Jiang v R

Court of Criminal Appeal (NSW)|2010-10-18|Before: Simpson J, Hoeben J, Hulme J

JUDGMENT OF: Simpson J at 1; Hoeben J at 2; RA Hulme J at 3

DECISION: Appeal against conviction dismissed. Application for leave to appeal against sentence refused.

CATCHWORDS: CRIMINAL LAW - appeal and new trial - particular grounds of appeal - misdirection and non-direction - whether direction was required to warn against substitution of evidence of uncharged acts for charged acts - whether error in judge's comment that certain prosecution evidence had not been challenged or contradicted - CRIMINAL LAW - appeal and new trial - appeal against sentence - grounds for interference - whether sentence manifestly excessive - whether error in not finding special circumstances

Crimes Act 1900 LEGISLATION CITED: Criminal Appeal Rules Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995

Clarke v R [2009] NSWCCA 49 House v The King [1936] HCA 40; 55 CLR 499 LJW v R [2010] NSWCCA 114 Mulato v R [2006] NSWCCA 282 O'Leary v The King [1946] HCA 44; 73 CLR 566 Quayle v R [2010] NSWCCA 16 Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463 R v Adam [1999] NSWCCA 189; 106 A Crim R 510 CASES CITED : R v ATM [2000] NSWCCA 475 R v Baldwin [2004] NSWCCA 21 R v Cramp [2004] NSWCCA 264 R v Dixon [2001] NSWCCA 39 R v El-Hayek [2004] NSWCCA 25; 144 A Crim R 90 R v Li [2010] NSWCCA 125 R v Qin [2008] NSWCCA 189 RPS v The Queen [2000] HCA 3; 199 CLR 620 Toalepai v R [2009] NSWCCA 270

PARTIES: Wen Sheng Jiang (Appellant) Regina (Respondent)

COUNSEL: Mr M Thangaraj SC (Appellant) Ms S Dowling (Crown)

SOLICITORS: Legal Aid Commission Solicitor for Public Prosecutions

IN THE COURT OF CRIMINAL APPEAL 2009/7838

SIMPSON J HOEBEN J R A HULME J

1 SIMPSON J: I agree with R A Hulme J. 2 HOEBEN J: I agree with R A Hulme J and the orders which he proposes. 3 R A HULME J: The appellant was convicted after a trial in the District Court before his Honour Judge King SC and a jury of one count of indecent assault, contrary to s 61L of the Crimes Act 1900, and two counts of sexual intercourse without consent, contrary to s 61I of the same Act.

4 The maximum penalties prescribed for these offences are imprisonment for 5 years and imprisonment for 14 years respectively.

5 The appellant was sentenced to imprisonment for a fixed term of 6 months for the count of indecent assault. That sentence was totally subsumed within concurrent sentences of 2 years, with non-parole periods of 18 months, for each of the two counts of sexual intercourse without consent. The judge specified that the sentences were to commence on 13 June 2009. The appellant is due to be released on parole on 12 December 2010.

6 By notice of appeal filed on 9 August 2010 the appellant appeals against conviction and applies for leave to appeal against sentence.

7 The offences were alleged to have occurred on 14 October 2008. The appellant was working that day as a masseur at premises located at Bondi Beach. He is a Chinese national who speaks almost no English. The complainant ("AD") was a French backpacker who had been in Australia for two weeks.

8 AD's evidence was that she attended upon the appellant and asked for a massage. There was no-one else present. Communication was difficult because of their respective native languages. AD pointed to a price list and indicated that she wanted a whole body massage. The appellant opened a curtain revealing a cubicle with a massage table. AD noticed there was a diploma on the wall. The appellant pointed to hooks where she was to put her clothes. He did not tell her how much of her clothing to remove but she removed them all because that is what she did when she previously had experienced a massage in India, although on that occasion the masseur was a female.

9 AD then lay face down on the table. The appellant came into the cubicle and commenced to massage her back. She said he moved from her lower back to her upper back, and then returned to her lower back. At that point she said that he started to massage around her anus and between her legs, and she could feel pressure from his fingers between her anus and vagina. AD said that she felt confused. She said she did not know what the limit was for a Chinese massage.

10 The appellant then massaged AD's legs and feet. She could not recall whether she was covered by anything then, or earlier. The appellant then asked AD to lie on her back which she did. Again, she could not remember if the appellant gave her anything to cover herself. She had her eyes closed.

11 The appellant then massaged her stomach. She said that he then started to massage each of her breasts and then, particularly, her nipples. Her previous experience of a massage in India had included massaging of her breasts, but on this occasion with a male masseur she said she felt confused. She had thought of the fact that the masseur was a male before the massage commenced but convinced herself that it would be alright because, "that (is) his job so I shouldn't be scared or worried about anything".

