DC v R

Court of Criminal Appeal (NSW)|2019-06-17|Before: Bathurst CJ, Price J, Adams J

Judgment

BATHURST CJ: I have had the advantage of reading the judgment of Price J in draft.
I agree with the orders proposed by his Honour and with his reasons.

The Crown case at trial

The appellant lived in a neighbouring unit to TO and SO's grandmother ("LO").
The Crown alleged that the appellant digitally penetrated TO's vagina whilst he was trying to pull down her pants (count 1), and that on another occasion, he pulled down TO's pants and touched her bottom with his finger (count 2). On both occasions TO was in the appellant's unit.
Count 3 alleged that the appellant put his finger in SO's vagina whilst she was seated with the appellant in LO's unit. In the alternative, count 4 alleged that this touching occurred but was not penetrative.
The offending was alleged to have occurred when TO was 6 or 7 years of age and SO was 4 years of age.

TO's evidence

TO's evidence consisted of a Joint Investigation Response Teams ("JIRT") interview recorded on 3 February 2017 and her evidence in court.
As to count 1, TO said in the JIRT interview that she visited her "Nanny-O" (LO) the day before her eighth birthday.
TO said that she went to the appellant's unit upstairs while her Nanny-O was having a shower. She described the appellant as a friend of her Nanny-O, as a boy, a dad, who was bald with a beard, fat and with no "pictures" or tattoos on his arms. She later identified his name as "[D]".
TO said that the appellant put his hand down her pants and touched the inside of her "rude part [at the front]" with his fingers. When asked what she uses her rude part for, she said "to go to the toilet".
As to count 2, TO said in the JIRT interview that she visited her Nanny-O after her birthday.
She said she went upstairs to the appellant's unit and was drinking a glass of cordial when the appellant pulled her pants and underpants down and touched her "bum" with his finger. At that time the appellant was partially undressed with his shirt off and his pants "half off" down to his knees. TO recalled that she saw the appellant's "rude part" and that he was "poking it out".
TO stated that she uses her "bum" to go to the toilet.
In cross-examination, TO disagreed that the appellant had never touched her rude part. TO disagreed that she had copied SO's complaint.
The appellant declined to participate in a record of interview in respect of the allegations made by TO.

SO's evidence

SO's evidence consisted of a JIRT interview recorded on 27 October 2016 and her evidence in court.
In the JIRT interview, SO said she was four years old. SO was shown a picture of a girl. She identified the front and the back of the girl, the hands and various other body parts. She identified "the bum" and referred to the genital area as a "Minnie" which she said she used "to wee".
SO agreed that she knew a man named "[D]" and that he came to her "Nanny-O's" house while she was staying there. She said that he put his hand inside her shorts, under her underpants and rubbed her while his "doodle" was out. She further said that he touched the inside of her "Minnie" with his hand and rubbed it. SO said that the appellant asked her to touch his doodle but that she didn't listen to him.
SO said that she was sitting on the appellant in a room at her "Nanny-O's" unit while the alleged offences occurred and that no-one else was in the room.
SO stated that she didn't tell anybody what had happened with the appellant.
In cross-examination, SO agreed that she knew a man called "[D]". She did not remember when she met the appellant, but said that she had met him at his house and that he gave her jelly beans and lollies. When asked whether someone told her to say that the appellant touched her she answered "yes". When asked who that was, she answered "[D]". She disagreed that the appellant never touched her.

AM's evidence

AM is the mother of SO and TO. She confirmed that her mother, LO, lived in the same unit complex as the appellant, and that she met the appellant in September. Due to a car accident in 2014 she has difficulties with her memory.
She recalled travelling to her mother's home with her grandmother (AS), SO and her youngest daughter (JO). At that time she was moving house. She said that the appellant would visit LO's unit every night and bring one or two beers at dinner time. She was not aware of any of her children visiting the appellant in his unit.
AM gave evidence that one evening in October, SO screamed whilst she was bathing. SO had poured shampoo into the bath and some had gotten into her vagina. AM said that when she ran to the bathroom the appellant followed her and told her that he was an ex-nurse. She told him to leave and shut the door.
As to the evidence of SO's complaint, AM told the jury SO said the appellant had "touched her Minnie". AM stated that she then called the police, who came to LO's unit on 26 October 2016 and spoke to her on the verandah. The next day, she was contacted by other police who asked her to take SO to Liverpool Hospital for some tests. She took SO to the hospital and was accompanied by AS. She did not speak to any of the doctors, but AS did. After SO was seen by the doctors she participated in her JIRT interview.
In cross-examination, AM said that she was in the lounge room with LO and AS, when SO told her that the appellant had touched her. She recalled that AS said to SO, "Did [the appellant] put his hand up your dress" and SO replied that he did. AS had then told AM to call the police.
AM did not remember a woman named Wendy who lived at the block of units where LO lived at the time.

LO's evidence

LO is the mother of AM and the grandmother of SO and TO.
LO said that AM would visit when she had doctor's appointments in relation to her car accident.
She recalled that the appellant would cook her meals and bring meals down for her grandchildren.
LO gave evidence that she could not remember SO or TO spending time in the appellant's unit, but she did recall a time when SO was sitting on the appellant's lap on her verandah. She said that she asked SO to hop off the appellant's lap but SO refused. LO told the jury that she then went inside the house to bake a cake and the appellant and SO left. A short time later, LO was searching for SO and called for her inside her unit, she then went upstairs to the appellant's home, knocked on the door and SO was in his unit. She took SO back to her unit.
She could not remember how long they had been there, but she recalled that SO had lollies from the appellant.
In cross-examination, LO disagreed that she never found SO inside the appellant's unit. She affirmed that she saw SO in the appellant's unit holding lollies. She told the jury that at that time AM was asleep in the spare room.
She said that the appellant later came downstairs to her unit with a cigarette and had brought some food for the grandchildren. LO said that she told him to leave because she did not want him smoking inside her unit.
She said that she only found out why the police had arrived because Wendy came and told her.

AS' evidence

AS, the great grandmother of SO and LO, gave evidence that she had visited LO at least four times a year with AM, SO and TO. She could not recall when she first met the appellant, but stated that he would come and go from LO's unit, bring her food, and drink alcohol.
She recalled visiting LO with AM in October 2016. She told the jury that she saw the appellant on the verandah of LO's unit drinking alcohol whilst SO sat on his knee.
She gave evidence that SO told her that she went into the appellant's unit.
AS said that SO made her complaint in the lounge room of LO's unit. AS recalled that LO, LO's sister and AM were also present. She told the jury that she asked SO, "Did [the appellant] have his hand up your dress?" to which SO replied, "Yes". AS said that she then told AM "it's time to call the police" and AM did so.

