Chow v R

Medium Neutral Citation: Chow v R [2025] NSWCCA 71

Hearing dates: 23 April 2025

Date of orders: 23 May 2025

Decision date: 23 May 2025

Before: Davies J at [1]
Cavanagh J at [73]
Yehia J at [74]

Decision: (1) Extend time for the filing of the Notice of appeal to 14 February 2025.
(2) Refuse leave to appeal under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

Catchwords: CRIMINAL PROCEDURE – trial – closing address to jury by Crown Prosecutor – where the applicant was found guilty of multiple counts of intimidation, sexual intercourse without consent, and assault occasioning actual bodily harm – where the complainant and the applicant were in a relationship and lived together – where evidence was led of the applicant threatening self-harm after the non-consensual sex – whether there was a miscarriage of justice due to the introduction of consciousness of guilt evidence by the Crown – where it was clear that the Crown was not relying on consciousness of guilt as past of its case – where the only rational inference left to the jury was that the self-harm behaviour was related to the applicant’s manipulation of the complainant – no miscarriage of justice from anything in the Crown’s closing address
CRIMINAL PROCEDURE – trial – directions to jury – where the trial judge said in her summing up that the Crown submitted that the sexual activity was nonconsensual and was supported by what followed, being the breakup “coupled with” the threats of self-harm – whether there was a miscarriage of justice from any direction or failure to give a direction by the trial judge to the jury not to use this evidence as consciousness of guilt evidence – where r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 applied – where any decision by the applicant’s trial counsel not to object to the trial judge’s summing up was a forensic one – where a reading of the proceedings as a whole shows that consciousness of guilt from the self-harm incident was not contemplated by either side or the trial judge – where it would have been wrong of the trial judge to give a consciousness of guilt direction in the absence of its being sought – no miscarriage of justice

Legislation Cited: Crimes Act 1900 (NSW) ss 59, 61I
Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13
Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15

Cases Cited: ARS v R [2011] NSWCCA 266
Brown v R [2019] NSWCCA 269
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
Pethybridge v R [2020] NSWCCA 247
TKWJ v The Queen [2002] 212 CLR 124; [2002] HCA 46
Zhou v R [2021] NSWCCA 278
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28

Texts Cited: Nil

Category: Principal judgment

Parties: Min Yang Chow (Applicant)
Crown (Respondent)

Representation: Counsel:
D Roff & J Razi (Applicant)
C Taylor (Respondent)
Solicitors:
KPT Defence Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2021/16942 & 2021/178456

Publication restriction: Nil

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was charged with two counts of intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), three counts of sexual intercourse contrary to s 61I of the Crimes Act 1900 (NSW), and one count of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act. The applicant pleaded not guilty. On 14 July 2023 the jury found the applicant guilty on all counts. The applicant was sentenced to an aggregate sentence of imprisonment for 7 years 10 months commencing 20 June 2021 and expiring 19 April 2029 with a non-parole period of 5 years expiring 19 June 2026.

The complainant and the applicant commenced a relationship in December 2019 and soon afterwards moved in together, eventually moving to Lachlan Street in Waterloo where the offending occurred. The offending occurred over a six day period between 20 and 25 December 2020. On 20 December 2020, the applicant threatened the complainant. On 23 December 2020, after the complainant broke up with the applicant, he again threatened her with a knife and later that night sexually assaulted her. On the morning of 24 December 2025, the applicant cut his own wrist and threatened to jump from the balcony, sitting on the handrail for about 15 minutes before getting down. On 25 December 2025, the applicant locked the complainant in the bedroom and held her arms and pushed her to the ground causing lower back pain and bruising.

In his closing address the Crown prosecutor emphasised that it would have been “remarkable” that the events of the morning of 24 December 2020 occurred if the applicant and the complainant had had consensual sex the night before. In her summing up the trial judge said that the Crown submitted that the sexual activity was nonconsensual and was supported by what followed, being the breakup “coupled with” the threats of self-harm. The applicant submitted that both the Crown prosecutor’s address and this link made by the trial judge introduced consciousness of guilt reasoning and that the trial judge should have given a direction that the jury should not use the evidence about the self-harm incident to reason in a consciousness of guilt fashion. The applicant also submitted that the trial judge should have directed the jury that the self-harm evidence was only admitted in relation to the applicant’s attempts to manipulate the complainant into remaining in the relationship which she had told him on 23 and 24 December 2020 was at an end. No application was made by the applicant’s trial counsel for any direction in relation to the Crown Prosecutor’s address nor to the trial judge’s summing up.

The applicant relied on the following grounds of appeal:

Ground 1: That there was a miscarriage of justice caused by the failure of the trial judge to provide a consciousness of guilt direction.

