The grounds of appeal
38The grounds of appeal are pleaded as follows:
"1. That the trial miscarried by reason of the prejudice occasioned by the Crown Prosecutor in his closing address.
2. That in the circumstances of the trial, it was impossible for the learned trial judge to give any directions that could have rectified the possible harm occasioned by the Crown Prosecutor's inappropriate remarks to the jury.
3. In the alternative, the directions given to the jury by the learned trial judge in the course of his summing up were ineffective to cure the prejudice that flowed to the Appellant from the Crown Prosecutor's inappropriate remarks to the jury.
4. The defence of honest and reasonable but mistaken belief having been raised by the Appellant, the learned trial judge erred in not properly directing the jury as to the elements of the defence and the burden of proof.
5. By reason of each of the above grounds and by a combination of all of the above grounds, there was a miscarriage of justice and the verdict of the jury is unsafe and unsatisfactory."
Grounds 1-3: the Crown prosecutor's address
39There are two aspects to the complaint concerning the Crown prosecutor's address. The first is the reference to the absence of Nim Ngata from the trial. The submission was made that the address invited the jury to speculate about why Mr Ngata had not been called in the defence case, and that any evidence that he might have given would have been unfavourable to the appellant. This, it was submitted, was exacerbated because specific reference had been made to why Mr Kandarakis was not called, and therefore that highlighted the unexplained absence of Mr Ngata.
40Reliance was placed upon the decision of this Court in Wood v R [2012] NSWCCA 21; 84 NSWLR 581. In that case, a series of 50 questions had been put to the jury by the Crown prosecutor in his final address. The Court considered that the manner in which this was done had the effect of reversing the onus of proof. There is no comparison for present purposes with that case (and nor is any suggested). What is relied upon is the manner in which the Court dealt with the alternative left open to defence counsel. Defence counsel had attempted to deal with the questions. That, however, the Court said:
"... gave prominence to them and left the jury to ponder whether the Crown's challenge had been met."
The Court concluded that the appropriate course for counsel to take was to seek discharge of the jury.
41It was argued that that course was not reasonably open to the appellant. That was because the appellant's solicitor had already raised the matter with the trial judge, who had indicated clearly that he saw no difficulty in the submissions made by the Crown prosecutor. For my part, I would accept that the failure of the solicitor for the appellant to seek discharge of the jury should not operate against these grounds of appeal, if they are otherwise meritorious.
42Moreover, I accept that the comments made about the absence of Mr Ngata, particularly "... it is a very big hole in the defence case" ought not to have been made. The submission was a clear invitation to the jury to conclude that there was some obligation on the appellant to call Mr Ngata. "A very big hole in the defence case" clearly implied an obligation on the appellant to fill the "very big hole". It is a very small step from that to suggest that there is some onus on the appellant.
43However, I am equally satisfied that, following the trial judge's directions, the jury could have been in no doubt that the onus of proving the appellant's guilt lay squarely on the Crown, and there was no onus on the appellant. Further, the entire issue must be looked at in the light of reality. One clear inference that could be drawn from the appellant's evidence was that the perpetrator of the offence was Mr Ngata. The jury could hardly have thought that he would call Mr Ngata either to admit his culpability, or to deny it. Although the Crown prosecutor's submission ought not to have been made, I am satisfied that it did not cause any damage to the appellant's case, or cause any miscarriage of justice.
44The second aspect of these grounds is the submission put to the jury about the absence of Mr Kandarakis. This has to be seen, in the first place, in the light of the agreed statement to the jury that Mr Kandarakis could not be located.
45The submission put to the jury by the Crown prosecutor is barely (if at all) comprehensible. Ultimately, however, it was that Mr Kandarakis' evidence, if available, would not have added anything to the case. Again, it is a submission that ought not to have been made, particularly in the light of what amounted to an agreement as to what would be said to the jury about the absence of Mr Kandarakis. However, in my opinion, the remarks did no injustice or damage to the appellant's case.
46I am satisfied that, although there was impropriety in the Crown prosecutor's address, it was fully mitigated by the summing up.
