Johnson v R

Court of Criminal Appeal (NSW)|2017-09-06|Before: Payne JA, McCallum J, Wilson J

Solicitors: Legal Aid NSW (Appellant) Solicitor for Public Prosecutions (Crown) File Number(s): 2013/241221 Publication restriction: None Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Before: Pickering SC DCJ File Number(s): 2013/00241221

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant was convicted of the supply of a prohibited drug, an act of indecency and sexual intercourse without consent in circumstances of aggravation after a jury trial before Pickering SC DCJ in the District Court. The complainant, who was the girlfriend of the appellant's son, gave evidence about the sexual intercourse without consent charge that "he put his penis in between my vagina, not inside, but on the outside, and he was just rubbing his penis on my vagina". Contents of the appellant's ERISP were in evidence about his alleged erectile dysfunction which implied that the appellant was incapable of committing the offences. The investigating police obtained a list of medications from the Commonwealth Government which the officer in charge gave evidence purported to be a list of medications prescribed to the appellant between the relevant times. In sentencing the appellant, the trial judge took into account the appellant was already serving a sentence of imprisonment following conviction on one count of aggravated sexual assault and two counts of aggravated acts of indecency committed against a young girl. But for the principles of totality involved in sentencing the appellant, the trial judge would have imposed a heavier sentence on the appellant for the present offences. On 16 March 2017, the Court of Criminal Appeal allowed the appellant's conviction appeal in relation to the charges involving the young girl, quashed the sentence imposed and ordered a new trial. The appellant appealed against his conviction. The Crown appealed against the sentence imposed. The issues on appeal were: (i) in relation to the conviction appeal, whether the trial judge erred in law in directing the jury in relation to the legal definition of "female genitalia" and the issue of penetration; (ii) in relation to the conviction appeal, the verdict in respect of count 4 was unreasonable or could not be supported having regard to the evidence; (iii) in relation to the conviction appeal, whether the primary judge erred in admitting evidence of inquiries and the information that Viagra was not on the list of medications prescribed to the appellant under the Pharmaceutical Benefits Scheme; and (iv) in relation to the sentence appeal, whether the sentence was now manifestly inadequate because the sentencing exercise conducted by the sentencing Judge was based on a premise that no longer exists. The Court held: In relation to issue (i), per Payne JA at [32]-[35], [38]-[40], Wilson J at [106]-[112] (McCallum J agreeing at [88]): The trial judge did not err in failing to direct the jury about the anatomy of female genitalia. It was adequate for his Honour to describe the difference as being between penetration of the outer aspects of the female vaginal cavity and penetration of the vagina itself. R v AJS (2005) 12 VR 563; [2005] VSCA 288 considered. In relation to issue (ii) per Payne JA at [38]-[41], Wilson J at [113]-[116] (McCallum J agreeing at [88]): The verdict was not unreasonable and could be supported by the evidence. The complainant's evidence was such that it was open to the jury to be satisfied beyond reasonable doubt that that element of the offence under s 61H of the Crimes Act 1900 (NSW) had been proved. In relation to issue (iii), per Wilson J at [143]-[150] (McCallum J agreeing at [88]): The document was admissible and, although open to his Honour to exclude it, the trial judge did not err in admitting it into evidence. Even if the evidence should have been excluded, that does not necessarily mean that there has been a miscarriage of justice. In any event, there has been no such unfairness here. The evidence adduced through was of very limited significance and did no more than establish that Viagra had not been dispensed to the appellant through the PBS in the relevant period. Per Payne JA (dissenting) at [64], [76]. [83]: The document contains assertions of fact that were not relevant to any fact in issue in this case. The business records from the Department of Health and Ageing were inadmissible and the informant should not have been permitted to give evidence about their contents. The possibility that the informant's evidence about the records from the Department of Health and Ageing could have been used by the jury as an independent basis to reject the appellant's version of events in the ERISP gave rise to a miscarriage of justice. The appellant was deprived of a chance of acquittal that was fairly open to him. Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81; Filippou v The Queen [2015] HCA 29; 256 CLR 47 considered. In relation to issue (iv), per Wilson J at [161], [165] (Payne JA agreeing at [87]): It is clear from the sentencing judge's remarks on sentence that the sentence imposed for these offences was reduced because of the principle of totality. The sentence should be corrected to one which adequately reflects the criminality of these offences, standing alone. Had the respondent not been serving a sentence, a longer sentence would have been imposed upon him by the sentencing judge. Per McCallum J (dissenting) at [93]: There is no suggestion that the total sentence is inadequate. Although it is clear from the remarks on sentence that the non-parole period was adjusted for reasons of totality, the sentence standing alone is not plainly unreasonable. R v Tolmie (1994) 72 A Crim R 416 and R v JDX; JDX v R [2017] NSWCCA 9 considered.

Judgment

PAYNE JA: In September 2017, the appellant was found guilty on an indictment containing six counts after a trial before Pickering SC DCJ in the District Court sitting at Campbelltown. The appellant has appealed against his conviction. The Crown has appealed against the sentence imposed.

Brief facts

The Crown case was that at the relevant time, October 2010, the complainant was the girlfriend of the appellant's son. The appellant's son resided with the appellant. At the time the complainant was 15 years old. The complainant gave evidence that she visited her boyfriend's house on 4 October 2010 where the appellant offered his son and the complainant marijuana, which they all smoked together (count 1). The next day, after her boyfriend had left for work, the complainant had a shower. The appellant entered the bathroom while she was in the shower. He went into the shower and touched her breasts and vagina (count 2). They both got out of the shower. The appellant licked the complainant's vagina underneath her towel (count 3). The appellant rubbed his penis "between" the complainant's vagina until he ejaculated (count 4). Count 5 was an alternative count alleging indecent assault about the same incident. When the complainant left the house, the appellant offered her cannabis and money in return for her silence (count 6). The following day, the complainant was at her boyfriend's house again. The appellant was wearing a towel. He opened his towel and was naked underneath, exposing himself to her (count 7).
The defence case was that when the appellant entered the bathroom the shower was running but the complainant was not in the shower, but standing at the sink. When the appellant opened the door, the complainant rushed into the shower, stepping behind the curtain. He saw a glimpse of her buttocks. The defence case was that the appellant then went to the toilet and left and that none of the acts described by the complainant occurred.
The appellant pleaded guilty to count 1 and was found guilty by the jury on counts 2 - 4 and 6 - 7. As earlier indicated, count 5 was an alternative to count 4.
Following the verdict of the jury in the present case, the trial judge was also asked to sentence the appellant in relation to an unrelated aggravated break, enter and steal offence which took place on 9 April 2015. The appellant had pleaded guilty to this charge. The offence arose when the appellant assisted his then girlfriend to remove items from the home of a friend. He initially believed that the items belonged to his girlfriend, but after learning that they did not, continued to assist her.
On 16 December 2016, the trial judge imposed an aggregate sentence of 10 years imprisonment commencing on 26 August 2019 and concluding on 25 August 2029, with a non-parole period of 6 years and 2 months concluding on 25 October 2025.
In imposing this sentence the trial judge took account of the fact that on 27 August 2015, the appellant had been found guilty of one count of aggravated sexual assault and two counts of aggravated acts of indecency committed against a young girl between January 2005 and September 2007. Madgwick A/DCJ had imposed an aggregate sentence on the appellant of 9 years, commencing on 26 August 2015 and concluding on 25 August 2024, with a non-parole period of 5 years and 6 months concluding on 25 February 2021.
On 16 March 2017, the Court of Criminal Appeal allowed the appellant's conviction appeal in relation to the charges involving the young girl: Johnson v R [2017] NSWCCA 31. Pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the commencement date for the sentences imposed by the trial judge the subject of the present appeal was varied to the date the appellant went into custody, 26 August 2015.
Thus, the non-parole period imposed in the present case of 6 years and 2 months will conclude on 26 October 2021 and the balance of term will conclude on 26 August 2025.
The Court was informed that on the re-trial of the case involving the case against the appellant in relation to the young girl, the appellant has been convicted and will be sentenced shortly.

