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[2005] NSWCCA 411
Court of Criminal Appeal (NSW)
2005-11-04
Spigelman CJ, Sully J, Hulme J
Original judgment source is linked above.
INTRODUCTION 11 Between 8 and 11 March 2004 the appellant, Mr. Jackson, stood trial in the District Court at Newcastle before his Honour Judge Armitage QC sitting with a jury. 12 The appellant was tried upon an indictment containing three counts. Count 1 charged that on 1 September 2001 the appellant had sexual intercourse with a particular complainant, to whom I shall refer only as KG, without her consent and knowing that she did not consent. Count 2 charged that on 17 July 2002 the appellant assaulted another particular complainant, to whom I shall refer only as JM, and committed at the time of such assault an act of indecency upon that complainant. Count 3 charged that on 17 July 2002 the appellant had sexual intercourse with the complainant JM, without her consent and knowing that she did not consent. 13 The trial was a re-trial, the jury at an earlier trial having been unable to agree upon a verdict on any count. 14 On 11 March 2004 the jury found the appellant guilty as charged on each of the three counts. In May 2004 the appellant was sentenced to various terms of imprisonment. No application is now made for leave to appeal against the sentences, and no more need be said, therefore, about them. 15 At the commencement of the trial, after the empanelling of the jury, before the Crown opening to the jury and in the absence of the jury, the following interchanges occurred: "COLES: Your Honour, just in relation to the trial matter I can just indicate to your Honour this matter is a retrial from October of last year. In October of last year a number of issues were ventilated, including the admissibility of coincidence evidence and I understand that my friend doesn't propose to reopen that issue. The decision was made by his Honour at the time to allow coincidence evidence to be led in the trial and I understand that that's not to be revisited and that is indeed the case. MARR: It is indeed the case, your Honour. HIS HONOUR: Thank you for that. You might just tell me why it was that there's a retrial. COLES: Your Honour, it was a hung jury. HIS HONOUR: Right. That's fine. I thought it was on some matter of law and I'd better know what the matter of law was. COLES: No, your Honour, I should have said that first." [T5. Mr. Coles appeared as Crown Prosecutor; Mr. Marr was the appellant's counsel at trial, but did not appear for him at the hearing before this Court.] 16 One of the two grounds of the present appeal is that a miscarriage of justice occurred by reason of misdirection of the jury upon the topic of coincidence evidence. 17 The appellant neither gave nor called oral evidence at his trial. His case rested, essentially, upon cross-examination of each complainant. He went, by his then counsel, to the jury upon the basis that the jury could not accept either complainant as having been, beyond reasonable doubt, honest and reliable in giving her respective evidence. Counsel, in his closing address, was very trenchant in his criticism of the credibility of JM, putting at one stage to the jury: "I'm not trying to be critical of her character. People are like that. But if this thing happens to you, or happens to someone that you know, you expect them, as Mr. Crown says, to complain to the first person they trust. Well that's not what happened here. It didn't happen in this case because it didn't happen as she said. I don't know whether her motivations are compensation or something else. All I know is that she stopped her worker's comp claim after she complained about him. That's all I know of her. That's all you know of her." [T 187] 18 Counsel was not quite as extensively trenchant in his submission criticising the credibility of KG; but at one point during his address he characterised as "simply a preposterous assertion", one of the central complaints that KG had described during the course of her evidence. 19 Much of the defence address concentrated upon the pointing up of discrepancies and inconsistencies in the evidence, respectively, of JM and of KG, with special emphasis upon discrepancies and inconsistencies drawn out of a comparison of the evidence of each complainant at the first trial, and then at the re-trial. 20 The course of the defence address was interrupted by the normal luncheon adjournment. In the absence of the jury and before the formal adjournment, the following interchanges occurred: "HIS HONOUR: Mr. Crown, just before I adjourn, I'll ask you first, knowledge absence of consent, should there be a direction as to recklessness? COLES: I would ask that - your Honour, it is a part of the Crown case that he didn't care -- HIS HONOUR: What the authorities say is, if it's denied, it's usually not necessary to give a direction about recklessness. Of course, it hasn't been denied. So initially I'd thought that I would not be giving a direction about recklessness, but it seems to me the way the whole thing's been left, perhaps I should. COLES: Yes, I would, I think, your Honour -- HIS HONOUR: What do you say, Mr. Marr? MARR: I don't oppose that course, your Honour. COLES: Yeah. HIS HONOUR: You don't oppose that? All right, well I'll give the direction of recklessness." [T 180, 181] 21 The second of the two present grounds of appeal is that there was a miscarriage of justice deriving from misdirection of the jury on the issue of consent in respect of the complainant JM. At the hearing of the appeal learned senior counsel for the appellant said that having re-thought the point, he wished to submit " ……… that there were some passages in the transcript that left open the issue of consent in relation to KG as well". 