In the alternative to ground 1:

Ground 2: That there was a miscarriage of justice occasioned by the trial judge directing the jury that it could reason that the sexual activity on early 24 December 2020 was nonconsensual based on the incidents that followed.

The Court dealt with grounds 1 and 2 together.

The Court (per Davies J, Cavanagh J and Yehia J agreeing) held, refusing leave to appeal under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW):

(1) No miscarriage of justice was demonstrated from anything in the Crown’s closing address. It was clear that the Crown prosecutor was not relying on consciousness of guilt as part of the case against the applicant. The point being made by the Crown in the closing address was that if the applicant and complainant had reconciled and had consensual sex, one would not have expected the self-harm behaviour the next morning. The only rational inference was that the self-harm behaviour was related to the applicant’s manipulation of the complainant and not to any notion that the behaviour was done out of guilt for the non-consensual sex: [47]-[48] (Davies J); [73] (Cavanagh J), [74] (Yehia J).

(2) Rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 applied due to the absence of any application by the applicant’s trial counsel for the trial judge’s remarks to be corrected or for a direction to be given to the jury in relation to consciousness of guilt reasoning. It is likely that the subtle difference between the trial judge’s summary and the Crown’s closing address went unnoticed by the jury. If the applicant’s counsel did notice the difference, then any decision not to raise it was a forensic one. A court of criminal appeal is an unsatisfactory forum for assessing the performance of trial counsel: [54]-[61] (Davies J), [73] Cavanagh J), [74] (Yehia J).

ARS v R [2011] NSWCCA 266; Brown v R [2019] NSWCCA 269; Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63; Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 6; Pethybridge v R [2020] NSWCCA 247; TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46; Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, cited

(3) No miscarriage of justice was demonstrated from any direction or failure to give a direction by the trial judge. Neither counsel objected to the trial judge’s summary of the defence case at the time. Furthermore, a reading of the whole of the case shows clearly that the matter of consciousness of guilt from the self-harm incident was not contemplated by either side or the trial judge. The absence of any objection by the applicant’s trial counsel points strongly to the conclusion that in the atmosphere of the trial there was no concern that the jury might engage in consciousness of guilt reasoning. It would have been wrong of the trial judge to give a consciousness of guilt direction in the absence of its being sought: [62]-[71] (Davies J), [73] (Cavanagh J), [74] (Yehia J).

Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614; Zhou v R [2021] NSWCCA 278; Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, cited.

JUDGMENT

1. DAVIES J: The applicant was charged with the following offences to which he pleaded not guilty:

Counts 1 and 2: Intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The maximum penalty for this offence is 5 years imprisonment and there is no standard non-parole period.

Counts 3 to 6: Sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 14 years imprisonment and there is a standard non-parole period of 7 years.

Count 7: Assault occasioning actual bodily harm contrary to s 59 of the Crimes Act. The maximum penalty for this offence is 5 years imprisonment and there is no standard non-parole period.

2. The applicant stood trial before her Honour Judge S Harris and a jury. On 14 April 2023 the jury found the applicant guilty on all counts.

3. On 29 September 2023 her Honour sentenced the applicant to an aggregate sentence of imprisonment for 7 years 10 months commencing 20 June 2021 and expiring 19 April 2029 with a non-parole period of 5 years expiring 19 June 2026.

4. The indicative sentences were as follows:

Count 1: 16 months.

Count 2: 18 months.

Counts 3 to 5: Each 5 years with a non-parole period of 3 years 2 months.

Count 6: 5 years 6 months with a non-parole period of 3 years 6 months.

Count 7: 12 months.

5. The applicant filed a notice of appeal against his conviction on the following grounds:

Ground 1(a): That there was a miscarriage of justice caused by the admission of certain acts by the appellant towards the complainant as context evidence;

Ground 1(b): That there was a failure of the Crown to properly comply with the rule in Browne v Dunn concerning aspects of Dr Baltzer’s expert opinion of which he was critical;

Ground 1(c): That there was a miscarriage of justice caused by the failure of the trial judge to provide a consciousness of guilt direction.

6. At the outset of the hearing of the appeal the applicant abandoned grounds 1(a) and 1(b). During the hearing of the appeal the applicant sought, and was granted, leave to add a further ground as follows:

In the alternative to ground 1(c):

Ground 1(d): That there was a miscarriage of justice occasioned by the trial judge directing the jury that it could reason that the sexual activity on early 24 December 2020 was nonconsensual based on the incidents that followed.

7. The appeal was filed out of time and the applicant seeks an extension of time. The Crown does not oppose an extension of time being given.