The appeal against conviction

The notice of appeal contained four grounds of appeal: 1. the trial miscarried by virtue of comments made by the trial judge which led to an unbalanced summing up (ground 1); 2. the trial judge erred in law in directing the jury in relation to the legal definition of "female genitalia" and the issue of penetration (ground 2); 3. the verdict, in respect of count 4, was unreasonable or cannot be supported having regard to the evidence (ground 3); and 4. his Honour erred in admitting evidence of inquiries and the information that Viagra was not on the list of medications prescribed to the appellant under the Pharmaceutical Benefits Scheme between 1 January 2005 to 13 July 2012 (ground 4).
On 30 August 2017, the appellant filed amended grounds of appeal and proposed an additional ground of appeal, namely: 1. there has been a miscarriage of justice in the trial of the appellant on account of fresh or new evidence which established that Viagra was not listed on the general Pharmaceutical Benefits Scheme Schedule (proposed ground 5).
At the commencement of his oral address, Mr D Carroll, who appeared for the appellant, abandoned ground 1 of the notice of appeal. An affidavit of Frances Low sworn on 18 August 2017 was read on proposed ground 5 and the Court received submissions from both parties about proposed ground 5 on the basis that the Court's decision about whether to allow proposed ground 5 to be argued and Ms Low's affidavit to be taken into account on the appeal would be delivered with these reasons.
The affidavit of Ms Low, the appellant's solicitor, states that she sent a letter to the Department of Human Services enquiring whether Viagra was available as part of the Pharmaceutical Benefits Scheme during the period 1 January 2005 to 13 July 2012. She received a response via email from the Department of Health and Ageing saying that Viagra was not available as part of the Pharmaceutical Benefits Scheme during that period. On 17 August 2017, Ms Low received an email from the Department of Human Services confirming that a supply of Viagra to a patient during the relevant period would not have been visible to the Department of Health as it would have been a "private item".

Ground 2 - the trial judge erred in law in directing the jury in relation to the legal definition of "female genitalia" and the issue of penetration;

Ground 3 - the verdict, in respect of count 4, was unreasonable or cannot be supported having regard to the evidence

As the appellant chose to address these grounds together, I will adopt the same course.

Appellant's submissions

It will be recalled that count 4 involved an allegation that the appellant rubbed his penis "between" the complainant's vagina until he ejaculated. The appellant submitted the main fact in issue under count 4 was whether or not penetration occurred. In those circumstances, it was submitted that the directions given by the trial judge about the meaning of "female genitalia" were insufficient. The appellant submitted that as a consequence, the jury was unable to discharge its duty to determine the case according to law.
The appellant submitted that in R v AJS (2005) 159 A Crim R 327; [2005] VSCA 288 the Victorian Court of Appeal held, in analogous circumstances, that the trial judge erred by failing adequately to define the term "vagina" for the jury and erred by failing adequately to relate the evidence to the law with respect to the issue of penetration: "[59] In the circumstances of the case, however, this was not sufficient. The phrase "external genitalia" is not in ordinary usage. It could not be assumed that every member of the jury would readily understand what the phrase connoted. In our view, it was essential - given the contest over what had actually occurred - that the Judge be quite explicit in explaining to the jury the distinction - "between penetration of the vulva, as denoted by the labia majora, or outer lips, and penetration of the vagina itself." This distinction was drawn as long ago as 1844, in a direction by Parke B which has been cited ever since in textbooks and judgments dealing with the physical requirements of rape. In the present case, the prosecution had called a medical practitioner who had given evidence about the anatomy of the female genitalia. That evidence ought to have been referred to. The learned trial Judge ought then to have informed the jury, in precise and simple terms, what would constitute penetration of the outer lips of the vagina, and to have summarised the evidence as it related to that issue."
In oral address, counsel for the appellant accepted that the statutory test being considered by the Victorian Court of Appeal in R v AJS was different. It was submitted, however, that his Honour erred in failing to give the jury sufficient assistance in relation to female anatomy.
As to ground 3, the appellant submitted that the finding of guilt in relation to count 4 was unsafe or unsatisfactory as, having regard to the evidence, count 4 could not be made out.
The appellant submitted that, on the evidence of the complainant, there was no account of penetration. Her evidence, the appellant submitted, at its highest in relation to count 4 was, "he put his penis in between my vagina, not inside, but on the outside, and he was just rubbing his penis on my vagina". The complainant gave no evidence about what she meant by "on the outside". There was no evidence led in the trial in relation to external female genitalia. The evidence was limited to the word "vagina", and the concept of external female genitalia was introduced as a legal principle. In his Honour's summing up he said: "Mr Lowe on behalf of the accused says, well, look, "I mean, just reading her evidence literally" she says "not inside but on the outside. He was just rubbing his penis on my vagina."
Here the appellant takes issue with his Honour's use of "just reading her evidence literally", and submitted that that comment was never made, and was "a description introduced by his Honour". The appellant submitted that a tribunal of fact can only act upon a literal meaning when no alternative is available on the evidence. In these circumstances, it was submitted that a finding of guilt could not be made out.

Respondent's submissions

The Crown relies on s 61H(1)(a) of the Crimes Act 1900 (NSW) which provided, relevantly, the definition of "sexual intercourse": 61H Definition of "sexual intercourse" and other terms (1) For the purposes of this Division, sexual intercourse means: (a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by: (i) any part of the body of another person, or (ii) any object manipulated by another person, except where the penetration is carried out for proper medical purposes, or (b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or (c) cunnilingus, or (d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).
The Crown also relies on the Criminal Trial Bench Book published by the NSW Judicial Commission which suggests that a trial judge should instruct a jury that: "Sexual intercourse means, in law, … [refer to and explain the relevant part of the definition of sexual intercourse, as defined in s 61H(1) Crimes Act 1900 and the evidence relied upon by the Crown]. The Crown does not have to prove that full penetration occurred or that [the accused] ejaculated or that the sexual intercourse was for [the accused's] sexual gratification.]"
The Crown submitted that the trial judge's direction on count 4 was lengthy and included instructions that the jury be satisfied that the appellant's penis penetrated to an extent the complainant's genitalia.
In relation to R v AJS, the Crown submitted that this case does not purport to establish a general rule that judicial explanation of the term "female genitalia" is mandatory in every sexual assault case. In that case, it was submitted, there was ambiguous and contradictory evidence given by the complainant about the issue of penetration and that, "[a]s the Court explained at [59], 'in the circumstances of [that] case' the trial judge's failure to elaborate on the term external genitalia was not sufficient".
The Crown submitted that no error was demonstrated here as the trial judge's direction was effective to explain to the jury the necessity of proof of penetration of the "outer aspects" of the vagina.
As to ground 3, the Crown submitted that it was clearly open to the jury to conclude that the complainant was referring to the outer lips of the vulva when she gave evidence that the appellant touched her "between her vagina". The respondent submitted that some meaning must be given to her choice to use "between" in relation to "vagina", and not "between my legs".
The Crown also submitted that the complainant gave evidence clarifying that the appellant did not put his fingers "in" her vagina.
The respondent further submitted that if this ground was upheld, the Court should substitute a verdict of indecent assault pursuant to s 7(2) of the Criminal Appeal Act 1912 (NSW).