12 AD was asked what happened after the massaging of her breasts and she replied (and this was the evidence relied upon by the Crown for the count of indecent assault and the first of the counts of sexual intercourse without consent): "After - after he spreaded my legs a little bit because I had my legs - very straight legs to each other then he start putting more pressure within my inner thighs and he started with one finger touching my clitoris. While he was touching my clitoris with one finger, he starting to suck my right nipple at the same time he was touching my clitoris and sucking my right nipple." (Some of AD's evidence, including the above, was given through an interpreter).

13 AD said that she felt bad and realised that this was beyond the limits of what a massage should be. She pushed the appellant's head and hand away but she did not say anything. The appellant did not say anything either and continued with the massage "as if nothing had happened". AD was asked if she remembered the appellant next touching her and she replied (through the interpreter): "At a certain moment, he put one of his finger at the entrance to my vagina. He didn't put his full finger, it was like more as a pressure like when he did when he put pressure between my anus and my vagina before that."

14 This was the evidence the Crown relied upon in respect of the second count of sexual intercourse without consent.

15 Once again AD pushed the appellant away. Neither of them spoke. The appellant then continued by massaging her legs. He then asked her to sit on a stool and when she did so he massaged her shoulders and neck while standing behind her. She said that, "he started massaging my breasts again and my nipples". She pushed him away. The appellant then left the cubicle and AD got dressed. When she came out she paid the appellant $50 and left. She was asked why she paid him and she said that, "it was like to close a door, to close what happened and to … leave that behind me".

16 AD returned to her backpacker accommodation where she showered. She then dressed in the same clothes she had been wearing before and called a French man she had met in Sydney, Tom. He was in the city so she caught a bus and met him at a coffee shop near Hyde Park. She told him that she went to have a Chinese massage and that the masseur had "touched" and "abused" her. The two then went to Tom's hostel in Kings Cross where he provided her with dry clothes (it had been raining). They then went to Bondi police station where she reported the matter. She was medically examined and the police retained her bra as an exhibit.

17 In cross-examination it was suggested to AD (and denied) that she had found the massage embarrassing but that she had "made up the worst bits", which seemed to have been a reference to having her breast sucked and her genitals touched, in order to ensure the police would take her complaint seriously and act upon it. It was also suggested (and denied) that the appellant had massaged "around" her breasts, which may have resulted in movement of the breasts, but that he had not otherwise touched her breasts or nipples. There was no cross-examination concerning the content of her conversation with Tom.

18 Mr Tom Lann came to Australia from France on a working holiday at the end of September 2008. He met AD, not having known her previously. He gave evidence of the occasion when AD had called him and they had met and gone to a coffee shop near Hyde Park. He could see that something was wrong and he asked her what had happened but "she collapsed crying". He said that she had then told him of having been sexually abused whilst having a massage. He asked her if it was "really, really bad" and she told him that it was. She continued crying so he did not ask her for details. They went to his accommodation where he lent her a sweatshirt because she was wet from the rain. They then went to the Bondi police station. Mr Lann was not cross-examined about his conversation with AD or about his observations of her demeanour.

19 Police submitted the complainant's bra for DNA testing. Material recovered from the centre of the inside of the right cup showed the presence of DNA from both a male and a female contributor. The female contribution, unsurprisingly, was consistent with it having emanated from AD. The male contribution was consistent with it having emanated from the appellant. There was four times more of the male DNA than the female DNA.

20 The forensic biologist was asked about how the male DNA could have made its way into the bra cup. There were three possible sources of the DNA - blood, saliva or skin. Blood was eliminated because of the lack of staining. There was no suggestion of direct contact of the appellant's skin or saliva with the bra cup so, whatever the source, it must have been deposited via the central area of the breast. The biologist opined that this could have been from moderate handling of the breast by the appellant's hand(s), sucking on the breast, or from saliva coming into contact with the fingers which then came into contact with the breast.

21 Counsel for the appellant explored a number of alternative explanations. The biologist conceded that she could not "exclude all other possibilities". Sneezing was suggested as one possible explanation (although there was no evidence of it). The appellant's flaking or peeling skin being already on the massage table upon which AD lay face down was another possibility.

22 The appellant did not give evidence. His version of events was before the jury in the form of a recorded police interview which took place on the night of the alleged offences. An interpreter was used. He told police he had, "accidentally touched the private part … and then she sort of sort of she tapped me with her hand". He also admitted that he massaged the area of her anus for three to four minutes. However, he denied touching her clitoris and the entrance to her vagina and denied sucking her breast. Throughout the interview the appellant repeatedly said that he was constantly checking with AD to ensure she was comfortable with what he was doing and where he was touching her and she indicated that she was. At the conclusion of the massage she paid him $50 and appeared not to be unhappy.