The appellant's record of interview

On 27 October 2016, following his arrest, the appellant participated in an electronically recorded interview with suspected persons ("ERISP") in relation to the allegations made by [SO]. DSC Beckett and DSC Hasler conducted the interview.
The ERISP was tendered by the Crown and admitted into evidence without objection. A transcript of the ERISP was provided to the jury.
As some of the issues flow from arguments as to admissibility, it is necessary to set out extracts of the ERISP in some detail.
At the outset of the ERISP, the appellant confirmed that he understood DSC Beckett and DSC Hasler were investigating an allegation of sexual assault on SO. He agreed that he had been placed under arrest at his workplace and that he had agreed to do the ERISP.
The appellant stated that LO was a "close friend" who he had known for well over a year. He confirmed that they lived in the same apartment complex. LO's unit was on the ground floor at the front and his unit was on the top floor. He said they would "go back and forth" from each other's apartment.
When asked whether he knew SO, the appellant responded that he had only known SO for the last three or four days and that he had met her mother AM three months ago when she visited LO. He said that SO and her mother AM were staying with LO because they had doctor's appointments.
As to the appellant's activities from Sunday 23 October 2016 to Tuesday 25 October 2016, he said LO had asked to borrow some cake tins and that they tried to bake three cakes together on either Monday or Tuesday. He noted that LO's sister burnt the first cake, that LO didn't put butter in the second and that they had difficulty with the oven so the bottom of the third was burnt "but the top was perfect".
The appellant stated that over the Sunday, Monday and Tuesday, he had made twelve portions of lasagne and salad, some of which he shared with LO and her sister. DSC Beckett asked the appellant when he took down the portion to which the appellant responded: "A. Monday. It could've been Monday. I can't remember. I've been … Q94. O.K. A. And I, I drink a lot too. I'm an alcoholic so I was pretty drunk every day. Q95. On Sunday, Monday and Tuesday? A. Yeah. Q96. O.K. A. Yeah, my three days off and I just, I don't know, just drank. … Q98. How much alcohol did you consume on Sunday, Monday and Tuesday do you remember? A. I drink a carton every day. Q99. O.K. And - - - A. Just about. Q100. A carton of what? A. VB. Q101. And are they - - - A. I went and got a carton on Saturday night so I had it for Sunday. Q102. O.K. A. I went and done shopping on the Monday and bought another one and then went and done shopping on Tuesday and bought another one."
The appellant said that during the period from Sunday 23 October 2016 to Tuesday 25 October 2016 "everyone", being LO's mother, daughter, two babies, her sister and occasionally her sister's boyfriend, were at LO's unit. He identified the "two babies" as SO, who he thought was 5 years of age, and JO who he thought was about 12 months old. However, he said that he "can't remember much of [those] three days", that he was not sure about JO's age or name and reiterated that he had consumed two and a half cartons of beer over the three days.
He then indicated that he would likely lose his job and the following exchange took place: "DETECTIVE SENIOR CONSTABLE BECKETT … Q162. Why is that? A. I'm gunna go to gaol surely so I'll lose me job. I busted me arse getting in there and I'm gunna lose it over something I didn't ever fucken know, know about… Q163. What makes you think you're going to go to gaol? A. Well, don't people that do things like this go to gaol? DETECTIVE SENIOR CONSTABLE HASLER Q164. What is it that you're saying you've done? A. Sorry? Q165. What is it that you're saying you've done? A. I don't know what I've done. Q166. O.K. You're jumping the gun there a little bit. A. That's what I'm saying, I said, but you're saying the sexual abuse, isn't that a criminal, that's a terrible offence, mate. So that's a gaol offence. … Q168. …I'm just going to ask, like you've, you've said that you, you did see them a couple of times over the weekend whether it be taking them meals or, you know - - - A. Yeah, we were just having a chat. Q202. [sic] - - - you see people coming and going and stuff like that. What, what contact did you have with the kids over the weekend, oh well, the Sunday, Monday, Tuesday or whatever? A. Not much, just kept coming up grabbing me, giving me, giving me, trying to give me a cuddle every now and then and she just, [SO] and then just take off and then come back and - - - Q169. So explain that. A. I don't know. I'd be sitting there and she'd just come up and put her arms around me neck and say I like you and I'd say I like you too, see you and she'd - - - Q170. Where, where, where are you when this is happening? A. Oh, be, I'd be sitting on the lounge. Q171. In whose apartment, theirs or yours? A. Oh, [LO's]. Q172. O.K. So you're sitting on the lounge, [SO] comes up, gives you a cuddle - - - A. Yeah … Q176. What about any other contact you had with her? A. Oh, when we went out, me and [LO] were sitting out on the verandah. Q177. Ah hmm. A. And she come over and jumped on me lap and I'd just sort of tickle her around the tummy and all that. Then she got off and put her down. That was it. … Q212. [sic] - - - and that was it? A. Yeah. And then LO rings me and says um, someone told her that I touched her inappropriately, touched her Minnie or something and I went your what? You touched her Minnie and I said I never done that. Q179. Never did that? A. Yeah. I said, 'What are you talking about?' Q180. What did you - - - A. I don't recall ever doing that."
The appellant explained that he knew SO referred to her vagina as her "Minnie" because there had been an incident whilst SO was bathing, whereby she had complained to her mother that she had hurt her "Minnie" with a bar of soap. Due to the commotion made by SO, the appellant said he went to the bathroom and stood by the door while SO was consoled by AM. He asked what a "Minnie" was and LO told him that's what SO calls her vagina.
The appellant was further questioned as to the events during the period of the alleged offending. He told DSC Beckett and DSC Hasler that at about 1pm on Tuesday he and LO went shopping. He recalled LO went "somewhere else first" and at some point they found each other in Coles. He remembered that he paid cash at the register using his discount card, and she used the self-service. He further recalled that he withdrew some money from the bank, met LO outside a newsagency where she was sitting and bought a lottery ticket. He said they then went to the optometrist because LO had told him her eyes needed redoing after a certain amount of time. It was after those tasks that they met each other at Coles, had a cigarette at the top of the stairs near a taxi rank and got a taxi home at around 3pm.
When asked whether SO had ever been to his unit, the appellant answered that "she did once". He said whilst he was putting his shoes on before going to Coles she had "ducked up there", walked to his back verandah, to his bedroom door and then raided his fridge taking a few jellybeans and some chewing gum. He denied that she sat on his lap whilst in his unit and denied getting changed, except for his shirt. The appellant stated that he and SO then returned to LO's balcony.
The appellant stated that he had been drinking with LO on her balcony. He recalled a neighbour had checked the mail box who said hello before returning to her unit. He said that SO then sat on his lap, that he tickled her and she gave him a cuddle with her arms around his neck before he put her down. He recalled at that time she was wearing a little shirt and pyjama pants.
DSC Beckett then raised the complaints which had been made against the appellant and the following exchange occurred: "Q470. Um, so she told us that, um, you have placed your hands down the front of her shorts, under her underwear. A. Ah hmm. Q471. Put your fingers inside her vagina and started - - - A. I don't think so. Q472. And started rubbing her vagina. What can you tell me about that? A. No way in the world. She, she's tiny, I mean that'd, you couldn't do that that to, you couldn't put that in, no, no, no, sorry, I, I, can't accept that. No. Q473. Have you ever put your hands inside her shorts? A. No. Not that I know of, anyway, I, no way in the world, I wouldn't, I don't even think of it. DETECTIVE SENIOR CONSTABLE HASLER Q474. Not that you know of? A. I don't know. I, I, I couldn't believe I'd do something like that. Q475. You don't know. A. I don't know. I don't know what's going, I mean, like, you know, I, I was drinking all day and all night but I don't believe I did anything like that. I don't - - - DETECTIVE SENIOR CONSTABLE BECKETT Q476. When you're drinking is it, is it that you would not know what you've done the previous day or - - - A. I, I, I can't. I couldn't tell you what had happened that, yeah, well, basically, the next day. I go, oh, normally you wait for someone to tell you. You know, and then you go - - - Q477. So is it - - - A. - - - ah, bullshit, no - - - Q546. [sic] - - - the fact that you don't know whether you've put your hands down her pants - - - A. I don't - - - Q546. [sic] - - - and put your hand into - - - A. I don't think I did. Q478. … [your] fingers into her vagina? A. I never put it in her vagina, no, no, no, no, no, no, no. Q479. Did you ever put - - - A. I can't believe that no. Q480. Did you ever put your hands down her shorts? A. I don't think so. Q481. And rub the outside of her vagina? A. No. I don't know. Q482. You don't think so - - - A. No. Q551. [sic] - - - or you don't know? A. I, I, I know I didn't. I don't, I don't, I can't believe that, no. Q483. But you just said before that sometimes you don't - - - A. I don't know - - - Q552. [sic] - - - know what you - - - A. That's what I mean. I know you're just trying to twist me around but - - - … Q487. You know. A. Yeah. Cause I, I, if I, like, a bit, sometimes, yeah, a little, I don't, haven't a clue what I'm doing in, when, in, in the, in the, by, by the afternoon. I start drinking at 5.00, or 4.00, or 5.00 in the morning. As soon as I wake up. … Q489. So is it the case … over the course of the couple of days that you've had contact with [SO] that you were intoxicated you don't know what you've done? A. I don't have a clue. I, I can't say yes or no, or what because I have, I just don't believe I could … I could do anything like that. I just, it's, it's just spun me out. When, when, um, [LO] told me on the phone and I went, 'What? What are you talking about?'"
And further: "DETECTIVE SENIOR CONSTABLE HASLER Q503. Um, [SO] also tells us that, um, you exposed your penis to her and you said to her, 'Can you touch it?' A. Oh. Q504. And she said, 'No.' What can you tell me about that? A. I don't know. Q505. You don't know - - - A. I - - - Q574. [sic] - - - whether that happened or - - - A. No. I don't think so. I don't, no, no. This is too much. I don't know what to do. That's, I, I can't answer these. This is just, I don't believe I could do something like that. I … I don't know. Oh, I got no recollection of ever doing something dirty like that, I'm sorry. I can't accept that. I don't know. I don't know why she would say something like that? I'm sure she hasn't been brainwashed, like, told what to say but I, I, honestly can't say that I did or didn't. Q506. Mmm. A. And I don't know why she would say that. I don't even recall doing anything like that. God, almighty, I must have been drunk. I don't know. DETECTIVE SENIOR CONSTABLE BECKETT … Q508. But you just said, 'God almighty, I must have been drunk.' What, what, what do you mean by that? A. Oh, not being able to remember much of what, what's going on. This is, it, I know youse probably think I'm lying but I haven't a clue. There's only little bit of, that I remember of the whole two or three days I had off."
The appellant explained that he believed the police would think he was lying because he gets "flustered". DSC Hasler disagreed that the appellant had difficulty remembering the events of the preceding days. He referred to the details provided by the appellant including baking the cakes, going to the optometrist and shopping at Coles, and then said: "Q519. So selected memory when someone puts an allegation to you of sex abuse to a child you've got a selected memory, is that what you're saying? A. Not, oh, that ….. not all of that, not completely. There's some things there that you just constantly keep remembering and there's others you just don't. You just say, 'Oh, I'm not worried about that.' That's how I look at some things in life. But that, I can't admit to that, no, I'm sorry. That's just, I, I, like, it's, no. That's just bad, man, that's bad. I can't, I can't admit to that. I haven't, I don't know why, said that I put my finger in it? Oh, no, no, no, I never did that. No. DETECTIVE SENIOR CONSTABLE BECKETT Q520. Did you put your hand down her pant shorts at all? A. I don't think so. I never, never did when, anything like that at all in, in the whole time I, the short part of time I was with her. I don't recall ever doing anything like that. I don't think about it… DETECTIVE SENIOR CONSTABLE HASLER Q521. You had answers for everything else but - - - A. I know, I just, but I, I just think this is so rude I don't want to admit it. I don't, I don't want to know about it." Q522. … A. I don't want to… Q592. [sic] … want to admit that, would they? A. No. Q523. Mmm. A. I'm not going to say I did and, and I did and I didn't, and I don't know whatever I did or didn't. I, I, I - - - DETECTIVE SENIOR CONSTABLE BECKETT Q524. Are you saying you don't know whether you did or - - - A. I don't, yes, maybe, I just haven't a clue, mate. I said … looking at the timing, I mean, I don't know what time that was or what, what, you know, we just duck up, duck down and went to the shop, came back, bounce, bounce, the next thing I know I'm getting, thrown this at me. I don't know. I, that's, that's just bad, that's just shit, sorry. I don't know. Oh … DETECTIVE SENIOR CONSTABLE HASLER Q525. You say you don't know - - - A. I don't know - - - Q526. You've also gone to say, 'I don't know', you went to say 'maybe' - - - A. I don't know. Q596. [sic] - - - and now you say 'shit', like - - - A. Yeah. I don't - - - Q527. How can you be sure - - - A. I don't know how to answer - - - Q597. [sic] - - - it's shit? A. I don't know how to answer something like this. Q528. Mmm. A. I'm not going to say, sit here and go, 'Oh, yeah, I did thrash my doodle, I did do this, I did do that', I'm not going to admit to that when I don't realise, remember it or even realise I did do that. …"