22 Before proceeding to a detailed consideration of these two grounds of appeal, it will be useful to note the following brief summary of the Crown case as it is set out in the Crown's written submissions in this Court: "In July 2001, KG, whilst seeking the services of a counsellor to assist her with some personal problems, responded to an advertisement for Ian's Academy of Enlightenment, an alternative healing and massage business conducted by the appellant in rooms located in a shopping centre in Whitebridge, a suburb of Newcastle. She attended the appellant's rooms for an initial consultation and then, subsequently, attended the same premises for weekly meditation classes. Following some of those classes, the appellant recommended to her that she make an appointment for a massage. Mrs. G was massaged by the appellant on 14 and 23 August and on 1 September 2001. During each of these sessions the appellant directed her to remove all of her clothing. She felt uncomfortable naked and, at first, she did not comply with his direction. During the first session, she wore her underwear. During the second session she wore a towel. At the beginning of the third session, the appellant pulled her towel from her body and encouraged her to proceed with the massage. The third massage proceeded with Mrs. G lying face down on the massage bench. Initially, the appellant came over and patted her bottom. He then started to massage her and during the massage he moved his hands to her lower back, the small of her back and her bottom and inserted his finger into her anus and pushed down (count 1) . Mrs. G became very upset and the appellant removed his finger. She left the room shortly after and went home. A few days later she told her husband what had happened. On 17 July 2002, JM, saw the appellant in his capacity as an alternative healer. She was experiencing work-related anxiety and had been advised about his practice by two friends. During the consultation the appellant advised her to have a massage and she made an appointment for later that day. On her return, the appellant told her to remove all of her clothing. She did so and then lay face-down on the massage bench. Soon after the massage commenced, the appellant move his hand into the area of her coccyx (or tailbone). He then moved his fingers to the area around her anus and began to touch her there (count 2) . He spoke about pressure points and energies and distinguishing between sensations of pleasure and pain. Mrs. M protested about this conduct. The appellant, nevertheless, continued to touch her around her anus and genitalia for some time. Following these touches, he inserted his finger into her vagina (count 3) and rubbed up and down either side of her clitoris. After the appellant concluded the massage, she got dressed and paid for the session and left. She later reported to her friends what had occurred and soon after that made a formal complaint to police. The Crown relied on the testimony of both complainants and, to a lesser extent, the evidence of the persons to whom they made their complaints. In addition, the Crown submitted that there was a striking similarity between the allegations made by each of the complainants."
Ground 1 23 The Ground is: "The trial miscarried because the learned trial judge directed the jury that they could reason that there was such a striking similarity between the incidents involving the two complainants that they might be satisfied that if the accused had committed one set of acts then he must have committed the other." 24 In my opinion the first important aspect of this ground is that it does not propound that the convictions entail a miscarriage of justice caused by the wrongful admission at trial of evidence that was treated erroneously as coincidence evidence. The question posed by Ground 1 has quite a different focus: that is to say, whether, all of the Crown evidence about all three offences having been led in one trial, and without objection of any kind, the directions thereupon given to the jury were wrong in law. 25 At the commencement of the Court sitting on 10 March 2004, and before the evidence in the Crown case had concluded, Judge Armitage, explaining that his felt Honour that "……… it's perhaps better to err on the side of caution", laid out in a form that had been, obviously, prepared in careful detail "……….. the direction that I anticipate giving in relation to the coincidence evidence". The foreshadowed direction was: ""Members of the jury, the accused is charged with having committed one offence against Ms G and two offences against Ms M. A question arises as to the extent to which you are entitled to use the evidence in respect to the case concerning Ms G when considering the case concerning Ms M and the extent to which you are entitled to use the evidence in respect of Ms M's case when considering Ms G's case. I commence by saying this, usually in cases such as this, an accused person is charged only with an offence or offences relating to one complainant. What he has allegedly done in respect of another complainant is not admissible because of the danger that people might think that evidence that proves that a person who has committed one crime could suggest that he or she has committed the other crime. However, sometimes there may be such a striking similarity between two different sets of acts that a jury may be satisfied beyond reasonable doubt that the person who committed one set of acts must have committed the other. That is to say that the accused person has put a certain stamp upon the crime which makes it easily recognisable that he must have committed both sets of crimes. This could not be so if both sets are such that they may be explained by coincidence. There must be such a close similarity, such a clear underlying unity between both sets of acts as to make coincidence a very unlikely explanation for what happened; and that is what the Crown says here. If you decide that the Crown is