's application to lead the LB evidence was rejected. It is in that context that the following passage of argument should be noted: "HIS HONOUR: I invited Madame Crown to say something to me about the severance issue. Do you want to advance your argument on that? I mean, what the Crown says is that they shouldn't be severed because it would mean the complainants giving evidence twice. BRASSIL: Essentially about different things, though. Overwhelmingly about different events. HIS HONOUR: But they'd have to give the same narrative, wouldn't they? That's the problem. Ms Tran, your instructing solicitor, set out in the motion the grounds, and Ms Tran is a very experienced solicitor for whom I have considerable regard, I might say, and I think she succinctly identified in the document-- BRASSIL: I agree. There's little I can add to that. HIS HONOUR: --what it is that she says. But of course, if I was, subject to how I limit the tendency argument, some of that severance argument falls away. BRASSIL: Certainly it does, your Honour, but the effect on a jury will be profound if there is a realisation of the calls for this accused to have to-- HIS HONOUR: If I can give them a direction. You see, if they can avoid hearing anything from [LB], that risk is coupled with a powerful direction, is eliminated, isn't it? Because the real prejudice is when they hear from [LB]. That's what gives rise to the prejudice. BRASSIL: Yes, your Honour. HIS HONOUR: If they don't hear from [LB], his evidence being tendered for a tendency purpose, and given the position in relation to what is now agreed between you in respect of the Registration Act, I think arguably, the severance argument is-- BRASSIL: Mollified. HIS HONOUR: Yes. Or eliminated. I understand-- BRASSIL: A step further than where I'm prepared-- HIS HONOUR: I understand that. BRASSIL: No, your Honour. HIS HONOUR: I understand that you're not prepared to make that concession. I understand that, but that may well be the ruling. BRASSIL: But I do acknowledge that I use the word mollified deliberately, that steps taken to confine the information to the jury could remove the danger of unfair prejudice, but-- HIS HONOUR: Coupled with a direction. It says that they must not, and they are prohibited, and look, you may well have gleaned where I'm sort of sitting at the moment on these applications. There's probably something in it for both of you, as so often appears to be the case in these courts. I think before I was to make a final ruling, I should read McFilomey [sic], to make sure that I'm not falling into any error. The second question I have is this, for both of you: do you need the long reasons for the decisions to be made, or the abbreviated reasons?" (emphasis added). The reference in this passage to "what is now agreed between you in respect of the Registration Act" is to the formal admission to which I have referred at [16] above, which was admitted into evidence as an agreed fact and became Exhibit 14 at the trial. The reference to "McFilomey" [sic] was a reference to the then very recent decision of the High Court in McPhillamy v R (2018) 361 ALR 13; [2018] HCA 52 (McPhillamy), concerning tendency evidence.

Closing submissions and the summing up to the jury

In closing submissions, the Crown, quite properly, did not make any submissions to the effect that the fact that the Applicant had admitted to being a registrable person for the purpose of the reporting offence charges was either a mark against his character or disclosed a tendency to act in a way that supported the likelihood that he had committed any of the sexual offence charges.
The Crown did, however, make submissions in respect of separate tendency evidence that had been permitted, as well as in relation to the fact that, if the jury considered that one or more of the sexual offence charges had been made out, the jury could use that fact as tendency evidence against the Applicant in relation to the other sexual offence charges. No complaint was made on appeal in relation to this aspect of the Crown address.
The Crown also made it clear that the jury could not use any such tendency evidence in relation to its consideration of the reporting offence charges.
In relation to the reporting offence charges, the jury did have before it as exhibits various apparently partially redacted prescribed reporting forms, which the Applicant had completed in the relevant years (the Register documents). These forms were in evidence essentially to prove a negative, namely that the forms did not contain any reference to the Applicant's contact with various children in particular contexts on particular occasions, these being the incidents the subject of counts 1-25. The Register documents variously carried headings which included "Child Protection (Offenders Registration) Act 2000" and "New South Wales Police Force CHILD PROTECTION REGISTER ACKNOWLEDGEMENT FORM". A number of these documents were countersigned by a police officer designated on the form as "CRIME MANAGER".
In his summing up to the jury, the trial judge said: "As I have already told you, the onus of proving the accused's guilt in respect of each charge which it brings against him, is on the Crown. It must establish his guilt beyond reasonable doubt. This means that, in respect of each of the essential ingredients or elements of the charge, you must be satisfied beyond reasonable doubt that the Crown has established its case before you would be entitled to bring in a verdict of guilty for that charge. As I have reminded you, it is necessary that you consider each of the charges that the accused faces separately and return separate verdicts in relation to each of them. Giving separate consideration to the individual counts on the indictment means that you are entitled to bring in verdicts of guilty on some counts and verdicts of not guilty on other counts if there is a logical reason for that outcome. You must not, however, bring in verdicts which represent or reflect a compromise between you. A verdict on any count on the indictment can only be given in relation to that count if you are all in agreement with that verdict. I remind you of what I said in my opening remarks, that you must not be prejudiced against the accused because he is facing a number of charges. The accused is not guilty of anything, unless and until the prosecution prove his guilt beyond reasonable doubt in respect of any one or more of the charges. Given that there is more than one charge, there is a danger that you might reason in respect of any one or more of the charges that the accused was the kind of person who might have engaged in improper conduct towards the complainants on other of the occasions charged. Such a course of reasoning would be entirely wrong and you must not engage in or use that reasoning. The evidence in respect of each of the charges must be considered separately, subject to what I will tell you later about the use of what you have heard described as tendency evidence during the trial." (emphasis added).

