DN v R

Whether leave to raise ground 1 should be granted: Criminal Appeal Rules, r 4

1. The appellant acknowledged that, as no direction had been sought from the trial judge, leave to raise this question required leave pursuant to the Criminal Appeal Rules r 4, which provides: "4 Exclusion of certain matters as grounds for appeal etc No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal."
2. The appellant read the affidavit of Terrence Healey, who appeared for him at trial. In his affidavit, affirmed on 1 September 2016, Mr Healey, having been provided "with the relevant transcript of the closing address and the cross-examination of the appellant", deposed that he had "no memory of making any tactical decision regarding such a direction".

Principles governing the grant of leave

1. In Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37, McHugh J, at [72], explained that the grant of leave under r 4 requires an appellant to establish: "... the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant."
2. In ARS v R [2011] NSWCCA 266, Bathurst CJ stated the principles in relation to the operation of r 4 as follows: "[148] Subsequent cases [to Papakosmas] 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].48]."
3. Although I have a concern that trial counsel's omission to seek a direction was a considered decision, given the Crown's acknowledgement that had a direction been sought, it would have been appropriate for the trial judge to give a direction and it was likely that a direction would have been given, I am of the opinion that leave to raise this ground should be granted.

The case at trial

1. The appellant's defence was that the conduct alleged by the complainant did not occur. In particular, insofar as it is relevant to the issues on the appeal, the appellant denied that he had taken any photographs of the complainant. It was the defence case that the complainant had made false allegations against the appellant in retaliation for him sacking her on 10 March 2012 because of her poor work performance and her increasing indebtedness to the store for purchases of soft drinks and confectionary and the rental of DVDs.
2. The appellant gave evidence. It was a significant aspect of the Crown's attack on the appellant during his cross-examination that he had disposed of his phone because it contained the photographs of the complainant that he took, relevantly, on 6 and 8 March 2012, as the complainant had alleged. The appellant denied that this was the case. He agreed that his mobile phone number was disconnected on 26 March, but also said he could not be 100 per cent sure that he disconnected it, as he "might have just changed SIM cards or let it run out". He agreed that he possibly had got a new number, but did not agree that he had got a new phone. He accepted that he did not have the iPhone when he was arrested on 8 October 2013. He was not able to provide a definitive answer as to why he had changed his mobile number, saying that there might have been a better deal that had come up with a different provider.
3. The Crown questioned him as to whether, at the same time that his mobile phone number was disconnected, or was no longer available, he "got rid of the phone?" The appellant responded, "I cannot be 100% sure whether I got rid of the phone". The cross-examination continued: "Q: Where is it the phone? A: Three years ago, I could have sold it, I could have swapped it, I could have broken it; I can't be 100% sure."
4. The appellant denied that he got rid of the phone because it had the topless photographs on it. He said "No, because I never took any photos".
5. It was again put to him in cross-examination that he had got rid of his mobile phone number and his phone. He responded, "I had gotten rid of my mobile phone number but I can't - I can't 100% say that I got rid of a - got rid of the phone". The cross-examination continued: "Q. You did get rid of the phone, didn't you? A. No I didn't. I don't think I did. Q. Where is it? A. As I said, it was three years ago - I could have sold it; I could have broken it; swapped it. Q. What I'm putting to you is it the reason that you were worried; the reason that you changed the number, is because you did do the things to her that she alleged in this trial that you did? A. No, no, I have never done anything to T."
6. In closing address to the jury, the Crown stated: "The accused's case was that the allegations are untrue, they're made up maliciously, and they're all lies. The motivation for those lies is his sacking of her on 10 March because she was not working well, and also because she wanted to avoid paying the amount of money that she owed him for not returning videos and taking stock from the video shop. If you think about that issue of the complainant faking this evidence, or this allegation against him, just consider this."
