He was also asked whether he had seen one and replied "No".
30 As explained by the prosecutor to the jury there were two separate occasions on which he was asked whether there was a vibrator and on the first he said, "I wouldn't know": Tcpt, 31/07/06, p 128. The prosecutor then referred to the finding of the flesh-coloured vibrator with the appellant's DNA on it and to Ms Conroy's evidence as to where the two items might be located and that, according to her, they were both in the basket. The prosecutor continued:
"So the accused's denied any knowledge of it and yet his DNA is found on it. Now that's something that also corroborates what [the complainant] has told us. So he did have it. He did get it out of there and he placed it in that bag with the black wool … He was asked, 'Is there a vibrator here?' 'Not that I know of. Jo might have one but I'm not looking for it.'"
31 In discussing the evidence of Ms Neville, the forensic biologist, his Honour said to the jury (Tcpt, 01/08/06, p 32):
"The flesh-coloured dildo was examined and found to have the DNA profile of at least two people. The DNA profiles were that of the accused, said to be the major contributor, and that of the owner Miss Conroy, said to be the minor contributor. The accused said that he did not know anything about a dildo, a vibrator, being in the premises. Yet his DNA profile was found on the flesh-coloured dildo. The learned Crown Prosecutor said that you would bear that in mind when you consider the accused's denials when interviewed by police."
32 Both the comment by the prosecutor in his address and the extract from the summing-up were capable of confusing and misleading. It is possible that the denial of knowledge of a vibrator was a lie, but it was a statement made at a time when the police did not know there were two objects of a similar kind, and when the terms "dildo" and "vibrator" had not attained the points of reference which appear to have arisen during the trial, namely that there was a "flesh-coloured dildo" and a "blue vibrator".
33 Further, there was some difficulty in the suggestion by the prosecutor that the finding of DNA on the flesh-coloured dildo corroborated the complainant, it being no part of the prosecution case that that item had been used in the course of criminal activity. At the very least, there would have been merit in a clarification of the reasoning process, addressing the manner in which a false denial could properly be used. In the circumstances in which it occurred, it did not necessarily or directly demonstrate a guilty mind as to matters which had been the subject of complaint: see discussion in Edwards v The Queen [1993] HCA 63; 178 CLR 193. His Honour's statement, in effect affirming the logic of the prosecutor's submission, did nothing to ameliorate the risk of confusion.
34 Despite the potential for confusion, the direction discussed above does not demonstrate a real basis for finding a miscarriage of justice. That the complainant accurately described a specific vibrator, which was in the room, was far more powerful evidence in favour of the accuracy of her complaint than a denial by the appellant of the existence of a vibrator when there were two, one of which (though not that used in the offence) was clearly linked with the appellant and was lying on a bag on the floor beside the bed. To undermine the complaint in this respect, it was necessary to raise the possibility that the complainant had means of knowledge of the existence and appearance of the vibrator, independently of any alleged offence committed on her with it: see [54] below.
35 In respect of this ground, there is an additional problem in that it was not clearly the subject of any objection and hence required leave in order to be pursued. Matters which are not necessarily inaccurate, but merely confusing fall squarely within the area calling for strategic judgment on the part of trial counsel. It was a situation in which closer attention (by way of a further direction) to the way in which the denial could have been used against the appellant, combined with an assessment of the limited damage done by the confusing statements, may not have been thought to be in the appellant's interests.
(c) Absence of DNA analysis with respect to blue vibrator
36 Immediately following the passage in the summing-up discussed above, the trial judge addressed the analysis of DNA found on the blue vibrator. He summarised the evidence in the following manner (Tcpt, 01/08/06, p 33):
"Ms Neville found that the DNA recovered from the blue vibrator had at least three DNA profiles and neither Miss Conroy, the complainant or the accused could be excluded as having contributed to the DNA on the blue dildo. That does not mean that they necessarily contributed to the DNA, only that they could not be excluded from contributing to the DNA. In other words the markers in the DNA profile of Miss Conroy, the complainant and the accused matched in some respects with the DNA found on the blue vibrator and could not be excluded as not matching. So it does not mean necessarily that the complainant's DNA is on the blue dildo, only that it is possible that the complainant's DNA is on the blue dildo."