The appellant's evidence

The appellant gave evidence at trial. No further witnesses were called in the defence case.
The appellant stated that he had been living at the units for nearly five years and was friends with LO.
He said that he first met SO on Sunday 23 October 2016 and that she had been in his unit. He denied ever touching SO's genital area, putting his hand or finger in her vagina, or exposing his penis to her.
As to TO, the appellant's evidence was that he first met her in early April 2016. He denied that TO had ever been in his unit. He denied ever touching her genital area, pulling her pants down, touching her bottom, or exposing his penis to her.
The appellant affirmed that he had experienced memory loss after heavy drinking.
As to why he seemed unsure in the ERISP about what had happened between him and SO, he told the jury that at the time he was "just under a bit of alcohol, but … not much". He also denied any knowledge of the details of the allegations that had been made against him at the time he was interviewed by the police.
However, as to how intoxicated he was at the time of the alleged sexual misconduct, he went on to say, "I wouldn't say I was actually intoxicated at all. I had beers but not over intoxicated."
In cross-examination, the appellant agreed that in the ERISP he seemed to have some difficulty with his memory when asked about the topic of having touched SO. The Crown Prosecutor put to the appellant that he did not appear to have any problems remembering just about anything else over the three to four days prior to the interview. The appellant did not agree with that suggestion, and furthermore he disagreed it was the only point he had a problem with in terms of his memory and that he had problems at "various points of it".
The appellant agreed with the Crown Prosecutor that early on in the interview he had claimed he was a drinker and that because he had drunk so much he had difficulties remembering the period during which the offending was alleged to have occurred.
The Crown Prosecutor then raised the inconsistency in the appellant's examination in chief, that the appellant didn't think he was intoxicated and put to the appellant that there really should not be anything wrong with his memory. The following exchange then occurred: "Q. Isn't it the reality that when you were constantly saying things like 'I don't think so', 'I can't believe that', 'I don't believe I did anything like that'? A. Yes, I believe I was thinking out loud. Q. You just couldn't face the reality of it because it was so shameful, isn't that right? A. It is very shameful. Q. That's why you couldn't bring yourself to admit it? A. I wouldn't admit to anything like that. I never did it. Q. Because what you said in answer to question 521 was: 'I just think this is so rude, I don't want to admit it'? A. I don't know why I said that - something like that. I just agree I mixed myself right up in, in, in the moment as I'd just been shamed, I been arrested, I've been accused and I'm sitting in a police station and like already a - 11 hours have already passed in my own time and then another five, I was just so tired and I was confused and I was just dribbling - the dribbles were constantly coming out. Most of it was me - was thinking out loud."
The Crown Prosecutor went on to challenge the appellant's apparent memory problems and pointed to the details which he had no difficulty remembering. The following exchange then occurred: "Q. The point I'm making is, you had sufficient memory to remember these kinds of details. You said [SO] was facing sideways on your lap, you remember that? A. Yes, yes, yes. Q. So there really was no problem with your memory at all? A. At points there was. But I -- Q. You just couldn't bring - A. -I just can't say to myself that everything I, I do remember and, and stated is true, but to the point there where I got - I had to admit to something I didn't do. You'd know if you did something like that. I just did not do it. I can't put myself into that position and state that I did something when I didn't do it."
The Crown Prosecutor then put to the appellant that he committed the alleged offences as charged on the indictment. The appellant denied the alleged offences occurred.
The cross-examination ended with the following exchange: "Q. Again I suggest you just couldn't bring yourself to admit it because it's so shameful. A. I would never admit to anything like that if I didn't do it. I would not admit to something I don't do and never did."