47I would reject grounds 1 to 3 of the appeal.
Ground 4: honest and reasonable but mistaken belief
48It will be convenient for the reader if the ground, as formulated, is repeated. It is:
"4. The defence of honest and reasonable but mistaken belief having been raised by the Appellant, the learned trial judge erred in not properly directing the jury as to the elements of the defence and the burden of proof."
49The ground is therefore based upon an important factual premise. The premise is that "the defence of honest and reasonable but mistaken belief" was raised by the appellant during the trial. The "honest and reasonable but mistaken belief" was as to the age of the complainant.
50Any such belief is relevant to the present circumstances only by reason of sub-s (5) of s 86. Sub-section (5) creates a presumption that, where the alleged victim of a s 86 offence is under the age of 16, any "taking or detaining" is without consent (subject to a further statutory exception, presently irrelevant, in sub-s (6)).
51It is necessary, for the Crown to prove an offence against sub-s (1), or its aggravated or specially aggravated forms, that the "taking" or "detaining" was without consent. It is not so where the alleged victim is under the age of 16. In that circumstance, by reason of sub-s (5), the Crown is relieved of the obligation of specifically proving the absence of consent. Absence of consent is presumed.
52The "defence" of "honest and reasonable but mistaken belief" stems from the decision of the High Court in Proudman v Dayman [1941] HCA 28; 67 CLR 536. It was restated in Jiminez v The Queen [1992] HCA 14; 173 CLR 572. In the joint judgment (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) the Court said that, in Proudman v Dayman:
"Dixon J drew a distinction between mens rea as an ingredient of an offence and an honest and reasonable belief in a state of facts which, if they existed, would make a defendant's act innocent. If honest and reasonable mistake is not excluded in the case of a statutory offence, it will afford an excuse for what would otherwise be an offence, although the burden of establishing the excuse will in the first place be upon the defendant. The burden on the defendant is evidentiary only, and the prosecution retains the burden of proving guilt by establishing beyond reasonable doubt that the defendant did not honestly believe on reasonable grounds in the existence of facts which, in the circumstances, would take his act outside the operation of the statute."
53In CTM v The Queen [2008] HCA 25; 236 CLR 440, the High Court applied that reasoning to offences were the age of alleged victim is an element. In that case, the High Court had under consideration an offence against s 66C(3) of the Crimes Act. Section 66C(3) created an offence of having sexual intercourse with another person of or above the age of 14 years, and under the age of 16 years. The age of the alleged victim was therefore an essential element in proof of the offence. The High Court determined that, in relation to such offences:
"35 ... An honest and reasonable belief that the other party to sexual activity is above the age of 16 years is an answer to a charge of a contravention of s 66C(3). The evidential burden of establishing such a belief is in the first place upon an accused. If that evidential burden is satisfied, then ultimately it is for the prosecution to prove beyond reasonable doubt that the accused did not honestly believe, on reasonable grounds, that the other party was above the age of 16 years."
54There are two important aspects to this ruling. The first is that an evidential burden is cast upon the accused person to establish such a belief. The second is that, once that evidential burden is satisfied, the onus is on the Crown to prove beyond reasonable doubt that the accused person did not honestly, on reasonable grounds, hold the requisite belief as to the alleged victim's age.
55In the present case, the appellant's legal representative sought a direction in accordance with CTM. He argued that the appellant had satisfied the evidential burden of establishing the relevant belief, and that, therefore, the onus of disproving that belief fell upon the Crown. After some discussion, it appears that the Crown prosecutor accepted that that evidential burden had been discharged.
56The trial judge did not give any express direction that the obligation was on the Crown to prove that the appellant did not have an honest and reasonable belief that the complainant was over the age of 16. Whether an accused person has discharged the evidential burden will be a matter for judgment in each case. For my part, I have doubts that the Crown concession was properly made. First, it must be noted that there is a distinction between not knowing a person's age, and having an erroneous (but positive and honestly held) belief as to that age. It is also necessary that the belief be reasonable. It is necessary to look to the evidence given by the appellant. For completeness, I will extract the relevant evidence given in chief. It was:
"Q. Now, when you saw this person in the car, had you ever seen this person before?