Consideration of grounds 2 and 3

In determining count 4, the question posed by s 61H was whether there was "sexual connection occasioned by the penetration to any extent of the genitalia …. of a female person".
The key part of his Honour's summing up on this issue was as follows at [27]-[28]: "The principal issue for count 4 is, has the Crown proven beyond reasonable doubt - that for this incident he, ultimately - and I will read straight from the evidence about this - did he put his penis in between - I will read out exactly what she said. She said on page 40, line 40, 'As I've tried to move he kept - I - he just kept saying 'No' and then he put his penis in between my vagina, not inside but on the outside, and he was just rubbing his penis on my vagina.' The first and most important issue in looking at both count 4 and, ultimately, then count 5 is are you satisfied beyond reasonable doubt that that occurred? If you are not satisfied beyond reasonable doubt that he did rub his penis in between her vagina, not inside but on the outside - "and he was just rubbing his penis on my vagina" - if you are not satisfied of that beyond reasonable doubt then your verdict would be not guilty of both count 4 and count 5 because you would not be satisfied that what she said happened, happened. But going back to count 4, if you were satisfied beyond reasonable doubt that he did run his penis between her vagina, but not inside but on the outside, "and just rubbing it on my vagina", you would still then need to ask the question did he penetrate to any extent the female genitalia?" Now, I stress the female genitalia. Mr Lowe at one stage in his closing address to you said did he penetrate her vagina? He does not actually have to penetrate her vagina. As a matter of law, the actual legal test is the female genitalia. Now, you have got women on your jury. I am not about to give you an anatomy lesson, except to say that, obviously, the female genitalia involves the outer aspects of the female vaginal cavity. So, it is not whether he penetrated, ultimately, the vagina itself, it is whether he penetrated the female genitalia. I am just going to give you a brief argument from both sides in relation to why the Crown says you would so be satisfied of there being penetration, despite the fact she specifically says "not inside my vagina but on the outside" and why the accused says you would not be satisfied. So the Crown relies on this rubbing that takes place for about two, three, four minutes where his is rubbing between her vagina - and it is matter for you what you think she meant by "between my vagina" because she was not really asked any further questions about what she meant by "between my vagina". The Crown says, well, if he is rubbing for two, three, four minutes and he is rubbing to the extent that he ends up ejaculating between her legs, how did he not penetrate to any extend, even for a second, the female genitalia? How did he manage to rub it and not just even penetrate to any extent - any extent the female genitalia? How did that occur? The Crown essentially says the only rational inference that you can draw if he was doing that act is that it must have penetrated her female genitalia to some extent. … Mr Lowe on behalf of the accused say, well look "I mean, just reading her evidence literally" she says "not inside but on the outside. He was just rubbing his penis on my vagina". Now, people probably do not tend to use the word female genitalia. That is a legal term in some respects. Probably a medical term as well in many respects, but it is not for the accused to inquire any more into this. The accused simply just says to you through his counsel, well, look, this is the evidence. There is not sufficient evidence for you to be satisfied that her female genitalia was penetrated."
The trial judge's description of the relevant issue of fact for the jury by identifying the "outer aspects of the female vaginal cavity" was adequate. I reject the submission that in 2017 a Sydney jury would have been assisted by a further direction from the trial judge about penetration of the "labia majora".
His Honour was not required, in this case, to describe the anatomy of the female genitalia beyond his clear instruction that: "..Now, you have got women on your jury. I am not about to give you an anatomy lesson, except to say that, obviously, the female genitalia involves the outer aspects of the female vaginal cavity. So, it is not whether he penetrated, ultimately, the vagina itself, it is whether he penetrated the female genitalia…"
The issues in R v AJS were different to the present case. There was in that case a direct conflict of evidence between examination in chief and cross-examination of the complainant about whether there was penetration, and if so, the extent of that penetration. In any event, the trial judge here complied with the requirement identified in R v AJS that the trial judge explain "what would constitute penetration of the outer lips of the vagina, and to have summarised the evidence as it related to that issue". He did so by carefully summarising the evidence and explaining that the penetration need be of the "outer aspects of the female vaginal cavity".
R v AJS does not stand for the proposition that a trial judge must use the terms "labia majora" or "outer lips" in explaining to the jury the requirement for proof beyond reasonable doubt of "the penetration to any extent of the genitalia …. of a female person". It was adequate for his Honour to describe the difference as being between penetration of the outer aspects of the female vaginal cavity and penetration of the vagina itself. The appellant's submission to the contrary should be rejected.
As to ground 3, the applicable principles are set out in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13: 1. in applications of this nature the court is asked whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493 (Mason CJ, Deane, Dawson and Toohey JJ); 2. the test stated in M v The Queen is not materially different (although different in form) to the statutory test contained in s 6(1) of the Criminal Appeal Act. That test is whether the verdict is "unreasonable" or "cannot be supported, having regard to the evidence": MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [58];. 3. the Court is to make an "an independent assessment of the evidence, both as to its sufficiency and its quality": Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50 at 473. Furthermore, in reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, "none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand" [footnotes omitted]: M v The Queen at 492-493 (per Mason CJ, Deane, Dawson and Toohey JJ); and 4. the jury has an advantage over a court of criminal appeal in having heard and seen the witnesses at trial. If that advantage is capable of resolving a doubt experienced by an appeal court, the court may conclude that no miscarriage of justice occurred. But if the doubt cannot be explained that way, a miscarriage has occurred: M v The Queen at 493.
In determining if there has been a miscarriage of justice, a decision by counsel for the defence to take or refrain from taking a particular course at the trial needs to be examined to determine if it has or could have resulted in a forensic advantage. That is an objective test. The forensic advantage must be weighed in comparison to any defect or irregularity found in the trial: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [8]-[16]; [26]-[28]; [32]-[33] and [107]-[109].
Having reviewed the whole of the evidence, which is described in detail above, I have come to the conclusion that the verdict on count 4 was not unreasonable and can be supported having regard to the evidence. The complainant was plainly referring to the outer lips of the vulva when she gave evidence that the appellant touched her "between" her vagina. That, in context, is the only sensible meaning that can be given to the complainant's evidence that the appellant put his penis "between" my "vagina".
That description, of the appellant's penis "between" the complainant's vagina, was in a context of evidence given by the complainant describing the event as commencing in the shower when she was approached by the appellant (who was naked) from behind, being hugged by the appellant, her leaving the shower, the appellant licking her vagina, the complainant being hugged from behind by the appellant, being pushed by the appellant to bend over with the appellant's hand being held at the back of her head, the appellant moving the complainant's shorts and rubbing his penis on her vagina, the description of the appellant's penis as "between my vagina" and the appellant's ejaculation. After ejaculating, the appellant said to the complainant, "If you ever want to come to my room in the middle of the night, you can sit on my face". That evidence persuades me that there was penetration, to an extent, of the genitalia of the complaint.
Having regard to all of the evidence, I do not regard the jury's verdict on count 4 as unreasonable. On all of the evidence it was open to the jury to be satisfied beyond reasonable doubt that there was a "sexual connection occasioned by the penetration to any extent of the genitalia …. of a female person". The verdict on count 4 was not unreasonable and was supported, having regard to the evidence.
I would reject grounds 2 and 3.

Ground 4 and proposed ground 5 - the trial judge erred in admitting evidence of inquiries [and] the information that Viagra was not on the list of medications prescribed under the Pharmaceutical Benefit Scheme in the period 1 January 2005 to 13 July 2012