The Crown case

8. At the time of the offences the complainant was aged 24 and the applicant was aged 26. They met in about December 2019 at a dinner gathering, having been introduced by the complainant’s friend, Xie Yu, who was also the complainant’s support person in her police interview on 25 December 2020. The complainant is from China and her family lives there.

9. The complainant and the applicant commenced their relationship in December 2019 and soon afterwards moved in together, living first at an address in Mascot before moving to Lachlan Street in Waterloo where the offending was alleged to have taken place. They resided there with the applicant’s younger brother, Minwei Chow, his younger sister, Chi Yong Chow, and their friends Zeng Jun Min and Jinwuen Ng.

10. The complainant said that problems began to emerge in their relationship around about April 2020. Some of the problems involved tensions in relation to money.

11. The offences occurred over a six day period between 20 and 25 December 2020. On 20 December 2020 the complainant washed the applicant’s pants which contained a foreign exchange ticket inside his pocket to the value of $5,000.00. The applicant became angry and he did a number of things including verbally abusing her, asking her to apologise, and throwing her cosmetic skin care products (worth about $800.00 or $900.00) on the ground.

12. The applicant then went to the kitchen, grabbed a knife and left the apartment. When he returned he put the complainant’s cat in a sealed container and left the apartment with the cat and container, saying, “If you want to leave, don't feel regret.” The cat was a gift from the applicant to the complainant earlier in the relationship.

13. The applicant then returned to the apartment. The complainant was in the bedroom sitting on the bed. The applicant came into the bedroom, took the cat out of the container, took out the knife and said:

If you leave…the cat cannot live. If you apologise, ah, we can just, ah, settle down these things – settle this matter.

and

If you leave, ah, we can die together. I'm going to kill your family.

and

If you want to leave, I will kill you first and then we die together.

14. This constituted count 1.

15. On Wednesday, 23 December 2020, there was an argument during the day when the complainant told the applicant she wanted to leave and that they were “no longer boyfriend and girlfriend”. She then left for several hours.

16. Later in the day when she returned, she told the applicant that her parents wanted her to return to China. At about 4:00pm the complainant said that the applicant put her cat into the microwave and pressed the button. She said she thought the cat would have been in the microwave oven for one to two minutes but she wasn’t sure. She said she could hear the cat screaming painfully. She tried to stop the applicant but she couldn't.

17. She then went into Zeng Jun Min’s room. The applicant followed her into the room carrying a knife wrapped in newspaper and said, “I think we need to talk about it. Have a talk. If you don't come into the room with me we will be over. We will die.” Zeng Jun Min told the applicant that he needed to put the knife down before they could talk. After about ten minutes the applicant put the knife down. This constituted count 2.

18. That night at about 11:00pm, the complainant went to sleep on the couch in the living room because she did not want to sleep in the bedroom with the applicant. At some point the applicant came into the living room and picked the complainant up and carried her from the couch to the bedroom they had previously shared. She struggled against him, hitting her hand against the doorway. He asked her if she was injured but she said she was not.

19. The applicant then locked the bedroom door and put the complainant on the bed. He got onto the bed and held her tightly from behind. She told him that their relationship was over and that she did not want him back. She later fell asleep. She woke up to find the applicant kissing her shoulder, her back and her vagina. He then put his penis into her mouth while his legs were on either side of her head and she could not move. That lasted for two or three minutes. This constituted count 3.

20. The applicant next put either his hand or two fingers inside the complainant’s vagina. This constituted count 4.

21. The applicant then retrieved a condom from the bedside chest and put it on his penis. He then inserted his penis into her vagina for about ten minutes. The complainant said to him, “I don’t want to have a sexual relationship with you as a boyfriend/girlfriend anymore. I’m not your girlfriend.” The complainant tried to move off the bed but somehow the applicant moved her body back. This constituted count 5.

22. The applicant then removed his penis from her vagina, took the condom off, and then reinserted his penis into her vagina without a condom. He then continued until he ejaculated. This constituted count 6.

23. The next morning, the complainant “tried to have the things up leaving”. (The complainant’s evidence was given through an interpreter. This statement appears to mean that she gathered her things together in order to leave.) The applicant sat there, used a knife to cut his own wrist, and said, "If you leave me, I will jump from this building." The complainant said that the applicant wanted her to stay but she disagreed. The applicant then went out onto the balcony and sat on the handrail threatening to jump. The complainant said, "I will stay, I will stay here. You calm down.”

The course of the trial

32. It is necessary to say something briefly about procedural matters concerning the trial because of a submission made by the applicant in relation to the acts and omissions of his trial counsel.