Closing addresses

In his closing address, the Crown Prosecutor in taking the jury to SO's evidence said: "Now [SO's] evidence as to what [the appellant] did, which was recorded during the interview that you saw, in my submission to you couldn't be any clearer. Her answers and her actions during those exchanges that I've just read out to you were clear, they were unequivocal, there is nothing vague or murky about it. She responded directly to the questions and her actions in demonstrating what [the appellant] had done to her, accompanied by her saying 'He did this to me' were immediate. They appeared natural and spontaneous. There's nothing at all about it that appeared to be coached or contrived. It was simply a four year old demonstrating what had been done to her a day or two before, or in the days before.
The Crown Prosecutor's then raised with the jury the appellant's memory of "trivialities" during his ERISP and, in the following terms, submitted that the appellant was untruthful and that his memory was "fine": "Now by itself the interview of [SO] was very strong evidence of the guilt of [the appellant], but there was further evidence if in fact any was required. The most damning evidence of all was the interview with [the appellant] himself. Now remember that the interview was conducted a matter of days after the events that he was asked questions about had happened… and ordinarily you might expect a person to have a pretty clear recollection of what they had done two to three days ago. Certainly you might expect if what was being put to you was the shocking allegation that you had sexually abused a four year old child, you would have a crystal clear recollection of what you had done two or three days earlier. That obviously wasn't the case with the accused. You might recall during that interview… [the appellant] was able to describe very precisely trivial things like baking cakes… He remembers these trivialities. … Yet when it came to the crunch, when he was asked questions about the very events, the very reason he had been arrested at his workplace and taken to a police station… when it came to those matters his memory failed him. 'I can't remember much of [the] three days to tell you the truth' he said. Well that wasn't the truth at all, in my submission, and his own answers about baking cakes and going to the optometrist and taking the shortcuts to the shop, those answers revealed that his memory was fine."
The Crown Prosecutor went on to say to the jury: "You might recall that he was quick to point out in the interview he was a big drinker and he'd had a couple of cartons of beer over those days and he claimed that that's why he had trouble remembering what had happened so far as [SO] was concerned. He said, [at question 487] of the interview, he said 'I don't have a clue. I haven't a clue what I'm doing by the afternoon. I start drinking at 5 or 4 in the morning, as soon as I wake up'. Then in his answer to question 506 he said 'I don't ever recall doing anything like that. God almighty I must've been drunk. I don't know'. Two questions later, question 508 he was asked what he meant by that and he said 'Oh, not being able to remember much of what, what's going on. This is it, I know youse probably think I'm lying but I haven't a clue. There's only a little bit of, that I remember of the whole two or three days I had off'. Ladies and gentlemen, of course he was lying. Obviously he was lying about that. During the interview he appears to suggest he was intoxicated and that that was the reason for his inability to be sure of what he'd done in relation to [SO], yet when he gave evidence in this courtroom he denied he was intoxicated during those days. The Crown says [the appellant's] answers, his ridiculous answers to those questions concerning what he did to [SO], those answers reveal his guilt and you simply wouldn't believe him when he claimed repeatedly that effectively, he couldn't remember what he had done or whether he had put his hands down [SO's] pants or exposed his penis to her. Remember he said, and I put this to him when I was cross-examining him, that he said 'I'm going to go to gaol surely, so I'll lose my job. I busted my arse getting in there and I'm going to lose it over something I didn't ever fucking know about'. He didn't say in that answer that he didn't do it, he just said he had no knowledge he had done it. He repeated this time and again throughout the interview. 'Have you ever put your hands inside her shorts?' His answer was 'No. Not that I know of?' The detectives then replied, perhaps somewhat in disbelief, 'Not that you know of?' Again, perhaps in some degree of disbelief the detective asked 'You don't know?' and his answer was 'I don't know. I don't know what's going on. I mean, like, you know? I, I was drinking all day and all night but I don't believe I did anything like that'. Time and again when the allegations were put to him of his hand being down [SO's] pants and rubbing her vagina his response was words to the effect of or was things such as 'I don't believe I did anything like that. I don't think I did. I can't believe that. I honestly can't say that I did or I didn't'. At question 503 he was asked '[SO] tells us you exposed your penis to her and you said to her can you touch it?' and his answer was 'I don't know'. He then immediately went on to say amongst other things, that 'No, I don't think so. I don't believe I could do something like that and I honestly can't say that I did or didn't'. The Crown says these are all answers of a guilty man, a man who just can't bring himself to admit something so shameful. Really, he even said it himself. At question 520 he was asked directly 'Did you put your hand down her pants/shorts at all?' His answer began 'I don't think so' and then he went on to say 'I don't ever recall anything like that' and claimed he couldn't give an answer. Then the detective pointed out that he seemed to have answers for everything in relation to these other matters about baking cakes and trips to the shops and so on. [The appellant] said, 'I know, I just - but I, I just think this is so rude. I don't want to admit it. I don't, I don't want to know about it.' That's it, really, in a nutshell. Putting your hand down the shorts of a four year old and touching her vagina is rude. It's shameful, and he can't just bring himself to admit it. When you consider the two interviews side by side, the interview of [SO] and [the appellant], the Crown says it is clear beyond any doubt that [the appellant] put his hands down [SO's] pants."
In his closing address, the appellant's trial counsel in referring to the appellant's ERISP said: "[The appellant] was interviewed. He didn't have to be. He was told he didn't have to answer any questions, he didn't have to say anything and if he knew that he had put his finger into [SO's] vagina, if he knew that, you wouldn't say you'd think, you might think 'I don't know, I hope I didn't, I don't believe I did'. If you are there to lie, to tell a lie, if you're there to lie about it, you just say 'No I didn't, it never happened, no didn't happen'. You would say that. So I suggest to you that that shows, shows a man who drinks too much. He'd been drinking and 'Oh my God, did I do something terrible, really reprehensible, oh my God I hope I didn't'. But at that stage with his interview he's only told, he's not given the details. Might be a bit light on detail… … Now he doesn't know if it's at 10 o'clock at night or at midnight or at 3 o'clock in the morning. Where - in his unit, on the balcony of [LO's]? He's just 'Oh my God, I don't, I don't think so, I don't believe so'. Now that he has the details and the interviews, and he knows. He's been asked about what he was doing on that particular Tuesday, he wasn't too drunk to go to the shops and the optometrist and to get taxi and to get Lotto because that's not challenged, that's not disputed that he did that. This is supposed to have occurred before he went. And he said he'd only had about six beers before he went to the shops. So you can believe him now because he was honest when he was interviewed by the police when goes in the witness box and says 'I didn't do it, hasn't happened'. You might think he was a bit frightened, a bit scared. 'I have - I never did such a thing' but he knows, he knows he didn't. You know, if you're asked the various complaints if - you'll be given directions about them and maybe some evidence of the truth of what is said but you have to remember that anything - the only ones who can say anything happened are [TO] and [SO] and whatever they say it comes from them, it comes from the same person and repetition, if something's untrue or false in the first place, repeating it doesn't make it true. But you know, after the fifth time of someone saying it, if it was false in the beginning, it doesn't transform into the truth…"

