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[2013] ACTCA 42
Court of Appeal (ACT)
2013-11-06
Buchanan JJ, Burns J, Penfold J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
MARUF HUSSAIN v THE QUEEN
[2013] ACTCA 42 (6 November 2013)
APPEAL AND NEW TRIAL – CRIMINAL LAW – appeal against conviction – directions to the jury – whether the trial judge erred in directing the jury to accept either the appellant’s evidence or that of the complainant – whether trial miscarried where trial judge referred to matter not in evidence – whether trial judge indicated to jury his opinion of appellant’s guilt – no requirement to accept evidence of the complainant on basis of rejection of evidence of accused – where directions to the jury on onus and standard of proof unexceptionable – portions of directions must be viewed in context of directions as a whole – where trial counsel did not seek redirections – failure to raise objection a reasonably reliable indicator of fairness: Richardson v R [2013] NSWCCA 218 – where no substantial miscarriage of justice: Supreme Court Act 1933 (ACT), s 37O(3)
APPEAL AND NEW TRIAL – CRIMINAL LAW – appeal against conviction – whether trial miscarried – whether miscarriage in trial judge posing questions to the accused – where no objection by trial counsel to questions – whether miscarriage in prosecution’s failure to give adequate notice of witness and nature of her evidence – where trial counsel raised no objection to witness – where nothing of substance that could have been put to witness is suggested
APPEAL AND NEW TRIAL – CRIMINAL LAW – appeal against sentence – manifest excess – act of indecency without consent – where maximum penalty 7 years’ imprisonment – where appellant without prior criminal history – where objective seriousness not at the bottom of the range
Supreme Court Act 1933 (ACT), s 37O(3)
Dinsdale v The Queen (2000) 202 CLR 321
House v The King (1936) 55 CLR 499
Liberato v The Queen (1985) 159 CLR 507
R v RP Anderson (2001) 127 A Crim R 116
Richardson v R [2013] NSWCCA 218
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 36 - 2012
No. SCC of 188 of 2011
Judges: Penfold, Burns and Buchanan JJ
Court of Appeal of the Australian Capital Territory
Date: 6 November 2013
IN THE SUPREME COURT OF THE ) No. ACTCA 36 - 2012
) No. SCC 188 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: MARUF HUSSAIN
Appellant
AND: THE QUEEN
Respondent
ORDER
Judges: Penfold, Burns and Buchanan JJ
Date: 6 November 2013
Place: Canberra
THE COURT ORDERS THAT:
IN THE SUPREME COURT OF THE ) No. ACTCA 36 - 2012
) No. SCC 188 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: MARUF HUSSAIN
Appellant
AND: THE QUEEN
Respondent
Judges: Penfold, Burns and Buchanan JJ
Date: 6 November 2013
Place: Canberra
REASONS FOR JUDGMENT
PENFOLD J:
I have had the opportunity to read in draft the judgment of Burns J, and agree with his conclusions and with the orders he proposes. I agree with his Honour’s conclusions largely for the reasons he gives, but I wish to make brief comments about one of the grounds of appeal.
Appeal ground (a) related to the trial judge’s directions about how to deal with the conflicting evidence of the complainant and the accused. His Honour’s initial directions about the question of “who is to be believed” (quoted by Burns J at [38] below) were the subject of a request for redirection. That redirection is quoted by Burns J at [40] below. In each case, and especially in the case of the redirection, the trial judge’s comments could have left the jury with the impression that they did need to make a choice between the versions of events given by the complainant and the accused.
Although his Honour began his redirection on this matter by saying that it was not for the jury to say “We accept this version over that version”, he then went on to say: It’s not a matter of balancing the versions against each other, although obviously that is something that you will do. Because in order to decide what happens, where there’s only two people giving you evidence about a particular happening you have to balance, or, as it were, contrast the versions in order to decide which one it is that you’re going to accept. (emphasis added)
His Honour then went on to tell the jury that they had to consider all the evidence, and said: Having considered all that evidence you decide within it what it is that you accept. Having decided what it is that you accept, you ask yourselves the question, does that evidence, the evidence that we accept, satisfy us beyond reasonable doubt of the guilt of the accused.