37 Very shortly thereafter, the jury was apparently asked to leave at the request of the prosecutor. The trial judge asked for the cause of concern and was told:
"CROWN PROSECUTOR: It's the evidence … regarding the blue vibrator. Your Honour said that he was one of the major contributors that could not be excluded, that's not the evidence. It was never led.
HIS HONOUR: One moment, I didn't say that - in relation to the blue vibrator I said there are at least three people and neither Joanne Conroy or the complainant of the exclude …
CROWN PROSECUTOR: That's not the evidence, this is in relation to the blue vibrator.
HIS HONOUR: Yes the blue vibrator.
CROWN PROSECUTOR: What the evidence was that there was a mixture of contributors and that because of that mixture it was too difficult to interpret. Nothing further was said in relation to the accused being …
HIS HONOUR: I thought Ms Neville said that neither could be excluded.
CROWN PROSECUTOR: No. I led that from her in those terms as I have said. …"
38 Later, Mr Walsh for the accused stated (Tcpt, p 36):
"Your Honour, in relation to the DNA your Honour has, as the learned Crown Prosecutor put it, has got it completely wrong, absolutely wrong. There is a report in the file, the Registry file, dated 21 April 2006 which is along the lines of what your Honour told the jury."
39 There was then a debate as to whether it was possible effectively to correct the error, counsel for the appellant saying that it was not. His Honour did provide a correction in the following terms (Tcpt, p 38):
"In relation to the evidence of Miss Neville, I referred to the fact that she said that DNA was recovered from the blue-coloured dildo or vibrator from at least three people and I said that her evidence was that the DNA of Miss Conroy, the complainant and the accused could not be excluded from being on that object. Her evidence was, I am reminded, that, because of the complexity of the DNA recovered from the blue coloured dildo, no one could be identified as having the DNA profile. So I withdraw what I said about Ms Neville's evidence in relation to the DNA recovered from the blue-coloured dildo."
40 This error on the part of the trial judge is troubling. Factual errors are capable of correction, usually without undue prejudice, because they result from mistakes. Mistakes with respect to matters central to the prosecution or defence case differ from those with respect to matters which are peripheral (albeit prejudicial) as in the first mistake referred to above, relating to drug dealing. With the present error, the language used by the trial judge departed to such a degree from that employed by the witness, in response to a precisely formulated leading question from the prosecutor, that it invited speculation as to how the error could have arisen. Counsel, it appears, had no doubt that it had arisen from his Honour having reference to a second report, which was not in evidence. Indeed, an exchange with the Bench tended to confirm that reasoning: Tcpt, p 36. The appellant's contention now is that there must be a real risk that the jury inferred that there was other evidence which, for reasons which had not been revealed to them, was not available to them. Such speculation was available because they were not given any reason for such a significant misstatement of the evidence.
41 In written submissions, the Director noted (pars 56-57):
"These corrections would have been clear to the jury having just heard the summing-up and the errors his Honour had made. His correction was clear and the jury could have been left in no doubt as to what the evidence was and how it could be used. …
Once the learned trial judge had corrected himself, there was no need for any further direction."
42 This response does not fully answer the gravamen of the complaint. It might have been helpful if there had been further discussion of the difficulty in the course of the trial, but it appears that because of the trial judge's firm insistence, without reasoned discussion, that the matter could be corrected, together with the absence of any discussion as to the form of the correction, that the real difficulties were not identified. If, as the Director asserted on the appeal, in arguing that the error carried little risk of miscarriage, the evidence actually given by Ms Neville would have been fresh in the jury's minds during the summing-up, that fact would tend to accentuate the risk that the jury might have speculated as to the source of his Honour's error.
43 Again, it is desirable to reserve consideration of the effect of the error until the other complaints have been addressed.
Lack of balance in summing-up
44 The issue raised by the first ground of appeal in relation to the conviction concerns the requirement for a proper balance to be maintained in the course of the summing-up. That such an obligation exists, as an element of procedural fairness, is not in dispute. However, the nature of the requirement may vary significantly depending on the circumstances of the particular case. As explained in Stokes v The Queen [1960] HCA 95; 105 CLR 279 at 284, by Dixon CJ, Fullagar and Kitto JJ, the trial judge should not sum up in a manner such as '"to deprive the jury of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence."
