Submissions to the trial judge concerning admissions

1. After the trial judge refused a permanent stay, the applicant's counsel sought exclusion of the following alleged admissions under s 137 of the Evidence Act 2008:
   • those made in the email sent by the applicant to HS on 5 November 2018;[8]
   • those made to Senior Constable Baido on 5 November 2018;[9]
   • those contained in various answers in the record of interview, amounting to admissions that the applicant touched HS's vagina with his finger and penis; going to his lack of certainty as to consent; and related to his (lack of) reasonable belief concerning consent.[10]
2. The applicant's counsel submitted that the jury would be overwhelmed by this evidence. It would be dangerous for the jury to hear these admissions in view of the main issue in the case; that is, penetration or non-penetration. Counsel submitted that these admissions carried an immense amount of prejudice where the applicant had effectively admitted to offences which are not going to be able to be dealt with by the jury. There was thus a great danger of compromise, in that the jury would choose to convict the applicant because of his admissions, even though not satisfied beyond reasonable doubt that there had been penetration. Counsel argued that it was an unusual case where a person admits to some misconduct amounting perhaps to another offence. Given the manner in which the indictment is crafted, this case is unique and dangerous for the applicant.
3. Counsel for the prosecution submitted it was speculative to consider that the jury might compromise in the way suggested by the defence. It is quite clear that the issue in this case is penetration. Further, the prosecutor submitted that, in any event, the admissions made by the applicant when he is now facing rape charges might arouse sympathy for him rather than prejudice. She submitted that, in order for the evidence to be excluded, s 137 requires there to be unfair prejudice which cannot be cured. Any risk of unfair prejudice could be cured by direction. Moreover, the applicant's admissions are highly probative. One of the issues in any rape case is the element of reasonable belief in consent. The applicant's statements about his state of mind are highly relevant to that issue.

1. In her ruling refusing a permanent stay, the judge observed that she needs to ensure that the applicant receives a fair trial. Fairness to the applicant is not the only consideration. There is a strong public interest in the resolution of serious charges by a jury. An important premise in jury trials, the judge said, is that 'it is presumed that a jury will abide by their oath and follow the directions given by the trial judge' (although the courts are mindful that in some circumstances there is a risk of improper reasoning which no direction can cure). In the present case, there is a risk that the jury may be unable to find beyond reasonable doubt that penetration occurred, but, being aware of the applicant's admissions of misconduct, they reach a verdict of guilty on rape due to an unwillingness for the applicant to be wholly acquitted in the face of his own admissions. The judge then said:

In addressing this risk, I think it relevant that there are more differences between the prosecution case and the defence position than simply whether there was actual penetration. Some of these are, the complainant says that earlier in the evening at a hotel, she and the [applicant] were just chatting and listening to the music. [The applicant] told the police that they were kissing at that time.

When they got back to the hotel room, the complainant says that she fell asleep straight away, fully clothes except for his shoes and jacket. The [applicant] says that she undressed before going to bed right down to her nightie or her singlet. He says that they then kissed and lay on the bed together whilst he touched her vagina in the nature of foreplay and then rubbed his penis on the outside of her vagina. But he maintained he did not put his fingers or penis inside her vagina. The [applicant] said that after that the complainant fell asleep.

The [applicant] told the police, later in the interview, that he was not 100 per cent sure she was awake during the sexual activity and that he did not have any conversation with her to ascertain if she was consenting. He said that he was around 90 per cent sure there was no penetration.

The descriptions given by the [applicant] and the complainant are at odds as to the lead-up to the alleged offending as well as to whether there was actual penetration. The differences in the two accounts of events are not limited to simply whether there was penetration or not.

Whilst there is a risk of improper reasoning by the jury, I consider that clear directions addressing this very issue will be sufficient to prevent such a miscarriage. The jury can and will be directed as to the elements of the offence, that penetration is in issue, that the prosecution must prove penetration occurred beyond reasonable doubt, and importantly, that the jury cannot substitute the [applicant's] admissions to touching and sexual misconduct (not amounting to rape) for a finding of penetration and thus find him guilty of rape.

I also take into account not only the importance of ensuring the [applicant] has a fair trial but also that there is a public interest in the resolution of these serious offences, and there is a need to maintain public confidence in the administration of justice.

In summary, in turning back to the statements of principle, I conclude that the form of the indictment does not amount to an abuse of process and there is not a fundamental defect in the manner in which the prosecution will present the case which cannot be cured by direction.

1. In refusing to exclude the various admissions relied upon by the prosecution, the judge said:

I accept that there is a degree of risk of unfair prejudice in view of the way in which the case is put and the absence of the sexual assault charges from the indictment. This has been canvassed at length in the discussion and I won't re-state it here.

As I said in the permanent stay ruling, I do think that any risk of improper reasoning by a jury, which would amount to unfair prejudice to the accused, can be cured by directions. As I said to counsel in the discussion, I consider that clear and explicit directions addressing this very issue can be given at the outset of the case following the opening address and reply, and in my final directions. I also consider that it would be appropriate for the prosecution to be explicit that the issue in the trial is penetration and that she [sic] must, or should, make it clear that if the jury were only satisfied of sexual assault rather than penetration, then it is their duty to acquit.

I therefore refuse to revisit the permanent stay application ruling ... and I do not exclude this evidence pursuant to s 137 or more broadly the unfairness discretion.

1. In support of the first proposed ground, counsel for the applicant submitted in writing that a 'fundamental defect constituting an abuse of process has prejudiced his rights to a fair trial'. This is so because the applicant's admissions of sexual assault: relate effectively to uncharged offences which are not alternatives to the charges of rape; cannot be used in his defence to the charged offences; generate a high degree of prejudice which is not amenable to amelioration by judicial direction; may prejudice the jury's consideration of the rape charges; may lead to compromised verdicts; and will place the applicant in an unfair forensic position.
2. Counsel for the respondent submitted in writing that the judge correctly applied the applicable principles. The judge's ruling was correct.

1. Under cover of the second ground, counsel for the applicant submitted that the evidence of the applicant's admissions ought to have been excluded to preserve his right to a fair trial.
2. The respondent's counsel submitted that the probative value of the evidence of admissions is high. There is no unfair prejudice since there is no real risk that the jury will use the evidence in an impermissible manner. It must be assumed that the jury will follow judicial directions as to the permissible use of the evidence.

Consideration, proposed ground 1: There was no foundation for a stay

1. Sexual assault - which carries a maximum penalty of 10 years' imprisonment[11] - is not an alternative verdict to rape - which carries a maximum sentence of 25 years' imprisonment[12] (and a standard sentence of 10 years)[13] - since an allegation of rape does not amount to or include, expressly or impliedly, an allegation of sexual assault.[14]
2. The applicant contends that the prosecution's failure to include charges of sexual assault on the indictment, as charged 'alternatives' to the two rape charges, is a 'fundamental defect' and an 'abuse of process' which has 'prejudiced his rights to a fair trial'. Those contentions are completely untenable.
3. In McCready,[15] Young CJ (with whom McGarvie and Ormiston JJ agreed) made it plain that

it is for the Crown to decide upon what offences an accused person is brought to trial by way of presentment or indictment, and, although the Court unquestionably has power to prevent an abuse of its process, it is not for the Court to decide, speaking generally, upon what offence the Crown should proceed.

Before a court could interfere with a charge presented by the Crown on the grounds that it was an abuse of process, there would have to be some very strong evidence or basis for thinking that the Crown was indeed seeking to achieve an ulterior purpose by the procedure adopted. That would indeed be an abuse of process. It may not be the only abuse of process, but the mere choice of one section rather than another under which to prosecute, even though the section charged carries a higher penalty than the alternative section that might have been used, is not in my view an indication of an abuse of process.

1. Further, in Maxwell, Gaudron and Gummow JJ observed:[17]

It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute,[18] to enter a nolle prosequi,[19] to proceed ex officio,[20] whether or not to present evidence[21] and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted.[22] The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.[23]

It is the function of prosecutors, not of judges, to determine whether a person will be prosecuted for a criminal offence and, if so, upon what offence. The judge is, at least ordinarily, bound by the charge which the prosecutor elects to bring: see R v Brown (1989) 17 NSWLR 472 at 477f. Under our criminal justice system, the judge has no right to require the prosecutor to proceed on a 'higher' rather than a 'lesser' charge. Necessarily, the prosecutor will often have a great deal of material (some of it inadmissible) which will be weighed in electing whether or not to prosecute and if so for what offence. The judiciary is not well placed to supervise such decisions. They belong, in any case, by statute, tradition and the principled demarcation of the prosecutorial and judicial functions, not to the judiciary but to the prosecution.

1. Although the courts exercise no control over the decision to commence criminal proceedings,[25] superior courts retain control over such proceedings so as to ensure that the accused receives a fair trial.[26] Hence, superior courts have inherent jurisdiction to stay criminal proceedings which are an abuse of process, the jurisdiction to grant a stay having the dual purpose of preventing an abuse of process, or the prosecution of a criminal proceeding which will result in an unfair trial.[27] As was observed in Williams:[28]

If a permanent stay is sought to prevent the accused from being subjected to an unfair trial, it is only natural that the court should refrain from granting a stay unless it is satisfied that an unfair trial will ensue unless the prosecution is stayed. In other words, the court must be satisfied that there are no other available means, such as directions to be given by the trial judge, of bringing about a fair trial. Jago was such a case. Consequently, the judgments in that case gave emphasis to the necessity that the court should satisfy itself upon this point before granting the relief sought.[29]

If, however, a stay is sought to stop a prosecution which has been instituted and maintained for an improper purpose, it by no means follows that it is necessary, before granting a stay, for the court to satisfy itself in such a case that an unfair trial will ensue unless the prosecution is stopped. There are some policy considerations which support the view that the court should so satisfy itself. It is of fundamental importance that, unless the interests of justice demand it, courts should exercise, rather than refrain from exercising, their jurisdiction, especially their jurisdiction to try persons charged with criminal offences, and that persons charged with such offences should not obtain an immunity from prosecution. It is equally important that freedom of access to the courts should be preserved and that litigation of the principal proceeding, whether it be criminal or civil, should not become a vehicle for abuse of process issues on an application for a stay, unless once again the interests of justice demand it. ...

1. As we have said, the applicant's counsel submitted that the failure to include charges of sexual assault on the indictment creates prejudice to the applicant due to the risks of jury compromise. The logic of that submission eludes us. Indeed, we would have thought that any risk of compromise would be enlarged if charges of sexual assault were included in the indictment. As the Defence Response makes clear,[30] 'this is a sexual touching case', in which the applicant denies any 'acts of sexual penetration'. Presumably, if the jury fails to be satisfied beyond reasonable doubt on either or both charges that sexual penetration occurred, they will acquit him of rape. Since there are no alternatives available, he will not face any prospect that, in defiance of their oath or affirmation, the jury will return a compromise verdict.
2. We are also unable to see that the jury will be confused by the absence of sexual assault charges on the indictment.[31] Clearly, the absence of any need to explain alternative verdicts will result in simplification of the jury's task. Nor are we able to see that the failure to have charges of sexual assault on the indictment will mean that the applicant will be prevented from making it clear from the outset that he admits sexual conduct but not penetration. Presumably, his counsel will tell the jury as much at the outset of the trial in his response to the prosecutor's opening.[32]
3. There is nothing from which it could be concluded that the prosecution's decision not to include sexual assault charges on the indictment was underpinned by any improper purpose, or will result in a trial which is unfair to the applicant.
4. The first proposed ground must fail.

Consideration, proposed ground 2: There was no basis for excluding admissions

1. The contention that the probative value of the evidence of the applicant's alleged admissions is outweighed by the risk of unfair prejudice is entirely without substance.
2. In our view, the probative value of the alleged admissions is high. The applicant's email to HS of 5 November 2018 appears to be a clear acknowledgement of wrongdoing, and his statements to Senior Constable Baido are clearly capable of demonstrating a belief that he had sexually assaulted HS. Moreover, his answers to police questions in the record of interview constitute admissions that sexual activity - embracing digital-vaginal and penile-vaginal contact - occurred, coupled with further admissions bearing on consent and reasonable belief in consent.[33]
3. There is little or no risk that a properly instructed jury will use the evidence of alleged admissions in an impermissible way.
4. Proposed ground 2 must also fail.

1. Leave to appeal against the interlocutory decisions must be refused.

[1] So as to prevent any risk of prejudice to the proper administration of justice, these reasons for judgment have been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] Contrary to s 38(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.

[7] By virtue of s 40(1) of the Crimes Act 1958, a person is guilty of sexual assault if he or she touches another person; the touching is sexual; the other person does not consent to the touching; and the person does not reasonably believe that the other person consents to the touching.

[10] See [9] above.

[11] Crimes Act 1958, s 40(2).

[12] Crimes Act 1958, s 38(2).

[13] Crimes Act 1958, s 38(3).

[14] See CPA, s 239(1); Mareangareu v The Queen [2019] VSCA 101, [33, [37]-[46]] (Priest, Hargrave and Emerton JJA); Chaarani & Ors v The Queen (2020) 61 VR 353, 374-5 [71]-[72] (Priest, Kaye and T Forrest JJA) ('Chaarani'); Duca v The Queen (2020) 62 VR 214, 222 [25]-[26] (Maxwell P, T Forrest JA). See also Crimes Act 1958, ss 421 to 435.

[15] R v McCready (1985) 20 A Crim R 32, 39 ('McCready'). See also Chaarani, 368 [56]-[57] (Priest, Kaye and T Forrest JJA); Chung v The Queen [2007] NSWCCA 231; (2007) 175 A Crim R 579, 590 [59] (Spigelman CJ).

[17] Maxwell v The Queen (1996) 184 CLR 501, 534 ('Maxwell') (citations as in original; emphasis added).

[18] See Connelly v Director of Public Prosecutions [1964] AC 1254 at 1277; R v Humphrys [1977] AC 1 at 46: Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 94-95, 110.

[19] See R v Allen [1862] EngR 309; (1862) 1 B & S 850 [121 ER 929]; Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 90-91.

[20] See Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 92-93, 104, 107, 109.

[21] See, eg, R v Apostilides [1984] HCA 38; (1984) 154 CLR 563 at 575.

[22] See R v McCready (1985) 20 A Crim R 32 at 39; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 604-605.

[23] Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 94-95; Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 38-39, 54, per Brennan J; at 77-78, per Gaudron J; Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 548, per Deane J; Ridgeway v The Queen (1995) 184 CLR 19 at 74-75, per Gaudron J.

[24] Chow v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 593, 604-605. See also Weininger v The Queen (2003) 212 CLR 629, 654 [80] (Kirby J).

[26] Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75, 96.

[27] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 518 (Mason CJ, Dawson, Toohey and McHugh JJ) ('Williams').

[29] [Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23] 34, 48-49, 54, 56-58, 72-73, 75.

[30] See [10] above.

[31] See [11] above.

[33] See Crimes Act 1958, ss 36 to 36B.