7. The Crown then enumerated the complaints that the complainant made to her friends, to her parents and to the police, as well as her evidence in court. The Crown reminded the jury that the complainant acknowledged that what she had told her friends was a lie, a matter that she had volunteered in her evidence, and advanced that as indicative of her frankness. The Crown then turned to the cross-examination of the appellant: "In the cross-examination of the accused at the beginning of it I put to him that he had told a number of direct lies to you in giving his evidence, including that he had sacked the complainant on 10 March. The second one was that he had parted company with the complainant after work on 8 March, after closing the shop. If you find that he did tell you a deliberate lie in giving his evidence, and if you think it is about a material issue in this case, then you may take that fact into account in assessing his credibility generally on other matters. The Crown says that you would be able to find that he did tell you a deliberate lie about sacking the complainant on 10 March, and that lie can be proved by the terms of that recorded conversation [to] which I just directed your attention, and in light of all of the evidence, and the Crown says it is material because it is given to support the suggestion that she had this motive to lie, this feeling of malice because he had sacked her and she was trying to get him back, she complained of sexual assault. So her evidence was she denied she ever received the sacking text. [Her father's] confrontation of the accused on 12 March. Her evidence that she never went back to the shop. Burgess' evidence about the accused saying after [her father] had come in, that he was worried about what she could say. The fact that on the 17 April conversations - [The complainant] doesn't seem to realise that she has been sacked. She seems to be asserting that she left on her own because she didn't want to come back because of what had happened. All of that evidence you can take into account in deciding whether you think he has lied to you, whether it is deliberate and whether it is material. If you are satisfied of those things, you can [take] that lie, that deliberate lie into account in assessing his credibility generally on other matters such as whether he remained home on 6 March and didn't go to work, whether he parted company with [the complainant] on 8 March, even though the Crown says that is a deliberate lie as well." (emphasis added)
8. There next followed the impugned passage: "So in conclusion, the Crown says you would find [the complainant] to be a reliable witness, a witness of truth. She is supported by other evidence in the case, which is independent of her; namely, the accused's admissions in the recorded conversations, and his conduct, disconnecting the phone number. On the Crown case getting rid of the phone in which the Crown says these photographs were contained, the topless photographs. The Crown says it is a matter for you that the evidence in the accused's case would not raise a reasonable doubt in your mind about her credibility or that the Crown has proved its [case] on each count on the basis of all of the evidence in the case." (emphasis added)
9. Trial counsel for the appellant then addressed the jury. He pointed out, inter alia, that "[e]verything depends upon really what [the complainant] has said": "Everything. No photographs. No mobile phone …" … He is entitled to get another phone. Why transfer the onus onto him? The accused. He owes no explanation at all. He has given his explanation on oath … even if you disbelieved everything that he said, you would have to be satisfied that [the complainant] is telling you the truth. You can put his evidence in the bin. Do you still accept her? ... She tells different stories … There is a reasonable doubt in this case."
10. The trial judge, in his summing up to the jury, in the course of summarising the evidence, pointed out the appellant's evidence in relation to his phone as follows: "… he said he just changed the number on the phone, he does not know if he got rid of it or not, but that was just something that occurred normally, not because of this matter."
11. Later, when summarising the appellant's case as advanced by his counsel, his Honour made the following observations: "[Trial counsel] talked to you about the importance of serving as a juror and it is the State that brings the charge and the Crown, the State has to prove the charges beyond reasonable doubt. These are the principles of justice, all the counts and all the elements for the particular count. [Trial counsel] submits it is a difficult Crown case when you look at it because what the complainant has done is lie to her friends about what happened, she said something took place at work which she now says did not take place. [Trial counsel] says there is not a jot of evidence about the topless photographs, apart from what the complainant says. [Trial counsel] refers to the Crown suggesting there is some form of support for [the complainant's] evidence, but that is not enough and the Crown has got to have more than just a bit of support … The accused does not have to prove anything, there is no onus on him … … … You have not got the phone, you have not got the photographs, and why would the accused not be concerned when someone comes in the shop and threatens to fillet him, why would he not be worried about that, why would he not try to reconstruct what possibly it could be about. … And the ultimate submission is you will find the accused not guilty; even if you did not believe his evidence, and put it aside, you would still find the accused not guilty because you would not be satisfied on the complainant's evidence of the elements of the particular offences."
12. Earlier, at the commencement of the summing up, his Honour had given the conventional directions that the onus was on the Crown to prove the guilt of the accused.
13. His Honour added: "That never alters, it does not alter because the accused happens to give evidence or calls evidence. The onus does not shift."