Ground 1 - Consideration

The question raised by ground 1 is whether or not there was a miscarriage of justice as a result of the trial judge's refusal to sever the reporting offences from the sexual offence charges, it being submitted that the prejudice which would accrue from disclosure of the fact that the Applicant was on the Register was incurable by a direction to the jury, or that the directions given were inadequate to negative any unfair prejudice.
In Nudd v R (2006) 225 ALR 161 at 164; [2006] HCA 9, Gleeson CJ observed that: "The concept of miscarriage of justice is as wide as the potential for error. Indeed, it is wider; for not all miscarriages involve error. Process is related to outcome, in that the object of due process is to secure a just result. Justice, however, means justice according to law, and the observance of the requirements of law according to which a criminal trial is to be conducted has a public as well as a private purpose. An unjust conviction is one form of miscarriage. Another is a failure of process of such a kind that it is impossible for an appellate court to decide whether a conviction is just. Another is a failure of process which departs from the essential requirements of a fair trial."
It is ultimately for the court "on its own review of the evidence to be satisfied that a miscarriage has occurred": Driscoll v R (1977) 137 CLR 517 at 526; [1977] HCA 43. In addition to a review of the evidence, a review of directions given to the jury and the trial judge's summing up to the jury may also be relevant.
The ultimate focus must be on the question of miscarriage. The fact that the severance decision was a discretionary one which, in the context of an appeal under s 5F of the Criminal Appeal Act 1912 (NSW), would attract a House v R (1936) 55 CLR 499; [1936] HCA 40 measure of review (see, for example, DAO v R (2011) 81 NSWLR 568 at 584-585; [2011] NSWCCA 63; DSJ v R; NS v R [2014] NSWCCA 77 at [61]; and Trotter v R [2016] NSWCCA 57 at [20]) with the concomitant need for intermediate appellate restraint, does not relieve the Court on a conviction appeal from considering the larger question of miscarriage cf. the case of an appeal against conviction in the context of multiple refusals to discharge a jury (see, for example, Hamide v R [2019] NSWCCA 219 at [121]-[128] (Hamide)). That having been said, if there were an error in the exercise of the discretion with regard to the refusal to sever, that may make it more likely that a miscarriage of justice had eventuated.
Whether or not there was a miscarriage of justice in the present case falls to be considered in the context of the following matters:

the fact that the Criminal Procedure Act 1986 (NSW) contemplates the joint hearing of multiple counts in circumstances where some prejudice may arise to an accused from that fact;

Ground 2 - Incompetence of counsel

It remains necessary to deal with this ground, notwithstanding the conclusion which I have reached in relation to the first ground of appeal, as the fact that the Applicant was a registrable person necessarily formed part of the reporting offences. If the second ground were to succeed, that would necessarily affect the convictions on those counts, especially since the principal aspect of ground 2 related to the failure to address the jury on counts 8-25.
The full terms of ground two have been set out at [10] above. This ground was faintly pressed on appeal and not the subject of any oral submissions. It can be dealt with relatively briefly.
The principles relating to the circumstances where the lack of competence of counsel will justify appellate intervention are well known. They are closely associated with Gleeson CJ's classic analysis in R v Birks (1990) 19 NSWLR 677; (1990) 48 A Crim R 385. They were also rehearsed in Roach at [154]-[158]: "To make good a ground of appeal based upon alleged incompetence of trial counsel, it is necessary for an applicant to establish that what did or did not occur at trial occasioned a miscarriage of justice: TKWJ v The Queen [2002] 212 CLR 127 at 149-150; [2002] HCA 46 at [79]; Ali v The Queen [2005] HCA 8 at [18]; [2005] HCA 8; (2005) 79 ALJR 662 at 665. In Davis v R [2017] NSWCCA 257, Price J (Hoeben CJ at CL and Schmidt J agreeing) summarised the relevant principles at [59]: 'In order to establish a miscarriage of justice, the applicant must do more than "simply point to some failing, even a gross failing, of the legal representative who appeared...": John Wayne Tsiakas v R [2015] NSWCCA 187 at [44]; Younan v R [2016] NSWCCA 248 at [96]. The applicant must demonstrate that there is a significant possibility that the acts of which she complains affected the outcome of the trial: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 ('TKWJ'); Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614.' It has been said that, to the extent that it is reasonably possible, the focus of attention in determining an incompetent counsel ground should be the objective features of the trial process: Nudd v The Queen [2006] HCA 9 at [10]; [2006] HCA 9; (2006) 80 ALJR 614 at 619 (Gleeson CJ). The admissibility of an affidavit of trial counsel has been considered by this Court on a number of occasions with differing outcomes: Ahmu v R [2014] NSWCCA 312; Vella v R [2015] NSWCCA 148; Langelaar v R [2016] NSWCCA 143 at [73]- [80]. In Alkhair v R (2016) 255 A Crim R 419; [2016] NSWCCA 4, after referring to relevant authorities, Macfarlan JA (Rothman and Bellew JJ agreeing) said at 427-428 [31]: 'I draw from these authorities the following principles relevant to the present case: (1) To the extent possible, an appellate court should determine an appeal involving complaints about a trial counsel's conduct of a case by examining the record of the trial to determine from the objective circumstances whether the accused has had a fair trial. (2) Ordinarily, an affirmative answer to this question is required where the impugned conduct is capable of being rationally explained as a step taken, or not taken, in the interests of the accused. This is so even if the accused alleges on appeal that he or she did not authorise the conduct because the nature of the adversarial system means that the client is bound by the manner in which the trial is conducted on his or her behalf. (3) Only in exceptional circumstances will an appellate court find it necessary to resort to subjective evidence concerning the appellant's legal representatives' reasoning at trial or to evidence as to communications between the appellant and those representatives. (4) The ultimate question for an appellate court is whether the appellant has established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the appellant lost a chance of acquittal that was fairly open.' The approach outlined in Alkhair v R has been applied recently by Payne JA (Wilson and Ierace JJ agreeing) in Moustafa v R [2019] NSWCCA 89 at [40]- [58]."