45 Alternatively, as explained by Brennan J in B v The Queen [1992] HCA 68; 175 CLR 599 at 605-606, in language derived from earlier authorities, there may be "a danger of the jury being overawed by the judge's views, where, even though the jury are told that the decision on the facts is for them, the language of the judge is so forceful that they may be under the impression that there is really nothing for them to decide or that they would be fatuous or disrespectful if they disagreed with the judge's views".
46 The most obvious circumstances in which a summing-up may be unfair is where the trial judge deems it appropriate to comment in a deprecating fashion upon aspects of the defence case. Such conduct may be justifiable, but it risks a demonstration of partiality in relation to matters which are to be determined by the jury alone and not by the judge.
47 In other cases there may be a misrepresentation as to the substance of the defence. In Regina v Tomazos (unrep, NSWCCA, 6 August 1971) a conviction for malicious wounding was set aside where the appellant's defence, as explained by the trial judge to the jury, was one of self-defence, whereas he had denied involvement in the wounding.
48 The present case gives rise to neither a complaint that the judge usurped the jury's function, nor to a complaint that the defence case was misrepresented. Rather, the complaint is that it simply was not put, thereby allowing the jury to infer that the trial judge placed no weight upon it.
49 In substance, the defence case had four limbs. The first was that the account told by the complainant included inconsistencies and falsities which demonstrated that the jury could not rely upon her evidence to satisfy them beyond reasonable doubt of her complaints. The second limb was that, once the jury was satisfied that it should seek independent corroboration of her account, there was little by way of independent corroboration which was not capable of alternative explanation. Thirdly, because her account of events expanded upon each retelling, it became impossible to say what if any was the truth, and what was exaggeration or the product of imagination. Fourthly, emphasis was placed upon the absence of any evidence of semen or DNA material from the appellant on the complainant or her clothing and the absence of any of the complainant's DNA on the blue vibrator.
50 In the course of his Honour's general explanation to the jury of the criminal process, he sought to explain the elements of the charges and to distinguish them from other factual matters. The elements were to be proved by the prosecution beyond reasonable doubt, but there was no obligation "to, as it were, chase every rabbit down every burrow": p 16. His Honour gave three examples of factual matters in dispute, as to which a jury might not be able to determine the truth. The first was whether, as the complainant had alleged, the accused locked the door to the unit. Her evidence was that she saw the accused lock the door and hide the key: p 17. On the other hand, both the appellant, in his recorded interview, and the occupant of the premises, Ms Conroy, asserted that the door could not be locked from the inside. His Honour said:
"Does that mean that the complainant is lying? Or does it mean the complainant believed that the door was locked but is mistaken in her belief? That is a question that you might ponder long and hard and not answer or resolve."
51 In putting the matter in this way, and not otherwise addressing it, the trial judge failed to identify the significance of this issue for the defence case, as opposed to its irrelevance for the prosecution case. Of course, it was no element of the charge which the prosecution needed to prove, but for the defence, it may have been significant if the complainant could be shown to have either made up this aspect of her story, or imagined that something had happened which could not have happened.
52 Although giving evidence of being a virtual prisoner, held under lock and key, the complainant eventually conceded in cross-examination, inconsistently with the tenor of that evidence, that she had gone to the shops during the course of the afternoon and had visited two friends. Further, she accepted that the appellant had left her alone in the house for a period.
53 There was evidence said to be inconsistent with her allegations of traumatic sexual misconduct in that, when visiting friends with the appellant in the course of the afternoon she had apparently played happily with their dog. Further, before going home, she had accepted the appellant's offer to make custard for her and had eaten it. Shortly after 5pm, she had called her father by telephone without seeking help or expressing fear of the appellant.
54 The second dispute referred to by his Honour was closer to the core of the prosecution case. Thus, the complainant had given evidence that the blue vibrator in fact vibrated when it had batteries in it, whereas its owner, Ms Conroy, stated that it was broken and would not vibrate: Tcpt, 27/07/06, p 84. This was a not insignificant detail for the defence. The complainant had accepted in her evidence that she had been to Ms Conroy's premises before. Although she denied the suggestion that she had found the blue vibrator on an earlier occasion, the accuracy of the detailed description of the vibrator and the opportunity to have found it on another occasion could have given rise to some doubt in the minds of the jury in relation to an aspect of the case which would otherwise have been damning to the accused.