Submissions

1. The appellant submitted that the cross-examination of him invited the jury to reason that his conduct in disposing of the phone and changing the number revealed that he had a consciousness of guilt in respect of the offences. This approach was underscored, it was submitted, in the Crown's statement to the jury set out above at [37]. The appellant contended that post-offence conduct may support consciousness of guilt reasoning and, in that regard, attracted the same principles as applied in respect of lies told by an accused person: McKey v R (2012) 219 A Crim R 227; [2012] NSWCCA 1 at [26]-[27]. The appellant submitted that this principle was confirmed in Kuehne v R; Humphries M v R; Humphries A v R [2012] NSWCCA 270 where Latham J observed, at [6]: "… before any post offence conduct can … qualify [as a legitimate indicia of a consciousness of guilt] it must bear a particular character. It must be capable of constituting an admission against interest. It must be capable of meeting the conditions analogous to those discussed in Edwards v The Queen (1993) 178 CLR 193 applying to lies. The relevant conduct must be precisely identified and proved by evidence, it must be concerned with some circumstance or event connected with the offence and it must be carried out in circumstances in which the explanation for the conduct is a realisation of guilt on the part of the accused." (emphasis added)
2. Latham J noted that destruction of evidence was capable of constituting consciousness of guilt: see also McKey at [26].
3. The evidence established that the appellant changed his phone number between 12 March 2012 and 26 March 2012. By that time, the appellant was aware that the complainant had made allegations against him. The appellant submitted, however, that the post-offence conduct upon which the Crown relied was not capable of constituting an implied admission against interest or supporting an inference of guilt. In particular, the appellant submitted that his disposal of the phone could not support an inference of guilt unless it was presumed that the phone contained the photos that it was contended the appellant had taken of the complainant.
4. The appellant complained that the use of evidence that he had got rid of the phone as evincing a consciousness of guilt was an exercise in circularity in circumstances where the Crown sought to rely upon that evidence as independent evidence in support of the complaint. The appellant submitted that the Crown had failed to observe the injunction in Edwards v R (1998) 178 CLR 193 at 208-11; [1993] HCA 63 that where a lie was relied upon as an implied admission of guilt to corroborate the evidence of a complainant, it was necessary to rely upon other evidence to establish the asserted facts to establish the lie. The appellant further submitted that this circularity of reasoning deprived the evidence of the capacity rationally to support an inference of guilt, as had been explained in Kuehne at [69].
5. The appellant, in the course of argument on the appeal, drew attention to the cross-examination, set out above at [34], in which he was questioned about two distinct matters: the first, that he had changed his mobile telephone number; the second, that he had "got rid of the phone". The appellant submitted that underlying the Crown's questioning in respect of the second of these matters was that the appellant did not want to be found in possession of the phone because it had, on the Crown case, the incriminating photos on it. The appellant pointed out that he did not make any direct or clear admission that he had disposed of the phone. It followed that there was also no evidence that he had changed his mobile number and at the same time got rid of the telephone.
6. The appellant submitted that the Crown, in the passage reproduced above at [37], did not precisely identify or articulate how the conduct of disposing of the phone led to a consciousness of guilt, in circumstances where the appellant had not been able to say what had happened to the phone three years after the event and, in particular, had not admitted that he had deliberately disposed of the phone knowing that the photographs were on it. The appellant pointed out, for such conduct, that is, disposing of the phone, to amount to an admission against interest, it was necessary that the complainant's account, that there were photographs of her on the phone, be correct.
7. The appellant contended that in circumstances where there was a real question as to whether the appellant had got rid of the phone at all, its capacity to provide independent evidence in support of the complainant's account was doubtful. The appellant submitted that had a direction as to consciousness of guilt reasoning been given, the jury would have been invited to focus upon the paucity of the evidence as to what actually happened to the phone.
8. This last submission was a direct response to the Crown's written submission that had a direction been given, it would have drawn attention to the damning effect of the evidence of the destruction of the phone to the appellant's defence. The Crown submitted that this was why trial counsel did not seek a direction as it would have been to the disadvantage to the appellant to do so.
9. The Crown accepted that the passage to which reference has been made in the Crown's closing address, set out above at [37], could be characterised as involving consciousness of guilt reasoning. However, the Crown submitted that there was no error in the Crown referring to this evidence in the closing address. The Crown submitted that the relevant conduct had been precisely identified, namely, the deletion of the photos and the disconnection of the phone number. There was no dispute that the appellant no longer had the phone and, on the Crown case, the appellant had admitted in the recorded conversation of 17 April that he had deleted the photos. It was also submitted that the evidence was clearly capable of supporting the inference that the appellant had got rid of the phone because he was concerned that it might implicate him in the offences with which he was ultimately charged.
10. The Crown submitted that there was no circularity of reasoning in the use of this evidence and that in this regard, Kuehne was distinguishable. In that case, the Crown had relied upon the accused's delay in giving an exculpatory version to the police as evidence of consciousness of guilt, but had failed to identify how the delay in presenting to the police supported an inference of guilt save that it was suggested that in delaying going to police the accused had concealed their guilt. It was submitted that the present case was markedly different. Evidence that the appellant had deleted the photographs and his evidence that he did not have the phone was directly connected with the offence in that had the phone been available its contents would have revealed evidence that would have directly proved the offence.
11. That being so, the Crown submitted that the real issue on the appeal was not that the Crown had made the statement to the jury in the terms set out at [39] above, but whether the trial judge was required to give an Edwards-type direction. It was accepted by the Crown that no such direction was given.
12. The Crown submitted that the appellant's emphasis on the distinction between his changing his telephone number and the disposal of his phone, if that occurred, was a false one, in circumstances where during cross-examination, the Crown sought to link both together. This was apparent, it was submitted, from the cross-examination reproduced above at [32]-[34].
13. The Crown also submitted that the appellant's reliance upon the three-year time difference between the events subject of the charge and the trial was a distraction, because the appellant was aware from 12 March 2012, when he was confronted by the complainant's father, that there was an allegation that he had taken photographs of the complainant on his phone. Further, the appellant knew from the time of his arrest in October 2013 of the allegation that he had taken photographs on his phone. Accordingly, there had been two occasions, one proximate to the time of the offending conduct, and another some 18 months later, in respect of which the appellant knew that the whereabouts of his phone was a matter in issue.
14. The Crown also submitted that, contrary to the appellant's submission that there were two independent acts that were relied upon by the Crown as consciousness of guilt reasoning, in fact, the Crown had at all times linked the two acts, one of changing the telephone number and the second of disposing of the phone, as part of the same conduct.
15. The Crown accepted, however, that there was no evidence that the appellant had destroyed the phone. The only evidence relating to the whereabouts of the phone was that given by the appellant in the course of cross-examination and the fact that the phone was not seized by police at the time of his arrest in October 2013, although, as the Crown acknowledged, there was no obligation for the appellant to hand over his phone to the police in the absence of a search warrant. In this regard, the Crown accepted that the fact that no phone was produced at the time of his arrest could not be the basis for any inference to be drawn against the appellant.
16. The Crown acknowledged that the weight of authority is that it is highly desirable that a trial judge give a direction to the jury when there is reliance upon consciousness of guilt reasoning and that a failure to do so may result in a miscarriage of justice. The Crown submitted, however, that a direction as to consciousness of guilt reasoning is not mandatory and every case must depend upon its own circumstances.
17. In this case, the Crown contended that to give a direction as to consciousness of guilt reasoning would most likely have had the effect of focusing unwarranted attention upon what had happened to the phone. The Crown submitted that, in giving a conventional direction as to consciousness of guilt reasoning, the trial judge would have directed the jury that before they could have used the evidence of the destruction or absence of the phone as something that pointed towards guilt, they had to be satisfied he had got rid of the phone.
18. The Crown pointed out that, in his summing up, his Honour had reminded the jury that the appellant had said that he did not know whether he had got rid of the phone or not, or whether that was something that had occurred normally and was not in any way associated with this matter.