A. No.
Q. Did you give any consideration as to how old they might be?
A. When I opened the car door the lights never went on and it was pretty dark so really couldn't see, I couldn't see his face properly when he was sitting in the car no.
Q. What about when he got out?
A. When he got out he was taller than me, looked like 17, 18 at least.
Q. How tall are you:
A. 170 - 155 I think.
Q. 1.55 metres or?
A. Metres yeah.
Q. Do you know what that is the old terms?
A. I don't know.
Q. So did you give any thought to his age?
A. No not really. I never asked him for ID or nothing no.
HIS HONOUR: The witness said he thought he was 17 or 18.
[SOLICITOR FOR THE APPELLANT]: Yes.
[APPELLANT]: He looked like 17 or 18."
57There was some cross-examination of the appellant, although it was not directly concerned with any opinion he held about the complainant's age. Throughout the cross-examination, the appellant repeatedly referred to the complainant as "the kid". It is true that it may be that this appellation was first used by police when they initially questioned the appellant.
58In my opinion the evidence fell short of asserting any belief by the appellant. When the trial judge misquoted him by saying "the witness said he thought he was 17 or 18", the appellant corrected him to say "He looked like 17 or 18". In his initial answers to police (evidence of which was elicited by his solicitor) the appellant said that he had no reason to believe that the complainant was under 16. That is very different to asserting a positive belief that he is over 16. He gave no evidence to support either the honesty or the reasonableness of any such belief.
59In CTM the High Court referred to Jiminez, in which the question concerned a driver of a motor vehicle who had gone to sleep at the wheel, causing a collision that in turn caused the death of a passenger. In the circumstances, it was necessary for the prosecution to prove that the manner of driving was objectively dangerous. Relevant to that was a question whether the driver had had any real warning of the onset of sleep - that is, whether he honestly believed on reasonable grounds that it was safe for him to drive. No such direction had been given to the jury, and, accordingly, the High Court quashed the conviction. The Court declined to order a new trial, although that was not because it found that the accused person had the requisite belief. What is important about the reference to Jiminez in CTM is that the High Court (in Jiminez) tested the question of honest and reasonable belief against other facts and circumstances proved in evidence, giving rise to the conclusion that there was a serious issue to be tried.
60On the facts of CTM, the High Court reached a different conclusion. The appellant in that case had not given evidence, but relied upon an out of court statement that the complainant had lied to him about her age. The High Court noted that there was nothing to support either the honesty or the reasonableness of any belief that he held. The Court concluded that the evidential burden had not been satisfied in that case.
61In my opinion, similar considerations apply in the present case. Despite saying that the complainant "looked like 17, 18", the appellant also said that he did not "really" give any thought to his age. Even on his own version of events, it is an irresistible inference that that is the true position. Initially, he said that he had no reason to believe that the complainant was under 16 years of age. This evidence is, in my opinion, insufficient to discharge the evidential burden of establishing an actual belief, as distinct from a mere observation of the complainant's appearance.
62The trial judge gave the directions set out above (at [35]). He made it clear that the onus was on the Crown to prove that the appellant knew that the complainant was under the age of 16. But he made no reference to the appellant's evidence on the subject.
63In my opinion, ground 4 is based on a false premise. It was not necessary for the judge to give any direction in accordance with CTM.
64However, as I have said, at trial the Crown prosecutor ultimately appeared to accept otherwise. He accepted that CTM applied, and he accepted that the appellant had discharged the evidential burden.
65It is also worth considering what factual directions the trial judge could have given had he directed with respect to the honest and reasonable but mistaken belief. He would have referred to the evidence set out above ([22]) - including the evidence that the appellant gave no thought to the complainant's age (as well as the evidence that he looked about 17 or 18). He would have been obliged to direct that there was no evidence by which to test the honesty of any such belief. He would have been obliged to direct the jury to examine the photographs of the complainant taken at the hospital.
66Examination of the reasonableness of any belief includes consideration of the thought - if any - which was given to the question.