33. The first trial commenced before Judge David on 15 March 2023. The applicant was represented by different counsel from counsel who subsequently appeared for him. On the third day of the trial, counsel then acting for the applicant informed Judge David that the applicant wished to instruct new counsel. On the fourth day of the trial (20 March 2023) new counsel appeared for the applicant. That counsel continued to appear for the applicant throughout the first trial, the subsequent trials and the sentence proceedings.

34. The applicant’s new counsel objected to aspects of the DVEC that were not raised by the previous counsel. As a result of that and other matters, the jury was discharged.

35. On 28 March 2023 the second trial commenced before Judge Harris. Following the Crown’s opening address, a juror sent a note to the judge saying that they could not be impartial. Judge Harris then discharged the whole jury.

36. On 29 March 2023 the third trial commenced before Judge Harris and proceeded to verdict on 14 April 2023.

Grounds of appeal

Ground 1(c): That there was a miscarriage of justice caused by the failure of the trial judge to provide a consciousness of guilt direction.

Ground 1(d): That there was a miscarriage of justice occasioned by the trial judge directing the jury that it could reason that the sexual activity on early 24 December 2020 was nonconsensual based on the incidents that followed.

37. It is convenient to deal with the two grounds of appeal together. At the hearing of the appeal, counsel addressed ground 1(c). At the conclusion of the oral submissions made by the Crown, the Court suggested to the applicant’s counsel that ground 1(c) as drafted may not accurately reflect the substance of the submissions concerning consciousness of guilt. It was at that point that counsel for the applicant sought leave to add the further ground of appeal. He indicated the substance of the proposed ground. Both counsel indicated that they did not wish to supplement their submissions as a result of adding the further ground.

Crown closing address

38. In his closing address the Crown prosecutor said about the self-harm incidents:

Now, another way of analysing evidence, ladies and gentlemen, is to sit back and look at some of the things to see whether they make sense logically, and we would suggest to you, for example, if you look at the totality of the incidents from the afternoon of the 23rd going into the morning of 24 December, we would say that it would be remarkable if within hours of breaking up – putting aside whether there was the knife and the cat incident – it would be remarkable that within hours of breaking up, that these two might have decided to have consensual sex, but unprotected sex. Well, we say that would be remarkable in itself, excepting of course that some people do have what one might term, make-up sex.

But, if you add in what happened in the early hours of the morning of the 24th, that is the cutting of the wrist and being on the balcony, we would say that this in itself, would be remarkable that within hours of apparently having some make-up unprotected sex, that the accused is then attempting to commit suicide. Then you can look at the other side of the coin on the Crown case, we say the threat to the cat, the threat with a knife, the breakup, and then non-consensual sexual activity, but designed to humiliate - we would say – by the taking off of the condom. That makes a lot of sense that the next morning she packed up and tried to leave and that the accused in a desperate attempt to get her to stay, tried to manipulate her by cutting is wrist and to some extent, that worked, because she said I won't leave, just get off the balcony. Just use that as an example of how you might analyse the evidence and I'll come back to that in more detail.

(emphasis added)

39. A little later the Crown said this:

Thirdly, we rely on another aspect which is that the accused had no reasonable grounds for believing that she had consented to the sexual intercourse, and for this purpose you have regard to all the circumstances of the case, including any steps taken by the accused to ascertain whether she consented, and we say he took no steps; certainly no evidence of any conversation about that.

We then go to the events of the morning of the 24th. The complainant went to leave and the accused was next to the sofa cutting his wrist with a knife and asking her to stay and she refused. So we say, step 1, he attempts to manipulate her by cutting himself with the knife, that is manipulate her into staying. He has tried, we would suggest, up until this point various threats but on this occasion he cuts himself on the wrist. So importantly, ladies and gentlemen, the Crown says the evidence is that she communicated to him that that was going to sway her [sic - ? was not going to sway her?] and it's at that point we would suggest to you that he said, "If you leave me I will jump from this building", that is his attempted manipulation had not at that point succeeded but he does the next step onto the balcony.

When he was on the balcony the complainant said, "Come down, I'm not leaving." So his ruse at that point we would suggest had some effect, but he remained out there for about 15 minutes and the police rang the buzzer and he left. There was a suggestion to her in cross-examination why didn't she ring the police, there was nothing to be fearful of? Again, we ask you to take into account the expert evidence in particular about evidence generally; there's counterintuitive evidence and the Crown just repeats that that is a neutralising feature if you accept the expert evidence but it doesn't prove the opposite, of course.