A discussion between the trial judge and counsel

At the conclusion of the closing addresses, the trial judge questioned whether either party wished to raise anything and the following exchange took place: "HER HONOUR: …What I'm seeking is an indication from either of you that you want me to say anything about lies. Neither of you suggested that this was a topic that required a direction when I sum up to the jury. Mr Crown, in your address you said that [the appellant] was obviously lying and that his answers reveal his guilt. Now that's getting rather close if not crossing the line to a consciousness of guilt. I don't know that it does cross it but it certainly raised a red flag when you said it but maybe that was me just being overly cautious because Mr Marr hasn't interpreted it the way I interpreted. But then Mr Marr in his address referred to, if [the appellant] was there to lie, then he would have given a better account of himself. So in some way, meeting your submission. Do either of you ask that I say anything to the jury about lies? CROWN PROSECUTOR: I considered it, I didn't think it crossed the line. HER HONOUR: Well, it's fairly evident you weren't relying upon lies as consciousness of guilt because otherwise you would have raised it with me ahead of your address, and you would have nominated which particular responses you were seeking and you would have obtained a ruling from me in advance of the launching into it. So, I'm very confident that you did not intend for that to be the gist of what you were advancing and it may well be I'm being overly cautious but I wanted to raise it with both of you because now is the time I need to adjust my summing up if I am saying something. You seek nothing, Mr Crown. Mr Marr, do you seek I say anything in relation to lies? MARR: No. No, I don't your Honour. Because if he says I don't know - the lies where he did know but it's a strange thing to say. Look, I think I don't think your Honour, I don't want your Honour to say anything. HER HONOUR: Well, it can be an approach taken by defence counsel that the preference is that nothing is said because it may highlight an issue that the defence don't necessarily want highlighted. So [it is] not an unknown approach to say that it is best to say nothing but I just wanted to raise with you both that that was a deliberate approach by both of you to not seek a direction and you have now both confirmed that…"

The trial judge's summing up

In the trial judge's summing up to the jury, her Honour did not mention the Crown's argument that the appellant had lied in the ERISP. Her Honour's instructions to the jury included that the Crown's task was to prove the appellant's guilt beyond reasonable doubt and the appellant was not required to persuade the jury as to his version of the events.
After summarising the evidence in the trial, including the appellant's ERISP, her Honour briefly referred to the closing addresses of the parties.
In reminding the jury of the Crown's closing address, her Honour said: "He reminded you of the age of each complainant and suggested how you would consider their evidence and the evidence of the complaints made by each. He reminded you of the evidence that he said was supportive of each complainant. He submitted to you that you would find [the appellant's] answers to police in the interview to be compelling evidence concerning [SO]."
When referring to the appellant's closing address, her Honour said: "Mr Marr on behalf of [the appellant] referred to the inconsistencies in each complainants' evidence and between the complainants and other witnesses. He reminded you of how [SO] initially disclosed to police in the interview and the responses given in the trial in cross-examination. Mr Marr reminded you that [the appellant] did not need to give evidence, but that he had chosen to do so."
Neither the Crown nor the appellant's trial counsel objected to the directions that her Honour gave.

Rule 4 of the Criminal Appeal Rules

As r 4 applies to the grounds of appeal, it is convenient to refer to the principles to be applied which were summarised in Roos v R [1] by Gleeson JA at [71] - [74]: "[71] Rule 4 of the Criminal Appeal Rules (NSW) provides that no direction, omission to direct, or decision as to the admission or rejection of evidence, given by the judge presiding at the trial shall, without the leave of the Court, be allowed as a ground for appeal unless objection was taken at the trial to the direction, omission or decision by the party appealing. [72] Leave to rely on an error to which no objection had been taken at the trial will be granted only where the appellant can demonstrate that the error led to a miscarriage of justice. The criterion for the exercise of r 4 has been the subject of discussion in this Court. In Picken v R [2007] NSWCCA 319, Mason P (Hidden and Harrison JJ agreeing) noted at [20] that there have been varying formulations of the test for identifying a miscarriage of justice in this context, referring to Tripodina and Morabito v R (1988) 35 A Crim R 183 at 195; Papakosmas v The Queen (1999) 196 CLR 297 at 319; and R v Wilson (2005) 62 NSWLR 346 at 352 [20]. The test proposed by McHugh J in Papakosmas v The Queen, which is a negative constraint, was doubted in Greenhalgh v R [2017] NSWCCA 94 at [8] (Basten JA, Button J agreeing), where the view was expressed at [16] that this Court should be cautious in laying down principles to be applied when exercising a broad discretionary power under r 4. [73] Nonetheless, it is generally accepted that the appellant must at least establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R at [20] - [21]; ARS v R [2011] NSWCCA 266 at [147] (Bathurst CJ, James and Johnson JJ agreeing); Greenhalgh v R at [47]-[48] (N Adams J) cf [7]-[21] (Basten JA, Button J agreeing). [74] It is also to be kept in mind, as Mason P said in Picken v R at [22], that: The question of leave in accordance with rule 4 needs to be addressed in relation to the particular error identified by the appellant and its impact, in isolation and in conjunction with other errors, upon the justice of the conviction under challenge."

Ground 1: A miscarriage of justice was occasioned by the reception into evidence of answers given by the appellant in a police interview that he did not recall or remember committing the alleged offence against [SO]

Argument

The appellant submitted that the answers given by him in the ERISP, that he did not recall or remember committing the alleged offence against SO, were not relevant and should not have been admitted.
The appellant argued that to the extent that his answers were relevant, the probative value of the evidence was outweighed by the risk of unfair prejudice to him, such that the evidence ought to have been excluded.
The appellant contended that his answers were given in the context of his seeking to make sense of the allegations that had been put to him. It was put to the Court that the expressed source of the appellant's equivocations as to whether or not he had committed the offence, together with his professed lack of memory as to whether he had committed the offence, was his belief that the complainant had not been brainwashed and had no reason to lie about the allegations. It was in this context that the appellant also said that he must have been drunk.
The appellant submitted that evidence about why a complainant might lie is irrelevant. Another argument was that whilst the evidence was itself adverse to the appellant in a general sense, the appellant's answers could not in themselves be regarded as admissions of the type contemplated by the Evidence Act 1995 (NSW) as the appellant did not intend to assert the existence of any fact from which guilt might be inferred. The sole basis of the relevance of the answers as implied admissions was submitted to be if it could be shown that the appellant was deliberately lying when he said he did not recall or remember whether he had committed the offence, which could not be established on the evidence.
The fact he had other memories was not of itself sufficient to prove he was lying when it was suggested he could not remember the alleged sexual misconduct, and that the articulation by the appellant of a "why would the complainant lie" question is of a kind deemed to be irrelevant.
The appellant contended that the Crown's closing address distorted the evidence, such that the there was a danger that the jury would rely on the appellant's answers as a "makeweight" in relation to count 3. In that context, the appellant submitted that even if the evidence were relevant, the probative value of the evidence was outweighed by the risk of unfair prejudice, and the impugned answers ought to have been excluded at trial.
The appellant submitted that the failure of counsel to object to the admission of the evidence served no forensic purpose and was a "gross irregularity" which occasioned a miscarriage of justice.
The Crown submitted that the appellant's statements in the ERISP in relation to his level of intoxication and to his recollection of the alleged offences, were relevant to a critical issue in the trial and were admissible as admissions under s 81 of the Evidence Act. The Crown argued that there was no basis to exclude that evidence under s 137 of the Evidence Act as the probative value of the evidence was high and exceeded any unfairly prejudicial effect the evidence may have had.
Another contention by the Crown was that the statements made by the appellant in his ERISP were directly inconsistent with the evidence he gave at trial, in particular, with respect to his level of intoxication and to his statements that he was sure that he did not sexually assault SO. The Crown submitted that those statements would be admissible as prior inconsistent statements
As there was no objection to the ERISP being admitted, the Crown submitted that the trial judge did not err in admitting the evidence. The Crown contended that in any event the evidence was admissible as an admission and as a prior inconsistent statement, that there was no substantial miscarriage of justice and that leave under r 4 of the Criminal Appeal Rules should be refused.