67In my opinion, there was no error in the manner in which the trial judge directed the jury.
68I would reject ground 4 of the appeal.
Ground 5:
69As is apparent from its terms, ground 5 is dependent upon the outcome of grounds 1-4. Ground 5 should, accordingly, be rejected.
70I would dismiss the appeal against conviction.
71The order I propose is:
(1) Appeal against conviction dismissed.
72HIDDEN J: I agree with Simpson J.
73HAMILL J: I have had the opportunity of reading the judgment of Simpson J. I agree with her Honour's conclusion that the appeal should be dismissed and I agree with her Honour's reasons for that decision.
74I wish to add some observations in relation to grounds 1-3 and ground 4.
75As to grounds 1-3, I agree with Simpson J that the prosecutor's comments were inappropriate and apt to encourage the jury to reason from the basis that there was an onus on the appellant to fill "the very big hole" which arose as the result of neither party calling the witness Ngata.
76I also agree with Simpson J that the clear and unambiguous directions of the trial Judge removed any possibility that the jury was left in doubt as to the onus of proof.
77There are an unfortunate number of appeals brought to this Court in which the conduct of Crown prosecutors, in adducing evidence, cross examining and in their addresses to juries are said to give rise to miscarriages of justice: see, for example, R v Kennedy [2000] NSWCCA 487; 118 A Crim R 34, R v Rugari [2001] NSWCCA 64; 122 A Crim R 1, R v Teasdale [2004] NSWCCA 91; 145 A Crim R 345, R v Attallah [2005] NSWCCA 277, KNP v R [2006] NSWCCA 213; 67 NSWLR 227, Livermore v R [2006] NSWCCA 334; 67 NSWLR 659, Causevic v R [2008] NSWCCA 238, Anderson v R [2010] NSWCCA 130; 202 A Crim R 68, Wood v R [2012] NSWCCA 21; 84 NSWLR 581, Gilham v R [2012] NSWCCA 131; 224 A Crim R 22, Armstrong v R [2013] NSWCCA 113, Lyndon v R [2014] NSWCCA 112.
78The cases referred to in the last paragraph are but a selection of cases in which this Court has found that the conduct of a Crown prosecutor, particularly in their closing addresses, was inappropriate, improper or calculated to create unfairness for the accused. It needs hardly be said that such conduct is inconsistent with the role and duty properly entrusted to Crown prosecutors in the criminal justice system in Australia.
79Of course, this is a relatively small number of cases compared to the vast number of trials that are conducted in this state. Overwhelmingly, prosecutors conduct themselves within the ethical boundaries and with appropriate deference to their role and duties.
80In terms of closing addresses, the following are examples of the kinds of comments that have been held to be improper or inappropriate:
(i)Comments inserting the personal opinions of the prosecutor into the proceedings.
(ii)Intemperate or inflammatory comments tending to arouse prejudice and emotion.
(iii)Submissions based upon material not established by the evidence.
(iv)Comments which belittle or ridicule the defence case.
(v)Attempts to impugn a witness in circumstances where the witness was not afforded the opportunity of responding to an attack upon their credit.
(vi)Comments which have a tendency to invert the onus of proof or water down the standard of proof.
The first five of those categories were referred to in the judgment of the Court (McClellan CJ at CL, Johnson and Latham JJ) in Livermore v R at [31]. The sixth was discussed in Wood v R and is the kind of inappropriate comment that was made in this case. Inappropriate comments are not limited to those six categories.
81Addressing the jury in these ways is inconsistent with the ethical obligations arising under the Rules of the New South Wales Bar Association and the advocacy rules of the New South Wales Law Society. There are specific rules directed to the conduct of prosecutors. Those rules have been emphasised in a number of the cases.
82There is no doubt that the responsibility cast upon prosecutors is a heavy one and the criminal justice system and the community expects prosecutors to conduct themselves firmly and fearlessly by providing a robust presentation of the case. The successful prosecution of offenders depends on such conduct. But as Hunt CJ at CL said in a different context:
"Crown prosecutors should not let their understandable distaste for the factual situations of the individual case become zealotry in a misguided belief that convictions must be obtained at any cost. They have a duty to ensure that trials will be fair to the accused ..."
(Kennedy v R (1997) 94 A Crim R 341 at 353.)
83Prosecutors should be aware that each time they exceed the legitimate boundaries of robust advocacy they create the real risk that the trials in which they appear may be subject to scrutiny and the convictions recorded may be quashed. This results in great distress for the alleged victims of the offences and significant cost to community in the conduct of re-trials.
84Prosecutors should also be aware that such conduct may result in disciplinary action. I do not mean to suggest that the present case is one in which there should be, or is likely to be, disciplinary action. The transgression was not, relatively speaking, egregious and appeared to be the result of inadvertence or clumsiness rather than design.
85Having made those observations, I repeat that I am in complete agreement with the conclusion of Simpson J that the directions of the trial judge in this case, including the directions and re-directions given specifically in relation to the prosecutor's address, were ample to ensure that the jury did not proceed on an erroneous understanding of the onus of proof.
86In relation to the fourth ground of appeal, I agree with Simpson J that the evidence of the appellant fell short of positively asserting an honest and reasonably held belief that the complainant was under the age of 16 years.
87In the critical passage of the evidence the appellant said that the complainant "looked like 17, 18 at least' but he did not assert that he had any particular belief as to the complainant's age. On the contrary, when asked whether he gave any thought to his age he said "no, not really". The solicitor appearing for the appellant at the trial did not lead evidence as to the appellant's belief as to the complainant's age.
88Further, as Senior Counsel for the respondent pointed out, the solicitor appearing at the trial agreed to the directions on the issue of consent before they were given and made no complaint after they were given. The lengthy discussion on this issue was not so much concerned with honest and reasonable belief as it was with the question of whether the prosecution needed to prove, not only that the complainant was under the age of 16, but also that the appellant knew that he was under the age of 16. The concession made by the Crown was that the prosecution had to prove both of those things.
89On 8 September 2011 the following exchange is recorded:
"HIS HONOUR: But the Crown is putting this proposition that he says as regards consent he has - there's two limbs that he has to prove on consent. One that the child did not consent but two that Mr Ibrahim knew the child wasn't consenting.
The Crown says subsection 5 allows him to establish that by operation of the section once he establishes the age but the second limb to prove in the absence of knowledge, he has to satisfy the jury that Mr Ibrahim knew. No shifting of the onus to you at all.
[DEFENCE]: I am happy with that."
90On 13 September 2011 the trial Judge told counsel what he proposed to say to the jury on this issue:
"HIS HONOUR: ... But the next provision is the area where I've had time to reflect upon what was urged upon me and I'm not certain that this is in agreement and that is the mental element of the accused. The accused knew that the complainant was not consenting to the taking. The prosecution must prove beyond reasonable doubt,
1. The accused knew that the complainant was under the age of 16 years at the time of taking, or if not satisfied the accused knew the complainant was under the age of 16 years at the time of the taking the accused knew in fact at the time of the taking that the complainant was not consenting to the taking."
91The Crown said that he was "content with that formulation". No complaint was made by the appellant's representative. Shortly thereafter the following exchange occurred:
"HIS HONOUR: There's two ways the prosecution can prove the accused's mental element, one when he's taking he knows the child, for example that example that I gave is 10, he knows it's under 16--
[DEFENCE]: Yes. Sure.
HIS HONOUR: Then he can't say that I thought the 10 year old was consenting. There's plenty of evidence here that says he had no idea this person was under 16--
[DEFENCE]: Yes.
HIS HONOUR: --indeed others seem to support that. But if the Crown can't prove that, if the Crown can prove your client knew, actually knew, that there was no consent then that's sufficient to prove the element.
DEFENCE: Yes."
92The solicitor appearing did not at this point ask the Judge to direct the jury that the Crown had to disprove that his client was mistaken as to the age of the complainant. Given the state of the evidence, that is not surprising. The appellant's evidence was that he did not really think about the age of the complainant.
93I agree with Simpson J that ground 4 should be rejected.