Then we have there's a lot of evidence as you know about this particular incident from those independent being Mr Dermot Monaghan who reported the incident and Mr Ng could remember the accused being on the balcony but can't remember any conversation. He said that was the day that the police came but he apparently acknowledged that that was the next day, not the 24th. So we say on this that it would be remarkable than [scil. that] having broken up but apparently reconciled with consensual unprotected sex that things would occur as they did that morning. You might think, ladies and gentlemen, that rather than cutting his wrist immediately there might have been a reference to the fact that not have they reconciled the previous evening but there is a prospect that she might get pregnant from it. But there was no reference to any such conversation from any of the witnesses who gave evidence on this aspect, that is the complainant Chiyong Chow or Mr Ng.

On the other hand we say as a matter of logic in terms of proving the Crown case, him seeing her packing made him take one last desperate manipulative act to try to make her stay.

(emphasis added)

Submissions

40. The applicant submitted that the purpose for which the evidence of the self-harm was led was not made explicit. However, the applicant submitted that there were four discernible purposes for which it was adduced:

(a) To show that the applicant was engaging in self-harm because of a guilty conscience for having sexually assaulted the complainant;

(b) To show that the applicant was engaging in self-harm to manipulate her into not leaving the apartment as part of a broader modus operandi in which he had been threatening or mistreating the complainant. This purpose was said to be evidence of a general guilty conscience rather than a specific guilty conscience as in (a);

(c) As an explanation for why the complainant did not immediately leave the apartment after she woke up;

(d) To show that the applicant was genuinely experiencing suicidal ideations, or seeking to pressure the complainant emotionally into not leaving but for a reason other than having a guilty conscience such as genuine distress about the complainant leaving him or because of conflict with the complainant over financial hardship.

41. The applicant submitted that the italicised words in the passage above at [39] had the effect of introducing the issue of consciousness of guilt, in the sense that the Crown prosecutor was suggesting that what the applicant did that morning (cutting his wrist and climbing onto the balustrade of the balcony (“the self-harm incident”)) was done because the sex between the complainant and the applicant the previous night had not been consensual.

42. In her Honour’s summing up to the jury, when setting out additional submissions made by each of the parties, her Honour said:

The Crown submits that the sexual activity early on 24 December was nonconsensual, is supported by what followed. On the complainant’s evidence she was in the process of leaving later that morning coupled with the accused’s apparent response of threatening self-harm with a knife and jumping from the balcony. The evidence that the accused was threatening to jump off the balcony was not challenged and it was supported by the evidence of Dermot Monaghan.

(emphasis added)

43. The applicant submitted that this framing of the post-offence conduct by the trial judge supported the Crown’s case on consent. The applicant submitted that it was not made explicit by the Crown or the trial judge how it was capable of supporting a lack of consent, but the inescapable inference was that it was evidence of either a specific or general guilty conscience.

44. The applicant submitted that, whether or not the Crown prosecutor had introduced consciousness of guilt in what he said in the passage at [39] above, the trial judge made a link between the Crown’s submission that the sex was non-consensual and what the applicant did the following morning in threatening self-harm with a knife and jumping from the balcony. In those circumstances, the applicant submitted that the trial judge should have given a direction that the jury should not use the evidence about the self-harm incident to reason in a consciousness of guilt fashion. The applicant submitted that the judge should have directed the jury that the evidence was only admitted in relation to the applicant’s attempt to manipulate the complainant into not breaking up with him and/or leaving the flat that morning.

45. The applicant submitted that the trial judge should have given that part of the suggested direction in the Criminal Trials Bench Book at [2-965] as follows:

You must remember, however, that people do not always act rationally, and that conduct of this sort, that is, telling a lie, may sometimes be explained in other ways. A person may have a reason for lying quite apart from trying to conceal their guilt. For example, a lie may be told out of panic; to escape an unjust accusation; to protect some other person; or to avoid a consequence unrelated to the offence. [It is dangerous to give too many examples for the reasons stated in R v Jeffrey (1991) 60 A Crim R 384.]

If you think that the lie may have been told for some reason other than to avoid being implicated in the commission of the offence for which the accused is now on trial, then it cannot be used as evidence of the accused’s guilt. If that is the case, you should put it to one side and focus your deliberations upon the other evidence in the case.

Let me summarise what I have just said. Before you can use what the accused said as something which points towards their guilt, you must be satisfied that they lied deliberately. You must find that the lie related to some significant circumstance or event connected with the alleged offence. You must find that the reason the accused told this lie was because they feared that the truth would implicate them in relation to the commission of the offence for which they are now on trial.

46. The Crown submitted that the words in that portion of the judge’s summing up, “is supported by what followed”, was a reference to the complainant’s evidence of being in the process of leaving later that morning. Her Honour was not saying that the non-consensual sex was supported by the threats of self-harm. Rather, the threats of self-harm were merely the applicant’s “apparent response” to the complainant’s intention of leaving the apartment.

Consideration

47. In the first place, it is clear that the Crown prosecutor was not relying on consciousness of guilt as part of the case against the applicant. Consciousness of guilt had been raised in a separate context in relation to the police trying to locate the applicant in order to arrest him. The Crown eschewed reliance on consciousness of guilt.

48. In my opinion, nothing in the Crown prosecutor’s closing address, including the italicised portion at [39] above, resulted in an invitation to the jury to engage in consciousness of guilt reasoning. A reading of all of the portions of the closing address dealing with the self-harm incident indicates that the evidence of the self-harm incident was linked to the applicant’s manipulation of the complainant not to leave the apartment and not to break up with him. The point clearly being made by the Crown from the italicised portion of the address was that, if the complainant and the applicant had broken up but then reconciled and had consensual sex, one would not have expected the self-harm behaviour the next morning. The only rational inference that the jury could have drawn from the closing address was that the self-harm behaviour was related to the applicant’s attempt to manipulate the complainant and not to any notion that he engaged in that behaviour out of guilt for having had non-consensual sex with the complainant the night before.

49. The passage in the trial judge’s summing up is not so clear. Her Honour was, no doubt, endeavouring to summarise the submission made by the Crown in the passage or passages set out at [38] and [39] above, and was doing so in an ex tempore summing up which followed immediately after the defence’s closing address. In doing so, on one reading of what her Honour said, she appears to make more of a link between the non-consensual sex (on the Crown’s submission) and the self-harm incident by saying to the jury that the Crown’s submission was that that behaviour supported the non-consensual sex.

50. Although there is force in the Crown’s submission that “what followed” was simply the complainant’s evidence that “she was in the process of leaving later that morning”, her Honour added “coupled with” the accused’s apparent response of self-harm. Those words were, perhaps, somewhat unfortunate, but it is not at all obvious, however, that making the link in that way would lead the jury to reason that the attempts at self-harm were from guilt on the part of the applicant for having engaged in non-consensual sex. Of the two matters said to be “coupled”, the complainant’s intention to leave could not constitute consciousness of guilt reasoning, so it is difficult to see how what the trial judge described as the applicant’s “apparent response” to that intention could elevate his response to consciousness of guilt reasoning.

51. It is clear that the course of events, relied on by the Crown and summarised in the passage by the trial judge set out at [42] above, comprised three matters consecutively as the Crown made clear in its closing address: the sex including unprotected sex the night before, the clear indications of the complainant that she was intending to leave that morning, and the self-harm behaviour to manipulate (as the Crown repeatedly asserted) the complainant into staying.

[147] The effect of the rule was summarised by McHugh J in Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 as follows (at [72]):

"There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant. Where the evidence was admissible, but the trial judge had a discretion to limit its use, the burden on the appellant is greater: the appeal can succeed only if the Court of Criminal Appeal is satisfied that the discretion would have been exercised in favour of the appellant and that, if it had, it is more likely than not that the appellant would have been acquitted ... "

[148] Subsequent cases have established that the following matters are important in considering the operation of r 4:

The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170].

The appellant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]-[21].

A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]-[61].

An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130].

55. In Brown v R [2019] NSWCCA 269 Payne JA (Davies J and Hidden AJ agreeing) said at [40] of that passage in ARS:

The latter part of the Chief Justice’s observation is particularly apposite in the present case. The fact that trial counsel for the applicant was content with the directions given by the trial judge provides strong reason for thinking that he did not believe, in the atmosphere of the trial, that there was any deficiency which affected the interests of the applicant adversely: see also Greenhalgh v R [2017] NSWCCA 94 at [42] per Basten JA.

56. The likelihood is that the subtle difference in the trial judge’s summary of the Crown prosecutor’s submission went unnoticed by both the Crown prosecutor and the applicant’s trial counsel. Nor is there any reason to suggest that the jury would have focused on those two words of the judge to place a different meaning on the self-harm incident than the one the Crown prosecutor had emphasised at length. If counsel did notice the subtle difference, but made a conscious decision not to raise the matter because drawing it to the jury’s attention might inflict more damage than remaining silent, then any such decision was a forensic one in the context of the atmosphere of the trial.