Legal principles

1. Both parties accepted that the principles governing what is required in the giving of a direction as to consciousness of guilt reasoning were stated by the High Court in Edwards. In that case, the plurality, at 209, explained why, in certain circumstances, the telling of a lie, or in this case, engaging in certain post-offence conduct, is probative of guilt as opposed to merely affecting the credit of the witness who tells the lie, or engages in the post-offence conduct, as follows: "But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that 'if he tells the truth, the truth will convict him.'" (footnotes omitted)
2. The plurality further stated, at 211. "… 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. If the telling of a lie by an accused is relied upon, not merely to strengthen the prosecution case, but as corroboration of some other evidence, the untruthfulness of the relevant statement must be established otherwise than through the evidence of the witness whose evidence is to be corroborated. If a witness required to be corroborated is believed in preference to the accused and this alone establishes the lie on the part of the accused, reliance upon the lie for corroboration would amount to the witness corroborating himself. That is a contradiction in terms."
3. In Zoneff v the Queen (2000) 200 CLR 234; [2000] HCA 28, the Court was again concerned with the circumstances in which a direction as to consciousness of guilt reasoning should be given.
4. The plurality stated, at [16], that the circumstances in which such a direction ought to be given are as follows: "There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt."
5. In Zoneff the prosecutor had not, during the course of cross-examination, suggested that any answer given by the accused was a lie, told out of consciousness of guilt. Nor was anything said to the jury to that effect, the circumstances being unusual in that the prosecutor did not address the jury. The High Court was of the opinion that it would have been undesirable for the trial judge to give an Edwards-type direction, as it would have required the judge to decide which of the appellant's answers were or were not capable of being regarded as lies indicative of consciousness of guilt and would have had the effect of highlighting issues of credibility so as to give them an undeserved prominence in the jury's mind to the prejudice of the appellant in that case. The Court concluded that a direction should not have been given in those circumstances.
6. The appellant also relied upon McKey; R v GJH (2001) 122 A Crim R 361; [2001] NSWCCA 128; and R v Cook [2004] NSWCCA 52 as circumstances in which the Court granted leave where the trial judge had omitted to give an Edwards-type direction. In McKey the Court, at [42], considered that an Edwards-type direction should have been given in circumstances where the cross-examination of the appellant in that case had unequivocally suggested that his conduct constituted an implied admission of guilt. The Court was of the opinion that the jury ought to have been directed that they were required to examine whether an inference of guilt was a reasonable and justifiable one and were required to exclude any alternative inference that was inconsistent with guilt.
7. In GJH the Court held that a direction should have been given as to the use to which lies told by the accused, upon which the Crown relied, were to be put. The Court, at [62], relied upon the direction to the jury that the High Court in Zoneff had considered appropriate where there was a risk of a misunderstanding about the significance of possible lies. Such direction should include a warning to the jury, "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".
8. In Cook, the Court held, at [52], that a direction should have been given to the jury as to the use that could be made of the evidence of flight. The Court was of the opinion that a direction should have been given.