55 The third example of a rabbit which did not need to be chased down a burrow was the reason why the accused gave the complainant $10. He said that it was something of a fine payable because she had caught him swearing and that it came from what was known as "the swear jar". In his interview with police, the appellant said that he had proffered $5 and had capitulated to her demand for $10.
56 That example was more nearly neutral than the other examples. The real complaint was that the trial judge failed to explain to the jury the significance of the first two matters to the defence, as going to establish inaccuracies in the complainant's account.
57 There were two other matters of some significance in assessing the veracity of the complainant which were not addressed in the summing-up. The first was that, although the complainant alleged penetration of her vagina, the medical evidence did not support that complaint and indeed the erythema of the vulva, although consistent with attempted penetration, may also have resulted from a genital infection, for which the complainant had been treated both shortly before and shortly after the events of 20 August.
58 Secondly, the first action of the appellant of which she complained was that he "stuck his finger up my bottom": police interview, Q32 and answer. She later stated that "he kept pushing it up and down" and "[k]ept scratching my bottom and it hurt": Q95. She also said that it hurt because "his nail stuck into my bottom": Q88. The defence case noted that, despite this evidence, there was no medical evidence of laceration, tearing, abrasion or bleeding.
59 There is substance in these complaints and, in presenting the case to the jury, it would have been desirable if the trial judge had identified for the jury the potential weaknesses in the prosecution case relied on by the defence. This did not happen.
60 The Director contends that whatever the strength of these complaints, they were not raised with the trial judge and hence there was no opportunity for the trial judge to give further directions in a form requested by the accused.
61 As with the earlier complaint of lack of objection at the trial, this Court must be conscious of the possibility that no further directions were sought at the end of the summing-up for the strategic reason that counsel was content to rely upon the message conveyed by his own address, rather than risk the repetition of the strong points for the defence, possibly in more muted terms, from the trial judge.
62 On the other hand, as counsel for the appellant noted, when the two corrections had been sought by the prosecutor, counsel for the accused had immediately applied for the jury to be discharged: Tcpt, 01/08/06, p 35. He had stated:
"There are so many matters with respect that your Honour's said that can't be rectified and the flavour of what your Honour's said creates problems."
63 Counsel then complained that the jury had been told at the outset that there was a possibility of a majority verdict, of the error in relation to the DNA evidence and of the confusion said to have arisen as to the accused's denial during the search with respect to knowledge of the vibrator. What exactly counsel meant by his reference to "the flavour" of what had been said is not entirely clear.
64 No further redirection was sought at the end of the summing-up, although counsel asked his Honour to explain to the jury that in participating in an interview at the police station, he had deliberately elected not to exercise his right to silence and had told his story voluntarily. His Honour concluded (p 50):
"So, members of the jury, he was told about the rights that he had and he did not exercise them. It is not something to be taken in account in his favour. The Crown relies upon some of the answers that he gave when he was interviewed."
Miscarriage of justice
65 The correct approach to assessing the matters of concern raised above is not without difficulty. Section 6(1) of the Criminal Appeal Act provides that the Court shall allow the appeal if it falls into one of three categories: see Hargan v The King [1919] HCA 45; 27 CLR 13 at 23. The first is that the verdict is unreasonable or cannot be supported having regard to the evidence. That ground is not relied upon in the present case. Secondly, an appeal shall be allowed where there has been a wrong decision on any question of law. That category of error is not relied upon. Thirdly, an appeal shall be allowed if "on any other ground whatsoever" there was a miscarriage of justice. The present case must be considered by reference to the third category. As noted by Gleeson CJ in Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [7]:
"The concept of miscarriage of justice is as wide as the potential for error. Indeed, it is wider; for not all miscarriages involve error."
66 The potential scope of the ground was summarised by Brooking JA in R v Gallagher [1998] 2 VR 671 at 677-678:
"In R v Cutter [1944] 2 All ER 337 at 339 it was said that the words 'or that on any ground there was a miscarriage of justice' mean that there has been some irregularity and that it has resulted in a miscarriage of justice. … The dragnet ground covers, in appropriate circumstances, a very wide variety of irregularities, including discovery of fresh evidence, undue interruption by the judge, refusal of an adjournment, tampering with a juror and the disclosure to the jury of prejudicial material (otherwise than by the reception of inadmissible evidence, which is a wrong decision of a question of law). Very early in the application of the legislation it was accepted … that a mistake of the judge as to fact, or the judge's omission to refer to some point in favour of the prisoner, was not a wrong decision of a point of law but merely came within the dragnet ground, so that the question in such a case was whether there was a miscarriage of justice. …
Similarly, in McInnis v R (1979) 143 CLR 575, where the trial judge had refused to grant the accused an adjournment, the accused relied, as he had to do, on the third, dragnet, ground."