I agree with Burns J at [41] below that by the time his Honour the trial judge finished his directions, jurors would have understood that they needed to be satisfied of the accused’s guilt, beyond reasonable doubt, by the evidence that they accepted. It is possible, however, that they were confused about whether they were required to accept one version of the relevant evidence as part of the process of identifying the evidence that they accepted.
For this reason, it would have been preferable for the jury, having been directed in terms of deciding “which [version] it is that you’re going to accept”, to have been told in clear words that they were not required to accept either version of events, and also: ...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 [and] 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. (Liberato v The Queen (1985) 159 CLR 507 at 515 per Brennan J)
The formulation proposed by Kirby J in R v RP Anderson (2001) 127 A Crim R 116 at [26], set out below, may be even clearer, although of course it still requires the jury to understand that there is no requirement to accept the evidence of the complainant just because they do not accept the evidence of the accused: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you find difficulty in accepting the evidence of the accused, but think that it might be true, then you must acquit. Third, if you do not believe the accused, then you should put his testimony to one side. The question will remain; has the Crown, upon the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?
However, having regard to the evidence as a whole, and to his Honour’s repeated reminders to the jury of the need to be satisfied of the appellant’s guilt beyond reasonable doubt, I am for the purposes of s 37O(3) of the Supreme Court Act 1933 (ACT) satisfied that in this case, no substantial miscarriage of justice has actually occurred as a result of the trial judge’s references to the jury deciding which version of events it was going to accept.
Accordingly, despite my concerns about appeal ground (a), and otherwise for the reasons given by Burns J, I agree that the appeal against conviction and the appeal against sentence must both be dismissed.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour Justice Penfold.
Associate:
Date: 6 November 2013
IN THE SUPREME COURT OF THE ) No. ACTCA 36 - 2012
) No. SCC 188 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: MARUF HUSSAIN
Appellant
AND: THE QUEEN
Respondent
Judges: Penfold, Burns and Buchanan JJ
Date: 6 November 2013
Place: Canberra
REASONS FOR JUDGMENT
BURNS J:
The appellant was found guilty after trial by a jury of one count alleging that on 21 March 2011 he committed an act of indecency upon XY (the complainant) without her consent, and being reckless as to whether she was consenting. On 25 July 2012, the trial judge convicted the appellant and sentenced him to 18 months imprisonment, of which 92 days was to be served by way of full-time imprisonment, followed by 9 months to be served by way of periodic detention, with the balance suspended on the appellant complying with the terms of a good behaviour order.
The appellant appealed against both his conviction and the sentence imposed. During the trial the appellant was represented by counsel, however at the time he lodged his appeal he was not legally represented. The grounds of appeal originally pleaded by the appellant reflected this fact, and were largely discursive and argumentative.
Subsequently, the appellant was again legally represented and an Amended Notice of Appeal was filed, citing the following grounds of appeal: a) The Learned Trial Judge erred in failing to properly direct the jury that it could not convict the accused unless it accepted beyond a reasonable doubt the evidence of the complainant and also rejected beyond a reasonable doubt the sworn evidence of the appellant; b) The trial of the appellant miscarried as a consequence of the Learned Trial Judge summing up to the jury on evidence that was not given in the course of the trial; c) The trial of the appellant miscarried as a consequence of the Learned Trial Judge indicating to the jury that in his opinion the accused was guilty of the offence with which he had been charged; d) The trial of the appellant miscarried as a consequence of interventions made by the Learned Trial Judge during the evidence of the accused; e) The trial of the appellant miscarried as a consequence of the Crown failing to provide any or any adequate notice of its intention to call [PR] as a Crown witness or as to the nature of her evidence and the inability of the appellant to properly cross- examine this witness; f) As a consequence of matters referred to in a-e the verdict of the jury was unsafe and unsatisfactory; g) The sentence of the Learned Trial Judge was manifestly excessive.