57. In TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 the appellant complained that evidence of good character was not led and that this failure constituted a miscarriage of justice. Chief Justice Gleeson said:

[8] On the face of it, that was an understandable decision. It was certainly not self-evidently unreasonable, or inexplicable. It was the kind of tactical decision routinely made by trial counsel, by which their clients are bound. And it was the kind of decision that a Court of Criminal Appeal would ordinarily have neither the duty nor the capacity to go behind. Decisions by trial counsel as to what evidence to call, or not to call, might later be regretted, but the wisdom of such decisions can rarely be the proper concern of appeal courts. It is only in exceptional cases that the adversarial system of justice will either require or permit counsel to explain decisions of that kind. A full explanation will normally involve revelation of matters that are confidential. A partial explanation will often be misleading. The appellate court will rarely be in as good a position as counsel to assess the relevant considerations. And, most importantly, the adversarial system proceeds upon the assumption that parties are bound by the conduct of their legal representatives.

…

[16] It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. In the present case, the decision not to adduce character evidence was made for an obvious reason: to avoid the risk that the prosecution might lead evidence from K.

[17] Trial counsel made a decision not to call certain evidence. Viewed objectively, it was a rational tactical decision, made in order to avoid a forensic risk. It did not make the trial unfair, or produce a miscarriage of justice.

(citations omitted)

58. Similarly, Gaudron J said:

[24] There are two reasons why the question whether an accused was competently represented poses difficulties for an appellate court. First, the conduct of a criminal trial frequently involves defence counsel in making tactical decisions designed to obtain a forensic advantage or, perhaps, to avoid a forensic disadvantage. Those decisions may contribute to a defect or irregularity in the trial. Thus, for example, defence counsel may decide not to seek directions with respect to the need for corroboration lest the directions serve to emphasise the strength of the corroborative evidence with the result that there is a defect in the trial because no such directions are given. The second reason is that, ordinarily, it is not possible to know what was in defence counsel's brief.

[25] Where decisions taken by counsel contribute to a defect or irregularity in the trial, the tendency is not to inquire into counsel's conduct, as such, but, rather, to inquire whether there has been a miscarriage of justice, or, if the proviso to the criminal appeal provisions is engaged, whether "no substantial miscarriage of justice has actually occurred". In that exercise, the question whether the course taken by counsel is explicable on a basis that has or could have resulted in a forensic advantage is a relevant, but not necessarily a decisive, consideration.

[26] The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question "deprived the accused of a chance of acquittal that was fairly open". The word "fairly" should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on the basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open.

[27] One matter should be noted with respect to the question whether counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test. An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis.

(citations omitted)

59. In Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 the appellant alleged that a miscarriage of justice occurred by reason of the incompetence of counsel. Having made reference to TKWJ, Gleeson CJ discussed the problems arising from a failure of counsel to take some action in respect of which r 4 might apply. His Honour then went on to say at [10]:

… A court of criminal appeal is an unsatisfactory forum for assessing the performance of trial counsel, and appellate courts, recognising that difficulty, seek to avoid such assessment unless it is unavoidable. I mention the practical problems that arise in the application of r 4, because the existence of such problems is of wider significance, and bears upon the principles to be applied in resolving a question of miscarriage of justice. To the extent to which it is reasonably possible, the focus of attention should be the objective features of the trial process. Nevertheless, there may be circumstances where it is relevant to ask why some act or omission occurred. In some cases, for example, it may be material to know that counsel took a certain course upon the instructions of the client. There could be circumstances in which it is material to know that a course was taken contrary to instructions. The possibility of a need to know the reason for conduct cannot altogether be eliminated. In general, however, as far as justice permits, the enquiry should be objective. As a matter of principle, such objectivity is consistent with the assumptions on which the adversarial system operates. As a matter of practicality, it avoids the difficulties inherent in turning a criminal appeal into an investigation of the performance of trial counsel.

60. In Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 the trial judge introduced the topic of the possibility of lies constituting evidence of consciousness of guilt when it had not been raised by the Crown. In upholding the appeal on the ground that the trial judge, having introduced the notion of consciousness of guilt, did not thereafter give a full direction in accordance with Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, the High Court said that where the prosecutor did not expressly or by implication suggest that any answer given was a lie told out of consciousness of guilt, it was unnecessary and indeed undesirable that any Edwards direction should have been given. The joint judgment went on to say at [20]:

Such a direction here could have had the effect of raising an issue or issues upon which the parties were not joined, and of highlighting issues of credibility so as to give them an undeserved prominence in the jury’s mind to the prejudice of the appellant.

61. In Pethybridge v R [2020] NSWCCA 247, Paynes JA (Fagan and Cavanagh JJ agreeing) said:

[58] In the present case, issue had been joined by the parties at the applicant’s trial about LA visiting Holsworthy and the babysitting of MP in Orange. The prosecution did not contend that the applicant had told lies that the jury could consider was evidence of his guilt about LA visiting Holsworthy or the babysitting of MP in Orange. It was, in those circumstances, “unnecessary and inappropriate” for the trial judge to give the jury an Edwards direction about those matters. This was not a case where it was appropriate to give such a direction due to any risk of misunderstanding about the significance of the evidence about LA visiting Holsworthy or the babysitting of MP in Orange.