67 The obligation of the Court to allow the appeal when of the opinion that one of the conditions identified in s 6(1) is satisfied, is not absolute; it is subject to the proviso that the Court may dismiss the appeal if affirmatively satisfied that "no substantial miscarriage of justice has actually occurred". In Weiss v The Queen [2005] HCA 81; 224 CLR 300 at [36] the High Court noted that "[b]y hypothesis, when the proviso falls for consideration, the appellate court has decided that there was some irregularity at trial". However, where the verdict was neither unreasonable nor unsupportable and where there was no error of law in the course of the trial, there is some awkwardness in treating s 6(1) as involving a rigid two-stage process whereby the Court must determine that there has been "a miscarriage of justice", before considering whether the miscarriage was not substantial.
68 The problem was referred to by McHugh J in TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at [63] in the following terms:
"When miscarriage of justice is a ground of appeal, the burden of proof and the nature of the issues determined are different from those issues in a case where the proviso is being considered. Cases on the proviso operate on the hypothesis that there has been a legal error that prima facie requires the conviction to be set aside. The issue then becomes whether the Crown has shown that no substantial miscarriage of justice occurred because the error could not have affected the result of the trial. When the appellant seeks to make miscarriage of justice a ground of appeal, however, he or she has the burden of proving that there has been a miscarriage of justice. But does miscarriage of justice have the same meaning in the miscarriage of justice ground in s 6(1) as it does in the proviso? Is there a difference between a miscarriage of justice and a substantial miscarriage of justice? Does the proviso have any application to a case falling within the miscarriage of justice ground in s 6(1)?"
69 The problem of the inter-relationship between the proviso and the various bases upon which a conviction may be set aside exists with respect to each category, but appears to be most acute in respect of the third miscarriage of justice category. That is because there is a degree of artificiality in saying that there has been a miscarriage, in the sense of an irregularity which may have affected the verdict, but saying that it was not a substantial miscarriage. With respect to an error of law in the direction to the jury, it would be surprising if the section required the Court to allow the appeal on such a ground unless the error were material, because it might have affected the outcome; however, that would be sufficient to satisfy the proviso. As noted by McHugh J in the passage set out above from TKWJ, the burden will shift from the appellant, who must establish a ground of appeal, to the prosecution, which must establish that the proviso is engaged. However, to speak about a burden on one party or the other is unlikely to have practical consequences. What the appellant must prove is the error or irregularity; the assessment of that error or irregularity as material or as not giving rise to a substantial miscarriage, is an evaluative judgment about which the Court must reach a view, one way or the other. It is likely to be a relatively rare case in which the Court is unable to reach a view and the burden becomes decisive. As McHugh J stated in TKWJ at [72], "[i]f the appellant must show that the irregularity affected the result, there can be no onus on the prosecution to show that it did not": at p 72.
70 Where the complaint is based upon a lack of "balance" or fairness in the summing-up, it will often be necessary to evaluate the summing-up as a whole and in the context of the evidence and the addresses of counsel. No different exercise will be required in applying the proviso. Even though it may be possible to identify specific aspects of the defence case which were not adequately put to the jury by the trial judge, there is nevertheless an air of artificiality in adopting a two-stage analysis. Nor does the section appear to require it: it does not envisage that the obligation to allow the appeal must be engaged before the proviso is considered. Rather the power to dismiss the appeal, by applying the proviso, is said to arise if the Court is of opinion that "the point or points raised by the appeal might be decided in favour of the appellant". No doubt it is necessary for the Court to be satisfied that there are irregularities which might constitute a miscarriage of justice, and to assess the materiality of those irregularities. The Court is not required, however, to reach a firm conclusion that there has been a miscarriage of justice, before considering whether it is also satisfied that no substantial miscarriage has actually occurred.