Consideration

It is unsurprising that the appellant's trial counsel did not object to the tender of the ERISP in the Crown case. This was plainly a forensic consideration as the appellant was to give evidence. His testimony included an unequivocal denial of the allegation that he had sexually assaulted SO. This is to be contrasted with the uncertain responses, memory difficulties and references to his state of intoxication in the ERISP.
The starting point on the admissibility of questions and answers in the ERISP is s 56 of the Evidence Act which provides that, except as otherwise provided in the Evidence Act, evidence that is relevant in a proceeding is admissible and evidence that is not relevant is not admissible.
Section 55 provides that relevant evidence is evidence that, if it were accepted, could rationally affect (directly or indirectly) the probability of the existence of a fact in issue in the proceedings.
The appellant's answers in the ERISP were relevant as if accepted they could rationally affect the assessment of the probability of the existence of a fact in issue in the trial, which was whether he had sexually assaulted SO. This was particularly so after the appellant's evidence.
Following the appellant's evidence in chief, his answers in the ERISP could have been put to him in cross-examination at least to the extent that the answers were inconsistent with his evidence.
The term "prior inconsistent statement of a witness" is defined to mean in the Dictionary to the Evidence Act: A previous representation that is inconsistent with evidence given by the witness.
Section 43(1) of the Evidence Act provides: 43 Prior inconsistent statements of witnesses (1) A witness may be cross-examined about a prior inconsistent statement alleged to have been made by the witness whether or not: (a) complete particulars of the statement have been given to the witness, or (b) a document containing a record of the statement has been shown to the witness.
In all likelihood procedural fairness would have required the whole of the ERISP to be played to the jury during the appellant's cross-examination in order to place the questions and answers in their proper context so that the jury was neither misled nor misunderstood the appellant's responses to police.
The forensic advantage to the appellant that might be obtained by the admission of the ERISP in the Crown case was that it afforded him the opportunity of explaining to the jury in his evidence in chief the uncertainty in his answers to the police before he was cross-examined.
The failure to object was not a gross irregularity and was capable of serving a clear forensic purpose. There was no miscarriage of justice.
In any event, the appellant's answers (see in particular answers to questions 474, 475, 476, 546 [sic], 547 [sic], 487, 489, 505, 506, 507, 520, 524, 525, 526 and 528 at [62] - [64] above) that he was "drinking all day and all night", that he "started drinking at 5.00 or 4.00 … in the morning. As soon as [he] woke up"; that he "couldn't tell [the police] what happened… basically the next day"; and that he "honestly, can't say that I did or didn't" were previous representations that were adverse to his interest in the outcome of the trial.
The term "previous representations" is defined in the Dictionary to the Evidence Act to mean: previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.
The term "admission" is defined in the Dictionary to the Evidence Act to mean: admission means a previous representation that is: (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and (b) adverse to the person's interest in the outcome of the proceeding.
The hearsay rule did not apply to the admissions and in my view they were admissible. [2]
There was no reason for the trial judge to consider excluding the evidence under s 137 of the Evidence Act. No objection was taken by the appellant's trial counsel. Furthermore, there was no danger of unfair prejudice to the appellant as he gave evidence which was inconsistent with answers in the ERISP and it was open to the Crown to cross-examine him on those inconsistencies.
Leave pursuant to r 4 of the Criminal Appeal Rules should be refused with respect to this ground of appeal.

Ground 2: A miscarriage of justice was occasioned by the conduct of the Crown Prosecutor in suggesting that evidence of answers given by the appellant in his police interview were lies that revealed his guilt

Ground 3: A miscarriage of justice was occasioned by the failure of the trial judge to direct the jury on lies or consciousness of guilt

Argument

It is convenient to deal with these grounds of appeal of appeal together.
As to ground 2, the appellant submitted that the Crown's cross-examination of the appellant together with the Crown's closing address to the jury invited consciousness of guilt reasoning. The appellant's argument was that the Crown suggested in both contexts that the appellant had lied about having difficulty with his memory because he had a guilty mind in relation to the offence and that he could not face the truth of what he had done.
Furthermore, the appellant contended that the Crown failed to identify the evidence of lies on which it intended to rely and failed to bring the matter to the attention of the court. It was said by the appellant that the mischief caused by the Crown's failure, was to leave the appellant's answers in the ERISP involving some memory deficit to be selected by the jury as it chose as evidence of his guilt. In that context, the appellant submitted that a substantial miscarriage of justice occurred as there were significant inconsistencies in the evidence and the Crown's submissions on consciousness of guilt could have had the effect of denying the appellant the chance of an acquittal.
As to ground 3, the nub of the appellant's submission was that the circumstances of this case required a direction that went beyond a Zoneff direction, but not to the extent of an Edwards direction, and that the failure by the trial judge to give such a direction occasioned a substantial miscarriage of justice, notwithstanding her Honour's enquiry of the appellant's trial counsel and his response that he did not want the trial judge to say anything.
The appellant submitted that the appellant's trial counsel should have asked for a direction "that the submissions that had been made by the Crown that he lied went to his guilt couldn't be used for that purpose".
The appellant argued that the trial judge correctly apprehended that the Crown's closing address crossed the line into consciousness of guilt reasoning without obtaining an advance ruling. The appellant contended that it was the duty of the trial judge to give such a direction notwithstanding the views of his trial counsel as it was her Honour's principal duty to secure a fair trial.
The Crown contended that the central question at the heart of both grounds 2 and 3 was whether or not the Crown Prosecutor was relying on consciousness of guilt reasoning and whether that was the focus of their closing address.
The Crown argued that the focus of the closing address was on credibility, that his lies were relied on to adversely affect the credibility of the appellant and to contrast his credibility with the credibility of SO.
The Crown contended that the context of the prosecutor's submissions in respect to the appellant's answers in his ERISP was to address each aspect of the appellant's credit, including the unlikelihood he would have forgotten what happened two to three days earlier, his detail in respect of other events that occurred during that period, and his inconsistent answers as to his intoxication. The Crown submitted that the use of the lies was not to engage in consciousness of guilt reasoning, not to corroborate other evidence in the Crown case, and an Edwards direction was not required.
Another argument by the Crown was that although the the language used by the Crown Prosecutor caused concern, the trial judge was cognisant of the issue and asked if either party wanted directions on the issues of lies or consciousness of guilt. The Crown submitted that the trial judge acted in accordance with authorities by raising the issue with the parties. Furthermore, the Crown submitted that the appellant's trial counsel positively objected to the proposed directions and leave to appeal should be refused pursuant to r 4 of the Criminal Appeal Rules.
The Crown contended that the active opposition to directions on the issues of lies or consciousness of guilt is a strong indication that in the atmosphere of the trial and in the circumstances there was no miscarriage of justice and no error of law in failing to give the direction. The Crown also pointed out that the trial judge was aware that a tactical forensic decision was being made by defence trial counsel and there was no indication by defence counsel that was not an accurate assessment of the reasoning process at that time.

Consideration

The appellant identified the direction said to have been required at trial as follows: "… the submissions that had been made by [the Crown Prosecutor] that the lie went to [the appellant's] guilt couldn't be used for that purpose."
It is unclear what was meant from the appellant's further submission that the circumstances of the case required a direction that went beyond a Zoneff direction but not to the extent of an Edwards direction. In Edwards v The Queen, [3] the majority (Deane, Dawson and Gaudron JJ) observed (at 210-1): "A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v. Lucas (Ruth), because of 'a realization of guilt and a fear of the truth'. Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation (for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect".
The general rule is that an Edwards direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because the accused knew that the truth would implicate him in the commission of the offence and if, in fact, the lie in question is capable of bearing that character. [4]
Where the prosecution does not contend that the lie had been told out of consciousness of guilt, it is usually sufficient to guard against the possibility of the jury mistaking the effect of any evidence of lies as evidence of consciousness of guilt to direct the jury in the terms enunciated in Zoneff: "'You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.'" [5]
The High Court emphasised in Zoneff that "rigid prescriptive rules as to when and in what precise terms an Edwards-type direction should be given cannot be comprehensively stated". [6] Furthermore, it is important to bear in mind that it is not always necessary for a trial judge to give a direction on lies. The applicable principle is set out in Dhanoa v The Queen: [7] "It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction. Zoneff was said to be an unusual case, and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies. The present was not such a case."
The appellant's contention that a substantial miscarriage of justice has occurred faces three hurdles. First, no objection was made by the appellant's trial counsel to anything that was said in the Crown Prosecutor's closing address. Secondly, no direction was sought in the terms articulated in this Court to be given by the trial judge nor was any direction sought on lies at all. Thirdly, this was not an omission due to inadvertence but a choice taken by the appellant's trial counsel when he was expressly asked by the trial judge whether he sought anything in relation to lies and his reply included (see [82] above): "I don't want your Honour to say anything". (Emphasis added.)
However, the first matter to be determined is whether the Crown Prosecutor's cross-examination of the appellant and his closing address gave rise to the risk of consciousness of guilt reasoning in the minds of the jury.
In my view, there are a number of aspects of what was said by the Crown Prosecutor, which go beyond the Crown's submission that the Crown Prosecutor relied on the asserted lies to attack the appellant's credibility and to contrast his credibility with SO.
The risk of consciousness of guilt reasoning arises from the following passages in the Crown's closing address (see [79]-[80] above): "Now by itself the interview of [SO] was very strong evidence of the guilt of [the appellant], but there was further evidence if in fact any was required. The most damning evidence of all was the interview with [the appellant] himself… … Ladies and gentlemen, of course he was lying. Obviously he was lying about that. During the interview he appears to suggest he was intoxicated and that that was the reason for his inability to be sure of what he'd done in relation to [SO], yet when he gave evidence in this courtroom he denied he was intoxicated during those days. The Crown says [the appellant's] answers, his ridiculous answers to those questions concerning what he did to [SO], those answers reveal his guilt and you simply wouldn't believe him when he claimed repeatedly that effectively, he couldn't remember what he had done or whether he had put his hands down [SO's] pants or exposed his penis to her… … The Crown says these are all answers of a guilty man, a man who just can't bring himself to admit something so shameful. Really, he even said it himself… … That's it, really, in a nutshell. Putting your hand down the shorts of a four year old and touching her vagina is rude. It's shameful, and he can't just bring himself to admit it." (Emphasis added.)
The Crown Prosecutor's submissions that the appellant could not bring himself to admit "something so shameful" built upon the final question in cross-examination: "Q. Again I suggest you just couldn't bring yourself to admit it because it's so shameful. A. I would never admit to anything like that if I didn't do it. I would not admit to something I don't do and never did." (Emphasis added.)
The trial judge apprehended the possibility that the Crown's closing address might invite consciousness of guilt reasoning. In the exchange quoted at [82] above, her Honour put to the Crown Prosecutor that what was said in his closing address came "rather close if not crossing the line to a consciousness of guilt". Although the Crown Prosecutor considered that he had not crossed the line, that was not the end of the matter. The ultimate question for her Honour to consider was the way the jury might use the evidence. As Kirby J observed in Zoneff at [71]: "The first problem is that it cannot ultimately depend upon the intention or subjective purpose of the prosecutor as to whether or not a judicial direction to a jury about that subject of lies must be given. The criterion must be the way the jury might use the evidence not the subjective purpose of the prosecutor in eliciting the evidence or relying upon it. That is why, in Edwards, the majority judges referred to 'where a lie is relied upon to prove guilt'. That expression must be given meaning according to objective standards. There is a lot of loose talk in the cases about the prosecutor's intention. I regard that as irrelevant except so far as it helps to identify what the jury might have made of the questioning or evidence."
It appears that the trial judge considered that she was relieved of further analysis of the Crown's closing address by the appellant's trial counsel's request that nothing be said to the jury about lies. It is clear that her Honour acted on that request and did not direct the jury about lies. Neither the Crown Prosecutor nor the appellant's trial counsel objected to her Honour's directions.
The approach taken by the appellant's trial counsel is capable of being explained for bona fide forensic reasons. It is not unknown for defence counsel to ask trial judges to not give directions on suggested lies so as to limit the thrust of a prosecutor's contention of the significance of the suggested lies. Her Honour acknowledged that such a forensic choice can be made in her answer to the appellant's trial counsel: "Well, it can be an approach taken by defence counsel that the preference is that nothing is said because it may highlight an issue that the defence don't necessarily want highlighted. So [it is] not an unknown approach to say that it is best to say nothing…" (Emphasis added.)
However, without any direction on the subject of lies, there was a real risk that the jury would use the suggested lies as proof of the appellant's guilt and not confine the suggested lies to an assessment of his credibility. Furthermore, the jury was deprived of guidance of what was required to make a finding of fact that a lie had been told.
Nevertheless, courts have often held that accused persons are bound by the forensic choices made by their lawyers. In Nudd v The Queen, [8] Gleeson CJ said at [9]: "It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel's conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct."
In The Queen v Taufahema, [9] Kirby J said at [168]: "Tactical decisions and even-handedness: A particular consequence of the 'common law system of criminal procedure', and of its consequence that accused persons are ordinarily bound by the conduct of their legal representatives, has been a reluctance of courts of criminal appeal to permit an accused, having second thoughts on appeal, to challenge miscarriages of justice said to have arisen from tactical decisions made by trial counsel in the course of the trial. This reluctance has a very practical foundation. Such decisions are made in trials on countless occasions every day. If they were susceptible to being reopened on appeal, few forensic choices could be treated as final. Trials, and appeals, might never conclude. For this reason, in very many cases, this Court has declined to permit accused persons to reopen decisions made by counsel at trial, characterised as those made for tactical reasons."
A forensic choice taken at trial may lead to a conclusion that a miscarriage of justice has not been demonstrated. As Gaudron J explained in TKWJ v The Queen: [10] "[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 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." (Footnotes omitted.)
Notwithstanding the significance of the forensic choices made at trial, the overriding obligation of a trial judge is to ensure a fair trial of an accused in the way explained by Barwick CJ in Pemble v The Queen [11] (at 117-118): "Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part. … Here, counsel for the defence did not merely not rely on the matters now sought to be raised; he abandoned them and expressly confined the defence to the matters he did raise. However, in my opinion, this course did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused." (Emphasis added.)
In Stevens v The Queen, [12] the failure to direct on the defence of accident under s 23(1)(b) of the Criminal Code (QLD) when the accused was charged with murder was held by a majority (McHugh, Kirby and Callinan JJ, Gleeson CJ and Heydon J dissenting) to have occasioned a miscarriage of justice in the circumstances of that case. In referring to the duty of a trial judge, Kirby J said at [68]: "Duty of the trial judge: Finally, it is important to remember that the directions required of the judge in a criminal trial depend upon the real issues in that trial. It is not the judge's function to give an exposition of the law that unnecessarily goes beyond those issues. In a properly conducted trial, the issues will be defined, substantially, by the way the parties have conducted their respective cases. Nevertheless, the judge retains a duty to instruct a jury concerning any defence (even one not raised or pressed by a party or indeed disclaimed by the parties) that fairly arises on the evidence and therefore needs to be considered by the jury in reaching their verdict." (Emphasis added.)
In CTM v The Queen, [13] Kirby J emphasised that the Pemble obligation forms part of a trial judge's duty of ensuring fairness to an accused at [112]: "Rule in Pemble: There is an additional consideration that reinforces the foregoing approach in the present appeal. It arises from the decision of this Court in Pemble. That decision acknowledges that an accused is entitled to have a defence put forward by counsel in the manner judged most likely to secure an acquittal. Often, for forensic reasons, this will involve a single or simple theory of the evidence. However, the decision also recognises that this does not relieve the trial judge of the obligation to explain to the jury any other bases upon which, in law, the accused may be entitled to acquittal upon the evidence adduced." (Original emphasis.)
In James v The Queen [14] the trial judge declined to leave an alternative verdict to the jury. The accused's counsel was taken to have agreed with the trial judge's assessment and the jury was not instructed on the availability of the alternative verdict. The accused appealed against his conviction, contending that the trial judge's failure to instruct the jury on the availability of the alternative had occasioned a substantial miscarriage of justice. The plurality (French CJ, Hayne, Crennan, Kiefell, Bell and Keane JJ) said at [38]: "The trial judge's duty with respect to instruction on alternative verdicts is to be understood as an aspect of the duty to secure the fair trial of the accused. The question of whether the failure to leave an alternative verdict has occasioned a miscarriage of justice is answered by the appellate court's assessment of what justice to the accused required in the circumstances of the particular case. That assessment takes into account the real issues in the trial and the forensic choices of counsel. As earlier noted, not infrequently defence counsel will decide not to sully the defence case (that the only proper verdict is one of outright acquittal) by an invitation to the jury to consider the accused's guilt of a lesser offence. Such a forensic choice does not prevent counsel from submitting that the alternative verdict should nonetheless be left. Much less does it prevent counsel from making that submission where, as here, he or she is asked about the matter. It remains that the forensic choices of counsel are not determinative. The duty to secure a fair trial rests with the trial judge and on occasions its discharge will require that an alternative verdict is left despite defence counsel's objection." (Emphasis added.)
Although the authorities cited do not involve a lies direction, I do not understand that the obligation to ensure a fair trial is confined to the failure to direct on available defences or alternative verdicts.
There is no doubt that the rule in Pemble creates difficulties for trial judges. Justice Virginia Bell AC in a recent paper described the discharge of the Pemble obligation as a "trap for young players". [15] However, trial judges must be mindful that there will be occasions when justice to the accused will require a direction to be given, notwithstanding a forensic choice of defence counsel.
When a trial judge apprehends that the rule in Pemble obliges a direction inconsistent with defence counsel's chosen strategy or against defence counsel's express wish, procedural fairness requires that the proposed direction be raised with the parties to ensure that there is no misunderstanding and in the circumstances a fair trial cannot be secured without the direction.
In the way the appellant's trial was conducted by the Crown Prosecutor, the ERISP acquired considerable significance. Other than what the jury might make of the tendency evidence, the trial was essentially "a word against word case". In these circumstances, it is likely that the jury would look around for evidence tending to support the allegation.
The thrust of the Crown Prosecutor's closing address was that the jury would find support for the prosecution case in the appellant's answers in the ERISP which were the answers of a guilty man. This is not a case where the suggested lies went to a peripheral issue in the trial, but were central to the allegation of sexual assault.
Without instruction from the trial judge on the subject of lies, there was a real risk that the jury might accept without question the Crown Prosecutor's suggested lies were in fact lies and engage in impermissible consciousness of guilt reasoning. The jury received no instruction whatsoever on the subject of lies.
The trial judge was aware that the Crown Prosecutor's address gave rise to the possibility of consciousness of guilt reasoning. Her Honour did enquire of the appellant's trial counsel whether anything was sought on lies and her Honour was asked not to say anything. In my respectful opinion that should not have been the end of the discussion. I do not intend any criticism of the trial judge. Her Honour was placed in a difficult position.
Where the risk of consciousness of guilt reasoning arises from the approach taken by the Crown, it is difficult to envisage how an accused can receive a fair trial without anything being said to the jury on the subject of lies.
Despite the request that no direction on lies be given, I have concluded that justice to the appellant required the trial judge to give a direction to the jury which guarded against the misuse of the suggested lies. Taking into account the forensic choice of trial counsel a brief direction could be given. In my view, the following direction was required: 1. It was a matter for the jury to decide that a lie (or lies) had been told; 2. In order to decide that a lie (or lies) had been told, they had to be satisfied that the appellant said something that was untrue and at the time of making the statement knew that it was untrue; 3. If they decided a lie (or lies) had been told, they could not use it in support of the conclusion that the appellant was guilty and; 4. The only use of a lie was in their assessment of the appellant's credibility.
I would uphold ground 3. I am not persuaded that the Crown Prosecutor's conduct by itself amounts to a miscarriage of justice. I would reject ground 2.
Although the Crown Prosecutor's closing address as to the ERISP went only to counts 3 and 4, the Crown's allegation of the sexual assault of TO was essentially a "word against word case". The appellant gave evidence in the trial denying the allegations of sexual assault. The real risk of the jury engaging in impermissible consciousness of guilt reasoning had the potential to significantly undermine the appellant's credibility in the eyes of the jury.
In my opinion, the appellant has established that he has lost a chance fairly open of being acquitted on counts 1-3.
I propose the following orders: 1. Grant leave to appeal under r 4 of the Criminal Appeal Rules in respect of ground 3. 2. Allow the appeal. 3. Quash the convictions and sentences. 4. Order that there be a re-trial of the appellant. 5. Remit the matter for mention at the District Court at Sydney on 11 October 2019 at 9.30am.
N ADAMS J: I have had the advantage of reading the judgment of Price J in draft. I agree with the orders proposed by his Honour for the reasons he has provided.
It is to be accepted that the trial judge was put in a difficult position when defence counsel expressly stated that he did not wish there to be a direction on lies. The problem is that the Crown Prosecutor's closing address at the trial referred a number of times to the fact that the (then) accused was lying in his ERISP when he said he could not remember what happened at the relevant time. The Crown Prosecutor addressed the jury in terms that the appellant's "ridiculous" answers "reveal his guilt", that they were the "answers of a guilty man", that "of course he was lying" and that the reason he was lying was that the truth was "so shameful".
In light of the way the Crown Prosecutor addressed the jury on lies, it seems to me that there was a real risk that the jury would use the "lies" about the (then) accused's poor memory as consciousness of guilt if not given an appropriate warning. In circumstances where the Crown did not rely upon these lies as consciousness of guilt, the jury should have been given a direction which included a warning that they could not follow a process of reasoning "to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt": Zoneff at [23].

Endnotes

[2019] NSWCCA 67.
Evidence Act 1995 (NSW) s 81.
(1993) 178 CLR 193; [1993] HCA 63.
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 at [16] (per Gleeson CJ, Gaudron, Gummow and Callinan JJ).
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 at [23]
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 at [15].
(2003) 217 CLR 1; [2003] HCA 40 at [34] (Gleeson CJ and Hayne J)
[2006] HCA 9; (2006) 80 ALJR 614.
(2007) 228 CLR 232; [2007] HCA 11.
(2002) 212 CLR 124; [2002] HCA 46.
(1971) 124 CLR 107; [1971] HCA 20.
(2005) 227 CLR 319; [2005] HCA 65.
(2008) 236 CLR 440; [2008] HCA 25.
(2014) 253 CLR 475; [2014] HCA 6.
The Honourable Justice V Bell AC, "Jury Directions: the Struggle for Simplicity and Clarity, Banco Court Lecture, Supreme Court of Queensland, 20 September 2018", Banco Court Lecture, Supreme Court of Queensland, 20 September 2018. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 February 2021

Crimes Act 1900(NSW)ss 66A, 61M

Evidence Act 1995(NSW)ss 43, 55, 56, 81, 137, s 81.

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