Ground 2: The trial judge erred in her directions to the jury as to the evidence relevant only against the Appellant
75In relation to this ground it is appropriate to reiterate that the applicant was only charged with offences alleged to have been committed against MP, whereas her co-accused were charged as well with offences alleged to have been committed against MM. The latter offences were said to have occurred between 2001 and 2005 while the offences against MP were alleged to have taken place in the first half of 2008. The Crown led evidence of other sexual activity involving MM as context evidence. It also relied upon coincidence evidence, that is, that the offences committed against each complainant bore certain remarkable similarities. In relation to the individual complainants, the Crown also asserted that the evidence established that Golossian and AP had a tendency to have a sexual interest in them and that they acted upon it by having sexual intercourse with them. When speaking of the coincidence evidence, the trial judge directed the jury that "the evidence relating to the charges or counts in respect of one complainant may be relevant in relation to the other complainant. This is different from tendency where, as I say, you are restricted to the counts involving just the one complainant" (SU 137.3).
76In support of this ground, it was submitted that the trial judge failed to distinguish between the evidence admissible in the case concerning the applicant and the evidence that was only relevant to, and admissible against, the co-accused. It was acknowledged that the judge directed the jury that there were three separate trials and that it was necessary for separate consideration to be given to the case concerning each accused. She explained that the reason for this was that there was some evidence available to be considered in the case of one accused that was not available in relation to another accused. She cited the example of the appellant's police interview being only evidence in her case. Similarly, the police interview of Golossian was only evidence in the case concerning him. Another example cited was an exhibit that related to offences concerning the complainant MM, the appellant not facing any charges concerning her (SU 8-9). After citing these items of evidence as examples, her Honour then said:
Generally most of the evidence is available for you to consider in the case of whichever accused you are considering at the time (SU 9.5).
77A little later in her summing up (SU 14-15) her Honour gave directions to the jury to separately consider of each of the multiple counts that each accused faced. These directions were in a conventional form. They included:
You must look at the evidence that relates to each of the specific charges and also what evidence, if any, you find in support and then make separate and distinct decisions about whether the accused whose case you are then considering is guilty or not guilty of that count.
78A number of issues were raised by counsel for the co-accused at the next break in the summing up (SU 25 - 28), and subsequently, but there was no complaint in respect of these directions.
79Nine examples were cited in the applicant's written submissions which were said to constitute a failure of the judge to "distinguish or sufficiently distinguish" the evidence admissible against her with that which was only admissible against the co-accused, despite what her Honour had said earlier, as noted above (at [76]-[77]).
80It emerged in oral submissions that the primary concern was that, in considering the applicant's case, the jury may have taken into account evidence concerning the counts relating to MM. It was accepted that there had been no application by the applicant for a separate trial relating to this concern. Further, and as counsel for the respondent pointed out (1.2.12 at T1.38), it is somewhat ironic that the submission was made in this Court whereas in the court below, counsel for the applicant sought in his closing address to rely upon the case concerning MM in an endeavour to take forensic advantage of certain similarities and dissimilarities. For example, he submitted:
It is necessary for you, members of the jury, to put the case that's alleged against [FP] in the context of what happened prior to 2008, and that of course very much turns on what events occurred between 2001 and 2005, involving her husband [AP] and Tony Golossian in relation to [MM], and to perhaps a lesser extent, [MM's partner at the time]. (T3138.30)
81It was submitted that the need for the judge to carefully direct the jury as to the evidence that was available for consideration in the case concerning the applicant was heightened by the manner in which the Crown Prosecutor had addressed the jury (bearing in mind the irony I have just mentioned). It was contended that "the Crown wound the cases together" (31.1.12 at T2.4). Counsel for the applicant subsequently provided a list of transcript references for the Crown's closing address which were said to support a submission that the prosecutor had "intermingled the inadmissible evidence regarding [MM] with admissible evidence involving [MP]". Counsel for the respondent, with leave, provided further written submissions concerning these references.
82I have carefully reviewed each of the references upon which the applicant relies. I am unable to accept that they support the applicant's submission. It is unnecessary to deal with this in detail as the submission is by way of background to the ground under consideration.
83The Crown Prosecutor's closing address was structured so as to deal with the case concerning the offences against MM first. This occupies about 50 pages of transcript (T3049 - 3102). She then turned to deal with the offences concerning MP (T3102 - 3135). She then concluded with some very brief arguments addressing the similarities in the evidence of the two complainants and countering any suggestion that there had been joint concoction between them (T3135 - 3136).