23 Pei Tang Zhou, the appellant's employer, was called by the Crown. In cross-examination he confirmed that the appellant's customers were happy with his work, there had been no complaints, he seemed to take his work seriously, and he never made any sexual comments about any female customers. I note that in the appellant's police interview he said that he had worked for Mr Zhou for "around 1 month".

24 There are three grounds of appeal against conviction: 1. The complainant gave evidence of uncharged indecent assaults which took place before and after the charged sexual offences. The trial judge did not direct the jury as to the manner in which they may properly use that evidence. His Honour erred in his failure to so direct.

(a) The appellant, through cross-examination of his employer, raised evidence of good character. The trial judge erred in his character direction to the jury. (b) A miscarriage of justice occurred through the failure of the defence counsel to adduce evidence of good character. (c) A miscarriage of justice occurred through the failure of defence counsel to seek a general character direction.

The complaint witness was not challenged as to the demeanour of the complainant. The Trial Judge informed the jury that the failure to challenge that evidence could support the Crown case. His Honour erred by so directing.

25 To put what follows into context it is appropriate to observe that the sequence of events during the course of the massage in terms of inappropriate touching (to use a benign expression) was: Whilst AD was lying on her stomach, the appellant touched her between her anus and vagina (uncharged act).

After she turned over and lay on her back, the appellant massaged her breasts and nipples (uncharged act).

The appellant then sucked AD's right nipple (count 1) while he touched her clitoris (count 2).

After further (legitimate) massaging, the appellant touched the entrance to the vagina (count 3).

Further massaging continued. The complainant then sat on the stool for her shoulders to be massaged. The appellant then, again, massaged her breasts and nipples (uncharged act).

26 It is also useful to note an exchange that took place at the conclusion of the evidence and before closing addresses. The judge invited submissions by counsel as to any particular directions that he should give to the jury in his summing up. The Crown Prosecutor raised the topic of the complainant's evidence of the appellant massaging her breasts and the evidence of the forensic biologist tending to confirm that this occurred. He foreshadowed that he would submit to the jury that this indicated that the appellant had "passed the boundaries of what was a normal massage".

27 The judge invited the appellant's counsel to respond. Counsel referred to something the judge had said in the exchange with the prosecutor, that, "Although the jury are always told to consider the counts separately, the overall conduct is of course always relevant to each of the counts". Counsel submitted: As your Honour says, all the conducts (sic) relevant to what the jury might find in terms of intent, but there's no reason to give a special direction about that other than what your Honour would've said. It follows logically that you look at someone's conduct as to what they'd be thinking of and what might be deliberate or not, it's at least circumstantial. No direction in particular is required.

28 There was no further discussion before addresses were given. After addresses and prior to the summing up there was a further discussion but nothing was said on the present topic.

29 The prosecutor's closing address to the jury included submissions about the uncharged acts I have referred to above. He focussed upon the allegation that the appellant had touched the complainant's breasts before the commission of any of the alleged offences. Mr Thangaraj SC, who did not appear for the appellant at trial, referred this Court to a number of passages in the prosecutor's address but the following gives the flavour of them: "The massage did start normally. It seems to have proceeded normally up to a point in time at least when it began to concern [AD], because the accused was touching her bottom, or close to it. She said she became less relaxed. But when she turned on her back at his direction, that's when we say that this massage went on a path or in a direction that was in no way what this lady expected.

In particular, while the touching of her bottom or the region around it might have caused her concern, we say that by the time the accused man was touching her breasts and pinching her nipples in the way that she was describing, that he was showing that he was outside what a normal massage would be and that he was displaying a sexual interest in her. He was displaying his state of mind; that is his attitude towards her at that time ." (Emphasis added)

30 The prosecutor later referred to the evidence of the forensic biologist and the fact that she could not say whether the source of the DNA was skin cells or saliva. He submitted: Accepting that she's not able to say which of these two conclusions really explains this, we'll leave it on this basis that rather than supporting directly one of the counts on the indictment, it may just simply indicate moderate handling by the hands of this accused man. If it does, we say that it supports that he had, by the time of doing that and just before the commission of these offences, gone outside the boundaries of what is a normal massage.

31 The prosecutor submitted that this tended to confirm that the appellant was, "outside … the boundaries of a normal massage, again displaying what his state of mind was to her".

32 Mr Thangaraj submitted that whilst the prosecutor told the jury how the evidence could be used, the judge did not tell the jury how it could not be used. He submitted that a direction was required to warn the jury against substitution, that is, that they should not reason that the appellant committed the charged acts on the basis that he committed one or more of the uncharged acts.