[59] In Dhanhoa, McHugh and Gummow JJ in a separate joint judgment explained that even where it is assumed that the accused has lied because he was conscious that he was guilty of participating in the crimes, in a case where the Crown made no attempt to conduct a case that the lie was told in consciousness of guilt:

“[64] … to have given a direction about lies — to have given an Edwards direction — might not only have emphasised the issue but made it difficult for the jury to disregard consciousness of guilt as an issue.” (Footnote omitted.)

[60] I have reached the same conclusion here. The Crown did not rely on the alleged Holsworthy and Orange lies as supporting consciousness of guilt reasoning. The Edwards direction from the trial judge about those topics made prominent an issue the parties had not addressed in their closing submissions and created an obvious difficulty for the jury in disregarding consciousness of guilt as an issue.

62. It is clear that it would have been entirely artificial not to have led the evidence of what occurred on the morning of 24 December. Nor was any objection taken to the evidence. Contrary to the applicant’s submission, it was tolerably clear that the complainant’s clear intention of leaving that morning was supportive of her case that the sex the night before was not consensual. She did not leave as intended, and the reason for that was the applicant’s self-harm behaviour. On the applicant’s suggestions of the possible purposes for which the evidence was led (at [40] above), nothing in the Crown’s conduct of the case and in its closing address suggested that the evidence was led otherwise than for purposes (c) and (d).

63. The applicant now complains that the trial judge did not put to the jury what his counsel had said in his closing address, that he may have engaged in the self-harm behaviour because he was upset from money problems, that he was young and he was in love.

64. A reading of defence counsel’s closing address where this matter is mentioned makes clear that the matter was mentioned only as an introduction to a point made about what the applicant did when he got down from the balcony fence. The matter was not mentioned in the context of answering the Crown’s submission about the applicant attempting to manipulate the complainant into remaining at the apartment and in the relationship or to link the matter to the sexual activity the night before. Significantly, the trial judge summarised the defence case in 14 points and then immediately asked counsel if they wanted to raise any matter of fact or law before the jury ballot was conducted. Both counsel said that they did not.

65. A reading of the whole of the evidence, addresses and summing up of the trial shows clearly that the matter of consciousness of guilt reasoning from the self-harm incident was not in the contemplation of those acting for the parties nor the trial judge. Viewed objectively (Kirby J in Zoneff at [71]) the evidence could not be relied upon to prove guilt. The absence of any objection by the applicant’s trial counsel to anything said by the Crown in its closing address or to what the trial judge said when summing-up, and the absence of any request for a consciousness of guilt direction points strongly to the conclusion that in the atmosphere of the trial there was no concern that the jury might engage in consciousness of guilt reasoning.

66. Contrary to ground 1(d), the trial judge did not direct the jury that it could reason that the sexual activity was non-consensual based on the incidents that followed. In the impugned passage, set out at [42] above, the trial judge merely summarised a submission of the Crown as the passage makes clear. It was not a direction to the jury. For the reasons earlier given, it did not give rise to consciousness of guilt reasoning.

67. There is no basis for concluding that the jury may have engaged in consciousness of guilt reasoning. As makes clear, it would have been wrong of the trial judge to give a consciousness of guilt direction in the absence of its being sought. Judged objectively ( at [10]) it is also clear why counsel for the applicant would not have wanted to highlight the issue.

To constitute a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 such an irregularity has to be prejudicial in the sense that there was a “real chance” that it affected the jury’s verdict (Hofer at [41] and [47] per Kiefel CJ, Keane and Gleeson J; at [118] per Gageler J) or “realistically [could] have affected the verdict of guilt” (at [123] per Gageler J) or “had the capacity for practical injustice” or was “capable of affecting the result of the trial” (Edwards v The Queen [2021] HCA 28 at [74] per Edelman and Steward JJ).

71. The applicant does not demonstrate any miscarriage of justice from any direction or failure to give a direction by the trial judge, nor from anything in the Crown’s closing address. Rule 4.15 applies with result that leave should be refused in respect of both grounds of appeal.

Conclusion

72. I propose the following orders:

73. Extend time for the filing of the Notice of appeal to 14 February 2025.

74. Refuse leave to appeal under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

75. CAVANAGH J: I agree with Davies J.

76. YEHIA J: I have had the considerable advantage of reading the judgment, in draft, of Davies J. I agree with his Honour’s proposed orders and with his Honour’s reasons.

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