Consequential orders

As noted at [7] above, the Applicant was sentenced under s 53A of the Crimes (Sentencing Procedure) Act to an aggregate term of imprisonment consisting of a total term of 5 years and 6 months and a non-parole period of 3 years and 6 months, each of which were to commence on 15 March 2017.
The result of the Applicant succeeding on ground 1 but failing on ground 2 is that the convictions in respect of counts 26, 28, 30 and 34-36 should be set aside and the Applicant re-sentenced in respect of the reporting offences.
In this regard, counsel for the Applicant submitted that: "The indicative sentences for the majority of the Register offences was 12 months, but for the two offences for which pleas of guilty were entered on the first day of the trial, where sentences of 10 months were imposed, noting a 10% discount. His Honour indicated a (modest) finding of special circumstances would be made and it is noted that the aggregate sentence imposed indicates a ratio of 64% between the non-parole period and the total sentence. If the Court proceeds to re-sentence the appellant for the Register offences, both the sentences indicated and the finding made with regard to special circumstances by the Trial Judge could be confirmed. Applying the same sentence and the same ratio to the indicative sentence for the majority of the Register offences would find a sentence of 12 months imposed with a non-parole period of approximately 8 months (66%). It is submitted that this is the sentence that ought be imposed if the Court upholds the appeal." (footnotes omitted).
Whilst the Crown submitted that the re-sentencing should be the subject of a separate hearing or remitter to the District Court, and otherwise submitted that the 12 month period indicated in respect of the reporting offences was manifestly inadequate, on any re-sentencing the Court would need to take into account that the Applicant has now been incarcerated for almost three years.
In all of the circumstances, I think it appropriate to re-sentence the Applicant to an aggregate sentence of 18 months with an aggregate non-parole period of 12 months in respect of the reporting offences. All indicative sentences with regard to those offences provided by the sentencing judge are maintained. There were a large number of such offences and the obligation to report is a very important aspect of monitoring the behaviour and conduct of historic sex offenders on their return to the community. Reporting is not a matter of mere bureaucratic formality but an aspect of the response to and protection of the public and innocent children in particular against the scourge of child sex offending.
This leaves for consideration whether or not the Court should order a new trial in respect of the sexual offence charges, the Applicant's conviction for which should be set aside because of his success on the first ground of appeal. In this regard, it was submitted on behalf of the Applicant that the Court's discretion should be exercised against the ordering of a new trial having regard to the interests of justice informed by the considerations enunciated by McClellan CJ at CL in Gilham v R [2012] NSWCCA 131 at [649], namely:

(1949) 79 CLR 442

(1996) 186 CLR 427

(2011) 81 NSWLR 568

(1977) 137 CLR 517

(2000) 201 CLR 414

(1936) 55 CLR 499

(2018) 264 CLR 62

(2001) 206 CLR 221

(2018) 361 ALR 13

(2006) 225 ALR 161

(2003) 181 FLR 1

(1990) 19 NSWLR 677

(1992) 173 CLR 592

(1999) 196 CLR 297

(2007) 70 NSWLR 467

(1996) 39 NSWLR 160

(2018) 92 ALJR 689

(1988) 164 CLR 365

(2012) 247 CLR 531

(2005) 79 ALJR 662

(2002) 212 CLR 124

(2006) 80 ALJR 614

(2001) 201 CLR 414

[1999] HCA 37

[1936] HCA 40

Cited By (11)

The trial judge's substantive ruling on the severance question was as follows: "I now turn to the second pre-trial issue identified, being the severance of the Child Protection Offenders Registration Act counts from the indictment. The accused has, by notice of motion, sought this severance. In doing so, it is submitted that he will be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment. He says that this prejudice or embarrassment will be occasioned on the following basis: (1) That at least in relation to some of the charges in the indictment, the jury will be exposed to evidence that is not admissible in relation to those charges. This situation arises because the evidence in respect of some or all of the charges in the indictment is not admissible in respect of all the other charges in the indictment. (2) That the counts pursuant to the Child Protection Offenders Registration Act will disclose the accused has a prior conviction for a serious child sexual offence. The Crown opposes severance on the basis that if the counts are severed then the complainants will be required to give evidence on more than one occasion. By implication, the Crown also asserts that the evidence in certain of the counts on the indictment is cross admissible in certain others. The relevant statutory provisions are sections 21(2) and 29 (1) of the Criminal Procedure Act. The parties are familiar with the terms of those sections and I will not repeat them here. It is for the accused to establish that there is a reason to sever the counts. The fundamental question is whether a fair trial can be ensured if the subject counts are not severed. One of the factors highly relevant to the determination of this question, is whether or not evidence on one count is cross admissible in another count. That is, is the evidence that would be led in relation to the indecent assault type allegations also relevant and admissible in relation to the failure to comply with the reporting obligations counts? Here, it seems clear that the evidence of the indecent assault matters is relevant to the failure to report allegations, particularly where the allegations in both types of count arise out of the same factual scenario. Of course, that does not have application in relation to all of the failure to report matters, given that a significant number of them concern allegations well in advance of the time period when the indecent assault matters arise, which, as I have previously noted is between 23 and 26 February 2017. It becomes a matter for me to consider whether in that circumstance there is a risk of prejudice to the accused such that severance should be ordered. In undertaking that assessment, I am required to consider whether or not directions to the jury will be sufficient to guard against such a risk. The risk to be averted is that the jury will use the evidence in the Child Protection (Offenders Registration) Act counts to reason that the accused is the kind of person who would commit the crimes charged in the other counts on the indictment. In assessing that risk, I bear in mind that the jury will be appropriately directed as to how the evidence in the various counts can be used, after the parties have addressed me on the nature of those directions, along with my legitimate expectation that my directions will be strictly complied with. I am satisfied that any risk of this type can be averted by directions, and further, that given the evidentiary link between some, but not all of the counts, that it is in the interests of justice that they be heard together. In reaching this conclusion, I have borne in mind as one of the factors to be taken into account that my decision will obviate the need of the young witnesses to give evidence on more than one occasion. Having regard to all of those matters, the orders sought in the notice of motion are refused." (emphasis added).