71 As was explained in Hannes v Director of Public Prosecutions (Cth) (No. 2) [2006] NSWCCA 373; 60 ACSR 1; 165 A Crim R 151; 205 FLR 217 at [56], the phrase used in the provision can have two points of reference: first, it may refer to the fairness of the process of a criminal trial; secondly, it may be directed to the soundness of the verdict. The High Court explained in Weiss at [45]:
"What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind."
72 Although there were aspects of the trial judge's summing-up in the present case which revealed inadequacies or irregularities, they were not so material as to amount to a significant denial of procedural fairness. Accordingly, adopting the approach required by Weiss, it is necessary for this Court to decide whether a substantial miscarriage of justice has actually occurred: Weiss at [35] and [39]-[41]; Gassy v The Queen [2008] HCA 18; 82 ALJR 838 at [18] (Gummow and Hayne JJ); [60]-[61] (Kirby J).
73 In order to undertake that assessment, it is helpful to identify the manner in which the jury discriminated between the counts on which it convicted the appellant and those on which it acquitted him. First, the jury rejected those counts which involved genital penetration going beyond the vulva, but did accept count 4, dealing with penile penetration of the vulva itself. This discrimination suggests that the jury was not prepared to rely upon the complainant's evidence alone, unsupported by corroboration. The jury was not prepared to accept her complaint of vaginal penetration, which was not supported by medical testimony. On the other hand, it was prepared to accept her complaint of vulval penetration and did not accept the suggestion that the erythema of the vulva was, contrary to the primary position of the examining doctor, a result of infection rather than assault. Further, the jury was not persuaded beyond reasonable doubt of oral penetration or that the appellant took the complainant's hand and placed it on his penis. These were matters which had no element of corroboration; they only surfaced in the complainant's second police interview.
74 The elements of the story which the jury accepted were recounted by the complainant to her father on arriving home (a complaint of anal digital penetration) and to her next door neighbour, Ms Jones, immediately thereafter (both digital and penile anal penetration, together with reference to self-injection with drugs, watching a pornographic movie and ejaculating over the pillow).
75 There were two elements of her story which were objectively corroborated by material obtained on search of the premises. The first was the identification of semen on the appellant's pillow. That could, of course, have resulted from sexual activity having nothing to do with the complainant, but there was no plausible explanation as to why, in that event, the complainant would have known of it. This constituted persuasive objective evidence supportive of sexual activity involving the complainant.
76 Secondly, there was her description of the blue vibrator, which was indisputably accurate. If she had not seen it in the course of sexual activity on the afternoon in question, as she claimed, she must have seen it on a different occasion. While it was established that the complainant had been to Ms Conroy's premises on more than one occasion, the complainant had not slept in her bedroom and Ms Conroy was adamant that she did not leave the vibrator lying around the bedroom: Tcpt, 27/07/06, pp 87-88. In re-examination she was asked whether she had shown the complainant the vibrators and answered: "Absolutely not": Tcpt, p 88.
77 The possibility that the complainant had seen the blue vibrator on some other occasion rose no higher than speculation, and speculation which she denied. The blue vibrator was not clearly visible in the bedroom and was not found by police on the first search, although they asked the appellant about a vibrator on three occasions. His denial of knowledge of a vibrator was at least inconsistent with the possibility that the vibrator had been clearly visible and might have been seen by the complainant on the previous afternoon. In fact, the objective evidence was persuasive and supportive of the view that there had been sexual activity on the previous afternoon involving the complainant and involving a blue vibrator.
78 Further, the evidence given by Dr Mulcahy, of erythema around the anus, on examination of the complainant at Orange Base Hospital on the following morning, was described by him as "consistent with her history of digital penile and penetration by a vibrator": Tcpt, 26/07/06, p 55.
79 Finally, the fact that the appellant had pornographic videos portraying anal sex was supportive of the complainant's evidence that he had been watching a "crude video" during the course of the sexual activity which she had described.
80 Other aspects of the complainant's account were also in conformity with independently established facts. The complainant gave evidence that the accused had injected himself with "speed" in the course of the afternoon. Whilst he admitted that he was a drug user, as indicated by the syringes found by the police on the bedroom floor, he denied injecting in the presence of the complainant. Nevertheless, it was open to the jury to accept the evidence of drug use as providing some support for her description of that part of the events of the afternoon. The defence noted that there was no attempt by the police to identify a recent puncture mark on his left arm, as described by the complainant. On the other hand, there was no evidence to suggest that such an examination would have provided relevant evidence, given his own admission of addiction.