right - but you must bear in mind that it is not sufficient if the evidence simply raises or deepens the suspicion that the accused is guilty of both the offence against Ms G and the offences against Ms M - it must make any other conclusion than guilty an affront to your common sense. In this case, the Crown says that, provided you are satisfied beyond reasonable doubt that the accused committed the crimes alleged in respect of one complainant, then the circumstances in which the other crime is alleged to have been committed was so similar as to lead inevitably to the conclusion that he must have committed the other offence. The very important point is this. You are not entitled to use the evidence in Ms G's case when considering Ms M's case unless you are satisfied beyond reasonable doubt that the accused committed the offence against Ms G. Or alternatively, you are not entitled to use the evidence in Ms M's case when considering Ms G's case unless you are satisfied beyond reasonable doubt that he committed the offences against Ms M." [T 161,162] 26 Both counsel gave immediate and unqualified assent to this proposed formulation. In due course his Honour directed the jury accordingly and there was no application for re-direction. 27 The written submissions of the appellant put this case: "37 The appellate courts and learned commentaries have repeatedly pointed to the risk of unfair prejudice to an accused at trial when "similar fact evidence" is adduced and used for tendency or coincidence purposes. There was a particular risk of unfair prejudice to the appellant in the instant case because of the discrepancy in quality of the complainants' evidence. The trial transcript readily supports the conclusion that the evidence of KG was significantly weaker than the evidence of JM. The trial judge referred to the divergent quality of the witness' evidence in connection with the direction on coincidence evidence at pages 18-19 of the summing up. The appellant contends that there is a real risk that the jury: (a) gave impermissible weight to the evidence of JM and (b) substituted the evidence of JM for the evidence of KG, when determining the appellant's guilt in relation to the alleged sexual assault on KG. 38 In view of the foregoing submissions on the limited probative value of the evidence and the risk of unfair prejudice, it is submitted that even if the coincidence , evidence was found to have satisfied the requirements of s 98, the evidence should have been excluded following application of the balancing test in s 101(2)." 28 As to paragraph 38, I am of the opinion that it states a proposition which is not put in issue by Ground 1. 29 As to paragraph 37, it is appropriate to note what his Honour actually said in addition to the directions that he had previously cleared with both counsel. The passages are: "Now, members of the jury, Mr. Marr has put to you, in the course of his submissions, that you should start off with Mrs. G's case. I express no view about that, except to say that it is entirely a matter for you. I want you to bear in mind what I have just said to you, and you can make up your own minds about that. Perhaps you had better do both. It is entirely a matter for you. There is no reason why you should do what Mr. Marr says. There is no reason why you should not, if it comes to that. But you need to approach the matter carefully and to bear in mind what I just said to you. Now I understand, of course, that this is all new to you; and Mr. Marr, the Crown Prosecutor, and myself go through this on, if not a daily, a weekly basis. This no doubt is new to you. I think I should repeat the last part of that direction that I gave to you because it is important. This is what I just said. The very important point is this; you are not entitled to use the evidence in Mrs. G's case when considering Ms M's case unless you are satisfied beyond reasonable doubt that the accused committed the offence against Mrs. G; or, alternatively, you are not entitled to use the evidence in Ms M's case when considering Mrs G's case unless you are satisfied beyond reasonable doubt that he committed the offences against Ms M. Now there could be a point in why Mr. Marr would ask you to approach the matter in a certain way. There could be a point in why the Crown might perhaps ask you to approach it the other way. And that point could be that it may well be that you would take the view that one of these complainants was more impressive than the other. I do not think I really need to say much more about it than that, at this stage, in any event. It is entirely a matter for you. I express no view about that. Both counsel have referred to the witnesses. They referred to their alleged reliability and unreliability and so on. It is obviously open for you, if you want to, to come to the view that one complainant was more impressive perhaps than the other. I am not suggesting you would. I express no opinion about it. I am simply trying to put the whole thing into some sort of context as to why is it that you are being urged to look at it in a particular way. And all I suggest is that you set about it in your own way and do it however you like. But just bear in mind that there could be a reason why it is that you are being urged to approach the matter in a certain way." [S.U 17,18] 30 His Honour then invited the jury to let him know if they had "any difficulty with the legal direction that I have given you, particularly this last direction in relation to the similarity of the incidents that took place ……….. ………..". There was no request for further assistance. 31 Having read and considered the whole of the relevant portions of the charge to the jury, I am wholly unpersuaded that they gave rise to the "real risk" of which the written submissions speak. I can see no other defect of law in the directions. 32 I would not uphold Ground 1.