The leading authorities on r 4 of the Criminal Appeal Rules were collected and set out in the following paragraphs from this Court's decision in Roach v R [2019] NSWCCA 160 at [40]-[42] (Roach): "With respect to r 4, McHugh J said in Papakosmas v The Queen (1999) 196 CLR 297 at 319; [1999] HCA 37 at [72]: 'There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant.' This and other authorities in relation to r 4 were collected by Heydon JA (as he then was) in R v Button; R v Griffen (2002) 129 A Crim R 242 at 253-255; [2002] NSWCCA 159 at [31]- [35]. It is also worth repeating the observations of Mahoney JA (as he then was) in R v Jeffrey (Court of Criminal Appeal (NSW), 16 December 1993, unrep): 'In my opinion, this principle plays an important part in the criminal trial process. It is important that any objection to the summing-up or that any defect or omission at the trial which can be cured or mitigated by steps taken at the trial, be raised at the time of the trial. The judge should be asked to, and should have the opportunity to, correct any error or deficiency of this kind. ... But it is important that, if a citizen is to be tried, he be tried once and for all. The evil both of objections "held in reserve" and raised only on appeal and of second and subsequent trials is great. Errors will occur and r 4 provides for them. But unless there be a convincing reason why the matter was not raised at the trial and unless the possibility of real injustice appears, an accused should be held to what was done by or for him at trial level. Not infrequently this Court is asked to act under r 4 when the reason why the defect was not dealt with at the trial has not been established and where it is at least possible that there were tactical reasons why it was not. It is not easy for the court on appeal to satisfy itself that the reason why the matter was not raised was error rather than choice. In such circumstances, the court should be slow to act under r 4. In the end, the court must exercise the power given to it by r 4 according to the merits of the individual case. However, in my opinion, in exercising that power, the court should keep steadily in mind the function which r 4 performs in the criminal trial process.' In ARS v R [2011] NSWCCA 266, the Court (Bathurst CJ, James and Johnson JJ agreeing) referred to McHugh J's statement in Papakosmas v The Queen and then continued at [148]: 'Subsequent cases have established that the following matters are important in considering the operation of r 4: ● The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170]. ● The appellant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]- [21]. ● A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]- [13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]- [61]. ● An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130]'."

On the reformulated ground 1 (see [13] above), the first question is whether or not the trial judge's refusal to sever the trial miscarried. An important aspect of this question is whether or not the prejudice which the trial judge acknowledged may arise from the jury knowing that the Applicant was a registrable person and was subject to the operation of the Child Protection (Offenders Registration) Act was curable by an appropriate direction to the jury.
The statutory context in which the application to sever is important to appreciate. Section 29(1) of the Criminal Procedure Act provides that: "A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances - (a) the accused person and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character."
Section 21(2)(a) of the Criminal Procedure Act provides: "If of the opinion - (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, … (b) … the court may order a separate trial of any court or counts of the indictment."
The first point to be noted is that no challenge was made at trial to the joinder of the charges or groups of charges with other charges. There was an implicit acceptance that the charges were properly joined and arose out of the same set of circumstances, or formed part of or were part of a series of offences of the same or a similar character. In Roach at [80], this Court observed that: "Section 29(1) is an important provision designed to promote and facilitate the fair and efficient disposition of criminal justice. It affords the court a broad power to hear and determine related offences. In this regard, as Mr Glissan QC accepted, the expression 'arise out of' in subsection (b) is of particularly broad ambit. It is an expression which is used in other contexts to promote the efficient resolution of related disputes: Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 at 165."
Unlike questions of joinder, the focus in a severance application is not on whether particular charges are related or bear a sufficient relationship to justify their joinder but, rather, on the consequences of joinder for the accused, and the impact which joinder would be likely to have on his or her ability to obtain a fair trial.
The second point to be noted is that s 21(2)(a) of the Criminal Procedure Act confers a discretion on a trial judge upon a view being formed as to the possibility ("may") of the accused person being "prejudiced" or "embarrassed" is his or her defence. In Castagna v R [2012] NSWCCA 181, Latham J (with whom McClellan CJ at CL and Harrison J agreed) noted (at [67]) that: "[t]he relevant prejudice 'is not that the evidence merely tends to establish the Crown case': R v BD (1997) 94 A Crim R 131 at 139; Papakosmas v The Queen (1999) 196 CLR 297 at 325. Rather, it refers to the danger that the jury may use the evidence on a basis logically unconnected with the issues in the trial, by way of, for example, appealing to the jury's sympathies, arousing a sense of horror, or provoking an instinct to punish."
In Hamide at [101], I noted that: "There is prejudice, and there is unfair prejudice: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at 325 [91]. Prejudicial evidence will have the quality of unfairness where there is a real risk that the evidence will be misused by the jury in some unfair way: R v BD (1997) 94 A Crim R 131 at 139 per Hunt CJ at CL."
Once an opinion has been reached that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, whether or not the Court should exercise its discretion in favour of or against severance will be affected by a variety of considerations, including:

The terms of the trial judge's ruling on severance have been set out at [29] above.
The decision the trial judge had to make on severance was a difficult and finely balanced one.
In my opinion, it cannot be concluded that the trial judge erred in the exercise of his discretion not to sever the reporting offences from the sexual offence charges. The cross-admissibility of evidence, and the fact that central evidence relating to many of the charges falling into both the reporting offence and sexual offence charge categories was to be given by two children, ZD and CL, who would have needed to give evidence twice on the same topic if severance were ordered, namely the visit to Coffs Harbour in February 2017, was highly relevant to the exercise of that discretion. This was especially so given that, in respect of their evidence relating to both categories of charge, they were to be (and were in fact) strongly cross-examined on credit.
CL and ZD's evidence as to the visit to Coffs Harbour in February 2017 was directly relevant to the reporting charge constituted by count 25, and all of the sexual offence changes. But in addition to this, as the trial judge pointed out, the various occasions prior to February 2017 on which the Applicant had had contact with ZD and CL and other children related to the reporting offences constituted by counts 8-24, and evidence in relation to these matters was relevant and admissible background evidence to the sexual offence charges.
Also relevant was that a large part of the potential prejudice which had originally animated the application for severance, namely details of the facts which had led to the Applicant's name being placed on the Register, was at the very least substantially "mollified", to use defence counsel's term, by the rejection of the LB evidence going to the detail or circumstances of the earlier offences. So much was accepted by then counsel for the Applicant in argument: see [27] above.
Further, one of the most powerful antidotes to the potential prejudice that may arise from the joinder and/or failure to sever charges is the ability of the trial judge to give clear directions to the jury, in particular on questions of the need separately to consider each charge and the limits on use of tendency and character evidence. This was a matter to which the trial judge expressly referred in his severance judgment and was identified as a reason for concluding in the exercise of his Honour's discretion that any prejudice that remained after his rejection of the LB tendency evidence could be satisfactorily dealt with by directions to the jury.
In KRM v R (2001) 206 CLR 221; [2001] HCA 11 at [36], McHugh J said: "It has become the standard practice in cases where there are multiple counts, however, for the judge to direct the jury that they must consider each count separately and to consider it only by reference to the evidence that applies to it (a 'separate consideration warning'). The universal giving of a separate consideration warning and the omission of a universal propensity warning indicates that the giving of a separate consideration warning is ordinarily sufficient to avoid miscarriages of justice in cases such as the present. This indication is confirmed by the many cases where juries acquit accused persons of some charges and convict them of others where the presentment contains multiple counts involving the same or similar offences. Indeed, so freely do juries acquit of some charges and convict of others on presentments with multiple counts that appellate courts often hear arguments that there is such an inconsistency in the verdicts that the convictions are unsafe and must be set aside." (footnote omitted).
The ability of a trial judge to give a clear direction to the jury is to be considered in conjunction with the well-established expectation that a jury will follow a judge's instructions. In Hamilton (a pseudonym) v R [2020] NSWCCA 80 at [41] (Hamilton), Macfarlan JA said: "An assumption that in general 'juries understand, and follow, the directions they are given by trial judges' is fundamental to the administration of justice (Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13]; Lane v The Queen (2018) 92 ALJR 689; [2018] HCA 28 at [42]). An assumption that directions in a particular case are too complex for a jury to follow and apply should not therefore readily be made, although it must be accepted that directions may not be able in particular circumstances to overcome prejudice to the accused (Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 at 373-374; [1988] HCA 6; Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29 at [129]). If that is thought to be the case, the alternative is not to abandon the giving of relevant directions and to leave the jury to its own devices, but to order separate trials."
Earlier, in R v Bartle (2003) 181 FLR 1; [2003] NSWCCA 329 at [82], Mason P and Barr J said that it is the experience of courts "that reliance on the integrity and sense of duty of jurors is not misplaced": see also R v Glennon (1992) 173 CLR 592 at 614-615; [1992] HCA 16 per Dawson J; and Samadi and Djait v R [2008] NSWCCA 330 at [136]. In Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62 (Darwiche), Johnson J, with whom McClellan CJ at CL and James J agreed, said at [269] that: "The experience and wisdom of the law is that, almost universally, jurors approach their tasks conscientiously: Dupas v The Queen at 247 [26]. It is of fundamental importance that juries decide cases impartially on the evidence and in accordance with the trial Judge's directions: Fittock v The Queen [2003] HCA 9; 217 CLR 508 at 515 [21]. In Gilbert v The Queen [2000] HCA 15; 201 CLR 414, McHugh J, at 425 [31], observed that the criminal trial on indictment proceeds on the assumption that jurors are true to their oaths."
Accepting the fundamental assumption to which Macfarlan JA referred in Hamilton, as indicated at [63] above, the trial judge did not, in my opinion, err in refusing to sever the counts. There were strong reasons to refuse the application, and any prejudice was capable of being addressed through clear or, to use the trial judge's word, "powerful" directions to the jury in relation to not allowing evidence of bad character or tendency derived from the fact that the Applicant was a registrable person to be used in a manner adverse to the Applicant: see [27] above.
That conclusion is not the end of the inquiry, however, for as has been explained above, this Court needs to make an assessment by reference to the whole of the trial, as to whether or not a miscarriage of justice occurred. That requires close attention to be paid to the course of the trial after the severance decision had been made and, in particular, the directions given by the trial judge to the jury in the summing up, especially given that this was the way which his Honour indicated in his reasons for refusing severance that any prejudice could be cured. Consideration also needs to be given to the r 4 considerations and, in particular, whether the failure to seek a further or different direction to the jury dealing expressly with the fact that the Applicant was a registrable person should stand in the way of a grant of leave to complain about the inadequacy of the directions in fact given (see [42] above).
In the current case, relevant portions of the trial judge's directions to the jury have been extracted at [36]-[39] above. In relation to those directions, the following observations may be made.
First, the trial judge, in directing the jury that it "must not be prejudiced against the accused because he is facing a number of charges" (see [36] above), did not extend this admonition to the question of past charges which had been established in earlier proceedings, a matter that was implicit (and obviously so) from the fact that the Applicant was on the Register and, even if not obvious, made obvious by the language on Register documents to which reference has been made at [35] above, and which were before the jury.
Secondly, the same point may be made in relation to the trial judge's direction (at [36] above) that: "[g]iven that there is more than one charge, there is a danger that you might reason in respect of any one or more of the charges that the accused was the kind of person who might have engaged in improper conduct towards the complainants on other of the occasions charged. Such a course of reasoning would be entirely wrong and you must not engage in or use that reasoning. The evidence in respect of each of the charges must be considered separately, subject to what I will tell you later about the use of what you have heard described as tendency evidence during the trial." (emphasis added). Whilst this was an exemplary direction insofar as it went, it again did not extend to the danger of reasoning from the fact that the Applicant had previously been convicted of child sex offences, albeit that the jury had no information as to when that conviction took place, or the nature or number of offences.