81 The evidence of digital penetration given by the complainant was unequivocal and consistent, from her first complaint to her father on the afternoon in question. The evidence of penetration with a vibrator was supported by the location of the vibrator which she had described. Penile penetration was also consistent with her story from her complaint to Ms Jones on the evening in question.
82 The objective evidence of vulval penetration did not distinguish between possible use of a vibrator and penis. However, there was no description of him using the vibrator in the complainant's first interview and the discrimination between the two counts appears to be explicable on that basis.
83 It may be seen from this analysis of the evidence that any failure to correct the prejudicial statement about drug dealing is unlikely to have had any significant bearing on the outcome of the case. Similarly, the possible confusion as to the use which might be made of the appellant's denial during the search of knowing of the presence of a vibrator was unlikely to have been critical in the circumstances, because the use of the vibrator was otherwise supported by the complainant's description and absence of alternative explanation as to how she could have described the vibrator accurately and in detail. For the same reason, any possible confusion in relation to the DNA analysis of material on the vibrator, was unlikely, as a practical matter, to have affected the jury's consideration of the counts. So far as the question of balance was concerned, the challenge related to matters of omission, rather than commission. This was not a case in which the trial judge sought to comment on the evidence or spoke deprecatingly or dismissively of the accused's case: cf Green v The Queen [1971] HCA 55; 126 CLR 28 at 34 (Barwick CJ, McTiernan and Owen JJ). The effect of the omissions was to a significant extent ameliorated by the recent and comprehensive address of counsel for the accused. That the summing-up, taken as a whole, did not demonstrate glaring imbalance may also be inferred from the failure of counsel to take any further objection when the opportunity arose.
84 Accordingly, while it was appropriate to grant leave to appeal to consider the various challenges raised by the appellant, I am affirmatively satisfied that no substantial miscarriage of justice actually occurred in the present case. The appeal against conviction should be dismissed.
Appeal against sentence
85 As noted above, the appellant was sentenced to a period of imprisonment of 8 years 6 months and an additional term of 4 years 10 months. The sentence term of 13 years 4 months was achieved by adding to the standard non-parole period of 10 years a further period of one-third of 10 years, in accordance with the statutory formula in s 44(2) of the Sentencing Procedure Act. The appellant's complaints are two-fold: first, it is contended that his Honour failed to consider relevant factors which might have led him not to apply the standard non-parole period and, secondly, that his Honour failed to give proper weight to the appellant's mental illness.
Application of standard non-parole period
86 Section 54B of the Sentencing Procedure Act relevantly provides :
" 54B Sentencing procedure
(1) This section applies when a court imposes a sentence of imprisonment for an offence set out in the Table to this Division.
(2) When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period."
87 The Sentencing Procedure Act further provides that "the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table": s 54A(2).
88 The obligation to set the standard non-parole in a particular case will operate unless the Court determines there are reasons for setting a different period. In order to identify proper reasons, it is necessary to understand what is conveyed by the concept of a "standard" non-parole period. The standard is said to "represent" the non-parole for an offence in the middle of the range of objective seriousness for offences which fall within the specific class to which the particular standard applies. That, in the present case, is the class of offences identified by reference to s 61J(1) of the Crimes Act. The term "represents" is a curious one in this context. Section 54A(2) does not say that the standard non-parole period is that which "should be" set for an offence in the middle of the range of objective seriousness. That the legislature eschewed such language may reflect the fact that a non-parole period is not determined solely by reference to an assessment of the objective seriousness of the offence; the exercise also takes into account subjective factors specific to the offender, but not relevant to the seriousness of the offence.
89 In R v Way [2004] NSWCCA 131; 60 NSWLR 168, in a passage relied upon by the appellant in the present case, this Court (Spigelman CJ, Wood CJ at CL and Simpson J) held that in relation to an offence for which a standard non-parole period was fixed, the sentencing judge was required to ask and answer the question "are there reasons for not imposing the standard non-parole period?": at [117]. The Court held that an answer to that question must commence with consideration of the objective seriousness of the offence, in order to conclude whether or not it "falls into the mid range of seriousness for an offence of the relevant kind": [118(i)]. In considering factors relevant to determining objective seriousness, the Court identified "the relevant circumstances which can be said 'objectively' to affect the 'seriousness' of the offence" as including matters personal to the offender, such as motivation, mental state, mental illness, intellectual disability and other factors going to moral culpability: at [86]. Such matters were to be distinguished from other factors personal to the offender, which did not have a "causal connection" with the commission of the offence.