Consideration

1. It will be recalled that the Crown did not submit that such a direction was inappropriate and acknowledged that the Crown's statement to the jury could have been understood as an invitation to the jury to engage in consciousness of guilt reasoning. Accordingly, I agree with the Crown submission that the real question on the appeal is not whether a substantial miscarriage of justice arose because of what the Crown said to the jury but whether the Crown's statement to the jury could have led the jury to reason that changing the telephone number and disposing of the phone, (if the jury accepted that happened) involved consciousness of guilt reasoning such that it was necessary, in all the circumstances, that a direction be given to ensure that there was no confusion as to the way the prosecution put its case: see Zoneff at [16]-[17].
2. The Crown, in that part of the address immediately before the impugned statement, had drawn attention to matters that raised for the jury's determination whether the appellant's evidence was credible, it being suggested that he had lied in his evidence to support the proposition that the complainant had a motive to lie about the sexual assault out of malice because he had sacked her. The Crown had further suggested to the jury that if they were satisfied that the appellant had deliberately lied in his evidence about that matter, they could take that into account in assessing his credibility generally.
3. In the impugned passage, the prosecutor relied upon the evidence that the appellant changed his telephone number and, on its case, disposed of the telephone as corroborative of the complainant's evidence. The qualification, that it was "on the Crown case", is of significance. The qualification that, on the Crown case, the appellant has disposed of the phone, was an acknowledgement that there was no evidence that the appellant had done so.
4. It was also, in my opinion, an invitation to reject the appellant's evidence about the phone. The jury were told that the appellant's getting rid of the phone, if they accepted that is what occurred, was independent evidence that corroborated the complainant's evidence.
5. The appellant's trial counsel pointed out to the jury that the appellant was entitled to get another phone, there was no onus on him and he owed no explanation. The trial judge effectively treated the matter the same way in his summing up to the jury.
6. The case was therefore advanced by the Crown, the appellant and the trial judge as involving first, the credit of the complainant as opposed to the credit of the appellant and secondly, as on the basis that the appellant bore no onus in the matter. It was the Crown's onus to prove the guilt of the appellant.
7. If the jury had accepted the appellant's evidence on the specific matters to which the Crown referred, the inevitable outcome would have been an acquittal on counts 4 and 5. However, there is a real question as to what the jury was to do with the evidence if they did not accept the appellant's version of what had happened to the phone, which was itself vague and inconclusive. That question, in my opinion, critically focuses attention on whether an Edwards-type direction should have been given.
8. The effect of the way the matter was left to the jury was that the jury was asked to infer that the appellant had got rid of the phone because it had topless photographs of the complainant on it, taken on 8 March. That had been the focus of the cross-examination on this point. If the jury accepted the Crown's contention and reasoned in accordance with the way the cross-examination proceeded that would have led the jury to treat the disposal of the phone as almost indisputable evidence that the appellant had committed the offence subject of count 5.
9. Once it is understood that that was the effect of the impugned part of the Crown address to the jury, I am of the opinion that an Edwards-type direction was required. That direction would not, in my opinion, have had the effect of unnecessarily drawing attention to the question as to what had happened to the phone as the Crown contended. The phone and what was on it was of the essence of the Crown case on count 5. It follows that I consider there has been a miscarriage of justice in the omission of giving such direction, notwithstanding that none was sought.

No substantial miscarriage of justice

1. Notwithstanding my conclusion that the trial judge erred in not giving an Edwards-type direction, I am of the opinion that it has not been established that a substantial miscarriage occurred as a result of the omission to do so: see the Criminal Appeal Act 1912 (NSW), s 6(1).

The case law

1. In Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, the Court set out the principles that apply in the court's determination, pursuant to the Criminal Appeal Act, s 6(1) that "no substantial miscarriage of justice has actually occurred" as follows: "[41] That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty … [42] …The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard. … [43] … the appellate court's task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. … But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court's assessment of the whole record of trial. Secondly, it is necessary always to keep two matters at the forefront of consideration: the accusatorial character of criminal trials such as the present and that the standard of proof is beyond reasonable doubt. [44] … It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty." (footnotes omitted)
2. This principle has been consistently applied by the High Court. Thus in Darkan v The Queen (2006) 227 CLR 373; [2006] HCA 34 the Court stated, at [84]: "An appellate court invited to consider whether a substantial miscarriage of justice has actually occurred is to proceed in the same way as an appellate court invited to decide whether a jury verdict should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty." (footnote omitted)
3. More recently, the High Court in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 has elaborated upon the meaning of "substantial miscarriage of justice" within the three limbs of s 6(1) as follows: "13 Turning to the second limb of s 6(1) of the Criminal Appeal Act, it will be seen that to some extent it overlaps the first. A 'wrong decision of any question of law' includes misdirections on matters of substantive law as well as misdirections on matters of adjectival law. And, as with the first limb, the question under the second limb will be whether the error constitutes a miscarriage of justice in the sense of a departure from trial according to law. 14 The third limb covers cases where, by reason of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial. 15 That leaves the proviso, which in terms is applicable to all three limbs of s 6(1). It directs that, even where error of the kind identified in any of the three limbs is established and amounts to a miscarriage of justice, the Court of Criminal Appeal may dismiss the appeal if it is satisfied that the error has not been productive of a substantial miscarriage of justice. By 'substantial miscarriage of justice' what is meant is that the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or her or that there was some other departure from a trial according to law that warrants that description. Consequently, if the Court of Criminal Appeal is persuaded that the first limb applies, it will follow that it has concluded that there has been a substantial miscarriage of justice. In contrast, where the second limb applies, the circumstances in some cases may be such that, despite the judge making 'the wrong decision of [a] question of law', the Court of Criminal Appeal is persuaded that the error could not have deprived the appellant of a chance of acquittal that was fairly open to him or her. In that case the proviso will operate. Where the third limb is engaged, if the Court of Criminal Appeal has concluded that the appellant has not received a fair trial it will follow that it has concluded that there has been a substantial miscarriage of justice. But where, despite some other identified irregularity, the Court of Criminal Appeal is satisfied that the appellant has received a fair trial according to law and not otherwise been deprived of a chance of acquittal that was fairly open to him or her, once again the proviso will operate. It is also to be borne in mind, as was explained in Baiada Poultry Pty Ltd v The Queen and more recently noticed in Lindsay v The Queen, that, although the proviso is expressed in permissive terms, 'if the condition (the conclusion that no substantial injustice has actually occurred) is satisfied' the proviso must be applied."

Consideration

1. The appellant submitted that this court should apply the principle as stated by the High Court in Weiss, in circumstances where it was not clear whether the Court in Filippou stated or intended to state any new or qualified principle.
2. If it were necessary to decide that question, I would suggest that the High Court in Filippou was not stating any new principle, but rather was explaining that, in circumstances where the first or third limb of s 6(1) were in play, by virtue of the nature of the error to which those limbs are directed, a substantial miscarriage of justice would be involved by the fact of such error. However, as this case falls into the second limb, it is not necessary to come to any decided opinion as to whether that is the correct understanding of the Court's reasons in Filippou.
3. There is also a question whether and if so the extent to which an appellate court may have regard to the jury's verdict of guilt. The High Court in Weiss stated that this was a relevant consideration. However the weight to be given to relevant matters will always depend on the circumstances. Thus, in R v Ciantar; DPP v Ciantar (2006) 167 A Crim R; [2006] VSCA 263 the Court of Appeal of Victoria (Warren CJ, Chernov, Nettle, Neave and Redlich JJA), observed, at [113], that the Court gave little weight to the guilty verdict in that case because, in the absence of an Edwards-type direction, the verdict may have been affected by impermissible reasoning.
4. In this case, the evidence relating to the disposal of the phone was but one of a number of different pieces of evidence upon which the Crown relied to support the appellant's credit. The plan that the complainant drew of the appellant's home was significant corroborative evidence of the complainant's version of events. On her evidence, she had been to the appellant's home only once before and on that occasion had not gone into the appellant's sister's bedroom. Although there had been plans of the appellant's home at the video store, there was no evidence that the complainant had ever looked at those plans, let alone memorised them sufficiently to enable her to make a sketch plan of the appellant's house.
5. In addition, there was the evidence of the telephone intercepts and the recorded conversation the complainant had with the appellant on 26 March and again on 17 April, which were available as admissions by the appellant as to the photographs being on his phone. The guilty verdict is indicative that the jury accepted that the appellant had made the admissions as the Crown contended. I consider that the appellant admitted in those conversations that the photographs were no longer on the phone and that the photographs to which he was referring were the photographs he took of the complainant at his home on 8 March. I do not accept that the references in the recorded conversations to photographs were to any photographs on the appellant's work computer.
6. There was also the early complaint to friends, but more particularly, there were early complaints to the complainant's father and stepmother and then to the police. Finally, there was the appellant's gift of a mobile phone to the appellant, which could be viewed as an attempt to discourage the complainant from making any complaint against him.
7. It is true that the complainant's complaints to her friends to which reference has already been made were inaccurate. The complainant explained why she had not been accurate in what she recounted to her friends. Regardless of whether that explanation be accepted, the other evidence to which I have referred is such that I have not been left in a doubt as the guilt of the appellant on counts 4 or 5. I have come to this conclusion on the whole of the evidence, including having regard to the guilty verdict, in accordance with the principles in Weiss. It follows that I do not consider that a substantial miscarriage of justice actually occurred. I would add that even leaving aside the guilty verdict, I would have come to the same conclusion.

Leave to appeal against sentence

1. The appellant seeks leave to appeal against sentence on the ground that the sentence imposed for count 4 is unreasonable and plainly unjust, essentially on the basis that the trial judge's assessment of the objective seriousness of the offence was not reasonably open.
2. The trial judge, after setting out his findings as to the conduct that constituted the offence and the circumstances in which the conduct occurred, summarised his findings as follows: "So what do I make of all that. The age is an element of the offence; she was close to 16, I accept that. I need to consider actually what happened, and what happened was fellatio, which is something said to be less heinous than other forms of sexual intercourse, though the legislation does not make any distinction. The offender clearly endeavoured to coerce her into sexual activity and he used some physical force to guide her head towards his penis. He was in a position of dominance being the employer, and that very day he had spoken to her stepmother, KB, and arranged to drive the complainant home. Indeed he was entrusted to do that by KB. He wanted her to work late and he was going to drop her off and her mother entrusted him."
3. The Crown submitted that there should added to these factors the fact that the offence occurred in the appellant's home and was preceded by a threat that the appellant would make the complainant walk home, it already being night time, if she did not let him take another photograph, and the added humiliation of being photographed immediately after the offending conduct had occurred.
4. His Honour continued: "So where does it fit? Well it is not a low range offence and it is not above the mid-range, I find it approaches the mid-range. It is between the lower mid-range but closer to the mid-range. This is a very serious offence."
5. His Honour then dealt with the offence of aggravated assault and act of indecency with filming contrary to s 61O(2A), finding that the offence occurred for the appellant's own gratification and that although the offence was serious, having regard to the ten year maximum penalty, it was not a particularly serious example of that type of offence.
6. His Honour noted that at the time of the offence, the appellant was on a good behaviour bond in respect of a Commonwealth offence and that the offending in breach of that bond was an aggravating circumstance, but not one that related to the objective gravity of the offences.
7. The appellant did not give evidence on sentence. There was, therefore, little material before his Honour in relation to the appellant's subjective circumstances.
8. His Honour had the benefit of a pre-sentence report dated 23 July 2015. That report recorded that the appellant had been brought up by foster parents from the age of six months and that the appellant's foster parents had always treated him as their child and the appellant's children as their grandchildren. The appellant has two children from a prior relationship and, notwithstanding the breakdown of that relationship, had fully accepted his parental responsibilities. He was reported to have a "good work ethic".
9. There was some indication that the appellant had previously exhibited signs akin to depression although it appears that there was no evidence before the court that that was the case, nor was there any diagnosis to that effect. The appellant had been assessed by the author of the pre-sentence report as having a "low to medium risk of re-offending". Nonetheless, his Honour considered that the appellant was unlikely to reoffend in this way again. Given his denial of the offences, his Honour found that the appellant had not shown remorse. Nonetheless, his Honour considered his prospects of rehabilitation to be good.
10. His Honour had regard to the purposes of sentencing set out in the Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, including the need to impose adequate punishment, both specific and general deterrence, denunciation of the conduct, the protection of the community, the recognition of harm to the victim and the community and the rehabilitation of the offender.
11. In circumstances where the two offences arose out of the same incident, his Honour considered that it was appropriate that the sentences be served concurrently. His Honour made a finding of special circumstances, stating that he had "struggled with this a little". Although finding that the appellant's background in foster care did not seem to have disadvantaged him, his Honour considered that the appellant had had a more difficult upbringing than otherwise would have been the case and noted that there were attendant emotional problems.

Submissions

1. The appellant submitted that, contrary to his Honour's finding, the objective seriousness of the offence in this case fell significantly below mid-range, having regard to the range of conduct potentially covered by such offences. The appellant pointed to the fact that the offence of aggravated sexual intercourse without consent covers a broad range of conduct and widely differing levels of objective seriousness.
2. This was apparent, on the appellant's submission, from the scope of the circumstances of aggravation for which the offence provided in s 61J(2), including whether there was a threat of or actual bodily harm, the age of the victim, whether the victim had a serious physical disability or a cognitive impairment, whether the victim had been deprived of liberty before or after the commission of the offence and whether the offence had occurred as part of a break and enter offence with the intention of committing the offence under s 61J or any other serious indictable offence.
3. The appellant submitted that as the only circumstance of aggravation in this case was the complainant's age, namely, being under the age of 16 years, the seriousness of aggravation was limited as the complainant was 15 years and 8 months at the time of the offence. In support of this submission, the appellant referred to the comments of Latham J in R v KNL (2005) 154 A Crim R 268; [2005] NSWCCA 260, at [42]-[43], as follows: "42 It is trite to observe that sexual intercourse with a child of 12, knowing the child's age, is objectively more serious than sexual intercourse with a child of 12, in ignorance of the child's true age. However, it is also the case that, in terms of the position occupied by a given offence on the spectrum of offences of this kind, the younger the child, the more serious the offence; R v T (1990) 47 A Crim R 29. 43 The complainant was just over 12 years of age. She was closer to ten than she was to 16, yet that feature of the offence was largely disregarded, in favour of the mitigation constituted by the Respondent's mistaken belief as to her age."
4. With respect to their Honours in that case, I would not endorse that reasoning, should it be intended to lay down some general principle of sentencing law in respect of sexual offences. The Legislature did not see fit to do so and it makes assumptions as to the effect on an individual complainant that may not be supported on any other evidentiary basis.
5. The general principles governing an appeal against sentence were not in dispute. It is accepted that "there will be a range of possible sentences that [may] be imposed without error": AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 at [128]. See also Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [27], where the plurality (Gleeson CJ, Gummow, Hayne and Callinan JJ) reiterated: "As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies." (footnotes omitted)
6. The sentencing task involves a discretionary judgement and as such, it is necessary to demonstrate error in the sense explained in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505. In the present case, as no specific error in his Honour's sentencing process was relied upon, it was incumbent upon the appellant to demonstrate that "the result embodied in the [sentence imposed was] unreasonable or plainly unjust": see Markarian at [25].
7. The principle to be applied when sentencing for an offence which covers a range of different conduct was considered by the High Court in Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46 at 452 as follows: "When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined. As Dwyer C.J. said in Reynolds v. Wilkinson (1948) 51 WALR 17, at p 18: 'Crimes bearing the same general description have not equally evil content or characteristics, and offenders also differ in themselves.'" (footnotes incorporated into text)
8. Factors that are relevant to sentencing for an offence under s 61I, being an offence that encompasses a range of offending conduct include the degree of violence, any physical injury inflicted, the form of forced intercourse and any circumstances of humiliation and the duration of the offence: R v Hibberd (2009) 194 A Crim R 1; [2009] NSWCCA 20 at [56]
9. The authorities are emphatic that the assessment of the objective seriousness of an offence is one that falls within the discretion of the sentencing judge. Reference has already been made to the observations of the High Court in Markarian and in AB. There may be added to those the observations of Spigelman CJ in Mulato v R [2006] NSWCCA 282 at [37], that: "This court is very slow to determine [the objective seriousness of an offence] for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which [the sentencing judge] gave to the circumstances of the offence was open ..."
10. In the same case, Simpson J (as her Honour then was) added, at [46], that: "… the importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge."
11. The appellant did not refer the Court to any cases that were factually comparable and that might indicate that, despite the respect that must be afforded to the trial judge's assessment of the objective seriousness of the offending conduct, the sentence imposed was not one that was available to him. For my part, I see no error in His Honour's finding of objective seriousness. It was relevant, as his Honour found, in assessing the objective seriousness of the appellant's offending conduct, that the appellant was in a position of dominance having regard to his status as the complainant's employer. He was in a particular position of trust on this occasion, having arranged to drive the complainant home from work in circumstances where she was usually picked up by a parent. The sexual activity was forced upon the complainant during that period of trust, in circumstances where the appellant was in a position of dominance, as her employer.
12. As I consider that there was no error in his Honour's assessment of the objective seriousness of the offending conduct, and having regard to his Honour's finding of lack of remorse on the part of the appellant, I am of the opinion that the sentence imposed has not been demonstrated to be manifestly excessive.
13. Accordingly, I would propose the following orders:
14. Grant leave to appeal against conviction;
15. Appeal against conviction dismissed;
16. Grant leave to appeal against sentence;
17. Appeal against sentence dismissed.
18. DAVIES J: I agree with the orders proposed by Beazley P. I also agree with her Honour's reasons except that I do not express any view about the correctness or otherwise of the reasoning in R v KNL [2005] NSWCCA 260; 154 A Crim R 268 referred to by her Honour at [102].
19. GARLING J: I agree with the orders proposed by the President for the reasons contained in her judgment.
20. I prefer to express no view about the decision of this Court in R v KNL [2005] NSWCCA 260, as it is unnecessary so to do.
21. There is no merit in the submission in effect made by the applicant that the age of the victim in this case is not a circumstance of aggravation to be taken into consideration to any real extent. It is an important matter to be considered. The sentencing Judge did so appropriately. No error has been shown.

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