33 Reference was made in the course of oral submissions to three types of warnings often given to juries in relation to uncharged acts in a sexual assault trial (substitution of evidence of other acts for evidence of the offences charged, that the accused had a tendency to commit offences of the type charged, and reasoning that because the accused committed the uncharged act he/she committed the offence(s) charged). Mr Thangaraj maintained that a "don't substitute" direction was required in the present case, and faintly pressed that there should also have been the other two warnings.

34 Clearly there are many authorities dealing with the directions that must necessarily be given to juries in cases where other uncharged acts of sexual misconduct towards the complainant by the accused are in evidence: see, for example, R v ATM [2000] NSWCCA 475 at [75] - [77] and Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463 at [81]. However, counsel was unable to refer the Court to any authority dealing with other acts which occurred at virtually the same time as the charged acts.

35 R v Dixon [2001] NSWCCA 39 was cited as authority for the proposition that "directions to the jury about uncharged sexual acts are very important" and that "it is the duty of the trial judge to give such a direction". That was a child sexual assault case in which there were four offences alleged in the indictment and evidence of a single indecent assault as the only uncharged act. The latter had not been admitted as relationship or context evidence, or as tendency evidence but had been elicited unwittingly in cross-examination by the accused's counsel.

36 The trial judge said very little about the uncharged indecent assault in her summing up. Whealy J, with whom Mason P and Giles JA agreed, (at [86]) described what the trial judge had said as "brief and rather dismissive". However, he was of the view (at [87]) that "forceful directions" were required in terms of telling the jury the material should be ignored and that they should not substitute the incident for the specific activities which were the subject of the charges in the indictment. He concluded that there was a "real risk that the jury would make use of it wrongly to the appellant's detriment" (emphasis added). The convictions were quashed and a new trial ordered.

37 In Dixon, the uncharged indecent assault occurred a year or so after the last of the assaults charged in the indictment and, according to Whealy J (at [83]), was not admissible on any basis. There is no issue about the admissibility of the evidence of the uncharged acts in the present case, and, in contrast to Dixon, they occurred a matter of minutes before and after the charged acts.

38 Counsel for the appellant also took the Court to R v Baldwin [2004] NSWCCA 21. In that case the accused was tried upon an indictment alleging 26 sexual and common assaults against the complainant over a period of two and a half years. Also before the jury was evidence by the complainant that the accused had engaged in sexual activity with him on certain other occasions and general evidence that the sexual activity was "like a daily event". He also gave evidence of having seen the accused engage in sexual activity with his half-brother.

39 Bell J, with whom Levine and O'Keefe JJ agreed, concluded (at [61]) that "there existed a very real risk that the jury might reason that the appellant was guilty of one or more of the counts charged against him on the basis of an acceptance that he was a person given to sexually assaulting (the complainant) on a daily, or near daily, basis" (emphasis added). Further (at [64]), that there "was a real risk that the jury might use the evidence that the appellant had sexual relations with (the complainant's half-brother) to reason that he was guilty of the offences charged in the indictment because he was a person with a disposition to have sexual intercourse with young men" (emphasis added).

40 It was held that the absence of any direction to the jury as to the use that might be made of the evidence of the uncharged acts gave rise to a substantial risk of a miscarriage of justice.

41 Again, Baldwin involved a factual matrix quite different to that in the present case. The point of referring to both Dixon and Baldwin was more to provide examples of cases in which the absence of a direction as to the permissible and impermissible use of evidence of uncharged acts has been held to constitute a miscarriage of justice. It was also to remind the Court of the statements of relevant principle. There was particular focus upon the judgment of Howie J in R v ATM (above), a passage from which was quoted by Bell J in Baldwin: [75] It is incumbent upon a trial judge to explain to the jury the purpose for which the evidence of uncharged acts was placed before them and the use they are to make of it in the course of their deliberations. In particular, if there is a possibility that the jury might use the evidence for a purpose for which it is not before them and to the prejudice of the accused , then it will generally be necessary that the trial judge warn the jury about any impermissible use which might be made of the evidence and direct them against using the evidence in a way other than that for which it was admitted into evidence: R v Beserick (1993) 30 NSWLR 510 at 16; R v Fraser (NSW Court of Criminal Appeal, unreported, 10 August 1998) at 28; R v Greenham [1999] NSWCCA 8 at [28].

[76] Where relationship evidence is admitted only to give context to, or by way of explanation of, the allegation contained in any charge in the indictment, the trial judge should direct the jury against using the evidence as proof that the accused committed any offence on the indictment. This may require the trial judge to direct the jury that they must not use the evidence as proof of any propensity on the part of the accused: R v A.H , above; BRS v The Queen (1997) 191 CLR 275 at 305 per McHugh J; R v R.N.S . [1999] NSWCCA 122. The words used to convey to the jury the limitation upon the use to be made of the evidence is, of course, a matter for the judge. But for my part, I believe it is better to avoid introducing terms such as "guilty passion" or "sexual interest".