84As the prosecutor reviewed the evidence of one complainant, or the other, she occasionally reminded the jury of the similarities between their accounts, or the accounts of the complainants' partners. This was a legitimate thing to do because the Crown case concerning Golossian and AP relied upon coincidence evidence. Counsel for the respondent correctly pointed out in her further written submissions that the Crown Prosecutor had at no stage made any suggestion that the similarities in the evidence concerning each complainant had anything to do with the applicant. The arguments put to the jury were confined to the other accused. For example, in the course of reviewing the evidence of MP, the prosecutor submitted:
Tony [Golossian] said "It's going to feel a hundred per cent real but it's not, it's just a dream". And you will compare that, I suggest, to what [MM] was told by Tony Golossian for her prayer session. Very similar thing, and that is no mere coincidence, members of the jury. (T3112.35)
85It was MP's evidence that before the first prayer session commenced she was commanded to go to the bathroom and take off all of her clothing and come back into the room with just a towel around her (T121). Golossian disputed this and asserted that the decision to remove all of her clothing was the complainant's (T2116). The prosecutor submitted to the jury:
Do you really accept that [MP] would go in of her own volition, change from her clothing into a towel, not even leaving a bra or underpants on, nothing on for fear of some oil getting on her clothing and come out into the room and say "Don't worry, I'm like your daughter" or "I'm like your son". I submit you wouldn't accept that she would have done that. She changed out of her clothing and into a towel because she had to, just like [MM]. (T3113.6)
86Another example relates to the account MP gave of a telephone call that she received from "the red evil" on 4 June 2008, just as she was about to attend the home of AP for "the test". The caller instructed her how to encourage him to have sex with her. She was told what to say and what to do in considerable detail. AP conceded that he had made the call but claimed that he was simply "messing with her mind" (T2534.22). The conversation was legally recorded by police. The instructions included:
... He will not agree [to have sex] and he will try to stop you ... No matter what he says, keep sucking ... The only way to make him agree is to say, 'if you do not fuck me, I will run outside and scream' ... suck him and pinch his nipple ... (Exhibit C. AB 337-338)
87In referring to this aspect of MP's account, the Crown Prosecutor reminded the jury of a similar aspect in MM's account. MM had received instructions to have sex with AP. They included:
He said that when I answered the door to [AP] I was to say to him, 'I want you to have sex with me'. He said to me that [AP] will say to me, 'No I don't want to.' He then said to me that I had to say to [AP] the exact words 'If you don't I will scream, the neighbours will hear me and I will cause trouble for you.' ... And he said that while I performed oral sex on [AP] I was to pinch his nipples as this is something that he liked. (T845.36 - 846.6)
88There was nothing wrong in each of these cases with the Crown Prosecutor pausing to remind the jury of similarities in the accounts given by the other complainant. As I have said, each of the passages to which the applicant referred related to evidence that concerned Golossian or AP. There was no invitation, or suggestion, that inadmissible evidence should be used in the jury's consideration of the case concerning the applicant.
89I turn to the passages in the trial judge's summing up that were said to support the proposition that she did not "distinguish or sufficiently distinguish the evidence properly admissible against the [applicant] and that of her co-accused". The first example was her Honour's statement in the context of directing the jury as to the elements of the conspiracy offence. She briefly reminded the jury of the evidence upon which the Crown relied in order to prove the existence of the relevant agreement. She concluded this by saying:
"And the Crown also relies on the phone records and text messages, SMS messages, between the accused, all three accused on 4 June and earlier" (SU 64).
90It was submitted that this invited the jury to consider all of the telephone call/text evidence, regardless whether it was relevant and admissible in relation to the alleged conspiracy.
91The vast majority of the telephone call/text evidence was not inculpatory of the applicant. The Crown did not suggest that she had on any occasion pretended to be "the evil" or "the angel"; that was only asserted in respect of Golossian and AP. There were call charge records for various phones which showed contact between the applicant and her co-accused. Such contact between the persons alleged to be co-conspirators was relevant but, aside from text messages sent on the day the alleged conspiracy was to be played out, the content of any communications could not possibly have been regarded by the jury as indicating anything as to whether she was a party to it.
92The argument in this Court, but not the subject of complaint below, was that the above statement by the trial judge invited the jury to consider evidence that did not relate to the conspiracy, but related to the preceding "prayer sessions" and ancillary events concerning MP and also evidence that related to events concerning MM. Having reviewed the summing up as a whole I am not left with any doubt that the jury would have well understood that material concerning MM had nothing to do with the applicant. It was not explained how the jury could possibly have regarded telephone communications relating to the earlier prayer sessions as having any bearing upon the question of whether the applicant was a party to the conspiracy. Trial counsel obviously did not have any of the concerns now raised on behalf of the applicant.
93Other examples cited in the applicant's written submissions may be dealt with more briefly. Reference was made to her Honour's summing up concerning the counts alleging offences against MM. It was submitted that "[a]t no stage did she direct the jury that none of that evidence ... was admissible on any basis against the [applicant]" (AWS 1.1.4 (ii)). I fail to see how the jury could have regarded such evidence as bearing upon the case concerning the applicant. She was not charged with any of those offences and there was no suggestion that she was in any way involved in any of those incidents. The fact that counsel for the applicant was not moved by any concern about the possible misuse of the evidence to ask the judge to give any further direction about it confirms my view.