Thirdly, the trial judge's direction (see [38] above) that: "It would be completely wrong to reason that, because the accused has committed one crime, or has been guilty of one piece of misconduct, he is therefore generally a person of bad character, and for that reason must have committed all of the offences charged", while, again, an exemplary direction, was made in the context of the tendency evidence that was admitted and which was expressly addressed by the trial judge. The reference to a conclusion that "the accused has committed one crime" was not, in context, a reference to a crime having been committed in the past but, rather, to a conclusion by the jury on one of the multiple counts before it. When his Honour went on to say shortly after this statement that "[y]ou cannot use it in any way prejudicial to the accused unless you accept the Crown's argument that it shows a tendency …", the "it" that was being referred to was the tendency evidence that had been admitted as such, and which had been identified by the trial judge. The fact that the Applicant was a registrable person and had been convicted of previous child sexual offences was not in this category.
Fourthly, there was no specific direction made about the Register and the fact that the Applicant was a registrable person, and as to the fact that the jury was required to put that fact and any inferences that may be drawn from that fact as to the Applicant's character or tendencies entirely out of their mind.
None of the directions that I have referred to at [36]-[39] above and upon which the Crown relied were the "powerful direction" that the trial judge had indicated would need to be given to ameliorate any residual but specific prejudice to the Applicant that would accrue from the fact that he was a registrable person: see [27] above. Although I have reached the conclusion that the trial judge was justified in refusing to sever the counts in the particular circumstances of the case, that conclusion was not to gainsay that the prejudice that had been identified was real and potentially powerful, hence the trial judge's recognition of the need for a "powerful" specific direction (see [27] above).
That such a specific and powerful direction was not given led, in my opinion, to a miscarriage of justice, with the consequence that, subject to the Crown's argument in reliance on the proviso, leave under r 4 of the Criminal Appeal Rules should be given and the first amended ground of appeal should be upheld.
In reaching this conclusion, I have not overlooked the fact that the jury acquitted the Applicant on five of the ten sexual offence charges. In this regard, it is sometimes said, and was here submitted by the Crown, that this fact permitted the Court to have confidence that, as directed, the jury carefully considered each charge separately, and any prejudice arising from the fact that the Applicant was a registrable person and all that that admitted fact entailed did not operate to prejudice the jury in its deliberations.
This is an argument that may sometimes have force. In R v El-Azzi [2004] NSWCCA 455, the applicant had been indicted before Armitage DCJ on three charges, namely, that he knowingly took part in the manufacture of a prohibited drug, namely methylamphetamine, being an amount not less than the large commercial quantity (count 1); that he conspired with others to manufacture a prohibited drug, namely methylamphetamine, being an amount not less than the large commercial quantity (count 2); and that he conspired with others to manufacture a prohibited drug, namely methylamphetamine, being an amount not less than the large commercial quantity (count 3). The jury entered convictions for counts 2 and 3, but there was an acquittal on count 1. At [116] of her judgment, Simpson J (as her Honour then was, and with whom Santow JA and Sperling J agreed), noted that: "[t]here was a great deal of evidence common to two or more counts in the indictment. The jury was properly directed of the need to consider each count separately. In my opinion no miscarriage of justice has been seen to arise as a result of the trial judge's decision to refuse the separate trials application. If further support for this conclusion were needed, it is to be found in the acquittal of the appellant on the first count. This demonstrates, to my mind conclusively, that the jury properly approached the task committed to them." (emphasis added).
Most recently, in WG v R; KG v R [2020] NSWCCA 155 at [1144] (WG), Fullerton J, with whom Bathurst CJ (at [1104] and Fagan J (at [1589]) relevantly agreed, said that: "The fact that the jury was not able to reach a unanimous verdict upon counts 87, 88 and 89 allows for the almost irresistible conclusion that the jury did consider separately the evidence relating to each count and did not impermissibly decide KG's guilt on the 13 counts which they were satisfied were proved beyond reasonable doubt overborne by the multiplicity of counts charged against WG or the utilisation of any impermissible reasoning based on the evidence adduced in proof of his guilt." See also Darwiche at [259] and [270].
On the facts of the present case, however, I do not think that it can be said with the requisite confidence that the acquittal of the Applicant on some of the charges meant that a failure to give an appropriately worded and powerful direction about the fact that the Applicant was a registrable person did not affect the jury's decision to convict on the sexual offences that it did.
This is for two reasons.
First, as counsel for the Applicant submitted, there were rational explanations as to why the jury acquitted the Applicant on five of the sexual offence charges which were sufficiently capable of outweighing any residual prejudice accruing from the Applicant's status as one who had been convicted of child sexual offences in the past. It is not necessary for present purposes to explore those explanations or to seek to weigh or assess their potency because of the more general and second point - that the failure to give a bespoke and powerful direction gave rise to a real possibility that the jury's reasoning process with regard to the charges on which convictions were entered may have been infected by prejudice arising from the Applicant's status as a convicted child sex offender.
In short, the possibility cannot be fairly excluded that the jury, relevantly uninstructed by an appropriately worded and strong direction, may have been influenced by the fact that the Applicant was a registrable person, and what that fact was capable of conveying about his character and tendency in reaching its guilty verdicts in respect of the five sexual offence charges in respect of which the Applicant was convicted. To borrow the language of Button J in his separate reasons, the absence of a strong and clear direction may have "tipped the balance" on the counts upon which a guilty verdict was returned.
It is for the same reason that, in my opinion, the Crown's argument under the proviso must be rejected. The miscarriage occasioned by the failure to give an appropriately strong direction was one which resulted in the loss by the Applicant of a chance of acquittal, in all the circumstances, and a situation where it could not be concluded with the requisite degree of satisfaction that a conviction on the five counts upon which the Applicant was convicted was inevitable. It is, in other words, a situation of the kind contemplated in Kalabasi v State of Western Australia (2018) 264 CLR 62; [2018] HCA 7 at [15] and [57] (Kalabasi). In this context, although the majority instanced a "misdirection" or "wrong direction" to the jury on a question of law as an example of a case in which it may not be possible for the proviso to be invoked, in my view a prejudicial failure to give a direction (as opposed to a misdirection or wrong direction) may have the same consequences. The examples instanced by the majority in [15] of Kalabasi were not exhaustive ("may include, but are not limited to") and I see no reason in principle to differentiate a failure to give a necessary direction to an actual misdirection. Indeed, on one view, an omission to give a necessary direction makes the proviso exercise more and not less difficult.