[77] Further, generally it will be necessary for the judge to give warnings that they should not substitute the evidence of any other sexual activity for the specific activity which is the subject of any charge in the indictment or reason that because the accused may have done something wrong to the complainant on some other occasion that he must have done so on an occasion which is the subject of any charge: R v Greenham , above, at [28]-[29] approving the directions given in R v Beserick , above, and R v Wickham (NSW Court of Criminal Appeal, unreported, 17 December 1991).

[78] I believe that the directions given by the trial judge fell well short of what was required in this case. The admission of evidence of this nature carries with it the real risk that the jury might misuse it. The limited purpose for which the evidence was placed before the jury and the limited use that could be made of it by them during their deliberations should have been brought home to the jury in unequivocal terms. The trial judge did not do so in this case during the summing up. Nor did he explain to the jury the basis of its admission when the evidence was first placed before them during the examination of the complainant: R v Beserick , above, at 516. (Emphasis added).

42 The highlighted passage in [75] is important to note. Often in a sexual assault case, as Whealy J found in Dixon and Bell J found in Baldwin, there will be a real risk that a jury will use evidence of uncharged acts in an impermissible way to the detriment of the accused. However, the fact that there is evidence of uncharged acts of sexual misconduct, by itself, does not necessarily mean that there is such a risk.

43 In Toalepai v R [2009] NSWCCA 270, the question was whether there was a miscarriage of justice as a result of the trial judge not directing the jury that they should not adopt tendency reasoning in relation to evidence of the child complainant that the accused sexually assaulted her "every time my mum went shopping". The trial judge had warned the jury against substitution but it was contended on appeal that there should have been a warning in relation to tendency reasoning. Howie J, with whom Macfarlan JA and Hislop J agreed held that there was no miscarriage in the circumstances of the case. He said: [46] The court in Rodden recognised that the risk of miscarriage arising from the failure to give the warning had to be real and not fanciful and that it was not sufficient that the warning or direction should simply have been desirable rather than necessary: see at [120]. The court concluded in the circumstances of that case that a warning against tendency reasoning was necessary in relation to the general evidence of other acts of misconduct.

[47] In my opinion Rodden is not authority for the proposition that the failure to give a tendency warning where there is any evidence of misconduct falling outside the scope of the charges in the indictment results in a fundamental defect in the trial. I do not believe that the law requires that such a warning must be given whenever the evidence of the complainant suggests that sexual misconduct occurred on more occasions than those contained in the charges in the indictment. It may be desirable to give a direction such as that recommended in the Bench Book and set out above, but it is not mandatory in every case, regardless of how vague and general the evidence of other acts might be.

[48] Of course if there is anything said in the trial that might suggest a tendency on the part of the accused or the evidence is used in a way that might indicate a tendency, then a warning should be given. But if there is nothing in the evidence or its use by the Crown to indicate the real possibility of tendency reasoning on the part of the jury, then I do not believe that the court is prevented from applying r 4 where there was a failure to request the warning. I am not convinced that in such a case a failure to give the warning results in a fundamental defect in the trial.

[49] In other words, in my opinion each case should be considered on its own facts and an assessment of whether a tendency warning was required as a matter of law in the particular circumstances of the case will depend upon whether there was a significant risk that the jury might have embarked on impermissible tendency reasoning having regard to the evidence placed before it and the arguments of counsel. I accept that one of the considerations in determining whether such a direction is warranted is that the complainant's evidence is unsupported by other evidence but I do not believe that this fact can be decisive. (Emphasis added).

44 The question for determination in the present case is whether there was a "real risk", a "significant risk" or a "possibility" of the jury using the evidence of the uncharged acts in an impermissible way and to the detriment of the appellant.

45 I have mentioned that it was not suggested that the evidence of the appellant having touched the complainant between the vagina and anus before any of the charged acts, and having massaged her breasts and nipples both before and after the charged acts, was not properly before the jury. The entire massage took about an hour. It was the appellant's version to the police that the complainant was lying on her stomach for about the first 37 or 38 minutes. If that was correct, both acts of massaging the breasts and nipples and the three charged acts all occurred in under 30 minutes. Clearly the evidence was admissible upon the basis that it was part of a connected series of events and was evidence that the appellant had a continuing state of mind: O'Leary v The King [1946] HCA 44; 73 CLR 566 per Dixon J at 577-578; R v Adam [1999] NSWCCA 189; 106 a Crim R 510 at [30]; LJW v R [2010] NSWCCA 114 at [50] - [51].

46 Such evidence was particularly relevant as to the appellant's state of mind; that is, he was intent on overstepping the boundaries of a legitimate massage and of sexually assaulting the complainant. This was the essence of the submission made to the jury by the prosecutor.

47 The evidence was not tendency evidence; it was not led for the purpose of establishing that the appellant had a tendency to act in a particular way or to have a particular state of mind: s 97 and the definition of "tendency evidence" in the Dictionary to the Evidence Act 1995. Nor was the evidence led to establish a "relationship" or a context in which the charged acts occurred. Indeed, nobody suggested to the jury that the evidence gave rise to a process of reasoning along any of those lines.

48 Counsel for the appellant submitted that the prosecutor had focussed upon the breast massage that preceded the charged acts, contended that the DNA evidence established that it occurred, and that this then strongly supported proof of the charged acts. This is not an accurate summary of the submission the prosecutor made about the DNA evidence. In the passage from the address quoted earlier, the prosecutor appears to have been saying that the DNA evidence could have related to the act of sucking the complainant's right nipple, that is that saliva was its source, but that if the source of the DNA was skin cells, then it supported the complainant's evidence that the appellant had "moderately" handled her breast. For some reason that is not apparent, the prosecutor attributed this to the breast massage that preceded the charged acts, whereas it was also equally consistent with that which succeeded those acts, or with both. In any event, I see nothing wrong with the prosecutor's submission that if the jury found that the massaging of the breasts occurred, with the DNA evidence supporting the proposition that it did, then they could reason that this established the appellant was intent upon transgressing the acceptable limits of a massage in order to sexually assault the complainant.

49 Mr Thangaraj observed that the prosecutor said nothing about the use the jury should make of the evidence of the subsequent breast massage and submitted that it could not be relevant to the appellant's state of mind at the time of the charged acts. With respect I disagree. The subsequent act, if the jury concluded that it occurred, so closely followed the charged acts in time that it too was of use in evaluating the appellant's state of mind at the time of those acts.

50 It is important to bear in mind that in relative terms the trial was short (the transcript of evidence and addresses cover only 170 pages). Moreover, the evidence was relatively straight forward.

51 In both opening and closing addresses to the jury the prosecutor made it abundantly clear that the Crown relied upon the acts of sucking the breast, touching the clitoris and vagina as being the acts relied upon to establish the three counts in the indictment. The trial judge also made clear to the jury in his summing up that it was those acts (in conjunction with the legal elements of the charges) that had to be proved beyond reasonable doubt. I cannot detect anything that was said by either the prosecutor or the judge that would have suggested to the jury that they could substitute the evidence of massaging the complainant's breasts or touching her between the anus and vagina for the evidence relating to the charged acts or adopt any other impermissible mode of reasoning in relation to that evidence. Further, it would be fanciful to conclude that, in defiance of such clear directions, there was a possibility of the jury substituting the evidence of the other acts for the evidence that related to the charges in the indictment.

52 It was submitted by counsel for the appellant that the prosecutor had "relied on the breast massage to help prove the charged acts beyond reasonable doubt". That is undoubtedly correct but it was not to invite the jury to engage in any impermissible mode of reasoning. It was simply to submit that the commission of the other acts, if the jury accepted they occurred, was relevant to proof of the appellant's state of mind, something that because of the close proximity in time to the charged acts was a legitimate mode of reasoning in accordance with O'Leary, Adam and LJW.

53 Rule 4 Criminal Appeal Rules applies in respect of this ground as no objection or request for redirection was raised by counsel who appeared for the appellant at trial. I have concluded that the ground has no merit and propose that leave to rely upon it be refused.

54 Affidavits from the Crown Prosecutor and counsel for the appellant at trial were filed and served in relation to this ground. In the light of that material this ground was abandoned.

55 This ground concerns what the judge said during the course of his summing up about the evidence of Mr Tom Lann. It will be recalled that Mr Lann was the person to whom AD complained about the alleged misconduct by the appellant.

56 The judge first reminded the jury of the evidence given by both AD and Mr Lann. He quoted the evidence of Mr Lann as to the conversation he had with AD when first she telephoned him and later when they met in the coffee shop near Hyde Park. This evidence was interspersed with Mr Lann's observations of AD being in a distressed state.

57 Immediately after providing the jury with this summary the judge said: Well, that is what the uncontradicted evidence of Mr Lann was about the conversation he had with her at Starbucks and the phone conversation. Now of course that was not simply a conversation but it was his observations of her state on the phone and when with him, that she was "really, really upset and crying". He referred to her as "collapsing". Now it is for you to decide whether this complaint was made, but of course as I have just said to you, it was not challenged in cross-examination. There was no suggestion that it had not been made .

So I will repeat that. It is for you to decide whether this complaint was made, but if you are satisfied that it was …(Emphasis added).

58 The judge then gave further and unremarkable directions about the use the jury could make of the evidence, depending upon whether they found AD's conduct to be consistent or inconsistent with her claim to having been sexually assaulted. He then provided a summary of the evidence relevant to the time that elapsed between AD leaving the massage premises, her call to Mr Lann and her subsequent meeting with him in the city before continuing: So you might think that this was a very speedy response to what had happened and an allegation, in effect, at the earliest opportunity, only delayed by her having taken the shower.

Now the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasions, such as to Mr Lann or to you here in court. However, it is a matter for you in terms of whether you think that her reaction as outlined to you by her, and confirmed as it were by Mr Lann, uncontradicted by any cross-examination to suggest that she was not in the state she was - you may, depending on what you make of that, see that as being conduct consistent with what she alleges happened having happened. It is of course a matter for you. (Emphasis added).

59 The appellant's counsel at trial took no exception to any of this and so, again, Rule 4 applies.

60 It was submitted on behalf of the appellant that the judge, "effectively directed the jury that the absence cross-examination made it more readily acceptable that the complaint evidence was accurate" and so, "the jury could more readily accept that the actual assaults had in fact taken place". Given the events concerning the complaint did not occur in the presence of the appellant, Mr Thangaraj asked rhetorically, "How could counsel … have challenged the 'state she was (in)' at the time she complained?"

61 For the Crown it was submitted that the direction was generally in conventional terms and, insofar as there was reference to the complaint evidence being uncontradicted, the direction was correct and the jury were entitled to take that state of affairs into account. It was submitted that there was nothing unfair or untoward and that direction overall was balanced and fair.

62 There was nothing in the evidence to suggest that Mr Lann's credibility was at all questionable. Obviously it was a matter for the jury to make their own assessment, and the judge told them so, but there was nothing said in the course of addresses by counsel that suggests any doubt that Mr Lann was doing anything other than giving a truthful account of what he recalled.

63 Indeed, it seems to have been accepted by the appellant's counsel that AD was upset and did make the complaint to Mr Lann. The argument he advanced on behalf of his client was that AD had become "uncomfortable" and "disgusted" with the way the massage had proceeded. He reminded the jury of the evidence that AD had little experience with massages and that when she had disrobed she had taken off her underwear as well without having been asked to. He referred to her having been massaged in intimate areas of her body (although not in the way AD had claimed). He argued that her subsequent complaint was made as a result of her distress but that she had exaggerated the details in order to ensure that the police would act.

64 Accordingly, the defence case embraced the fact that AD was distressed, and that she had said the things to which Mr Lann had testified. Counsel simply argued that there was an alternative explanation for the state she was in and the statements that she made.

65 In these circumstances, there was no miscarriage arising out of the judge telling the jury that, whilst it was a matter for them to decide, they might more readily accept the evidence as to fact of the complaint because it had not been challenged or contradicted. What the judge did not purport to do was to tell the jury what conclusion they should draw from the making of the complaint and the circumstances in which it was made.

66 There is potential for danger, however, in a judge commenting upon prosecution evidence to the effect that it was unchallenged, or uncontradicted, or both. Such a comment carries with it the implication that it was open to the defence to have done so. Where a complaint is made in a sexual assault case such as in the present, there is usually little or no scope for defence counsel to challenge or contradict the evidence at all. Implying to the jury that this was a course available to counsel that was not taken up can involve significant unfairness.

67 It is well to recall the remarks of Gaudron ACJ, Gummow, Kirby and Hayne JJ in RPS v The Queen [2000] HCA 3; 199 CLR 620. Their Honours were concerned in that case with a trial judge commenting about the election of an accused not to give evidence, but at the end of their judgment they made some general remarks about judges commenting on factual issues. While allowing that in some circumstances a comment may be appropriate, they added (at [42]): Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel.

68 Whilst I would grant leave to rely upon this ground, I would not uphold it.

69 It follows that I propose that the appeal against conviction be dismissed.

70 There are three grounds upon which leave is sought to appeal against sentence. 1 The sentence was manifestly excessive.

2 His Honour was provided an authority, R v Qin [2008] NSWCCA 189, by the Crown. It was relied upon by the applicant. His Honour erred in failing to consider, or to properly consider that decision.

3 His Honour erred in failing to find special circumstances.

71 The submissions made in relation to these two grounds were interrelated. It was put that the judge "ought to have been guided by Qin" and that the sentence in the present case "bore no resemblance to Qin". Thus, the sentence for the two counts of sexual intercourse without consent were manifestly excessive.