The Amended Notice of Appeal stated that the appellant would seek to put fresh evidence before the Court on appeal, however that proposal was abandoned by him in the course of the appeal. The evidence at trial
The complainant testified that in March 2011 she was a student looking for accommodation in Canberra. She saw an advertisement offering cheap accommodation in a unit relatively close to the university where she was studying. The accommodation was cheap because it involved sharing a room with the appellant. Besides the appellant and the complainant, there were two other occupants of the unit, an older female, PR, and another young male, both of whom had their own bedrooms. The unit was in Colmer Street, Bruce.
The complainant moved a mattress into the bedroom she shared with the appellant. The appellant also had a mattress on the floor of that room. PR was older than the appellant and the complainant, and worked night shifts as a nurse at a hospital. The appellant himself was a student, who also worked night shifts at a fast food restaurant. The complainant also worked part-time. Her and the appellant’s work shifts were such that they were not often at the unit at the same time. The complainant paid her rent directly to the appellant.
The complainant testified that at about 6pm on 25 March 2011 she was exhausted from studying and decided to take a nap. She intended sleeping for a while before continuing her study. The only other person in the unit at that time was PR, who was getting ready to go to work. PR later left the unit to go to work.
The complainant went to sleep on her bed. The next thing she recalled was the appellant sitting on the side of her mattress. There was a power point near the head of the complainant’s mattress, and initially she thought the appellant was trying to plug his phone in. She gave the following evidence of that then occurred: And you said that there was an electrical point. Where was that?---It’s – it was against the wall which was close to my pillow. But it was quite obvious to me like after I’d moved, he remained where he was and the next thing I remember was him saying that he wanted me and he said it quite a few times. And I went to – I think I was sort of – I was lying on my stomach and I went to get up, and that’s when he came on top of me and started to dry hump by back. And I was trying to get up because I – I was sleeping I couldn’t get him off me because I was still really weak. And I – I understood what was happening and I tried to get him off me and he put his hand over my mouth and I – I said– I tried to come up with things to try and stop him from doing what he was doing, so I – I said that I was sick, that that’s why I was in bed. I said that I had my period. I said that – he knew I had a boyfriend, that I was in a very serious relationship and still am in a relationship with, but he continued to keep his hand on my mouth, he continued to force me into the position that I was in the bed. And that’s when I started to get quite – I started to get my strength back and I was trying to fight him and he was telling me to shut up, because the neighbours might hear me. When you say he said, “Shut up because the neighbours might hear you”, what was your volume of what you were - - -?---Pretty loud. But at that point I was also quite aware that there was nobody in the house. So I had to do something to try and get him off me and get away from the room. He knew that I was – but I mean I was fighting him to get off me. And I’m not sure what I did to one of his hands but I folded his small finger back and I don’t know how I did it, but I managed to get him off me and I ran out of the room into the kitchen and I found my mobile phone there. And I could hear him getting out of the room and I was really afraid. So I ran out of the house and I didn’t – I was – I was scared he was trying to get me, so I called 000 and I just ran.
The complainant waited outside until the police arrived. She said she was really hysterical. The police entered the unit and removed the appellant, and later took a statement from the complainant.
In cross-examination the complainant agreed that the appellant told her before she moved in that he was planning a trip overseas, and that they should share the room until he left to go overseas. The complainant stated that before she moved into the unit, the appellant told her to tell PR that she, the complainant, was a friend of his from CIT. This was because PR was opposed to the proposed arrangement between the appellant and the complainant. The complainant agreed that she went along with the appellant’s story that they were friends at the CIT when asked by PR. She agreed that that was not the truth.
It was put to the complainant that the events she described occurring in the bedroom never happened. It was suggested to her that the appellant had previously asked her on a number of occasions to find alternative accommodation. It was suggested to the complainant that on the evening of 25 March 2011 she had a conversation with the appellant in the kitchen, where the appellant told her she had to move out. It was suggested that she refused to leave, and moved towards the appellant, who said: “Get back bitch”. It was suggested that she then said: “You are so going to regret this cunt”. It was further suggested that she then grabbed her cigarettes and went out the front door. The complainant rejected this version of events. The complainant said when she left the unit all she had with her was her mobile phone. She was not even wearing shoes.
PR gave evidence at the trial. She said that between October 2009 and June 2011 she lived at the unit where these events occurred. The appellant lived in one of the rooms. There was no written lease, and she paid her rent directly to the owner. The appellant moved into the unit in early December 2010. She said that a couple of weeks before the complainant moved in, the appellant told her that he was going to bring someone in to share his room because he could not afford to pay the rent by himself. When she found out that the person the appellant proposed to share with was female, she initially objected. She said that the appellant told her that the female was his friend from CIT. PR ultimately decided that as it was not her unit, the appellant could make his own decision.
PR said that on 25 March 2011 she slept during the later part of the afternoon before going to work at about 8:10pm. She said that she saw the complainant sitting in the lounge room with a computer on her lap, apparently doing her studies, at around 7:45pm. The complainant told the appellant she was going to bed to sleep because she wasn’t feeling well.
In cross-examination PR was asked if she was aware of an argument between the appellant and the complainant occurring on 24 March 2011. She said that she had not seen or heard any argument between them prior to 25 March, but that the complainant had told her that they had argued, although she could not recall the date when this occurred. PR denied being aware that the appellant had asked the complainant to leave.
The next Crown witness was Senior Constable Roy Edgar, a member of the Australian Federal Police who attended the Colmer Street unit after the complainant made a ‘000’ call. At that time he was in company with Constable Lara Williams. As they were travelling to the unit they saw the complainant on Lampard Circuit in Bruce. They stopped and alighted from the police vehicle. The complainant approached them, and Senior Constable Edgar observed that she appeared to be very upset, and had tears coming down her face. The evening was quite cool, and the complainant appeared to be shivering. She was wearing socks, but not shoes.
Senior Constable Edgar requested Constable Williams speak to the complainant, whilst he spoke to other police who had arrived at the scene. Later, Constable Williams told him of the complainant and she and other police attended the unit in Colmer Street and placed the appellant under arrest.
In cross-examination Senior Constable Edgar agreed that he had observed no injuries near the mouth of the complainant. He did not inspect the appellant’s hands.
Constable Lara Williams testified that at about 9:06pm on 25 March 2011 she received a call via Police Operations, as a result of which she and Senior Constable Edgar proceeded towards Colmer Street in Bruce. As they were driving towards the unit she saw the complainant run out of some bushes on the side of the road. Constable Williams recalled the evening as being “very cold” and observed that the complainant was wearing a t-shirt, jeans and socks, but no shoes. They stopped the police vehicle and she spoke to the complainant. She observed the complainant’s eyes to be red and puffy, she was shivering and both her arms were wrapped around her body for warmth.
Surprisingly, Constable Williams was not asked in examination in chief to give details of any complaint made to her by the complainant. She testified that the complainant travelled with her in one police vehicle to the unit, and remained in the vehicle while police went inside and arrested the appellant.
In cross-examination she was asked whether she observed any injuries or redness to the complainant’s mouth, or any injury to the appellant’s hands, but she was unable to recall any injuries.
The final Crown witness was Constable Grant Moses, who was in the second police vehicle to arrive at Lampard Circuit. He described the complainant as crying, and appearing to be highly distressed. In cross-examination he said he observed no injuries to the appellant that evening.
A recording of the complainant’s ‘000’ call to police was played during the Crown case, and then tendered along with a transcript of the call.
The appellant gave evidence. He testified that at the end of 2010 he moved into the unit in Colmer Street Bruce. As that time the other residents of the unit were PR and another male. In February 2011, he advertised for someone to temporarily share his room, with a view to taking over sole occupation later. At that time he was planning a visit to Bangladesh to visit his parents. He received a response to his advertisement from the complainant. They met and agreed on terms.
The appellant testified that initially PR did not agree to him sharing his room with the complainant. He said that he and the complainant had had a couple of arguments after she moved in, and before 25 March 2011, about the need for her to move out and to find another place to live.
He said that on 25 March 2011 he had a day off work. He left the unit at about 2:00pm, returning at about 8:30pm. He assumed PR was in her room, so he went straight to the kitchen and started talking to the complainant. At that time she was working on her computer. He testified that he said to her, “Did you find a place to go?”. She said, “I couldn’t find a place yet”. He then said, “You have to leave pretty soon”, to which she replied, “You can’t throw me out just like that”. He said, “Yes I can, the house is under my lease”. The appellant testified that the complainant became upset, and came up close to him where he was leaning on a bench. This made him feel uncomfortable, so he said, “Get back, bitch”. The complainant replied, “You’re so going to regret this, cunt”. She then pushed him to the shoulder, and he pushed back. She then took her cigarettes and left the unit. He denied ever being in the bedroom with the complainant that evening. He said that when the complainant left the unit she was “pretty upset”.
In cross-examination the appellant agreed that he had not told anyone that before 25 March 2011 he had asked the complainant to move out of the unit. He stated that he was planning to travel to Bangladesh for one month commencing around 10 April 2011, and that he advertised for someone to share his room to help pay the rent while he was away.
The appellant was cross-examined about what he said to PR about the complainant moving in to the unit. He said that he told PR that he had a friend who wanted to share with him. He denied telling PR that it was a friend from CIT. He was asked if he told PR that the friend was his cousin, but he denied this. In cross-examination, the appellant asserted that it had been the complainant’s idea to tell PR that the complainant and he were friends from CIT.
The appellant agreed that he had no one else lined up to cover the rent while he was in Bangladesh if the complainant had been forced to leave. He denied that he had invented the scenario of the complainant becoming angry after being asked to leave in order to cover up his actions on 25 March 2011. The appeal against conviction Ground (a)
The appellant accepted that the trial judge properly instructed the jury as to the onus and standard of proof, but he submitted that these directions were “undermined” by contrary directions that the jury had to determine “who to believe”. There is no merit in this complaint. It is true that in his directions to the jury the trial judge referred to the jury having to decide who to believe, but he did so in the context of giving the jury a conventional direction as to the way that they were entitled to approach their task of assessing the witnesses in the trial. His Honour pointed out to the jury that the case was essentially word on word, the complainant’s versus that of the appellant. His Honour concluded that portion of his charge by saying: Now, members of the jury, you’ll probably ask yourselves who is to be believed. Well, members of the jury, no one can tell you who is to be believed. I cannot tell you. The learned Crown prosecutor cannot tell you. Learned counsel for the accused cannot tell you. You must decide for yourselves as the judges of the facts taking into account such factors or consideration as you consider proper and appropriate to determine for yourselves who is to be believed. But I can tell you this, members of the jury, even if upon your consideration of the evidentiary material you reject the evidence given by the accused nonetheless you must not find him to be guilty unless the evidence that you accept satisfied [sic] beyond reasonable doubt of his guilt.
Having said that, the trial judge went on to direct the jury: · that the Crown held the onus of proving the guilt of the appellant of the offence with which he was charged; · that the accused did not have to prove anything, and in particular did not have to prove his innocence; · that the jury could not find the appellant guilty unless the evidence which they accepted satisfied them beyond reasonable doubt of his guilt; and · that the appellant was presumed to be innocent unless and until they were convinced beyond reasonable doubt of his guilt.
After the jury retired, the trial judge received submissions from counsel regarding his address to the jury. The jury was then recalled and his Honour gave the following further directions: To remove any doubt, in a criminal trial it’s not for the jury to, as it were, say “We accept this version over that version”. It’s not a matter of balancing the versions against each other, although obviously that is something that you will do. Because in order to decide what happens, where there’s only two people giving you evidence about a particular happening you have to balance, or, as it were, contrast the versions in order to decide which one it is that you’re going to accept. But it’s not just a matter of doing that. It’s a matter of deciding the facts on the evidentiary material. You consider all of the evidentiary material, the evidence of the six witnesses and that which is contained in the three exhibits. Having considered all that evidence you decide within it what it is that you accept. Having decided what it is that you accept, you ask yourselves the question, does that evidence, the evidence that we accept, satisfy us beyond reasonable doubt of the guilt of the accused.
Whatever may have been the effect of the trial judge’s earlier directions regarding the jury determining who to believe, this last direction could have left the jury in no doubt that its task was not to simply determine which version of events it preferred. His Honour, in this ultimate direction, clearly directs the jury that they must be satisfied of the guilt of the accused to the standard of beyond reasonable doubt. In my opinion, when viewed as a whole, his Honour’s directions to the jury on the questions of onus and standard of proof were unexceptionable.
Ground (b)
The appellant complains that the trial miscarried because the trial judge referred in his summing up to evidence that was not given in the course of the trial.
In the course of PR’s evidence the trial judge directed the following to her: HH: And I suppose you knew that she didn’t go to CIT, but ANU? PR: Yes, but I didn’t question her, yes, about that. HH: And looking at them, clearly she wasn’t his cousin? PR: No.
To this point in the trial there had been no evidence suggesting that either the appellant or the complainant had ever claimed to be cousins, so that the trial judge’s question must have been cryptic to the jury. Subsequently, during cross-examination of the appellant, the Crown asked him if he had told PR, before the complainant moved in, that the complainant was his cousin. He denied saying that, stating that he only said she was a friend. In his summing up to the jury the trial judge, directing the jury’s attention to the evidence concerning how the complainant came to reside at the unit, said: You’ve got two different versions of that. Did the accused tell PR that he had a friend who went to CIT with him and was going to share the room? Did he, on one occasion, say to PR that the person sharing his room was his cousin? He denies it, she says it. You’ve got to decide for yourself, if you consider it all relevant, what occurred between the different people at different times. But whatever be the history, on 25 March 2011 the complainant shared a bedroom with the accused in the share house.
The trial judge was in error in saying that PR testified that the appellant told her the person sharing his room, the complainant, was his cousin. PR never gave that evidence. That suggestion originated from the Crown in its cross-examination of the appellant, albeit after the cryptic question directed to PR by the trial judge. Counsel for the appellant did not seek a redirection from the trial judge on this issue, and there are sound forensic reasons why she would adopt that course. The Court of Appeal did not see the complainant, but it appears from the evidence that their respective appearances made it highly unlikely they could be taken to be cousins. By putting the question to the appellant whether he had told PR that they were cousins, the jury would have understood the Crown to be asserting that he had told her that. Such an assertion was only likely to weaken the Crown case.
In any event, the person best placed to determine whether this factual error was significant in the context of the trial was the appellant’s counsel. She raised no objections to the trial judge’s question to PR, nor did she seek a redirection on this point after the trial judge’s summing up. In my opinion, the factual error made by his Honour was insignificant, and if anything tended to favour the appellant. I respectfully agree with the observations of Latham J in Richardson v R [2013] NSWCCA 218 at [148]: 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]. Ground (c)
The appellant complains that the trial miscarried by reason of the trial judge indicating to the jury that in his opinion the appellant was guilty of the offence with which he was charged. In the course of his directions to the jury the trial judge said: Members of the jury, I’ve referred already to some of the evidentiary material and I’ll refer to more of it in a minute. As you know I’m the judge of the facts, [sic] the judge of the law, and that you are the judge of the facts. I don’t decide any of the facts. The only people that decide the facts are the 12 of you. It would be nonsense to think that I haven’t formed an opinion. I’ve sat in court yesterday and today. I’ve heard the evidence of the six witnesses. I know what’s contained in the three exhibits. I’ve listened to counsel today. I’ve formed an opinion. You are asked to form an opinion. My opinion doesn’t matter one jot. That’s because I don’t decide any of the facts. The only opinion that matters is the one that the 12 of you form on the evidence. So, I tell you this because if I express an opinion about something, and I already have, or if you perceive what opinion it is that I hold, and I guess you would, if you accept the complainant’s evidence you’ve got to disregard my opinion unless it is the opinion that you form on the evidentiary material independently of what I say. [emphasis added]
When looked at in isolation, the highlighted portion of the direction may suggest that the trial judge is indicating that he has formed the view that the accused is guilty of the charge against him. However, it is important to consider the quoted passage in the context of what the trial judge said immediately before it. Prior to the quoted passage the trial judge explained to the jury the elements of the charge against the appellant. In that context, he told the jury that the appellant’s counsel had not suggested that, if they accepted the evidence of the complainant, the Crown had failed to prove any of the elements of the charge. However the trial judge stated, quite rightly, that nevertheless it was for the jury to decide if the Crown had proven each of the essential elements of the charge.
In my opinion, the quoted portion of the trial judge’s direction continues that theme. The trial judge was telling the jury that they had to be satisfied beyond reasonable doubt of each of the elements of the charge; and his opinion that, if accepted, the evidence of the complainant provided evidence of each of the elements, but did not relieve the jury of the need to satisfy themselves of that fact. I am satisfied that the jury would have understood his Honour’s statement in this way.
When considered in context, the impugned portion of the trial judge’s direction does not indicate that the trial judge had formed a view, or communicated a view to the jury, that the appellant was guilty.
Ground (d)
The appellant complains that the trial judge “improperly descended into the arena” to cross-examine the appellant on matters going to his credit. The basis of the appellant’s complaint was a number of questions directed to him by the trial judge in the course of the Crown’s cross-examination. In response to a suggestion by the Crown that the appellant had told PR that he had a friend from CIT staying in his room, the appellant said that he told PR that he had a friend who wanted to stay with him. The Crown then asked the appellant, without objection, whether he was saying that PR was mistaken, or whether he, the appellant, was “lying today”. The appellant replied that PR may have been mistaken. His Honour then posed the following questions to the appellant: HH: So you told PR a lie, in any event? MH: No I’m not suggesting that she’s lying. HH: No, you told PR a lie? MH: I didn’t tell PR a lie. I said a friend of mine is coming to live with me, that was a lie, yes. HH: That was the lie? MH: Yes.
In my opinion, there is no merit in the appellant’s complaint. It was inherent in the appellant’s version of events that he had lied to PR on this issue, the only issues in contention being the exact terms of the lie and who originally conceived it. It was the appellant’s case that he lied to PR, and this would have been obvious to the jury. No doubt counsel then representing the appellant was aware of that fact, which would explain why no objection was taken by counsel at the time to the questions posed by the trial judge.
Ground (e)
The final ground of appeal against conviction asserts the trial miscarried as a consequence of the Crown failing to provide any or any adequate notice of its intention to call PR as a witness or as to the nature of her evidence, resulting in the appellant’s counsel being unable to properly cross-examine her. The appellant’s written submissions on this appeal link this ground with the application to call fresh evidence, which was abandoned by the appellant. However, the appellant did not abandon this ground of appeal.
The Crown disputed the proposition that the appellant was given no notice, or no adequate notice, of its intention to call PR at the trial. Counsel representing the appellant at the appeal (who was not the trial counsel) ultimately accepted that to be the case. In any event, nothing of substance that could have been put to PR in cross-examination, and which was not put by trial counsel, has been suggested in these proceedings. Indeed, there are good reasons why trial counsel would not have wanted to attack the credibility of PR, even if there was material available to do so. The Crown case hinged on the jury accepting that the complainant was in the bedroom with the appellant on the evening of 21 March 2011. The evidence of PR that she saw the complainant in the lounge room of the unit at about 7:45pm working on a computer was contrary to the evidence of the complainant that she retired to her bed at about 6pm.
I also consider it significant that trial counsel raised no objection to the Crown calling PR to give evidence, nor did she request an adjournment to take instructions from the appellant, suggesting that counsel did not perceive herself as being in any way embarrassed by the Crown calling PR, or hampered in her cross-examination of the witness. Conclusion – appeal against conviction
The only ground of appeal that has any possible merit is Ground (b). I am satisfied that the trial judge was in error in directing the jury that PR had said the appellant told her the complainant was his cousin. The provisions of s 37O(3) of the Supreme Court Act 1933 (ACT) permits the Court to dismiss an appeal where a point raised on the appeal is decided in favour of the appellant, but the Court considers that no substantial miscarriage of justice has actually occurred. I consider that to be the case here. The appellant has demonstrated that the trial judge made an error, but it was, in my view, an insignificant one. It did not deprive the appellant of a chance of acquittal, and resulted in no substantial miscarriage of justice. The appeal against sentence
The appellant was sentenced to 18 months’ imprisonment, of which 3 months was to be served by way of full-time imprisonment, followed by six months to be served by way of periodic detention, with the balance suspended. The appellant appealed against this sentence on the ground that it was manifestly excessive.
An appeal against sentence is an appeal against a discretionary judgment, which should not be interfered with unless error is first identified in the sentencing process of the kind contemplated by the High Court in House v The King (1936) 55 CLR 499. In this case the appellant submits that the sentence imposed was manifestly excessive. In Dinsdale v The Queen (2000) 202 CLR 321 Gleeson CJ and Hayne J said at [6]: Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short.
The appellant had no previous convictions. He accepted that the offence of committing an act of indecency is a serious offence, which often leads to a sentence of full-time imprisonment. Nevertheless, he submitted that this particular offence fell towards the bottom of the range of such offences. He pointed to the fact that there was no “skin on skin” touching and that the incident was relatively brief.
The maximum penalty prescribed by the legislature for this offence is 7 years’ imprisonment. The appellant demonstrated no remorse in the course of the trial, so that he was entitled to no leniency in that regard. In addition, the objective circumstances of the offence reveal offending greater than that submitted by the appellant. This was not a momentary touching of the complainant by the appellant. He held her down so as to restrict her ability to flee, and placed his hand across her mouth so as to stop her calling for help. The victim was asleep, and therefore vulnerable, when the appellant commenced the offence. At all times the complainant made it clear by her words and actions that she was not consenting, but this did not cause the appellant to desist. The offence only ended when the complainant was able to physically extricate herself from the appellant’s grip, and run out of the unit.
Despite the appellant’s lack of prior criminal history I am unable to say that the sentence imposed by the trial judge was manifestly excessive. The appeal against sentence must be dismissed. Orders
I would order the appeal be dismissed. I certify that the preceding fifty three (53) paragraphs numbered [10]–[62] are a true copy of the Reasons for Judgment herein of his Honour Justice Burns.
Associate:
Date: 6 November 2013
IN THE SUPREME COURT OF THE ) No. ACTCA 36 - 2012
) No. SCC 188 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: MARUF HUSSAIN
Appellant
AND: THE QUEEN
Respondent
Judges: Penfold, Burns and Buchanan JJ
Date: 6 November 2013
Place: Canberra
REASONS FOR JUDGMENT
BUCHANAN J:
Associate:
Date: 6 November 2013
Counsel for the Appellant: Mr S M Whybrow
Solicitor for the Appellant: Hugh Ford
Counsel for the Respondent: Mr J G Lundy
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of Hearing: 31 July 2013
Date of Judgment: 6 November 2013
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Hussain
R [2013] ACTCA 42
(2000) 202 CLR 321
(1936) 55 CLR 499
(1985) 159 CLR 507
(2007) 70 NSWLR 467