90 Section 54A adopts a concept of "the range" of objective seriousness: whether that is the whole range or the range of seriousness with respect to those circumstances which require the imposition of a sentence of imprisonment is not clear, although the latter is probably the correct construction, because s 54B only applies when a court is imposing a sentence of imprisonment. The statutory language does not require the determination of a low range, a middle range and a high range of seriousness: it envisages a single range and an offence in the middle of the range. I do not understand the reference in Way to "the mid range of seriousness" to involve any departure from that statutory language. As a practical matter, it must be accepted that the middle of a range of seriousness is not a precise point, nor is there any paradigm by which it can be identified. This follows almost inevitably from the scope and variety of circumstances which can be relevant to considering seriousness.
91 Nor do I understand the Court's reference to "objective" facts and matters which may affect the judgment of seriousness as rejecting matters which have a subjective quality in relation to the particular individual. That must follow from the Court's acceptance that some such factors will be personal to the offender: at [86]. The language of the section rather invokes the concept of an objective assessment of the seriousness of the offence, which, while it may be affected by circumstances personal to the offender or the victim, is not to be judged from the perspective of either.
92 On the approach approved in Way, even if a particular offence does fall within the middle of the range of objective seriousness, it does not follow that the standard non-parole period will be set for that offence. If there are subjective factors relevant to the offender (but not the offence) which militate in favour of a shorter period, those will provide reasons for not imposing the standard non-parole period. Those factors must be aggravating or mitigating circumstances identified in s 21A, according to the terms of s 54B(3), but, as the Court noted in Way, s 21A(1) refers not merely to the specific factors identified in sub-s (2) and (3) but to any other objective or subjective factor that affects the relative seriousness of the offence. Accordingly, s 54B requires no departure from the application of s 44, including the determination of whether there are "special circumstances" for the purpose of considering whether to depart from the statutory proportion as between the non-parole period and the balance of the term, as defined by that section: see Way at [108]-[113].
93 There are puzzling aspects of the approach adopted in Division 1A with respect to standard non-parole periods. For example, was it intended by the Parliament that an assessment of the "objective seriousness of an offence" should take into account each of the conduct in question, other objective factors affecting culpability and the subjective features of the offender? There are two reasons for thinking that Parliament did so intend, although by somewhat inapt language. First, in s 21A, after requiring the court to take into account aggravating factors referred to in sub-s (2), and mitigating factors referred to in sub-s (3), the court is required to take into account "any other objective or subjective factor that affects the relative seriousness of the offence": s 21A(1)(c). Specified mitigating factors include many factors concerning the offender which would generally be considered as subjective considerations undoubtedly relevant to sentence, but not relevant to defining the seriousness of the offence. Secondly, it would be curious to define a standard non-parole period as that which is to be set for the offence, without allowance for subjective features of the offender, where those subjective features will undoubtedly be relevant in the sentencing process at some stage.
94 On the other hand, that approach would have odd consequences. It would require that the objective seriousness of the offence be determined, at least in part, by reference to subjective features of the offender. Secondly, it would tend to diminish the individualized exercise of sentencing and promote a far more mechanistic approach. This Court held in Way that these (and other considerations) militated against the construction outlined above. The preferred construction requires that, even in circumstances where an offence does fall within the middle range of objective seriousness, factors personal to the offender must still be addressed before determining that the standard non-parole period is appropriate.
95 In the present case, the appellant contended that there were reasons for not imposing the standard non-parole period, including the appellant's significant mental illness and his good prospects for rehabilitation. More generally, he contended that the trial judge had not properly taken into account his mental illness in setting the sentence.
96 The trial judge sentenced the appellant on 23 February 2007. In the course of sentencing, he considered a number of factors identified as aggravating factors in s 21A(2) of the Sentencing Procedure Act, which were relevant to the objective seriousness of the offence. In particular, he referred to the following considerations: