Brockie v R

Judgment

1. JOHNSON J: I agree with R A Hulme J.
2. R A HULME J: Glen John Brockie (the applicant) was tried before Ellis DCJ and a jury in the District Court at Port Macquarie after pleading not guilty to two offences of having sexual intercourse without consent. It was a short trial with the jury returning verdicts of guilty on the second day, 19 September 2017.
3. On 2 March 2018, his Honour imposed sentences of imprisonment of 4 years on the first count and 6 years on the second count. The second sentence was partially accumulated on the first so that the overall sentence was one of 7 years with a non-parole component of 4 years.
4. The offences were contrary to s 61I of the Crimes Act 1900 (NSW). The maximum penalty is imprisonment for 14 years and there is a standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 (NSW) of 7 years.
5. Mr Brockie applies for leave to appeal against both his conviction and sentence on the following grounds: 1. The learned Crown prosecutor made an error of fact by improperly inviting the jury to treat the evidence of the complainant differently to an adult witness because of her 'disabilities' in circumstances where there was no evidence of the complainant having any intellectual disabilities; 2. His Honour made an error of fact by: a. Finding that the complainant and two other witnesses had some form of cognitive impairment when there was no evidence to that effect b. Directing the jury that when considering the evidence of the complainant and two other witnesses that the jury could form their own conclusions about those witnesses' intellectual capacity without expert evidence on the question of intellectual capacity; 3. In sentencing the applicant, his Honour made an error of fact by taking into account conclusions that [the complainant] was a cognitively impaired and vulnerable person when there was no evidence as to that fact; and 4. In sentencing the applicant, his Honour made an error of law by denying the applicant procedural fairness by taking into account a conclusion that [the complainant] was cognitively impaired without advising the applicant that he intended to do so.
6. The applicant accepts that r 4 of the Criminal Appeal Rules apply to the two proposed grounds relating to conviction in that they rely upon complaints that were not raised at trial.
7. The offences were alleged to have occurred at a house at Port Macquarie on the weekend of 3-4 April 2016. The complainant was visiting a friend and had dyed her hair. She went into the shower to wash the dye out. While she was in the shower the applicant, who was the partner of the complainant's friend, entered the shower and sexually assaulted her by digital and then penile penetration.
8. It was put to the complainant in cross-examination that the applicant entered the bathroom while she was in the shower and that he helped her wash the dye out of her hair, but that no sexual acts occurred. She disagreed. [1]
9. Written submissions for the applicant provided the following overview of the contentions sought to be raised on appeal: "The applicant's appeal proceeds on the basis that the entire trial and sentencing process miscarried because the parties proceeded on the basis that the complainant in the trial … was intellectually disabled or suffered some undefined cognitive impairment and this effected how her evidence was treated and elevated the objective seriousness of the applicant's conduct. It did so in circumstances where there was no evidence before the Court to the effect that the complainant (or two witnesses) were intellectually disabled. On the contrary, there was conflicting expert evidence in the Crown brief which was never placed before the Court but which concluded that the complainant, while below average range of intellectual capacity, was not intellectually disabled as defined at s 61H(1A) of the Crimes Act 1900 (NSW) while another report found the complainant had a 'moderate intellectual delay'. Both the Crown's address to the jury and his Honour summing up proceeded on the basis that both the complainant and two witnesses were intellectually disabled and that their evidence needed to be considered in that light, the effect of which it is submitted, was to invited the jury to be less critical in their scrutiny of the evidence, particularly the complainant's. The applicant has suffered a miscarriage of justice requiring his conviction to be quashed and to have the matter referred back to the District Court for a re-trial. Alternatively, if this court does not find merit in the conviction appeal, it is submitted that the applicant's sentence proceedings were flawed for the same reason and that his Honour's reliance on the complainant's cognitive impairment incorrectly increased his Honour's assessment of the offences' objective seriousness." (Footnotes omitted.)

The meaning of "intellectual disability"

1. There was no evidence before the jury as to the technical meaning of the term "intellectual disability". Counsel for the applicant took the Court to a passage in the judgment of the High Court of Australia in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [50]-[51], where there is a discussion about the "mild intellectual disability" of the offender in that case. [2] It was observed that this should not obscure the fact that he was mentally retarded and that there was a classification of the condition of mental retardation as mild, moderate, severe or profound in the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th ed (text rev) (2000) (DSM-IV-TR), p 42. "Significantly subaverage intellectual functioning" was defined as an intelligence quotient (IQ or IQ-equivalent) of about 70 or below (plus or minus 5 points for measurement error).
2. In the subsequent edition of that publication, American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th ed (2013) (DSM-5), the term "mental retardation" was replaced with "intellectual disability". A diagnosis is said to be dependent upon three criteria being met: (A) deficits in intellectual functions, such as reasoning, problem solving, planning, abstract thinking, judgment, academic learning, and learning from experience; (B) deficits in adaptive functioning that result in failure to meet developmental and sociocultural standards for personal independence and social responsibility; and (C) onset of intellectual and adaptive deficits during the development period. [3] In relation to criterion A, the publication includes reference to an IQ score below 70 (+/- 5) but counsels that clinical training and judgment are required to interpret test results and assess intellectual performance. [4]

The course of the trial

1. The applicant's contentions under Grounds 1 and 2 of the proposed appeal against conviction must be assessed in the context of relevant events before and during the trial.
2. Affidavits were read by both parties at the outset of the hearing of the application for leave to appeal. The Crown did not object to an affidavit from the applicant's trial counsel, but submitted the Court would find that it was irrelevant. There was no objection to two affidavits by the solicitor instructing the Crown Prosecutor. The material in those affidavits is useful in supplementing the narrative of the course of the trial.

Pre-trial events

1. Mr Neild, an experienced Public Defender who acted as counsel for the applicant at trial, deposed that the applicant was committed to the District Court for trial for two offences contrary to s 61J of the Crimes Act of sexual intercourse without consent in circumstances of aggravation, namely that the complainant had a "serious physical disability". That term was not defined in the Act.
2. Reports by the complainant's treating general practitioner, Dr Brenton Schuetz, and a psychologist, Mr John Nolan, were within the prosecution brief of evidence.
3. Dr Schuetz's report included that he had been treating the complainant for 17 years and it was his opinion that she suffered from: "[C]ongenital deafness for which she required a Cochlear implant and her hearing is still not completely normal, cerebral palsy since birth and moderate intellectual delay."
4. Mr Nolan's report arose from a referral by police for him to consider whether the complainant had "an intellectual disability for the purpose of section 61H(1A)(a) of the NSW Crimes Act". I note that s 61H(1A) at the relevant time (since repealed and replaced by provisions set out in s 61HD) defined "cognitive impairment", another circumstance of aggravation for the offence in s 61J. It provided: 61H Definition of "sexual intercourse" and other terms (1A) For the purposes of this Division, a person has a cognitive impairment if the person has: (a) an intellectual disability, or … that results in the person requiring supervision or social habilitation in connection with daily life activities.
5. Mr Nolan administered two tests of intelligence. One was the Wechsler Test of Adult Reading which yielded a result "with 90% confidence that [the complainant's intellectual capacity] would be found in the range from 59 to 93 IQ points where average is 100". Mr Nolan said that he did not take this to be a reliable test of intelligence because of the complainant's history of deafness and her lack of experience with the expression of words. The other, the Test of Non-verbal Intelligence, fourth edition, gave a score indicating the complainant was "in the below average range of intellectual capacity". Mr Nolan explained: [5] "Her level of below average demonstrated intelligence suggests she may struggle in some occupational endeavours. However, in my opinion she has sufficient intellectual capacity to be employed where she could receive instructions and carry out tasks suitable to her abilities. In some tasks she should be able to work independently without constant supervision."
6. Mr Nolan concluded that the complainant did not fit into a category of intellectual disability for the purpose of s 61H(1A) of the Crimes Act. He did not say that she did not have an intellectual disability per se.
7. The Crown Prosecutor's instructing solicitor wrote to the applicant's solicitor on 21 August 2017, about a month before the trial was listed, advising that the indictment would allege the basic sexual intercourse without consent offence in s 61I of the Crimes Act, and that it was not intended to call either Dr Schuetz or Mr Nolan unless required by the defence. Mr Neild indicated in his affidavit that the Crown was informed that the defence did not require either of those witnesses to be called. [6]
8. Annexed to an affidavit by the solicitor instructing the Crown Prosecutor in this Court was a copy of the Crown's pre-trial disclosure documents. The first paragraph of the Crown Case Statement included a description of the complainant as a "woman who is profoundly deaf, has Cerebral Palsy and intellectual disabilities". It also included (in par 12) that although the complainant attended a police station on 7 April 2016 to report that she had been sexually assaulted, "due to the special circumstances surrounding the complainant's disability a formal statement was not obtained from her until 11 July 2016".
9. The defence response (as required by s 143 of the Criminal Procedure Act 1986 (NSW)) stated that "the facts, matters or circumstances on which the prosecution intends to rely to prove guilt (as indicated in the prosecution's notice under section 142) and with which the accused person intends to take issue" were: "The accused intends to take issue with the facts, matters or circumstances contained in paragraphs 7-11 of the Crown Case Statement."
10. Accordingly, it was communicated by the defence to the Crown and the Court that there was no dispute about the description of the complainant as set out in the Crown Case Statement.

Events at trial

1. When the trial came before Ellis DCJ on Monday 18 September 2017, the Crown Prosecutor told his Honour that the complainant "is deaf … has cerebral palsy since birth and she has a moderate intellectual delay". He added, "On that basis, Mr Neild is not opposing the playing of her recorded interview with the police as her evidence in chief". [7] He also informed the judge that the complainant was able to speak but "it's not very clear". There followed a discussion about the availability of Auslan interpreters. Significantly, in the course of the ensuing discussion, there was nothing said by the applicant's counsel to indicate there was any issue with the Crown Prosecutor's assertion that the complainant had a "moderate intellectual delay".
2. Pausing at this point with the narrative, it should be noted that Ch 6, Pt 5 of the Criminal Procedure Act 1986 (NSW) makes provision for the giving of evidence by "vulnerable persons" in criminal proceedings. There are provisions in Div 3 for a "vulnerable person" to give evidence by way of previous representations made in the course of a recorded interview with an investigating official. There are provisions in Div 4 for a "vulnerable person" to give oral evidence from a remote location via closed-circuit television. That is what occurred in the present case; the complainant's evidence-in-chief was given by way of playing the recording of her interview with police, and the balance of her evidence was given by way of CCTV from a room elsewhere in the court building.
3. A "vulnerable person" is defined as "a child or a cognitively impaired person". [8] (The complainant in this case was not a child.) A "cognitive impairment" is defined to include, relevantly, "an intellectual disability". [9]
4. It is a matter of significance that counsel for the applicant raised no issue at any time before or during the trial about the complainant being entitled to give evidence pursuant to the means provided for in Divs 3 and 4 of Ch 6, Pt 5.
5. Returning to the course of the trial, the jury panel were brought into the court room immediately following the exchange between bench and bar described above. The applicant was arraigned and pleaded not guilty. The Crown Prosecutor provided the panel with some information about the case and the identity of witnesses. The judge then invited applications by members of the panel to be excused and in the course of this he said: [10] "You've heard that the nature of this case is that it involves an allegation of sexual intercourse and you've also heard that the complainant in this case has a number of physical issues, including deafness, and the reality is that, for a lot of people, cases involving allegations of sexual assault can be very difficult to deal with. Here you've got a combination of someone who is said to be disabled and there's an allegation of sexual assault in relation to that person." (Emphasis added)
6. The judge made some opening remarks to the jury following the empanelment which included: [11] ● The complainant has a number of disabilities. ● She was interviewed by the police with the assistance of an Auslan interpreter and the recording would be played as her evidence in chief. ● The complainant would be in a remote room. This was a system "that's introduced for individuals with handicaps such as this". It applied "in cases involving allegations of a sexual nature dealing with children, adults and those with disabilities". (Emphasis added)
7. The Crown Prosecutor said the following about the complainant in the course of his opening address to the jury: [12] "Please keep in mind, because of her impairments, it will be a bit slow and I expect also that when she's questioned, because it's not just that she's deaf, it's not just that she has cerebral palsy but she has an element of moderate intellectual delay, that the questions will have to be simplified." (Emphasis added)
8. The prosecutor also referred to the anticipated evidence of the complainant's friend who was in a relationship with the accused at the time. He said: [13] "[W]hen you hear her evidence, she's also got a bit of a cognitive impairment too, so we'll have to be very careful with the way we ask her questions so she, in fact, gives answers that are responsive. We'll have to keep it simple with her." (Emphasis added)
9. The prosecutor's opening address was immediately followed by an address by the applicant's counsel. He said nothing to indicate there was any issue about the manner in which the complainant's intellectual or cognitive ability had been described.
10. The trial proceeded with the complainant's recorded interview being played and she was then cross-examined.
11. Exhibited with one of the affidavits read by the Crown was the recording of the complainant's evidence (the pre-recorded evidence-in-chief as well as the cross-examination). Counsel for the applicant had no objection to the members of this Court viewing the recording in its entirety, or at least so much of it that would be necessary to confirm his submission that it was not possible to discern from the complainant's demeanour that she had an intellectual disability. [14]
12. I have viewed the recording of the complainant's evidence in its entirety. As counsel for the applicant submitted, it is obviously necessary to be careful not to conflate the impediment the complainant experiences with her speech with an assessment of her intellectual capacity. It is necessary to make allowance for the fact that she has suffered from congenital deafness and is only partially assisted by a Cochlear implant. Her manner of speech is such that she was often indistinct. The Auslan interpreters relayed everything that she said (even on the occasions when her speech was clear).
13. It is apparent from the recording (and from the transcript) that both judge and counsel tried to use very simple language when speaking to the complainant and tried to avoid abstract or complex concepts. The complainant sometimes exhibited difficulty with fairly straightforward questions as well as a degree of concrete thinking. A few extracts from the transcript of the cross-examination will illustrate.
14. The following was said at the beginning of the cross-examination: [15] "Q. I'm the lawyer for Glen, do you understand that? A. INTERPRETER POOLEY: Okay. Q. You understand that you have to tell the truth here at Court today? A. INTERPRETER POOLEY: Yep, yep. Q. If I said I was wearing yellow clothes, is that true or is that a lie? A. INTERPRETER POOLEY: What do you mean?"
15. After the complainant answered some questions about her arrival at the home of her friend, and before she was asked anything about "what happened", the following exchange occurred: [16] "Q. You all sat around and talked for a while? A. INTERPRETER POOLEY: I don't know what you're talking about. Q. Maybe you can't remember what you talked about but you did sit around and talk together for a while? A. INTERPRETER POOLEY: I was, I was there for Louise, but not for Glen. Q. While you were there talking with Louise, you used your laptop computer to go onto Facebook? A. INTERPRETER POOLEY: No, I - not with the laptop. Q. Did you use something else to go onto Facebook? A. INTERPRETER POOLEY: No, I don't know what's going on, I wasn't talking about that, I'm talking about what happened."
16. An indication of her difficulty in understanding that she was being challenged about an asserted prior inconsistent statement is evident in the following: [17] "Q. Before lunch you said that Louise washed all the dye out of your hair? A. INTERPRETER BONSER: Yeah. Q. When you talked to the police last year, you said this: 'So I asked Louise to help me by washing it off for me, but she couldn't do it'. Could Louise wash all the dye out of your hair or not? A. INTERPRETER BONSER: Yes, she helped me. Q. Did she wash it all out of your hair? A. INTERPRETER BONSER: Yes. Q. Why did you tell the police 'I asked Louise to help me by washing it off for me, but she couldn't do it? A. INTERPRETER BONSER: Because I'm telling the truth."
17. A striking feature of the recording of the complainant's evidence is that the judge and both counsel spoke very slowly. This was necessary to some degree to enable the Auslan interpreters to carry out their task. But the rate and tone of speech of both judge and counsel was similar to what might be expected if they were talking to a child witness. This clearly conveyed their appreciation that they were speaking with a witness with a degree of intellectual impairment.
18. Following the complainant's evidence the Crown called her friend and when her evidence concluded the judge adjourned the trial to the next day.
19. The following morning the Crown adduced brief evidence (6 pages of transcript in total) from two civilian witnesses and the police officer in charge of the investigation before closing the Crown case. There was no defence case. The closing addresses of counsel immediately followed.
20. During the course of his closing address, the Crown said the following: [18] "Firstly, I'd like to put some arguments to you about assessing witnesses. In some trials experts are called to give what's called 'counterintuitive evidence' and what that evidence is, is to explain, 'Well, you might think that a normal adult would ring the police straight away if they're raped. You might think a normal adult or, say, you might think a child, if they're indecently assaulted, will tell the police straight away.' So sometimes experts will [sic] evidence to say, 'Well, you might think that but, in fact, often these things don't happen and often people don't say things to police straight away.' And rather than having an expert, I would suggest to you your common experience will tell you that you should not expect normal adult responses from someone that you've seen and heard like [the complainant]. She explained why she didn't leave the place straight away. She said, 'Well, Louise asked me to stay. She was frustrated. She wanted me to stay.' You might assess [the complainant] as a sort of person a bit like a kid. I'll give you an example far away from this where a mum drops her child at day care and while the mum is there and they're dropping the kid at day care the child is screaming, 'Mum, mum, mum,' and the mum feels terrible, of course, when she leaves and goes to work, and then she feel so bad she rings up the day care centre ten minutes later and says, 'Well, how's the kid?' 'Oh, he's happy. There's no problem at all.' Because the responses of a child - and I suggest to you [the complainant], because of her disabilities, is a little bit like assessing a child witness. Their emotions can go from very sad to very happy very quickly and the responses that [the complainant] has had to this sexual assault in terms of how she reacted afterwards have to be assessed in the light of the person that she is and not as you'd expect a fully functioning adult to behave. What can I saw [sic] to you about [the complainant]? I'd say to you that her demeanour was someone who was doing her best to tell the truth." (Emphasis added)
21. Counsel for the applicant commenced his closing address only moments later. He did not take issue with the Crown Prosecutor having likened the complainant to a child witness, except to say that there was no evidence other than what the jury had seen and heard in the court room to suggest this. He acknowledged that the complainant had difficulty in understanding some concepts that an adult would not have difficulty understanding. Rather than disputing that the complainant presented as a person of reduced intellectual capacity, his main thesis was the suggestion that the jury should be wary about making much out of a witness's demeanour in assessing truthfulness and reliability. What he said included the following: [19] "My learned friend has spoken to you just now in terms of, 'Well, what might you make of [the complainant]?' and, in one sense, that's a difficult question because, obviously, she perhaps speaks a little differently from the way a lot of people would speak and we know something of some of the conditions that afflict her. She has cerebral palsy and she is deaf. But in terms of evidence about her level of cognitive functioning and what impact that may or may not have on her truthfulness or the likelihood of the way she'd behave in a certain situation or anything like that, there is no evidence. All you have is [the complainant]. There is no expert here. There's no one who can take the place of your own observations, your own understanding of people, your own experience of life when you come to consider [the complainant's] evidence. So, similarly, in terms of this suggestion that my learned friend has made that maybe you'd treat her as being a bit like a child, I suggest to you, you might want to be a little bit careful of doing that simply on the basis of what you've seen because there really isn't any evidence before you other than what we've all heard and seen in this courtroom to suggest that that's the way you should understand [the complainant]. Yes, she did seem to have difficulty understanding some concepts that probably most adults you'd think wouldn't have difficulty understanding. You'll recall at the start of her recorded interview with police there was some uncertainty expressed on her part about whether it was true or a lie that the wall in the police interview room was red, and that's a matter for you to take into account when you come to assess her as being someone who is not only telling the truth in her own mind but also someone who is reliable, because in order for you to accept a witness as someone whose evidence you can rely on, there really are two factors at play here. One of them is, is the witness being honest? The other is, is the witness reliable? Because we've all probably had experience over the years with someone, and it may be even ourselves honestly believing something but later, for whatever reason, it turns out that that honest belief was incorrect, and I'd ask you to bear that in mind when you come to consider the evidence of [the complainant]. Is her evidence not just honest but is it also reliable? I'd suggest to you that, looking at something like her demeanour, the way she presents, is really a pretty fraught way of assessing someone's trustworthiness as a witness, because we all present in different ways and [the complainant] presented in a different way from [the complainant's friend] who presents in a different way from me or any of you, and that might be just a function of the way they are. The fact that they talk in a certain way or they might have a flat affect or an unusual voice doesn't mean they are or are not telling the truth, and so I suggest to you that there really is very little, if anything, that you can use to satisfy yourself that [the complainant] is telling the truth simply because of the way she said what she said. The flipside of that, of course, is, if we are going to look at demeanour, arguably she seemed relatively unfussed in talking about what you might think would be, if it were true, a grossly traumatic experience of being sexually assaulted with a good friend within arm's length standing there doing and saying nothing for minutes on end. So demeanour perhaps, I'd suggest to you, is not as useful as what you might get from looking at the substance of what a person says when they're giving their evidence." (Emphasis added)
22. At the conclusion of addresses, the judge sought clarification as to matters he needed to deal with in his summing up. The first was whether a direction about recklessness as to consent should be given. At the end of the brief discussion of this topic the judge said: [20] "… the Crown mightn't be able to prove that he knew specifically that she wasn't consenting, he might have been making assumptions, et cetera, for them the question becomes whether, in all the circumstances, given her intellectual capacity, et cetera, he was reckless as to whether she was or wasn't." (Emphasis added)
23. Apart from a courteous acknowledgement ("Please your Honour"), counsel for the applicant said nothing about the allusion to the complainant's "intellectual capacity".
24. At an early stage of the summing up, the judge was dealing with the jury's task in making an assessment of witness testimony. He said the following in that context: [21] "So be a little bit careful in terms of how you judge a person's ability to recall. Some of that is impacted by our cognitive functioning. Without trying to be smug about it or nasty about it, the reality is that there is quite a range of intellectual functioning within people in our community, from those who - I am going to be harsh - are slow or not the sharpest tool in the shed to those who are really bright. Most of us are somewhere in between those extremes. Take someone with an intellectual disability, it impacts on their understanding. It impacts on their ability to recall things. It impacts on perceptions." (Emphasis added)
25. He continued on the subject of the jury's assessment of witnesses, and then a little later said: [22] "So when you come to assess [the complainant] you assess [the complainant] warts and all, as it were. Look at how she responded to the questions. Did she respond in a way that you think, given who she is, that that was consistent with her being honest or not? It is not for me to tell you what the answer to that is but for me to point out to you that that is what you need to do. Mr Crown says she was telling you the truth. Mr Neild says you would reject her. So when you come to consider those competing submissions you look at the factors that I have indicated. You should also remember that it is not necessarily easy for a person, in this case an intellectually disabled woman and physically disabled too, to talk about personal sexual things. Obviously, she does not have the same language skills and the same ability to articulate herself as others might have, and witnesses do have a different level of ability to deal with questions that are ambiguous or to deal with double barrelled questions or questions that are framed in the double negatives. Witnesses can be confused. They can be thinking that is what he is asking along a particular train track and the questioner is on the other line. The two are not meeting. They are thinking different things. One is thinking he is asking X and the other is thinking he or she is answering to Y. So they are factors to look at. People have different thought processes and they have different logic. For instance, I think, as Mr Crown said to you, children are not little adults; children are children. They have different emotions. They can flip from really happy to really unhappy with a snap of the fingers just about. They have a different logic. They have a different understanding. And it may well be that for an intellectually disabled person they are somewhere between perhaps a full matured person who is very insightful and someone who is not. The reality in our community is that people have different abilities to understand what is going on. I can tell you, in relation to my two daughters, one will walk into the room and understand the undertones of everybody in that room and the other one walks in and just sees friends that she wants to talk to. We are all different and that is why you have to judge the individual rather than some generic witness image. So remember that all these comments that I have made to you are said in order to encourage you to apply those ideas to your assessment. They are not said to convince you to accept a witness or to reject any particular witness and I am not trying to suggest whether you would accept [the complainant] or not accept [the complainant], whether you would accept [the complainant's friend] or not accept [the complainant's friend]. I am not trying to suggest what your verdicts should be. But all of the things that I have said are relevant to your assessment of [the complainant's friend] and they are relevant to your assessment of [the complainant] because, at the end of the day, they are the two witnesses really who are the main witnesses to be considered. There is nothing, really, in the officer's evidence I do not think that was an issue but there are still the other two witnesses and I will deal with those when I deal with what I call "complaint". So, remember, witnesses are not lawyers. [The complainant's friend] also clearly was a little slow, and I do not say this in a nasty, critical way. So all of the considerations that I have mentioned apply equally. The allowances that I have said you should make apply to her as well, making those allowances for her when you assess what she has had to say." (Emphasis added)
26. A little later, his Honour came to deal with evidence of complaint and criticism by the defence of the fact that there was no immediate complaint on the evening the offences were alleged to have occurred. In this context, his Honour said: [23] "There may be good reasons why a victim of sexual assault, perhaps more particularly a victim of sexual assault who is an intellectually disabled person, may hesitate in making or may refrain from making a complaint about such an assault." (Emphasis added)
27. The judge sent the jury out for a break and a discussion with counsel ensued. Counsel for the applicant raised with his Honour that he had referred to the complainant having an "intellectual disability". He said: [24] "NEILD: … [J]ust while there's a break in play, your Honour on a number of occasions referred to [the complainant] having an intellectual disability. There is no evidence as such that she does have an intellectual disability. HIS HONOUR: Yes there is. We all saw her."
28. In the course of the discussion that followed, his Honour said that he thought with the complainant, the complainant's friend, as well as one of the complaint witnesses, that "it was pretty clear that there were issues". The Crown Prosecutor interjected his agreement. The discussion continued: [25] "NEILD: I guess, from my point of view, your Honour, it's just where there's no real clarity in terms of what those issues are and how they might sound in someone's evidence, I just have some concern about it being put as a positive proposition and then certain things may flow from that. Certainly the jury may come to conclude that there is some delay but it's-- HIS HONOUR: Was this ever an issue? I mean, I had understood that it was not an issue. CROWN PROSECUTOR: I would have called the doctor. We have a statement from a doctor. NEILD: There's a doctor that opined that she is not intellectually disabled for the purposes of the Crime Act, so I suppose I have some-- HIS HONOUR: That's not mentally disabled. That's whether she's fit or unfit. It's a different question altogether. NEILD: Yes, but equally certain things are said in that report and I must admit, in fairness to my learned friend, I don't necessarily take him to be putting his case on the basis that you would necessarily - no, I withdraw that because there was-- HIS HONOUR: He opened on it. NEILD: --talk of counterintuitive evidence and so on of which obviously there is none in this case. I suppose my fear is that they're being invited to speculate somewhat in a sort of pseudo medical way about what may or may not be expected in a counterintuitive way of someone who has an intellectual disability. HIS HONOUR: If a witness is there and it becomes obvious to everybody that the witness is not the sharpest tool in the shed, is there any difference between saying to the jury, 'Well, you saw him. He didn't appear to be the sharpest tool in the shed and that's a factor you need to take into account in terms of assessing' - you can't assess [the complainant] in the same way as you might assess Ms [Le]. [26] I mean, their intellectual functioning is miles apart. So when you come to assess the witness you have to assess 'the' witness and it's pretty clear that she had some cognitive issues, but I'll say to the jury it's a matter for them to draw that inference from her presentation, but, to be fair I didn't think - and Mr Crown, in fact, opened on it and the whole thing seemed to be running on the basis that, I thought anyway, [the complainant, her friend, and another witness] didn't fall within the normal cognitive range. NEILD: All I can say, your Honour, is that it's an open question for the jury to work out exactly what the state of-- HIS HONOUR: I'll tell them it is a matter for them, that no one came along to give any evidence about it and I'll tell them that they can take what I said as my expressed opinion and that I'm entitled to express an opinion but they should reject it unless they have independently arrived at the same opinion. So they will need to assess for themselves whether they gleaned that any of these three witnesses had some cognitive impairment. NEILD: Please your Honour, and - " (Emphasis added)
29. A discussion about delay in complaint followed. Counsel for the applicant took issue with whether he had criticised the complainant for not complaining until when she did; his criticism was more directed to her remaining at the house after the sexual assault had supposedly occurred there. The judge concluded the discussion with his view about how obvious it was to him that the complainant had a cognitive impairment: [27] "HIS HONOUR: You submitted to the jury essentially that that was odd and I think the cognitive impairment is very relevant to that. Whether they agree that that's, in fact, what the situation is - I'm sorry, but I sat here and I have seen in the last 30 or 40 years a lot of people give evidence and there is no doubt whatsoever that there was cognitive impairment in relation to [the complainant, her friend and a complaint witness]. I'm reasonably familiar with that, having had a cognitively impaired sister. So I understand those issues and from the word go it's never been in issue here. It's always been the underlying fact of this case, so far as I can glean, that these three people are not your average members of the community, and when the jury come to assess them they can't assess such individuals against the background of them being normal people within the community or people functioning within a normal cognitive - which includes, more significantly, interpersonal skills that include having some ability to have some insight and understanding of situations than what the average person might do. Just like you can't assess a child against the background of what an adult might do, you can't assess someone who is different against the standard of someone who isn't different. And there is criticism about her both in delay - that's a criticism about delay in complaint and it's a criticism of the actual complaint as well, but when I come to your case I'll put all of that. NEILD: Please your Honour." (Emphasis added)
30. Immediately upon the jury's return to the court room the judge directed them as follows: [28] "HIS HONOUR: Ladies and gentlemen, it has been pointed out to me that I have said that a number of the witnesses, including [the complainant, her friend, and a complaint witness], may have been intellectually disabled or cognitively impaired. It is the situation that no one has attended as a witness to say exactly what is the situation so far as any of those three witnesses are concerned and, in that sense, it is my expression of a view or an opinion that they appear to be cognitively impaired in the sense that they do not appear to be within the normal parameters of functioning, if you like, and, because that is expressed as a view, you should reject that view unless you have independently arrived at the same conclusion. You will remember what I said to you about that earlier, but it is clear from the original interview and the questions in relation to whether she understood truth and lies and it is clear from some of the other questions and answers that she struggled at times to understand concepts. When you look at the evidence of [the complainant's friend and one of the complaint witnesses], again this is a view expressed, you would need to assess them as it seems that they, in my expressed opinion, do not necessarily fall within the normal grouping either. The reason for mentioning all of that is not to produce sympathy for any of them or to be judging any of them but, rather, it is all part and parcel of, when you are looking at assessing witness A, you do not do so against a background of what you might expect from someone who is in a different category. So if you take it to children, you do not assess a child against the background of your expectations of what an adult would do. That is really the only relevance of those factors. It is a case of each of these witnesses needing to be assessed for who they are and what they have said rather than being assessed, for instance, against a background of - an example might be if a medical practitioner came in here you might be assessing the medical practitioner's evidence against the background of an intelligent person, making the assumption that if he is a medical practitioner he is an intelligent person, and you would not be assessing him against the background of him not being the sharpest tool in the shed. So it works the other way as well. You have to assess each witness. So it is a matter for you as to what assessment you reach in relation to those three witnesses. The other area I will just briefly go back to is this question of complaint. [The complainant] was criticised, cross-examined about not leaving the house, staying there overnight and, again, the assessment of that criticism needs to be made against the background of your assessment of [the complainant], of who she is and how she functions, and inherent in that is that she did not complain immediately to anybody. She stayed there. And that will be a matter for you to assess in terms of whether or not it is part of or raises, of itself, a reasonable doubt about her evidence, as Mr Neild has suggested to you. But, as I have already given you a direction, there may be many reasons why a complainant in cases such as this delays the complaint and it is not necessarily an indication that the allegation is false." (Emphasis added)
31. Counsel for the applicant did not seek any further direction or redirection.

Ground 1 - improper invitation by the Crown Prosecutor for the jury to treat the evidence of the complainant differently to an adult witness because of her "disabilities" where there was no evidence of her having intellectual disabilities

Ground 2 - the judge erred in fact (a) in finding that the complainant and two other witnesses had some form of cognitive impairment when there was no evidence and (b) in directing the jury it could form conclusions about those witnesses' intellectual capacity without expert evidence on the subject

1. The two grounds upon which the applicant seeks leave to appeal against conviction are concerned with different aspects of the same issue and so can be conveniently dealt with together.
2. In relation to Ground 1, the written submissions for the applicant referred to the features of the Crown Prosecutor's closing address to the jury that have been highlighted in the extracts quoted above (at [43]). It was submitted that these extracts invited the jury to be less critical of the complainant's evidence because of an intellectual impairment about which there was no evidence. It was submitted that there was no known authority permitting use of a witness' demeanour to assess intellectual capacity. This was said to be particularly so in the present case because the manner in which the complainant gave evidence was also impacted by her being deaf, causing a speech impediment. [29]
3. In relation to Ground 2, the written submissions for the applicant contended that the judge should not have formed an opinion about the witnesses' intellectual functioning and their capacity to give evidence based on his own observations and experience in the absence of evidence. The effect of the judge's directions was to "lower the bar in terms of how critical the jury needed to be when assessing the complainant's evidence" and provided a basis to dismiss any inconsistency on the basis that she could not be expected to be precise with her recollections or explanations. [30]
4. It was submitted that his Honour's "observations and conclusions, and his invitation to the jury regarding what conclusions they could draw from observing the complainant and the witnesses" went beyond what could be discerned from demeanour. It was not a matter of common knowledge under s 144 of the Evidence Act 1995 (NSW). The witnesses' intellectual functioning was a matter for expert evidence. [31]
5. It was submitted that the judge did not cure the problem in his redirection. This only served to invite the jury to reach their own baseless conclusions, albeit influenced by the judge's expressed opinions. [32]
6. It was noted that after defence counsel raised his concerns, the Crown Prosecutor stated that if the matter was in issue he "would have called the doctor". It was submitted that Dr Schuetz's opinion was contrary to that of Mr Nolan. [33] (This submission ignores the fact that Mr Nolan was not simply assessing "intellectual disability"; he was assessing whether there was such a disability "that results in the person requiring supervision or social habilitation in connection with daily life activities". [34] His testing indicated that the complainant was "in the below average range of intellectual capacity".)
7. Finally, it was submitted that r 4 of the Criminal Appeal Rules should not stand in the way of the applicant relying upon Grounds 1 and 2 because they concerned a critical aspect of the Crown case, and the omission to object or seek direction, or a discharge of the jury, was not done for tactical reasons. [35]
8. In oral submissions, counsel for the applicant (who was not counsel who prepared the written submissions) raised a number of matters which were more matters of speculation or surmise than matters that arose from the evidence and the record of the trial. For example, that there may have been a good reason for trial counsel not to object to the complainant giving evidence-in-chief by way of her pre-recorded police interview, other than by conceding an entitlement arising under the provisions of Ch 6, Pt 5, Div 3 of the Criminal Procedure Act. [36] I do not, with respect, propose to deal with such matters.
9. Counsel generally maintained the theme set out in the written submissions; that the Crown Prosecutor and the trial judge were in error in speaking to the jury about the complainant having an intellectual disability in the absence of expert evidence to that effect, and that this caused the trial to miscarry. The miscarriage was asserted to arise from the encouragement of the jury to be less critical about the complainant's evidence in its own right, her account of the alleged offending being inherently incredible, and because of asserted inconsistencies between her evidence and that of other witnesses. [37]

Consideration

1. The entire trial was run on the acceptance by both parties that the complainant was less intellectually skilled than many adult members of the community. That the applicant accepted that this was so from the outset is evident from the narrative I have set out above, commencing with his pre-trial disclosure of what was (and what was not) in issue. The complainant was given all of the protections afforded to vulnerable witnesses and the applicant did not demur. His counsel cross-examined with sensitivity to her vulnerability.
2. The applicant's counsel raised no complaint about anything said by the Crown Prosecutor about the complainant's intellectual capacity. He simply sought to meet his opponent's argument by suggesting to the jury that they might take a more cautious approach in the assessment of her evidence, because they did not have any expert evidence and had only their own observations of her.
3. The applicant did raise an issue concerning the references in the judge's summing up to the jury to the complainant being intellectually disabled when there was no evidence on the subject. The fact that up until that point the judge had understood there was no issue about it is evident from his, and the prosecutor's, seemingly astonished responses (see above at [50]-[51]). But counsel must have been content with the judge's response by directing the jury to the effect that it was a matter for them what they thought of the complainant's intellectual capacity. No further direction was requested. No application to discharge the jury was made.
4. It is true that there was no expert evidence as to the complainant's intellectual capacity. There was no evidence that she was "intellectually disabled" in the technical medical sense. In the absence of any evidence as to the medical definition of that term (as to which see above at [10]-[11]), the complaint about its use loses much of its force. The jury would not have reasoned that because the complainant was referred to as being "intellectually disabled", she met each of the criteria for such a diagnosis. The jury would undoubtedly have reasoned that she had an intellectual capacity that was less than typical and assessed her evidence in that context. How that impacted upon their assessment was a matter that was debated by opposing counsel in their closing addresses. That was a quintessential jury issue. The judge directed the jury in fairly standard terms that as representatives of a cross-section of the community, they should use their worldly experience, their individual qualities of reasoning, and their understanding of people and human affairs. [38]
5. Rule 4 of the Criminal Appeal Rules provides: 4 Exclusion of certain matters as grounds for appeal etc No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.
6. In Lyndon v R [2014] NSWCCA 112, one of the grounds of appeal was critical of certain content in the Crown Prosecutor's closing address to the jury. Basten JA noted that defence counsel took no objection and did not seek either a discharge of the jury or directions from the judge to ameliorate the supposed prejudicial effect. He then referred to a general principle which is independent of r 4 (at [28]): "Generally, an accused should not sit by and note errors occurring in the conduct of a trial for use in a subsequent appeal. On the contrary, if a potential flaw is foreseen, steps should be taken to avoid that occurring, or to ameliorate its effect once it has occurred."
7. His Honour then referred to the appellant's contention that r 4 did not operate, inter alia, because it does not in terms deal with a discharge of the jury. He said (at [29]): "The principle identified above imposes on both parties, as well as the court, obligations with respect to the running of a trial before a jury. If the circumstances appear to call for the jury to be discharged, such an order should be sought and its appropriateness debated by those at the trial."
8. The judgment of Bathurst CJ in ARS v R [2011] NSWCCA 266 (James and Johnson JJ agreeing) is often cited in relation to r 4. At [148], his Honour referred to a number of propositions in relation to the rule: "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]."
9. Counsel for the applicant at the trial deposed that he had been asked why he did not seek a further re-direction or a discharge of the jury. His response was, "I do not really recall what my thinking was at the time". [39] It seems to me that counsel's "thinking" is readily apparent from what he said, and did not say, to the judge during the exchange in the middle of the summing up. Counsel also deposed that he believed his failure to do so was not for any tactical reason. This evidence is of no assistance to the applicant.
10. It is apparent from the record of the trial that there are very good reasons for concluding that the applicant's counsel at trial perceived no injustice arising from the content of the Crown Prosecutor's address to the jury or from the manner in which the trial judge directed the jury. Those reasons include the fact that there were various references both before and during the trial to the complainant having an intellectual disability and counsel raised no issue about it until mid-way through the judge's summing up. Even then, counsel accepted that "there is some delay" and was more concerned with how the jury were to assess her evidence in the absence of evidence, presumably from an expert, that the label "intellectual disability" applied to her. Moreover, the very fact that there was no dispute that the complainant could give evidence by the alternative means provided for in Ch 6, Pt 5, Divs 3 and 4 of the Criminal Procedure Act is indicative of there being an acceptance that she was a "vulnerable witness" because of her "intellectual disability".
11. This Court was provided with the opportunity to view the recording of the complainant's evidence. Having taken advantage of that opportunity, I more readily appreciate why no objection or request for redirection or discharge of the jury was made.
12. Both of the proposed grounds of appeal require leave under r 4 and, if leave be granted, they involve questions of fact requiring leave under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). Leave should not be granted under either basis.

Ground 3 - Error in taking into account that complainant was cognitively impaired and vulnerable person

Ground 4 - Denial of procedural fairness by taking into account without notice that the complainant was cognitively impaired

1. It is convenient to deal with these grounds together in that they are concerned with the same subject matter.
2. The sentencing judge expressed his determination of the objective seriousness of the offences as follows: "In terms of the criminality here, I accept the submission of Mr Neild that the criminality is less than the mid-range. It is not in the low range or the lowest range but it is less than the mid-range. It is the one incident, short duration. There was no physical violence, on the other hand she is cognitively impaired and in that sense a vulnerable person. She was in their home and although it was not her home there was a certain breach of trust, in my view, she was a visitor who was then taken advantage of." (Emphasis added)
3. In written submissions, the applicant contended that the reference to "cognitive impairment" was not based in evidence and contradicted the conclusions of the psychologist, Mr Nolan.
4. Trial counsel for the applicant provided the judge with a copy of the Crown Case Statement with some handwritten amendments, presumably to indicate the facts he asserted should be found on sentence. They included striking through the words indicating that the complainant had "intellectual disabilities". [40] It was submitted that despite this, the judge made "no comment during the sentencing submissions to the effect that he was considering making such a finding, denying the applicant procedural fairness". [41]
5. The written submissions to this Court confirmed that the applicant did not take issue with any other aspect of the sentencing.

Consideration

1. Ground 3 has no merit. The written submissions for the applicant in the court below had included that the judge should find that the objective seriousness of the offences fell "between low and mid-range". As the passage from the sentencing remarks extracted above indicates, that is precisely the finding that the judge made. The fact that in arriving at the conclusion for which the applicant contended, he took into account something that the applicant now disputes is really of no moment. In any event, for the reasons discussed in relation to the conviction grounds, it was well open to the judge to describe the complainant as having an intellectual disability.
2. In relation to the procedural fairness ground, the reference by the applicant to something not being indicated during the "sentencing submissions" is a little misleading. Written submissions were provided by both parties, but there were next to no oral submissions.
3. The hearing commenced with discussion and clarification of what material was being relied upon and the formal marking of exhibits. There was no oral evidence. The complainant read her victim impact statement. Nothing was said about that in the hearing (or in the judgment). The transcript records that the judge immediately turned to a discussion with counsel about the length of the sentence: "It's a question of how long. Are we very far apart, gentlemen?" [42] The judge indicated he was thinking of individual sentences of 4 years with a non-parole period of 2½ years for "the digital" and 6 years for count 2, "so it's an effective 7 years with a non-parole period of 4 years 6 months". [43]
4. The Crown Prosecutor indicated his assent to such a sentence. The judge and the applicant's counsel then said: [44] "NEILD: I would urge upon your Honour of something less than that in terms of the non-parole period, bearing in mind-- HIS HONOUR: Change the ratio more, you mean? NEILD: Yes, yes. Not so much the head sentence, just the non-parole period, given - obviously that does-- HIS HONOUR: He does have some issues. NEILD: Yes. HIS HONOUR: There's no doubt about that. NEILD: Yes. HIS HONOUR: At the moment it's four and a half and two and a half, is what I'm thinking, but four and three-- NEILD: Yes, I'm not sure I could be heard against that, your Honour."
5. Counsel's express agreement with the sentence the judge proposed, and in fact imposed, denies this application for leave to appeal any merit.

Orders

1. I propose the following orders: 1. Leave to appeal against conviction refused. 2. Leave to appeal against sentence refused.
2. WRIGHT J: I agree with R A Hulme J.

Endnotes

1. Tcpt, 18 September 2017, pp 24-25.
2. Tcpt, 17 April 2019, p 9(15).
3. DSM-5 at 33.
4. Ibid at 37.
5. Report, John Nolan, 21 August 2017, 5.
6. Affidavit, Bill Michael Neild, 11 October 2018 at par 7.
7. Tcpt, 18 September 2017, p 1(40).
8. Criminal Procedure Act, s 306M(1).
9. Criminal Procedure Act, s 306M(2).
10. Tcpt, 18 September 2017, p 5 (41).
11. Tcpt, 18 September 2017, p 16.
12. Tcpt, 18 September 2017, p 19-20.
13. Tcpt, 18 September 2017, p 20(17)-(20).
14. Tcpt, 17 April 2019, p 5(20).
15. Tcpt, 18 September 2017, pp 4-5.
16. Tcpt, 18 September 2017, p 5(40).
17. Tcpt, 18 September 2017, p 10(10).
18. Tcpt, 19 September 2017, pp 10-11.
19. Tcpt, 19 September 2017, p 10-11.
20. Tcpt, 19 September 2017, p 17(39)-(42).
21. Tcpt, 19 September 2017, p 7 (summing up transcript).
22. Tcpt, 19 September 2017, p 10-12 (summing up transcript).
23. Tcpt, 19 September 2017, p 16 (summing up transcript).
24. Tcpt, 19 September 2017, p 21 (summing up transcript).
25. Tcpt, 19 September 2017, p 22-23 (summing up transcript).
26. Ms Le was the solicitor instructing the applicant's counsel.
27. Tcpt, 19 September 2017, p 24-26 (summing up transcript).
28. Tcpt, 19 September 2017, p 24-46 (summing up transcript).
29. Applicant's written submissions (AWS) at pars 50-51.
30. AWS at pars 55-56.
31. AWS at pars 57-58.
32. AWS at pars 60.
33. AWS at pars 60.
34. Section 61H(1A) of the Crimes Act as in force as at 3-4 April 2016.
35. AWS at par 64.
36. Tcpt, 17 April 2019, p 12(10).
37. Tcpt, 17 April 2019, p 21-22.
38. Tcpt, 19 September 2017, p 3(9) (summing up transcript).
39. Affidavit, Bill Michael Neild, 11 October 2018 at par 10.
40. Ex 2, par 1.
41. AWS at par 75.
42. Tcpt, 2 March 2018, p 3(29).
43. Tcpt, 2 March 2018, p 3(50)-4(1).
44. Tcpt, 2 March 2018, p 4(6)-(7). 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: 17 June 2019