94The next example misconceives the structure of the summing up. After her Honour had dealt with the elements of each of the offences and briefly summarised the parties' cases in respect of each, she announced that she had completed that subject and was moving "to some general matters" (SU 121). She introduced the first of those matters by saying:
You would also recall that there was evidence of other acts led by the Crown, other acts of alleged misconduct by each of the accused, that is Mr Golossian and [AP], towards [MM]. This does not apply, obviously, to [MP], what I am about to say. (SU 121.7)
95Her Honour proceeded to identify the evidence of other sexual activity and gave directions about its relevance and warned against misuse in conventional terms (SU 121 - 125). She then moved to the next of the "general matters":
The next direction that I must give you and this applies to both [MM] and [MP] is that in respect of the allegations in respect of either of the complainants you would be aware that the Crown case relies substantially on the evidence of each individual complainant alone. (SU 125.6)
96Her Honour proceeded to give a standard Murray direction: R v Murray (1987) 11 NSWLR 12 at 19 per Lee J. It included that in considering each complainant's evidence the jury should look to see if it was supported by other evidence. She referred to the Crown case that MM's account was supported by certain evidence which she identified. This was followed by:
Similarly the Crown says the evidence of [MP] is supported by the complaints that she made first to her husband and to [HD] and the Crown says that both complainants' evidence is supported by tendency evidence that I will take you to in a moment and coincidence evidence. (SU 127.1)
97On behalf of the applicant it was submitted that this "conflated the case" (AWS 1.1.4 (iii)). The subject of complaint evidence is dealt with next. The subject of tendency evidence is dealt with shortly. Dealing with the present point, I do not accept that there was any inappropriate conflation.
98Next it was submitted that when referring to the evidence of complaint by MP, in the context of which her Honour said "this applies obviously particularly to the accused Mr Golossian", a direction should have been given that the evidence of complaint was not admissible against the applicant (AWS 1.1.4(iv)). That is not correct. Given the necessity of the Crown proving in the case concerning her that the complainant had been sexually assaulted, complaint evidence was clearly admissible.
99The next example cited in the applicant's written submissions is that her Honour said, "Here I will remind you that both complainants told you that they were instructed not to tell anyone and if they did that the curse would get worse or words to that effect" (SU 128). This was said in the context of the directions on complaint. It immediately followed the conventional component of such directions:
If on the other hand the complainant has not acted in a way you would have expected someone to act after being sexually assaulted as described then that may indicate that the allegations are false. But remember there may be good reasons why a complainant does not raise the allegation immediately and that a failure to do so does not mean the allegation is false or the allegations are false. (SU 128.6)
100Seen in its correct context, there was nothing wrong with her Honour referring to both complainants' evidence that they were threatened with reprisals if they complained.
101The next example is another case of taking a statement by the trial judge out of context. Reference was made to her Honour saying that the Crown case was that each accused had a tendency to have a sexual interest in each of the complainants and to act on that sexual interest. The context in which this was said was:
Dealing now with the counts in the indictment, you are obviously well aware that you have a number of counts or charges in respect of each complainant. The Crown says that each accused has a tendency to have a sexual interest in each of the complainants, that is [MM] or [MP] and to act on that sexual interest by having sexual intercourse with her. By proving the accused whose case you are considering had this sexual interest in that particular complainant, this only applies to the particular complainant whose case you are considering and that he was willing to act on it, the Crown argues you will find it more likely that he committed the other count or counts in the indictment. This obviously applies only to Mr Golossian and [AP], it does not involve [FP]. (SU 132) (Emphasis added)
102Her Honour's removal of the applicant from consideration in relation to this topic could not have been clearer.
103Although it was not referred to in the applicant's written submissions, it is worth mentioning at this point that the next topic dealt with by the trial judge was coincidence evidence. The Crown relied upon the similarities in the way each complainant said that the offences were committed. Her Honour prefaced her directions on this topic by directing:
Again this only involves Mr Golossian and [AP] because you are well aware that [FP] is only charged with the final counts in the indictment in respect of [MP]. (SU 137.1)
104This further served to remind the jury (if it was not already patently obvious) that the evidence concerning MM had nothing to do with the case concerning the applicant. The point was reinforced when her Honour concluded her directions on coincidence evidence by reminding the jury of the competing arguments of the Crown Prosecutor, and counsel for the accused Golossian and the accused AP (SU 139 - 141). Obviously, nothing was said about any submissions made by counsel on this subject that concerned the applicant.
105The penultimate example in the written submissions (AWS 1.1.4 (viii)) is a repetition of some of the previous examples and needs no further discussion.
106The final example involved reference to her Honour's summary of the closing arguments of counsel. It was submitted that this was done "in terms which conflated the cases of the [applicant] and her co-accused". The submission does not fairly acknowledge that the closing arguments commenced on a Thursday morning and concluded the following Wednesday afternoon and her Honour's summary was so brief that it occupied only about five pages of transcript (SU 142 - 147). Many of the points that were made had already been referred to, appropriately, in the course of giving the various legal directions. A review of what her Honour said does not reveal to me any possibility that the jury were invited, or left to think, that evidence that did not properly relate to the applicant was nonetheless available for consideration in the case concerning her.
107Ground 2 is an example of an "armchair appeal"; counsel picking over the transcript and creating arguments that did not occur to those who had the benefit of the complete atmosphere of the trial. This ground lacks merit and leave to rely upon it pursuant to Rule 4 should be refused.