Ground 2 33 The Ground is: "The trial miscarried because the learned trial judge failed to properly direct the jury on the issue of consent in respect of the complainant JM." 34 The charge to the jury was delivered in part on 10 March and in part on 11 March. During the first day's directions his Honour gave careful and clear directions about the elements of absence of consent and of knowledge in the appellant of that absence. No objection was taken at trial to any part of those directions and none is taken now. There is, therefore, no need to set out the detail of those directions. 35 When the charge resumed on 11 March, his Honour went at once to the issue of recklessness. His Honour gave, [SU 40-42], the following directions: "Now members of the jury, you recall that yesterday when we adjourned I was dealing with the evidence in the Crown case. Now before I go on with that evidence, it is necessary that I go back a little bit and add something to one of the legal directions that I gave you. I should have done it yesterday and I omitted to do it. The situation is, you will recall that yesterday I directed you what the Crown must prove beyond reasonable doubt in respect of the first and third charges and you will recall that each of those charges allege the accused had sexual intercourse. One charge alleges the intercourse was with KG. The other charge alleges the intercourse was with JM. The charge reads that the accused did have sexual intercourse with that person without the consent of that person knowing she did not consent. Now I explained to you yesterday what the Crown has to prove is that the accused, first, had sexual intercourse with the complainant. Secondly, that he had that sexual intercourse without the consent of the complainant, and third, that he had that sexual intercourse knowing that the complainant did not consent. Now as to knowing that the complainant did not consent, I told you yesterday that the accused's state of mind may have been that he actually knew that she was not consenting and that that is a guilty state of mind. I also told you that his state of mind might have been that he honestly, though wrongly, believed that she was consenting to the intercourse. I explained that that is not a guilty state of mind and I pointed out that the Crown must prove a guilty state of mind if it is to succeed. I should have gone on to expand that direction a little, members of the jury, and that is what I intend doing now. Between those two situations that I have already explained to you being, on the one hand, the knowledge of the accused that the complainant did not consent and, on the other hand and honest, a mistaken belief (sic - reproduced according to the trial transcript) that the complainant did consent, there lies a third possibility. That is, where the accused is reckless as to whether the complainant is consenting or not. If the Crown has, in your opinion, established beyond reasonable doubt that the accused had sexual intercourse with the complainant and was reckless as to whether the complainant consented to the sexual intercourse, then, in law, the accused will be taken to know that the complainant did not consent to that sexual intercourse. In order to establish that the accused was acting recklessly, the Crown must prove beyond reasonable doubt either of two things. First, that the accused's state of mind was such that he simply failed to consider whether or not the complainant was consenting at all and just went ahead with the act of sexual intercourse, notwithstanding that a risk that the complainant was not consenting would have been obvious to someone with the accused's mental capacity, if he had turned his mind to it. Now, in this context, I emphasise that this is a subjective test. What you are concerned with is the accused's state of mind, not what you think his state of mind should have been. Now, that is the first thing that the Crown could prove; or, alternatively, the Crown must prove that the accused's state of mind was such that he realised the possibility that the complainant was not consenting but went ahead regardless of whether she was consenting or not; and, again, that is a subjective test. Now that is what I should have added, and I simply overlooked it. I am sorry about that. That completes the direction that I need give you in that regard." 36 It is not now contended that the directions were wrong in law. The contention is, rather, that "……………it was incumbent on the trial judge to specifically relate directions of law on consent to the aspects of evidence in the trial which are enumerated above. This was necessary to ensure that the jury was positioned to consider competing evidence on the issue of consent in a cogent manner and thereby give proper consideration to a defence which was available on the evidence. The appellant submits that the trial miscarried as a result of the learned trial judge's failure to point to evidence in this manner …………….". [Appellant's written submissions at paragraphs 49 and 50] 37 Judge Armitage, having given the recklessness directions noted above, proceeded at once to canvass in detail the evidence as it touched upon the matter of JM. The canvass is long, detailed and careful. It is not suggested that the canvass is in its terms incomplete or unbalanced or wrong in some stated particular. 38 It seems to me that the answer to the appellant's submissions as noted above, and whether in relation to JM's matter or to KG's matter, is to be found in the very plain speaking of this Court in R v Williams (1990) 50 A Crim R 213 on the topic of jury directions. The relevant passages are in the judgments of Gleeson CJ at 213; of Wood J, (as Wood CJ at CL then was), at 214; and of Badgery-Parker J at 226.6-227. The principles there recapitulated are well known; they remain good law; and the present case seems to me to be a paradigm of the case in which they should be applied simply and firmly. Thus applied, the principles cut away, in my opinion, any foundation of substance for Ground 2. 39 I would not uphold Ground 2.
In my opinion the appeal against each conviction should be dismissed. 40 HULME J: I agree with Sully J. **********
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Ian JACKSON
REGINA
CITATION: Ian JACKSON v REGINA [2005] NSWCCA 411