In the present case, the principal attack on counsel was on his decision not to address on counts 8-25 which all concerned reporting offences.
Before moving directly to the question raised by this ground and whether or not defence counsel's alleged failures gave rise to a miscarriage of justice, it is desirable to identify the elements of these offences, what evidence the Crown adduced to make good the counts, and how counsel for the Crown addressed these matters in her address to the jury.
As extracted at [17] above, s 17(1) of the Child Protection (Offenders Registration) provides that "[a] registrable person must not fail to comply with any of the person's reporting obligations without reasonable excuse".
This required the Crown to prove: (i) that the Applicant was under an obligation to report; (ii) that reportable events had occurred; (iii) that no report of those events had been made.
Any defence of "reasonable excuse" was for the Applicant to establish.
As has been noted at length in the context of considering the first ground of appeal, it was common ground, and indeed an admitted fact, that the Applicant was a registrable person and fell under statutory reporting obligations. Secondly, there was and could have been no issue that the prescribed forms or Register documents lacked the information that it was said should have been disclosed. The documents relevantly spoke for themselves.
That left the factual question as to whether or not the Applicant was relevantly in the presence of children at times or in circumstances that called for report and any issue of "reasonable excuse" as to failure to report. As to that last matter, no evidence was adduced, as the Applicant did not go into evidence and there was nothing (and it was not submitted that there was anything) that could have been submitted in that regard. In this context, it may also be noted that the Applicant did not waive privilege over his instructions to his trial counsel notwithstanding his attack on trial counsel's competence under the second ground of appeal.
As to whether or not the Applicant was in the presence of children in such circumstances, there was an abundance of evidence led. So much was reflected in the Crown's submissions to the jury: "Now, that's all I wish to say about those counts. Counts 8, 9 and 10, this is the Summer Nats in 2016, and you heard evidence from [ZD], [JN], who was 12 or 13, [ZD] was 15 at the time. [JN] told you he was 12 or 13 when he first met him and that was at p 392 and he was 14 years old at this time and [SF] was 17 and you heard evidence that he boys remained in the company of their campsite which was the campsite of Mr [D] and the accused over that period and no mention of that incident of the January 2016 or any of those children listed on the register. So sequence 9 - sorry, not sequence 9. Count 8 is [ZD]. Count 9 would be [JN], and count 10 would be [SF]. Now, count 11 is the 2016 trip in August to Melbourne with [ZD]. This is at page 92 to 94 of the transcript. This was the incident with [PM], and you'll remember they went down by truck, and [ZD]'s evidence was that he slept by himself on the Friday night in the truck because both the men were driving, sharing the driving, but on the Saturday night he slept in the bed at the Black Forest Motel with the accused. [PM] told you the same. That's the contact, and he fails to mention that to the police, members of the jury, when he does his annual review. This is while they were away. You'll remember [ZD] told us that he was encouraging him to drink alcohol, and this is when he raised the issue about [ZD]'s penis, and [PM] told you at 435 that, '[ZD] confided me and told me that Michael Allen had made some sort of statement against him.' Michael Allen had told [ZD] he had a small penis. That's the complaint evidence that I say you can use to show goes to the truth that not only he said that, but the truth as to the evidence he gave in the witness box. You'll remember this incident because they then ended up at the Gundagai Hospital when [ZD] fell sick on the way home. So in my submission he's clearly failed to report that contact, sleeping in the same bed as him, travelling with him to Melbourne, and travelling back and then dropping them off at the hospital. He's failed to mention any of that to the police in the annual review. You'll remember right at the beginning I gave you a very brief outline. I imagine that his Honour will return to that about those counts where some incidents happened outside New South Wales, and how you can deal with those. Now, 12 and 13, this is the Bathurst 1000, October 2016. [ZD] is 16 at this time. [JN] is 15. [JN] told you at 395, 'We would walk around the bend. Occasionally me, [ZD], [SF], and Mick would go to the pits and get food at the stalls,' and that uncle Brad would stay up at the bend at the camp site. Again in our submission [ZD] is count 12, and [JN] count 13, that again the accused has failed to report this contact with either [ZD] or [JN] after the event, or before. Now, 14, 15, and 16 is failing to comply with the reporting conditions. This is the December 2016 trip up to see [ZD]'s mother on the Central Coast. you've got the receipt from the Walu Caravan Park. You'll remember [ZD]'s evidence. He said, Mr [D] was offering him alcohol before his mother arrived at the caravan park. Page 101, the two sisters also stayed with Michael Allen. [K] who was ten, and [J] who was five. On this trip the Crown case is simply that [ZD], [K], and [J] were in his company overnight for an extended period, and in the morning I think they had breakfast and then went to the swimming pool, and then mum arrived and the accused failed to report that extensive contact with those children as required by the obligations under the Child Protection (Offenders Registration) Act. You heard a lot of evidence all about who picked up who, and who went where, and what time they left, and what time they arrived, but when you boil it all down there's no doubt that they were at the Walu Caravan Park on the dates, because we've got the receipt, you've got the evidence of [ZD] that he went, and that he was there with him, and that these other two children came and stayed the night. It doesn't matter whether something untoward happens or not. The requirement is that he has to disclose that, and he didn't do that. So it's fairly straightforward, members of the jury, the Crown says in relation to a lot of these failure to comply counts. Moving to 17, 18, 19, 20, and 21, these are the Summernats in January 2017. Again contact with [ZD], who was 16, [JN] 15, [CL] 15, and [CC], 10 or 11, in Canberra the Street Machine Summernats. Now, you'll remember the evidence is that he drove the boys in his van, and he remained in the boys' company for a number of days and nights. The sleeping arrangements for the Friday night was Mick, [CC], [JN], [CL], [ZD] in one van. Remember at 109 [ZD] told you he was offering alcohol to the boys. Saturday night [JN], [TS], [CL], [ZD], [CC], and Mick all slept in the van. Mick and [CC] shared a bed, 109, 110. Brad [D] also told you that all the children ended up sleeping in Mick's van. 612 to 614. So count 17, [ZD], count 18 [JN], count 19 10 is [CL], count 20 is [TS], and [CC] is count 21. The accused failed to report the contact of any of those children. You might think the defence said there wasn't a 2014 form. This was in 2016. You'll remember that the officer - Officer Brisby, who is now in charge of the register, told you that it accumulates each year. So even if we lost the 2014 form, when Michael Allen rolled up for his 2015, 2016, and 2017 review, he would have seen that those children's names weren't there, and he would have said, 'Hang on, Summernats every year [ZD] and [CL],' or whoever it was. Every year since 2014, because he's signing that. He gets a print-out, remember? Bob Brisby told you he got his own print-out, and he signed that it was accurate. So it's a red herring, members of the jury, that that form is not there because the computer accumulates the information every year. Now, 22 is taking [CL] to perform at the birthday party of [LS]. He was paid $50. He thought it was about two weeks after the Summernats, and he went - he got permission from his parents to go, and he went with the accused, and he remained in the accused's company for the duration of the evening, and then at the end of the night Michael Allen dropped him home at the completion of the party, and again failed to comply with that as a reporting condition. No mention of that. That's at page 289 of the transcript. Now, 23 is the trip to Melbourne with Greg Beckingham, [LP], [CL], and the accused. Again there was lots of evidence about who sat where, and who did what. At the end of the day they stayed at the BIG4 caravan park. You have a receipt for that. [LP] and Greg both told you, as did [CL], that Greg and [LP] slept on the blow-up bed outside, and Michael Allen slept in the bed with [CL]. Again he had ongoing contact with [CL] on those dates, and he failed to report that to police in accordance with his obligations. Now, count 24 is the Melbourne - sorry, after the Melbourne trip, this is going to the Blacktown movies.[CL], Michael Allen and Gregory Beckingham went to see The Great Wall. And again, the Crown would say the evidence here supports that the accused had contact with [CL], and that he was attempting to befriend him, and that he failed to report that, as per his obligations. Now, count 25 - this is the first count that relates to Coffs Harbour. And this relates to failing to report his contact with [ZD] during that weekend. And we know a number of things happened over that weekend, but for this count, the contact is what's important. We know they were in each other's company, travelled up there, stayed up there, a whole series of things happened which are within the later counts, but that he was offering alcohol to them and in particular, to [ZD]. And that they were in the van together, [ZD] stayed in the bed with him, and Michael Allen has failed to report that to police in accordance with his obligations."
From this extract, it can be seen that the Crown elicited evidence from multiple witnesses, supplemented by documentary evidence, which made good the fact of the Applicant's presence with children in what can be described as "reportable situations".
In this respect, it is of note that, although those witnesses were cross-examined, it was not put to any of them that either they or the Applicant were not present on particular occasions. This was presumably because the Applicant's then counsel was not instructed or had no basis for putting this to the witnesses. In this context, it was relevant that the Applicant did not waive privilege as to his instructions to counsel. There is no basis, therefore, for assuming that an otherwise competent counsel overlooked such basic matters.
All of this is reinforced by the existence of a transcript of a taped discussion which was in evidence and which not only corroborated much of the viva voce evidence referred to in the lengthy extract of the Crown's address, but also exposed a clear consciousness on the Applicant's part that he should not have been in the unauthorised presence of children in the context in which he was.
Turning then to the question of whether or not it can fairly be said that the Applicant's trial counsel failed to address the jury on certain of the reporting offences and, if so, whether or not this was incompetent and gave rise to a miscarriage of justice, the short point is that, general attacks on credibility of witnesses aside, there was precious little if anything that counsel for the Applicant could have said in respect of these counts. Certainly, nothing was put in written submissions by the Applicant's counsel on appeal in relation to the reporting offences which it was suggested could have been, but was not, said.
As to the balance of the matters sought to be raised by the second ground of appeal, trial counsel could not be criticised for accepting that the rejection of the LB evidence "mollified" the prejudice that had underpinned the severance application in the first place. Indeed, trial counsel's candour was appropriate. Most notably, however, counsel held the line by refusing to concede that the prejudice on which he relied had been eliminated: see [27] above.
The matters referred to in sub-paragraph (ii), (iv) and (v) of the second ground of appeal do not need to be considered in light of my conclusion as to the first ground as they relate to the sexual offence charges.
The matter referred to in subparagraph (iii) of the second ground of appeal is not of a character that comes within the principles referred to at [84] above.
It follows that I would dismiss the second ground of appeal.