72 The judge was required to make an assessment of the objective seriousness of the sexual intercourse without consent offences because of the prescription of a standard non-parole period of 7 years for them. (I reiterate that the maximum penalty is 14 years). The judge assessed the objective seriousness "as falling into the low range" and that this justified "a significant departure from the standard non-parole period". It was submitted that the judge "ought to have found that, like Qin, (the objective seriousness) was 'almost the extreme lowest level of seriousness'".

73 Factors which were relevant to objective seriousness that the judge specifically mentioned were that the offences were "opportunistic"; they were of relatively brief duration; they terminated when the complainant indicated for him to stop; and they involved a breach of trust. The judge also took into account in the assessment of sentence generally that the applicant had no previous convictions. General reference was made to the purposes of sentencing. The judge noted that the applicant had been assessed as suitable for community service but not for periodic detention. However, he concluded pursuant to s 5 Crimes (Sentencing Procedure) Act 1999 that no penalty other than imprisonment was appropriate.

74 I accept that the facts in the present case bore a number of similarities with those in Qin and that the offender in that case had the disadvantage of a previous finding of guilt for indecent assault (which was dismissed without conviction). The sentence imposed was a s 9 good behaviour bond for an offence of indecent assault and a 10 month suspended sentence of imprisonment for an offence of sexual intercourse without consent.

75 Qin was a Crown appeal. The leading judgment was given by Grove J who held that the sentences imposed were within the judge's sentencing discretion and proposed that the appeal be dismissed. McClellan CJ at CL agreed, adding that: [49] … Although a more severe penalty may have been appropriate the sentence which his Honour imposed is not such that I am persuaded, having regard to the principles relevant to a Crown appeal, this Court should intervene.

76 Blanch J agreed with the remarks of Grove J and with the further remarks of McClellan CJ at CL.

77 No other authorities, principles or sentencing statistics were relied upon by the applicant. Reference to a single case does not provide a reason to conclude that the sentence in the present case was manifestly excessive. In R v Li [2010] NSWCCA 125, Barr AJ, with the agreement of Allsop P, Basten JA, McClellan CJ at CL and Simpson J, said: [40] … Moreover, unless there are co-offenders, one may not look at the facts and result of a single case in order to show that the case under consideration is within or outside a proper range of sentencing discretion: R v George [2004] NSWCCA 247 per the Court at [48] - [49].

78 As to the suggestion that the judge "ought to have" made the same assessment of the objective seriousness of the sexual intercourse offences as that made in Qin, it is appropriate to refer to the judgment of Spigelman CJ in Mulato v R [2006] NSWCCA 282 in which, with the "emphatic" agreement of Simpson J, he said: [37] Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour.

79 The Judicial Commission sentencing statistics, acknowledging all of the limitations in the utility of having recourse to them, indicate that the vast majority of offenders sentenced in a 6 year period to June 2009 for an offence against s 61I of the Crimes Act received a full-time custodial sentence and, of those, the vast majority received sentences in excess of 2 years. In short, the statistics do not support a proposition that the sentences imposed upon the applicant were other than in the low range of sentences imposed for such offences. Moreover, the non-parole periods of 18 months represented a substantial departure from the standard non-parole period of 7 years.

80 I am not persuaded that the sentences were manifestly excessive.

81 It was submitted that the judge should have found special circumstances and so reduced below 18 months the proportion of the 2 year sentences imposed for each of the two s 61I counts represented by the non-parole period. The special circumstances were said to be that this was the applicant's first time in custody, that language difficulties would render his time in custody more difficult, and that apart from one aunt, he did not have any family in Australia.

82 Aside from the fact that counsel then appearing for the applicant did not make a submission that the judge should find special circumstances, this is not a case in which the judge did not give consideration to the issue. He specifically made a finding that "there are no special circumstances".

83 A finding of special circumstances for the purposes of s 44 of the Crimes (Sentencing Procedure) Act 1999 is a discretionary finding of fact in respect of which this Court is slow to intervene: see, for example, R v El-Hayek [2004] NSWCCA 25; 144 A Crim R 90 at [103]; R v Cramp [2004] NSWCCA 264 at [31]; Clarke v R [2009] NSWCCA 49 at [13]; Quayle v R [2010] NSWCCA 16 at [41]. The judge was not bound to make such a finding in the present case and thus no error in the sense described in House v The King [1936] HCA 40; 55 CLR 499.

84 There is no merit in the application for leave to appeal against sentence. I propose that leave be refused. Orders 85 I propose the following orders: 1 Appeal against conviction dismissed.

2 Application for leave to appeal against sentence refused.

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