Hewitt v R

The applicant's statement

1. The applicant did not give evidence or call any witnesses in the trial. He relied on a prepared statement which he read in an interview with police on 17 March 2017 ("Exhibit Q"). The interview was played in the Crown case.

Grounds of appeal

1. The applicant seeks leave to appeal against his conviction under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) and r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 on grounds 1 and 2 (leave is not required for ground 3): "1. The trial judge erred in failing to direct the jury about how they could use evidence of: (i) a text message sent by the applicant to the complainant; and (ii) the applicant's statements to the complainant in a recorded telephone call, as admissions of guilt. 2. A miscarriage of justice was occasioned as a result of the trial judge's failure to put the applicant's case fairly before the jury. 3. A miscarriage of justice was occasioned by the trial judge's failure to give the jury a full Liberato direction."
2. I have concluded that grounds 2 and 3 should be upheld. Accordingly, I will address those grounds first.

Ground 2: a miscarriage of justice was occasioned as a result of the trial judge's failure to put the applicant's case fairly before the jury

1. This was a six-day trial. The only thing that the trial judge said to the jury in the summing-up about the applicant's case was the following: "In terms of the Accused's case it is the case for the Accused that what the Complainant said happened on the couch did not happen, and there was no sexual intercourse at all. However, he also says that any activity that did take place on the couch was consensual, and that the Complainant was awake."
2. The trial judge did not, in any real or meaningful way, summarise the applicant's case for the jury. In particular, the trial judge did not explain to the jury any aspect of the case the applicant made about how the jury should view the events of 2013. On the appeal, the Crown sought to defend the trial judge's approach on the basis that whilst his Honour did not summarise the arguments put by counsel, he reminded the jury of the need for them to consider those submissions and that the weight to be afforded to those submissions was a matter for them. I am unable to agree that this was sufficient compliance with his Honour's obligations.
3. It is well settled that a trial judge must fairly put the case for the accused to the jury. In RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, Gaudron A-CJ, Gummow, Kirby and Hayne JJ explained: "Judicial instructions in criminal trials [41] Before parting with the case, it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions. The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence." (Footnotes omitted; emphasis in original.)
4. It is worth reflecting on this passage. The plurality explained that a fundamental requirement of a fair trial was that the trial judge was required "to put fairly before the jury the case which the accused makes." No qualifications to this requirement were identified or expressed.
5. In an earlier decision, Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, the High Court (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) envisaged a possible exception, but emphasised that the requirement properly to put the respective cases for the prosecution and the accused accurately and fairly to the jury would "ordinarily" apply (at 561): "[T]he requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. This Court has said that it 'is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities'. Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way." (Footnotes omitted.)

Application of the proviso

1. In Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7, the High Court considered the operation of a provision that closely resembled the proviso in s 6(1) of the Criminal Appeal Act but which adopted a contemporary style of drafting. The general principle was described in the majority judgment (Kiefel CJ, Bell, Keane and Gordon JJ) thus: "[16] The appellant's invitation to elaborate on the categories of case in which satisfaction of the negative condition will not suffice to enliven the proviso is to be resisted. It is not possible to describe the metes and bounds of those wrong decisions of law or failures of trial process that will occasion a substantial miscarriage of justice notwithstanding the cogency of proof of the accused's guilt. As was established in Weiss, the fundamental question remains whether there has been a substantial miscarriage of justice. That question is not answered by trying to identify some classes of case in which the proviso can be or cannot be applied. Classifications of that kind are distracting and apt to mislead." (Footnote omitted.)
2. More recently, in OKS v Western Australia (2019) 265 CLR 268; [2019] HCA 10, the High Court (Bell, Keane, Nettle and Gordon JJ) explained the application of the proviso as follows: "[31] It is well settled that, in a case that does not involve a fundamental defect, the proviso cannot be applied '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'. And as explained in Weiss v The Queen, there are cases in which the natural limitations of proceeding on the record do not permit the appellate court to attain that satisfaction. This was such a case. The Court of Appeal's only gauge of the sufficiency of S's evidence to prove the appellant's guilt to the criminal standard was the verdict. It cannot be assumed that the misdirection had no effect upon the jury's verdict in circumstances in which the misdirection precluded the jury from adopting a process of reasoning, favourable to the appellant, that was open to it." (Footnotes omitted.)
3. In this case, as the defence case was not fairly put to the jury, it would be inappropriate to apply the proviso in s 6(1) of the Criminal Appeal Act, despite the apparent strength of the Crown case. I am not satisfied that the applicant did not lose a chance of acquittal fairly open to him.

Rule 4.15

1. Finally, turning to r 4.15 of the Supreme Court (Criminal Appeal) Rules, the failure of counsel to seek a summary of the defence case to the jury by the trial judge is not determinative. Whilst it is true that counsel for the applicant did not ask the trial judge to explain the defence case to the jury, I would grant leave to appeal under r 4.15. Whilst the trial judge provided the parties with a written outline of the summing-up prior to it being delivered, that document gave no indication that his Honour proposed not to summarise the respective cases for the jury. The first time that became clear was when the summing-up was completed. Counsel for the applicant was, in the circumstances, in an impossible position. At that stage, an application properly to sum up the respective cases would be to invite the trial judge to in effect start again. Counsel's failure to ask the trial judge to, in effect, start again cannot legitimately be criticised. This is a case where I have concluded that there has been a miscarriage of justice.
2. I would grant leave to appeal on ground 2 and allow the appeal.

Ground 3: a miscarriage of justice was occasioned by the trial judge's failure to give the jury a full Liberato direction

1. Although my conclusion in relation to ground 2 is sufficient to dispose of this appeal, I will deal briefly with the remaining grounds.
2. Counsel for the applicant sought at trial a full Liberato direction. The trial judge refused the application. I have concluded that the trial judge in doing so erred and that a miscarriage of justice thereby ensued.
3. In Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 at 515, Brennan J (with whom Deane J agreed) said: "When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make that clear to the jury, and the omission was hardly remedied by acknowledging that the question whom to believe is 'a gross simplification'."
4. In De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48, Kiefel CJ, Bell, Gageler and Gordon JJ considered the content of a Liberato direction at [12] as follows: "[12] In Johnson v Western Australia, Wheeler JA identified one possible shortcoming in using Brennan J's statement in Liberato as a template for the direction: a jury may completely reject the accused's evidence and thus find it confusing to be told that they cannot find an issue against the accused if his or her evidence gives rise to a 'reasonable doubt' on that issue. For that reason, it is preferable that a Liberato direction be framed along the following lines: (i) if you believe the accused's evidence (if you believe the accused's account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused's evidence (if you do not believe the accused's account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?" (Citations omitted.)

Events at trial

1. After being provided with the first draft of the summing-up, senior counsel for the applicant sought a "full Liberato direction". The Crown did not oppose the request. The trial judge, however, gave the jury the following direction: "The Accused gave a version of events in the recorded interview with the police, which you will have in the jury room to watch if you wish to. The Accused is entitled to rely upon that account and ask you to take it into consideration with the other evidence called by the Crown. The Accused is not required to prove that his account is true. The Crown, in discharging its obligation to prove guilt, must satisfy you the Accused's version of events could not reasonably be true. Even if you do not accept the Accused's version in the police interview in full or in part you must not immediately allow yourself to accept the version of the Complainant. You must consider all of the evidence and whether it satisfies you as to each element of the charges beyond a reasonable doubt. It is clear that this case largely turns on a conflict in the evidence between the Complainant and the version given by the Accused to the police. No doubt you are asking yourself 'who do we believe?'. If you answer that question and the answer is you believe the Complainant, then that is not taking as finding the Crown has proved beyond reasonable doubt all of the elements of the offence. Even if you prefer the evidence of the Complainant you should not convict the Accused unless you are satisfied, again beyond a reasonable doubt, of the truth of the evidence of the Complainant. Even if you do not positively believe the evidence of the Accused, you cannot use that finding to find that he is guilty. Even if you completely reject what he says to the police as being unbelievable, it does not mean the Crown can then say, having rejected the Accused, you must now find him guilty. That would be a reversal of the onus of proof. The Crown always maintains the onus of proof. Even if you reject what he said to the police, for whatever reason you might do so, and I do not have a view about it, you must then return to square one and consider whether the Crown has on the evidence before you established beyond a reasonable doubt the essential elements of the offence."
2. The summing-up concluded on 30 September 2019. Later that afternoon, the jury sent a further note (having previously sent a note requesting a copy of the trial judge's directions) seeking "further clarification about the assessment of reasonable doubt". Senior counsel for the applicant submitted that a Liberato direction should be given again to assist the jury "in a practical way". The parties agreed that the trial judge should repeat the directions he had given during the summing-up as to the onus and standard of proof, the fact that the applicant had not given evidence and the Liberato direction. His Honour's direction to the jury was as follows: "Of course the Accused gave a version. That is a statement he read out to the police at the police station which you have, and he is entitled to rely upon that and ask you to take it into consideration with all of the other evidence called by the Crown. The Accused is not required to prove that his version is true. The Crown in discharging its obligation to prove guilt must satisfy you that it is a version of events that could not reasonably be true. Even if you do not accept the Accused's version in full or in part, you must not immediately allow yourself to accept the version of the Complainant. You must consider all of the evidence and whether it satisfies you as to each element of the offence beyond a reasonable doubt. It is clear that largely this case turns upon a conflict of versions between the evidence of the Complainant and the version provided by the Accused to police. If you accept what the Accused said to the police as true, then you ought to find him not guilty. If you answer that question, that is as to who is telling the truth, and it is that you believe the Complainant is telling the truth, then that is not taken as a finding that the Crown has proven beyond reasonable doubt all of the elements of the offences. Even if you prefer the Complainant's evidence, you should not convict the Accused unless you are satisfied beyond reasonable doubt of the truth of the Complainant's evidence. Even if you do not positively believe the version of the Accused, you cannot use that finding to prove the Accused's guilt. You can only find the Accused guilty if the Crown has proven the elements of the offences beyond reasonable doubt. I do not know if that assists you at all, but essentially what I have attempted to explain again is that although the Accused did not give evidence here, there is a version of his account that is before you in the form of the police interview. If you accept what he said to the police then you ought to find him not guilty. If you reject what he says to the police, then you do not automatically find him guilty. You then go back to square one and look at the evidence in its entirety again. Similarly, as I have just said, if you believe the Complainant, that does not necessarily mean that the elements of the offence has been proved beyond a reasonable doubt. You should still satisfy yourself based upon your evidence as to the truth of the Complainant's evidence."

Ground 1: the trial judge erred in failing to direct the jury about how they could use evidence of the text message and statements made in the call as admissions of guilt

1. By ground 1, the applicant contended that the trial judge erred in failing to direct the jury as to how they could use evidence of admissions he made in the text message (Exhibit C) and in the call (Exhibit E).
2. The Crown relied upon the text message and the applicant's statements to the complainant in the call as admissions of guilt. As to the text message, the Crown's closing address to the jury proceeded on the following basis: "If you look at that apology to [the complainant] in that text message, do you think it's sound like someone who is just admitting fault following a friend's advice? Effectively just apologising to pat [the complainant] down and so that they can move forward? You might think that a message that was one of those type of messages that was only done because someone told you to do it might be more like, 'Are you okay?', or, 'Sorry for what happened.' This is a very cleverly crafted apology. He's apologising for what he did. Do you think he would do that if he was just going by what [MC] told him to do, just going along with it and just apologising for the sake of it? I suggest to you when you read that message again in the jury room, read it carefully and you'll have no difficulty coming to the conclusion that it's from someone who is apologising for what they did, not apologising because someone else had just told them to admit fault to whatever."
3. As to the call, the Crown submitted: "When he was saying something untrue he just couldn't accept it and he said to [the complainant], 'But the truth is that you were awake.' That's what Mr Brady [senior counsel for the applicant] told you that the accused did in his intercepted telephone conversation that was played in Court that he couldn't accept if [the complainant] said something that wasn't true, he had to tell her the truth. In that call it's that he said you were awake. So when [the complainant] said to him, 'Mitch I was asleep. I woke up to your fingers in my vagina, how is that all right', and he does as Mr Brady says and he says the truth, 'It's not all right, I know it's not all right. I just said it wasn't all right but obviously I misread it. What he doesn't say is this: he doesn't say, 'I never put my fingers in your vagina,' and he doesn't say that, 'I just touched the waistband of your bikini bottom.' He doesn't say wither of those things. [The complainant] asks him again in that telephone conversation, 'We've been friends for so long and I woke up to your hands in my fucking vagina. I had no idea what was going on and I woke up to that. Do you know how fucking scarring that is?' The accused, replied, 'I don't, and I'm so sorry for that.' Again, he does as Mr Brady says who if he had of wanted to correct [the complainant] he would have corrected her with the truth, but yet again he does not say, 'My fingers were not in your vagina and my hand was only on the waist band of your bikini bottoms.' He doesn't mention either of those things by way of correction. He says that he thought she was awake but that he misread it. He must have misread it, but never did he say he did not put his fingers into his vagina and never did he say all I did was put my hand on the waist band of your bikini bottoms. … Again, when [the complainant] says to him, 'I was asleep and I woke up with your fingers inside of me, how is that all right?', and he says 'It's not all right, I know it's not all right. I just said it wasn't all right, but I obviously misread it.' No doubt the defence will tell you that that apology is in line still with [MC] saying, 'you've got to apologise to everything, and just basically cop it and that's how we move forward'. Again, do you really think that someone would go through all of those emotions with a fake apology? You might think when you read it that it's incredulous to think that someone would do that when you're dealing with such a serious allegation. These are allegations of sexual assault. If you were going to apologise just for the sake of it, you might think that's incredulous to think that someone would do that and have that as you apologise for something you didn't do that's a criminal charge. Another excuse for him apologising and then realising that he needs to provide an excuse for that behaviour to date in Court in this trial. As I say, when you read that message and that apology, I submit to you, you would have no problem accepting that it's him apologising for what he did to [the complainant] in November 2016, and that is, putting his fingers in her vagina, kissing her neck and touching her in the spa."

Conclusion and proposed orders

1. In accordance with the usual practice of the Court in a case such as this, these reasons will be distributed to the parties but only published on the restricted "JIRS" database. The parties are directed to inform the Registrar of the Court of Criminal Appeal when the proceedings have been completed and this judgment is able to be published without restriction.
2. For the foregoing reasons I propose the following orders: 1. Leave to appeal on ground 1 refused under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021; 2. Leave to appeal on ground 2 granted under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021; 3. Appeal allowed; 4. The applicant's conviction on count 2 in the indictment is quashed; 5. The proceedings are remitted to the District Court arraignment list at Gosford on 30 September 2021.
3. GARLING J: I agree with the orders proposed by Payne JA and with his reasons.
4. WRIGHT J: I agree with the orders proposed by Payne JA for the reasons his Honour has given.

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