Even though the Applicant has almost completed the non-parole period of his imprisonment in relation to the charges upon which he was convicted, on balance in my opinion, it is appropriate for the Court to order a re-trial of the sexual offence charges upon which the Applicant was convicted although any decision to proceed with such a trial will ultimately be for the Director of Public Prosecutions who will no doubt balance the need for sexual offences of the kind charged to be determined, especially in circumstances where the Applicant had previously been convicted of such offences and has also breached his reporting obligations in relation to his contact with children in reportable contexts against the fact that the Applicant has already spent a substantial period of time in custody serving sentences for the offences which have now been quashed.
Since drafting these reasons, I have had the very great benefit of reviewing Button J's separate reasons for judgment. As his Honour says, he sources the miscarriage of justice in the present case on an anterior basis to that articulated in my reasons, namely in the presence of the reporting offences on the indictment, and considers that "[n]either the directions given nor any other directions could have overcome the prejudice arising from their presence".
It will be evident from my reasons that I share his Honour's view that the directions in fact given by the trial judge were inadequate to overcome the prejudice arising from the co-existence of the reporting charges with the sexual offence charges on the indictment. Because the trial judge did not formulate and give the strong direction to the jury that he contemplated when ruling on the severance application, I am content to rest my conclusion as to miscarriage on that basis. I do, however, acknowledge the considerable force in the observations of Button J and the wisdom of his Honour's reflection that "judicial directions to juries are not to be thought of as an unfailing panacea for all forms of prejudice."
The efficacy of such directions will generally fall to be assessed on a case by case basis and will be particularly affected by the degree of prejudice that is perceived to arise in the circumstances of the particular case, and a consideration of the terms of the directions in fact given to the jury: see, for example, WG at [1138]. This latter task may also involve a consideration as to whether, in the circumstances of the particular case, any ameliorating direction was in fact counter-productive, paradoxically drawing attention to a prejudicial matter whilst seeking to marginalise or exclude its significance for the jury's particular task.
The principal difference between Button J's reasoning and my own is that I am not prepared to exclude the possibility that an appropriate direction may have been able to be given in the circumstances of the present case. As none was attempted and a suggested form of direction was not volunteered either at trial or on appeal, it is not productive to engage in a hypothetical exercise as to what form such a direction might have taken.

Allen v R

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