Prior to the appellant's record of interview he apparently had a discussion with the police officers who conducted the ERISP. The content of that discussion was not in evidence. What was in evidence were questions and answers about the appellant's alleged erectile dysfunction which implied that the appellant was incapable of committing the offences here in question. Those questions and answers were as follows: "… Q219 Before we started this interview, you mentioned something about medical issues. A Yeah. Q220 What can you tell me about that? A I've got spinal damage, which causes problems to lots of things. Nerve damage to, things to work right, you know, yeah. I take medication. I tried Viagra and Cialis and I tried injections to try and get it to work. A lot of them failed, and I tried things like health tablet-type ones, you know, and some of those were more successful than others, and cleaner sort of stuff, and I've got to use a cock ring as well to make it work, otherwise it's just dead. Q221 Were you taking any of this stuff around the time that this happened? A Any of what stuff? Q222 The stuff, the Viagra, the natural supplements we discussed? A No, no. Q223 Were you taking any of that at this stage? A I didn't have a partner. Q224 OK. Now, that nerve damage that causes you to have erectile problems, that's been treated medically, has it? A Has it what? Q225 Been treated medically. A Well, they just say that's what it's been caused from 'cause of all the nerve damage, you know and, yeah. Q226 OK. Now, those medical records, would you have a problem with us accessing them in relation to this investigation? A I got 'em somewhere. I've got 'em somewhere. I seen 'em but it's just findin' 'em. But I have seen 'em at home. Q227 OK. What was the name of your treating doctor? A The actual doctor was Michael Peck, I think his name was. Q228 [19:09] Where was he from? A And there was a Terry Eather, who was a neurologist. ..."
In addressing the appellant's statement that he had "tried Viagra", the investigating police obtained a list of medications from the Commonwealth Government which the officer in charge gave evidence purported to be a list of medications prescribed to the appellant between 1 January 2005 and 13 July 2012. Objection was taken to this evidence on the basis that the list on its face was one containing medications on the Pharmaceutical Benefits Scheme and there was no evidence that Viagra was listed on the Pharmaceutical Benefits Scheme at any relevant time. His Honour ruled the document to be admissible as a business record under s 69 of the Evidence Act 1995 (NSW), although he only permitted evidence of its contents to be given orally by the informant. In reasons published on 9 September 2016 his Honour said: "So, although the evidence of the medical records did have some potential gaps, and even some possible potential to mislead the jury, in my view, in all the circumstances, it was admissible as a business record under s 69 and there was no reason to exclude it under s 135 and/or s 137. The manner in which I allowed it in the trial, technically speaking, was not in complete compliance with s 69 of the Evidence Act. I record my reasons why for that, because, actually, for it to get in as just purely a business record, as opposed to in a hearsay form I the officer-in-charge, would have revealed that the accused was taking a range of other medications, including Diazepam. I felt it highly undesirable for the jury to have that material when it was not relevant in the trial and could have been prejudicial to his interests. As such, consistent with my more general powers under the Evidence Act, in order to allow a fair trial, but still consistent with s 69 of the Evidence Act, I varied the way the evidence could be held in order to reduce prejudice to the accused, but at the same time allowing the Crown to have relevant admissible evidence before the jury. That is why, although technically speaking the way it was led was not perfectly in accordance with s 69 it, nevertheless, was consistent with my duties in order to allow admissible evidence and ensure a fair trial for the accused. As such, I allowed the evidence before the jury. For what it is worth, ultimately, it was a situation where the evidence still did not amount to a situation where it could be used for lies of consciousness of guilt, but it was relevant to give a Zoneff direction which I did give in this trial. …"
The evidence of this list of prescribed medications grounded a Crown submission that the appellant had lied in his ERISP about having tried Viagra, and that this lie went to his credit. As indicated, the trial judge gave the jury a Zoneff direction about this evidence.
The evidence in chief of the informant, Detective Dack, on this subject was as follows: "Q. Now, I'm going to show you a document. After the interview did you make inquiries of the pharmaceutical benefit scheme in relation to drugs that were prescribed to Colin Johnson? A. Yes. Q. And did you receive a list of medications prescribed to Colin Johnson between 1 January 2005 and 13 July 2012? A. Yes. Q. In that schedule is there a drug Viagra or Cialis? A. No. Q. Or any similar drug? A. No. CROWN PROSECUTOR: If that could be marked for identification. HIS HONOUR: Just part of exhibit F."
It was clear that the informant was not in a position to give evidence about what, if anything, records kept of medications prescribed which were listed on the Pharmaceutical Benefits Scheme showed.
The trial judge accepted as much and directed the jury that: "I have to say one thing about an aspect of the accused's ERISP - his record of interview with the police, though. You will remember in the record of interview with the police that he told police that he had some erectile dysfunctional problems and that he took Viagra and another drug that assisted with that process, and you have heard evidence from the Officer-In-Charge that a search of the Medicare records did not show that he had obtained Viagra or any other erectile dysfunctional drug under the Pharmacy Benefits Scheme. Of course, whether the Pharmacy Benefits Scheme would, indeed, show whether, actually, he received Viagra or any other erectile dysfunctional drug is a matter that actually is not covered in the evidence by the Crown here. All the evidence is that those records did not show that he did get it on the PBS scheme. But one must wonder whether it can prove beyond a reasonable doubt that he did not get Viagra in any other way. For example, Mr Lowe says, well, he might have got it off the internet or something like that or, perhaps, he got it in a manner where it was not subject to being recorded in the Pharmaceutical Benefits Scheme. It is not for the accused to prove anything. It is for the Crown to prove a case beyond a reasonable doubt. However, ultimately, what the Crown effectively is saying is that he was not being truthful in that part of his record of interview where he said that he was getting those drugs. So I need to give you an important direction about that aspect of the record of interview. Essentially, as I said, what the Crown is saying in leading that evidence … that that was not truthful; that is that it was a lie. Whether it was, in fact, a lie when he said that he was using those erectile dysfunctional drugs, whether it was a lie is a matter for you to decide. To decide that a lie was told you must satisfied [sic] that the accused said something that was untrue and at the time of making that statement and he knew it was untrue. Saying something that is untrue by mistake or out of confusion or forgetfulness is not a lie. But you must be satisfied, actually, that the Crown have proven that it was a lie. If you decide that it was a lie then in this circumstance you cannot use that fact in support of the conclusion that the accused is guilty. A lie cannot prove the accused's guilt, nor can a lie be used in conjunction with other evidence that the Crown relies upon to prove the accused's guilty. The only use that you can make of the fact that the accused told a lie about those drugs, if you so found it to be a lie, is in your assessment of the credibility of his version in that record of interview. If you are satisfied that he did lie then that may be considered by you having bearing upon whether you believe the other things he said in that record of interview. (italcs added)
There was evidence before the trial judge, Voir Dire Exhibit E, apparently obtained by the informant from a search of the Department of Health Pharmaceutical Benefits Scheme website, which demonstrated that Viagra was available on the Repatriation Pharmaceutical Benefits Scheme, being a scheme established under Instrument 2013 No. R43 made under s 91 of the Veterans' Entitlements Act 1986 (Cth). There was no evidence in the document or elsewhere that Viagra was able to be obtained under the Pharmaceutical Benefits Scheme.
It was apparently not understood by the informant or by counsel appearing before his Honour (who were not the counsel who appeared in this Court) that Voir Dire Exhibit E demonstrated that Viagra was available under the Repatriation Pharmaceutical Benefits Scheme but not that it was available as part of the Pharmaceutical Benefits Scheme.
The affidavit of Ms Low simply confirms that Viagra was not a drug available under the Pharmaceutical Benefits Scheme at the relevant time. It was, as Voir Dire Exhibit E demonstrated, available to people eligible under the Repatriation Pharmaceutical Benefits Scheme. There was no evidence that the appellant was eligible for any benefits under the Repatriation Pharmaceutical Benefits Scheme.

Appellant's submissions

The appellant submitted that there was no evidence that Viagra was a drug listed on the Pharmaceutical Benefits Scheme at the relevant time. As a result, the appellant says there was an "evidentiary lacuna". The evidence given by the informant that as far as he was aware the list of medications derived from the Pharmaceutical Benefits Scheme was "a complete and accurate record" of medications prescribed to the appellant was irrelevant and could never support an inference that the appellant had lied in his ERISP.
The appellant submitted that the affidavit of Ms Low read in support of proposed ground 5 made clear that Viagra was not a part of the Pharmaceutical Benefits Scheme at the relevant time and, thus, its failure to appear on a record of medications prescribed to the appellant which were subject to the Pharmaceutical Benefits Scheme was both unsurprising and inevitable. The document which was tendered thus did not support any submission that the appellant had lied about being prescribed Viagra.

Respondent's submissions

The respondent submitted that as this ground of appeal is brought under the second limb of s 6(1) of the Criminal Appeal Act 1912, the appellant is required to establish that there has occurred a wrong decision on a question of law. The contention must be tested against the evidence and material that was available to the trial judge at the time the decision in question was made, per Taub v R [2017] NSWCCA 198 at [7]; R v Fletcher (2005) 156 A Crim R; [2005] NSWCCA 338.
The respondent objected to the affidavit of Frances Low sworn on 18 August 2017 on the basis that it was "new" and not "fresh" evidence, and could have been obtained at the time of the trial by the exercise of reasonable diligence: see Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [10]. The respondent submitted that the submission now made, that there was no evidence that the drug was listed on the Pharmaceutical Benefits Scheme, is one that does not require evidence to support.
The respondent submitted that, in any event, it could not be said that the alleged error constituted a miscarriage of justice in the sense of a departure from trial according to law. It submitted that there is no relevant unfairness as the evidentiary limitation of the evidence was explained to the jury by both counsel and the judge in summing up.

Consideration of ground 4 and proposed ground 5

In addressing these grounds of appeal some initial observations need to be made. There was a degree of confusion in the evidence, and in the submissions before this Court, about what the relevant document was and what it demonstrated. The trial judge apparently accepted the Crown submission that an internet search on the Pharmaceutical Benefits Scheme website, the results of which became Voir Dire Exhibit E, demonstrated that if prescribed to the appellant, Viagra would appear as part of the business records of Medicare Australia.

Admissibility of the business record

The document is described on its face as "supplied by the Department of Health and Ageing" about the appellant. It is, on its face, a business record of the Department of Health and Ageing (Cth). The document contains 10 columns. The document describes, on its face, a prescription date, a date of supply, an item code and item name of the particular drug, the quantity, the number of repeats, the prescribing doctor's name and the dispensing pharmacy for drugs dispensed to the appellant.
There are two additional columns. There is no evidence about the first of those columns headed "Formtype". No submission was made that understanding this column was important. The last column identifies the "patient contribution". Again, this is a column about which there is no evidence but it apparently relates to the amount payable by the appellant for the particular drug as a result of the drug being part of the Pharmaceutical Benefits Scheme.
This is not the occasion for a discourse about the features of the Pharmaceutical Benefits Scheme, established under the National Health Act 1953 (Cth). All that needs to be understood in addressing this case is that it is a scheme under which various medications are specifically identified and, depending on the medication, arrangements made for the price control to consumers of those medications. There is, subject to presently irrelevant exceptions, in relation to pharmaceuticals listed on the Pharmaceutical Benefits Scheme, provision for a "patient contribution" to be made in purchasing the pharmaceutical. This patient contribution is fixed and is often only a small part of the overall cost of the particular pharmaceutical. The remaining costs of the pharmaceutical are paid by the Commonwealth. Given this financial arrangement, it is no doubt important for the Department of Health and Ageing to have accurate records for all patients of pharmaceuticals dispensed to each patient and the contribution the patient, and the Commonwealth, had made in purchasing each drug.
The document contains a number of express representations or asserted facts, including that on certain dates identified prescribed drugs were dispensed to the appellant: s 69(2) Evidence Act. Those assertions of fact were not relevant to any fact in issue in this case. The document would only be relevant in this case if it also contained an implied representation or asserted fact that Viagra was a drug which had, or had not, been dispensed to the appellant. The document, on its face, contains no such representation. If there was evidence in the document, or from another source, that Viagra was a drug listed on the Pharmaceutical Benefits Scheme the document might contain an implied representation that Viagra had not been prescribed to the appellant: s 69(4) of the Evidence Act.
In the absence of evidence that Viagra was a drug which was subject to the Pharmaceutical Benefits Scheme, however, the document was irrelevant. Following the appellant's objection, the document should not have been admitted in evidence as its relevance had not been demonstrated. It failed at the threshold of admissibility: s 55 Evidence Act. Even if the document was admissible, the danger of unfair prejudice to the appellant, in it being used to conclude that the appellant had lied in his ERISP, plainly outweighed the very slight probative value of the evidence that the trial judge ascribed to it and the document should have been rejected under s 137 of the Evidence Act.
It is regrettable that the Crown tendered the document and led evidence through the informant of its contents. That is particularly so in circumstances where the Crown had in its possession a statement that at the relevant time the appellant had been taking Cialis, another of the erectile dysfunction drugs referred to by the appellant in the ERISP. The trial judge, correctly, did not allow the Crown to lead that evidence as the statement had been served late. Voir Dire Exhibit E demonstrated that Viagra was available under the Repatriation Pharmaceutical Benefits Scheme but not that it was available under the Pharmaceutical Benefits Scheme.
The tender of the document, the evidence given of its contents by the informant and the misunderstanding about the content of Voir Dire Exhibit E shows the danger of the tender of business records in criminal trials in areas of real complexity in the absence of evidence from a person who understands the operation of the area and can explain the content of the particular business records. That is particularly so when system under s 69(4) of the Evidence Act is sought to be proven. The product of the internet search by the informant in the present case was seriously misleading. Although it showed that Viagra was mentioned on the Pharmaceutical Benefits Scheme website, properly understood the internet search underlined the fact that Viagra was available on the Repatriation Pharmaceutical Benefits Scheme and not the Pharmaceutical Benefits Scheme.
It follows that the business records from the Department of Health and Ageing which became part of Exhibit F were inadmissible and the informant should not have been permitted to give evidence about their contents. Ground 4 should be upheld.
I have reached the conclusion that ground 4 should be upheld without regard to the evidence contained in the affidavit of Ms Low and without the need to address proposed ground 5. The appellant accepted in oral address that the question of new evidence is not relevant if ground 4 is upheld.
I accept the Crown submission that the appellant's submission, that there was no evidence that the drug was listed on the Pharmaceutical Benefits Scheme, is one that does not require evidence to support it. The appellant, however, made precisely this objection to admissibility at the trial. In circumstances where I have concluded that the business records from the Department of Health and Ageing were inadmissible, and the informant should not have been permitted to give evidence of their contents, it is not necessary to receive this new evidence in order to avoid a miscarriage of justice. I would reject the affidavit of Ms Low and the proposed ground 5.

Miscarriage of justice

Having upheld ground 4 I now need to address the consequences of the error. The Crown submitted that if the evidence was incorrectly admitted it did not give rise to a miscarriage of justice. Finally, the Crown submitted, without elaboration, that the proviso should be applied.
Section 6(1) of the Criminal Appeal Act provides: "(1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."
The question posed by ground 4 is whether the error in permitting the informant to give evidence about the contents of the business records from the Department of Health and Ageing constituted a miscarriage of justice in the sense of a departure from a trial according to law: Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [13]: "Turning to the second limb of s 6(1) of the Criminal Appeal Act, it will be seen that to some extent it overlaps the first. A 'wrong decision of any question of law' includes misdirections on matters of substantive law as well as misdirections on matters of adjectival law. And, as with the first limb, the question under the second limb will be whether the error constitutes a miscarriage of justice in the sense of a departure from trial according to law."
The High Court's reference in the footnotes in that passage is to Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [17]-[18] which states: "The better view may be that what was said in Gibson was "much misunderstood"[17] and that it established no absolute rule. As Griffith CJ pointed out in R v Grills: "It happens ... in innumerable cases that, by inadvertence, irrelevant evidence (which, strictly speaking, is not admissible) is admitted, and passes without notice and without mischief. But there is no case which decides that a conviction is necessarily bad on the ground that the jury had not been expressly directed to disregard such evidence." It is, nonetheless, important to recognise that the Exchequer rule was often expressed in absolute terms. And as later will be observed, judicial reasons considering the meaning and application of the proviso to the common form criminal appeal statute have often exhibited the same tendency to state rules in absolute terms. The matters of history that are recorded above readily show that the proviso to s 4(1) of the 1907 English Act was intended to do away with the Exchequer rule. But they also cast light upon what appears to be a conundrum presented by reference in the grounds on which the Court of Appeal shall allow the appeal to a "miscarriage of justice", and reference in the proviso to dismissing the appeal if the Court "considers that no substantial miscarriage of justice has actually occurred". What the history reveals is that a "miscarriage of justice", under the old Exchequer rule, was any departure from trial according to law, regardless of the nature or importance of that departure. By using the words "substantial" and "actually occurred" in the proviso, the legislature evidently intended to require consideration of matters beyond the bare question of whether there had been any departure from applicable rules of evidence or procedure. On that understanding of the section as a whole, the word "substantial", in the phrase "substantial miscarriage of justice", was more than mere ornamentation. If the 1965 Report of the Interdepartmental Committee on the Court of Criminal Appeal ("the Donovan Committee") was right to conclude, as it did, that the construction which had been placed on the proviso by the English courts rendered the word "'substantial' ... devoid of practical significance", the construction and application of the proviso had moved a very long way from its historical roots." (footnotes omitted)
I have not found this an easy case. In addressing this issue, close attention needs to be paid to the issues in the trial and the importance of the inadmissible evidence to those issues.
In considering whether permitting the informant to give evidence about the contents of these documents gave rise to a miscarriage of justice I have taken into account that this was a strong Crown case and the complainant's evidence was clear and compelling. Further, the trial judge gave a careful and fair summing up of the issues on the basis of the evidence which was admitted in the trial. Some of the evident limitations of the inadmissible evidence were explained by the trial judge to the jury. The most obvious limitation, that the evidence was simply incapable of supporting an inference that the appellant had lied in his ERISP, was of course not explained. I have also taken into account that defence counsel, after unsuccessfully objecting to the tender of the document, sought the Zoneff direction about that evidence, which his Honour gave.
Ultimately, however, I have concluded that it was critical to the defence case that the jury accept the version of events in the ERISP which exonerated the appellant. Whilst I do not think that it was likely, absent this evidence, that the jury would have accepted the version of events in the ERISP, I am not satisfied that there was no realistic possibility that they would have done so. The significance of the inadmissible evidence was that it provided a basis, independent of the complainant's account, to reject the appellant's account in the ERISP.
The informant's evidence about the business records from the Department of Health and Ageing was capable of being regarded by the jury as demonstrating that the appellant had lied in the ERISP. The jury could have concluded that the Crown had led objective evidence, sourced from the Commonwealth Government that the appellant had lied in the ERISP. The directions of the trial judge did not eliminate that risk.
This is not a case where it may be concluded that the evidence was "admitted, and passe[d] without notice and without mischief".
The possibility that the informant's evidence about the records from the Department of Health and Ageing could have been used by the jury as an independent basis to reject the appellant's version of events in the ERISP gave rise to a miscarriage of justice.

Application of the proviso

In relation to the proviso, in Filippou, French CJ, Bell, Keane and Nettle JJ said at [15]: "That leaves the proviso, which in terms is applicable to all three limbs of s 6(1). It directs that, even where error of the kind identified in any of the three limbs is established and amounts to a miscarriage of justice, the Court of Criminal Appeal may dismiss the appeal if it is satisfied that the error has not been productive of a substantial miscarriage of justice. By "substantial miscarriage of justice" what is meant is that the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or her or that there was some other departure from a trial according to law that warrants that description. Consequently, if the Court of Criminal Appeal is persuaded that the first limb applies, it will follow that it has concluded that there has been a substantial miscarriage of justice. In contrast, where the second limb applies, the circumstances in some cases may be such that, despite the judge making "the wrong decision of [a] question of law", the Court of Criminal Appeal is persuaded that the error could not have deprived the appellant of a chance of acquittal that was fairly open to him or her. In that case the proviso will operate. Where the third limb is engaged, if the Court of Criminal Appeal has concluded that the appellant has not received a fair trial it will follow that it has concluded that there has been a substantial miscarriage of justice. But where, despite some other identified irregularity, the Court of Criminal Appeal is satisfied that the appellant has received a fair trial according to law and not otherwise been deprived of a chance of acquittal that was fairly open to him or her, once again the proviso will operate. It is also to be borne in mind, as was explained in Baiada Poultry Pty Ltd v The Queen and more recently noticed in Lindsay v The Queen, that, although the proviso is expressed in permissive terms, "if the condition (the conclusion that no substantial injustice has actually occurred) is satisfied" the proviso must be applied." (footnotes omitted)
Immediately after the lies direction, the primary judge made the following comments about the overall effect of the jury's findings about the answers given by the appellant in that interview: "Now, can I say one thing separately from the lies direction. Fundamentally, the main way that the Crown seeks to actually prove that what he said in the record of interview was not true is through [the complainant] because if you accepted what [the complainant]said beyond a reasonable doubt then you would be satisfied that, actually, almost every aspect of what he answered in the record of interview was untruthful, but the reality is you could only make that finding once you are satisfied beyond reasonable doubt of the evidence given by [the complainant]. So, in many ways, the whole question of whether, in fact, he could get an erection, whether it was even medically possible to ejaculate without getting an erection - which seems to be some suggestion - really still turns on the question of whether you are satisfied of [the complainant's] evidence beyond a reasonable doubt and having considered all the other evidence in the matter, including the record of interview of the accused whether you are so satisfied beyond a reasonable doubt."
Put in this way, the primary judge was directing attention to the critical contest between the evidence of the complainant and the evidence the appellant gave in the ERISP.
This was a strong Crown case, however I am unable to be satisfied to the requisite standard that the appellant did not lose a chance of acquittal that was fairly open to him. The strength of the appellant's position is that the evidence which was admitted gave a spurious credibility to the Crown's suggestion that there was objective evidence that he had lied in the ERISP.
In a case where the credibility of the appellant's denials in the ERISP was the critical issue in the defence case, to have evidence led from the informant sourced from a Commonwealth Government business record which the Crown told the jury demonstrated that the appellant had lied in the ERISP was potentially devastating to the defence.
In the context of the issues in the trial, and the summing up, I have concluded that here there was a miscarriage of justice warranting the setting aside of the verdict by reason of the admission of the evidence derived from records from the Department of Health and Ageing.
I am not satisfied that the appellant was not deprived of a chance of acquittal that was fairly open to him. In those circumstances I am unable to apply the proviso.
I would allow the appeal against conviction and order a new trial.

Orders

I propose the following orders: 1. The appeal against conviction allowed; 2. Verdict of guilty set aside; 3. Quash the convictions; 4. There be a new trial.

Sentence appeal

Since preparing my draft judgment I have read the judgments of McCallum and Wilson JJ in draft. As my judgment on the conviction appeal is a dissenting one and their Honours disagree about the appropriate orders to be made in the Crown appeal against sentence, it is necessary that I should address the issue.
For the reasons given by Wilson J, I agree with the orders her Honour proposes about the disposition of the Crown sentence appeal.
McCALLUM J: I have had the benefit of reading the judgments of Payne JA and Wilson J in draft. As to the conviction appeal, I agree with Wilson J, for the reasons her Honour has stated.
I would dismiss the Crown appeal. I accept that, but for considerations of totality, the sentencing judge would not have allowed any adjustment to the non-parole period and would have structured the sentence in accordance with the orders now proposed by Wilson J. I do not think it follows, in the circumstances of this case, that it is appropriate for this Court to intervene.
As her Honour has noted, the Crown relies on the decisions of this Court in R v Tolmie (1994) 72 A Crim R 416 and R v JDX; JDX v R [2017] NSWCCA 9. In Tolmie, as here, later sentences had been adjusted having regard to an earlier conviction which was subsequently quashed (in that case, a conviction for armed robbery). However, in that case, apart from varying the proportion between the minimum term and the additional term, each judge had imposed a lesser total sentence than he would otherwise have imposed in order to take account of the principle of totality. Further, at the time the appeal was determined, the offender had not yet been re-tried on the armed robbery offence. The Court intervened because the remaining sentences were no longer appropriate to the criminality of the remaining offences standing alone.
In JDX, later sentences had been structured by reference to a lengthy sentence for murder that was subsequently quashed. All three members of the Court agreed, albeit on the strength of different reasoning, that both a Crown appeal and an offender appeal should be allowed. The main judgment was written by Campbell J, who concluded at [93] that the quashing of the earlier sentence had resulted in "a disproportionate sentence where the minimum term is manifestly inadequate and the overall sentence is manifestly excessive".
In a separate judgment, Basten JA accepted at [25] that the non-parole period became manifestly inadequate once the murder sentence was removed. That appears to have been accepted by N Adams J as a basis for joining in the orders proposed: at [116].
In the present appeal, there is no suggestion that the total sentence is inadequate; it is only the non-parole period that has been addressed. Although it is clear the non-parole period was adjusted for reasons of totality, I am not persuaded that the sentence standing alone is plainly unreasonable. Further, as the offender has now been convicted again for the earlier offences and is due to be sentenced for those offences shortly, the adjustment made by Pickering SC DCJ can be taken into account when addressing totality in that process.
It follows, in my respectful opinion, that the basis that existed for intervening in Tolmie and JDX is not established in this case.
WILSON J:

The Conviction Appeal

This is an application pursuant to ss 5(1)(a) and 5(1)(b) of the Criminal Appeal Act 1912 (NSW) brought by Colin Johnson, to whom I will refer (for convenience) as the applicant. Three grounds, grounds 2 - 4, are advanced, ground 1 having been abandoned. At the hearing of the application the applicant sought to add a further ground, the proposed ground 5.
Payne JA has set out the factual background to this matter, which I do not propose to repeat. Grounds 2 and 4 involve questions of law; ground 3 and the proposed ground 5 involve mixed questions of fact and law. Leave is required to advance to ground 3 and, if it is permitted to be added, ground 5.

Ground 2: The learned trial judge erred in law in his direction to the jury in relation to the legal definition of "female genitalia" and the issue of penetration

This ground raises the adequacy of the direction given by the trial judge with respect to the element of sexual intercourse as it pertained to count 4, an offence of Aggravated Sexual Intercourse contrary to s 61J(1) of the Crimes Act 1900 (NSW).
The complainant gave evidence that the applicant had "slid" behind her and hugged her, ignoring her protest. She continued, "And he just wouldn't listen to me, then he - he was still naked, and he continued by slightly bending me over and putting his penis into the crotch part of my shorts. I said "no" and he just slightly - my head was against the mirror, and I - as I tried to move he just kept saying "no" and then he put his penis in between my vagina, not inside, but on the outside, and he was just rubbing his penis on my vagina" (T40:36 - 41 of 5.9.2016).
She continued to tell him no and asked him to leave her alone, but he told her repeatedly to "wait". The complainant, who was almost sobbing, was frightened, and froze. The applicant told her forcefully to "shut up", and to "wait". Her face was pressed up against the bathroom mirror with one of the applicant's hands on her head. The applicant held his penis in his other hand. He continued rubbing his penis on the complainant's vagina for about 3 minutes before apparently ejaculating. After inviting the complainant to "sit on [his] face" at some future time, the applicant left the bathroom, leaving the complainant feeling "very violated, disturbed. I felt dirty. I wasn't sure if I had gotten something."
The issue at trial was whether this description of the relevant events constituted proof of sexual intercourse, with the applicant submitting to the jury that it could not be satisfied beyond reasonable doubt that penetration had occurred.
It was necessary for the trial judge to direct the jury as to the element of sexual intercourse, and what that meant in the context of the particular allegation, consistent with the definition of sexual intercourse which applied at the time, found in s 61H(1)(a) of the Crimes Act. In 2010 that provision was in these terms: "(1) For the purposes of this Division, sexual intercourse means: (a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by: (i) any part of the body of another person, or (ii) any object manipulated by another person, except where the penetration is carried out for proper medical purposes."
His Honour quoted the complainant's evidence relevant to the sexual act relied upon to constitute the offence and, reflecting the statutory definition, he said, "If you were satisfied beyond reasonable doubt that he did rub his penis between her vagina, not inside but on the outside, "and just rubbing it on my vagina", you would still then need to ask the question did he penetrate to any extent the female genitalia? Now, I stress the female genitalia. Mr Lowe at one stage in his closing address to you said did he penetrate her vagina? He does not actually have to penetrate her vagina. As a matter of law, the actual legal test is female genitalia. Now, you have got women on your jury. I am not about to give you an anatomy lesson, except to say that, obviously, the female genitalia involves the outer aspects of the female vaginal cavity. So, it is not whether he penetrated, ultimately, the vagina itself, it is whether he penetrated the female genitalia" (SU15/AB 25).
His Honour then outlined the arguments put to the jury on this aspect of the matter by both the Crown and the applicant, a summary that further highlighted the issue as to proof of penetration to any extent of the genitalia.
The applicant is critical of the trial judge for declining to give the jury an "anatomy lesson", contending that the members of the jury would or may have been incapable of understanding the phrases "female genitalia" and "outer aspects of the female vaginal cavity" without the assistance of a medical expert, or a more wide ranging explanation from the trial judge. Counsel for the applicant argued that there needed to be a direction "directly going to anatomy" and "describing" the "area". In counsel's submission, the jury would have better comprehended "labia majora for example", and been assisted by the trial judge "add[ing] a diagram".
Those submissions must be firmly rejected.
The applicant's reliance upon the decision of R v AJS (2005) 159 A Crim R 327 is misplaced: the decision considers a different statutory scheme that has no application.
The trial judge directed the jury as to the element of sexual intercourse which the Crown had to prove beyond reasonable doubt. He did so in terms which were as straightforward as was possible in the context of the legal definition of sexual intercourse relevant to the issues in the trial, and which directed the jury's attention to the issue of penetration of significance to that count. To contend that the trial judge should have described the female genitals, or provided the jury a diagram is, with respect to counsel, as wrong as it is absurd.
There must be due recognition of the ordinary wisdom, knowledge, and life experience of the members of the public who make themselves available to serve as jurors. That is, after all, one of the asserted benefits of the jury system. There is little point in the criminal justice system claiming to value the contribution of members of the public, whilst at the same time devaluing the intelligence of jurors to the extent where trial judges are required to extensively explain, and even draw diagrams, to aid in the understanding of matters within ordinary knowledge.
In directing a jury a trial judge must steer a course that ensures jurors are directed as to relevant law in the context of the issues in the trial, without giving the jury factual information which is not part of the evidence, or otherwise overwhelming its members with too much unnecessary information, such that there is a danger of the jurors losing concentration and focus. That is not necessarily an easy task.
Here, the trial judge's directions with respect to this issue were appropriate. That the applicant's counsel at trial thought so too can be inferred from his failure to seek any further or other direction on this issue.
Rule 4 of the Criminal Appeal Rules applies to this ground and the Court's leave is required to advance it. I would not grant that leave.

Ground 3: That the verdict in respect of count 4 was unreasonable or cannot be supported having regard to the evidence

This ground relies upon a similar argument to that underpinning ground 2, that the complainant's evidence of the relevant act of the applicant rubbing his penis "in between my vagina, not inside, but on the outside" until he ejaculated, could not prove penetration. The applicant argues that a jury acting reasonably must have had a doubt as to whether the Crown had proved sexual intercourse to the requisite standard.
Having considered the evidence adduced at trial, I consider it to have been well open to the jury to return a verdict of guilty with respect to this count. The complainant's credit was the only real issue in the trial and, in assessing that aspect of the matter, the jury enjoyed a significant advantage over this Court. Even in transcript however, her evidence is compelling. Indeed, the trial judge who in common with the jury had the benefit of observing the complainant give evidence, observed when later sentencing the applicant that he was not surprised by the verdicts returned by the jury, having been himself "well and truly convinced" to the requisite standard of all aspects of the complainant's evidence.
The complainant's meaning when describing the act reflected by count 4 was clear. Plainly, in referring to the applicant's penis rubbing "between" her vagina, the complainant was describing the movement of the applicant's penis between the outer lips of the vulva. Such an act is sexual intercourse within the meaning of s 61H(1)(a) of the Crimes Act. Certainly the evidence was such that it was open to the jury to be satisfied beyond reasonable doubt that that element of the offence had been proved.
Although I would grant leave to the applicant to advance this ground, it cannot be established, and should be dismissed.

Ground 4: His Honour erred in admitting evidence of inquiries made by the informant that Viagra was not on the list of medications prescribed under the Pharmaceutical Benefit Scheme 1 January 2005 to 13 July 2012

Proposed Ground 5: There has been a miscarriage of justice in the trial of the applicant on account of fresh or new evidence which establishes that Viagra was not listed on the general PBS Schedule

Payne JA has set out the factual background to this ground, being the admission over objection of evidence from a Medicare or Pharmaceutical Benefits Scheme ("PBS") record or other document that listed drugs provided on prescription to the applicant under the Scheme in the period 1 January 2005 to 13 July 2012, a list which did not include the drug commonly known as Viagra.
In his interview with police, the electronic recording of which formed part of the Crown case and which was relied upon by the applicant, he raised in support of his complete denial of the allegations made by the complainant a difficulty he had with erectile dysfunction. He told the police officers, "I've got spinal damage which causes problems to lots of things. Nerve damage to[o], things to work right, you know, yeah, I take medication. I tried Viagra and Cialis and I tried injections to try and get it to work. A lot of them failed […]."
On the second day of the trial the Crown Prosecutor raised the issue in the absence of the jury, indicating her proposal to lead evidence from the police officer in charge of the investigation, Detective Senior Constable Jason Dack, that Medicare (or the PBS) had no record of Viagra being dispensed to the applicant. The applicant objected to the admission of the evidence on two bases, being that a police officer lacked any expertise to comment upon a record of drugs prescribed or dispensed and, that Viagra could be obtained otherwise than by prescription in Australia, meaning that the PBS record was not a complete account of Viagra use.
In answer to his Honour's query as to the way in which the Crown sought to make use of the evidence, the Crown said that the evidence could go no further than establishing that Viagra was not prescribed to the applicant in the period covered by the records. The trial judge asked both parties to consider the matter overnight. He observed: "I mean, as I said, it's a concern either way because if you just let in all these answers [in the interview] and the Crown doesn't respond to it in any way, in some ways how does the jury deal with the question of whether that version is truthful or not? If it's reasonably possibly truthful, they would have to be directed that that could be a reason to acquit. If the officer has actually made some investigations which make it impossible to find these people, like I said, subject to it being admissible at law, then it may be that it gets in. But the business record is the only way I can see it can get in outside of calling people. All right. You can both have a think about that overnight. You know roughly what's worrying me one way or the other, and we'll discuss this further tomorrow" (T151:39 - 49 of 6.9.2016).
The next morning the Crown Prosecutor advised the Court that the applicant's former wife had provided a statement in relation to another matter and it was anticipated that she would give evidence (possibly via audio-visual link) that the applicant had no erectile incapacity in the relevant period, October 2010, although he had, at some unspecified point, used Viagra. The issue was again deferred for further consideration.
Later that day there was further, extensive, discussion between his Honour and trial counsel concerning the admissibility of the PBS records. The Crown having disavowed any intention of relying on the evidence as proof that the applicant lied to police, and thus was conscious of his guilt, the focus of the question of admissibility was on the extent to which the disputed evidence could rebut the contention that the applicant could not have committed the sexual assault offences charged.
Trial counsel for the applicant submitted that the prejudice to his client in allowing the evidence to go before the jury was that there was an "evidentiary lacuna" because the police officer through whom the evidence was to be tendered may not be able to answer questions put of him in cross-examination about matters connected with the records. His Honour noted that any gaps in the evidence could only be to the Crown's disadvantage, and were available to the applicant to take advantage of.
At the conclusion of the argument the trial judge gave the Crown leave to lead evidence from Detective Dack of his inquiries with the PBS as to whether the applicant had had access to drugs to treat erectile dysfunction. The Medicare documents themselves were excluded from evidence, and formed no part of the evidence before the jury. Evidence from the applicant's former wife was also excluded, because of the lack of adequate notice to the applicant of an intention to lead evidence from her.
In his reasons for the decision to admit the PBS evidence his Honour observed that the Crown was entitled to show that police had investigated the applicant's claim to have used prescription drugs to treat erectile dysfunction, because the absence of evidence of use of the drug was a piece of circumstantial evidence available to it.
Subsequently, Detective Dack gave the following evidence in chief: "Q. Now, I'm going to show you a document. After the interview did you make inquiries of the pharmaceutical benefit scheme in relation to drugs that were prescribed to Colin Johnson? A. Yes. Q. And did you receive a list of medications prescribed to Colin Johnson between 1 January 2005 and 13 July 2012? A. Yes. Q. In that schedule is there a drug Viagra or Cialis? A. No. Q. Or any similar drug? A. No" (T206:41 - T207:04 of 7.9.2016).
In cross-examination the detective gave further evidence on the subject: "Q. You were asked about some inquiries you did with the Pharmaceutical Benefits Scheme about a list of medications and you gave the evidence that for a particular period of time you could not find whether there was a script for Viagra or Cialis or other similar drugs. A. Yes. Q. During the interview at question 224 - well, in fact at question 222 Mr Johnson indicated that he had tried Viagra and Cialis. Do you recall he told you that? A. Yes. Q. And then he also indicated in the next line, "I tried things like health tablet type ones. Do you recall that? A. Yes Q. At question 224 you ask him basically, "The stuff, the Viagra, the natural supplements we discussed." Now, Viagra, what did you understand by asking that? What were you trying to get at when you asked that particular question in relation to "Viagra, the natural supplements we discussed"? A. Was that me or the other officer? Q. Yes, good question, it doesn't break it down. A. I think that might have been Detective Morrell. Q. Then you can't answer that but was there any discussion about Viagra being a natural supplement? A. No. Q. You're not aware, of course, that everything on that record of the Pharmaceutical Benefits Scheme is complete. It's not something that's within your knowledge, is it? A. As per? Q. Well, okay, you've obtained a document from the Pharmaceutical Benefits Scheme purporting to be a list of medications for a particular period of time. A. Yes. Q. You don't know, because you don't create this document, whether it purports to be a complete and accurate record, do you? A. No, as far as I'm aware it is. HIS HONOUR Q. You're relying on the Medicare document being accurate just like you're relying on the Vodafone record being accurate but you actually don't know that. You just are assuming that they're accurate. A. That's correct. LOWE Q. If my client had a script for Viagra or Cialis or an equivalent drug but did not fill it-- A. No. Q. --is that something within your knowledge whether that would appear on this list of medications that you-- A. No. Q. In fact, you don't know whether he used other person's Viagra that he may have been given, do you? A. No. Q. Are you aware if Viagra itself can be purchased online? Is that something within your knowledge as a police officer investigating matters or not? A. I don't think you can purchase Viagra online. Q. But do you know? A. I'm pretty sure that's a prescription medicine. Q. Within Australia but if you bought it outside of Australia. A. I couldn't-- Q. If you don't have that knowledge-- A. No, I don't. Like I can't explain" (T215:14 - T216:37 of 7.9.2016).
That was the whole of the evidence on that topic.
The Crown Prosecutor's closing address to the jury followed; the evidence concerning the PBS was dealt with in three sentences: "He says that he could not get an erection, that he was prescribed medication. You have evidence from the officer in charge that inquiries were made of the Pharmaceutical Benefits Scheme and no prescription of that medication exists in those records. You need to consider how this evidence sits with the other evidence in this trial […]" (T222:06 - 10 of 7.9.2016).
At the end of the prosecution address, the jury was sent home.
In its absence, the trial judge raised the issue of the evidence concerning Viagra, asking the parties to consider whether any direction should be given, particularly one in conformity with Edwards v The Queen [1993] Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, or one in conformity with Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28. His Honour observed that the latter direction was to the applicant's benefit, in that it would ensure that the jury did not reason that, because the applicant may have or did lie to police in his interview with them, he must have committed the charged offence.
Counsel for the applicant asked immediately for a "Zoneff direction", a request with which his Honour agreed.
On the following day counsel for the applicant addressed the jury. He referred to the evidence concerning Viagra, making the following submission: "The Crown says that Colin Johnson didn't have a script for Viagra or Cialis. Both are erectile dysfunction medications, but the evidence is highly unsatisfactory in this regard, you may think. Detective Senior Constable Dack fairly conceded yesterday when he gave some evidence about PBS records, he conceded that he couldn't be certain that documents, you know, the information in the PBS records was complete or accurate. There is also the possibility, if it be the case, that Colin obtained it elsewhere, or there is always the possibility that a natural form of Viagra which wouldn't appear as a prescribed medication, was being used. But let us consider the Crown's evidence, which is the evidence that's led in this trial. If he didn't have a script, how then do the Crown prove that, (1) he had an erection and (2) that there was ejaculate from the erection? [the complainant's]guess, and there is nothing more than that, because that's what she said, it was a guess, she guessed it was semen. It may be accepted by you, but if Colin has erectile dysfunction, can you infer that he had an erection? It's open to you as an inference, but I ask you to consider whether it's the only inference available where there is some evidence of erectile dysfunction. Yes, it's a curious aspect to the case. There is no evidence that he had an erection. It's an inference that you can make, but is it the only inference in this case? The relative silence of [the complainant's] protestations, I suggest would give you concern in this matter. She is relatively young, I accept that, but there is a degree of worldliness that she has and possesses, something Madam Crown yesterday readily indicated in her closing address to you, that she has got a degree of worldliness about her that you wouldn't otherwise expect of a 15-year-old, or nearly 16 I should say, in these particular circumstances" (T244:10 - 36 of 8.9.2016).
In summing up the trial to the jury, the trial judge gave the following direction about the PBS evidence: "I have to say one thing about an aspect of the accused's ERISP - his record of interview with the police, though. You will remember in the record of interview with the police that he told police that he had some erectile dysfunctional problems and that he took Viagra and another drug that assisted with that process, and you have heard evidence from the Officer-In-Charge that a search of the Medicare records did not show that he had obtained Viagra or any other erectile dysfunctional drug under the Pharmacy Benefits Scheme. Of course, whether the Pharmacy Benefits Scheme would, indeed, show whether, actually, he received Viagra or any erectile dysfunctional drug is a matter that actually is not covered in the evidence by the Crown here. All the evidence is that those records did not show that he did get it on the PBS scheme. But one must wonder whether it can prove beyond a reasonable doubt that he did not get Viagra in any other way. For example, Mr Lowe says, well, he might have got it off the internet or something like that or, perhaps, he got it in a manner where it was not subject to being recorded in the Pharmaceutical Benefits Scheme. It is not for the accused to prove anything. It is for the Crown to prove a case beyond a reasonable doubt. However, ultimately, what the Crown effectively is saying is that he was not being truthful in that part of his record of interview where he said that he was getting those drugs. So I need to give you an important direction about that aspect of the record of interview. Essentially, as I said, what the Crown is saying in leading that evidence is that that was not truthful; that is that it was a lie. Whether it was, in fact, a lie when he said that he was using those erectile dysfunctional drugs, whether it was a lie is a matter for you to decide. To decide that a lie was told you must satisfied that the accused said something that was untrue and at the time of making that statement and he knew it was untrue. Saying something that is untrue by mistake or out of confusion or forgetfulness is not a lie. But you must be satisfied, actually, that the Crown have proven that it was a lie. If you decide that it was a lie then in this circumstance you cannot use that fact in support of the conclusion that the accused is guilty. A lie cannot prove the accused's guilt, nor can a lie be used in conjunction with other evidence that the Crown relies upon to prove the accused's guilt. The only use that you can make of the fact that the accused told a lie about those drugs, if you so found it to be a lie, is in your assessment of the credibility of his version in that record of interview. If you are satisfied that he did lie then that may be considered by you having a bearing upon whether you believe the other things he said in that record of interview" (SU26 - 27 of 8.9.2016).
In support of his submission that there has been a miscarriage of justice with respect to this evidence, the applicant contends, "There was no evidence that Viagra at the relevant time was a drug listed under the Pharmaceutical Benefits Scheme. Given this evidentiary lacuna, the inquires [sic] made by the informant in relation to what medications were prescribed under the Pharmaceutical Benefits Scheme were irrelevant as it could never support an inference that the appellant had lied in his interview" (applicant's written submissions of 15 June 2017).
The applicant further relies on evidence which is asserted to be either "new evidence" or "fresh evidence", to the effect that Viagra was not at the relevant time a drug listed on the PBS. He submits in support of the proposed additional ground that the acceptance by the jury of his interview with police was "a central issue" in the trial and, had the jury been aware of the newly obtained evidence, there is a "significant possibility" that the jury would have acquitted the applicant.
Setting aside for the moment the question of the admissibility of the additional information about the PBS, I am unable to agree that there was such a possibility, significant or otherwise.
The "central issue" in this trial was whether the jury accepted the evidence given by the complainant beyond reasonable doubt. That was the focus of the parties, and it is reasonable to conclude that it would also have been the focus of the jury.
The question of whether the applicant was being truthful or otherwise in his assertions as to his inability to obtain an erection and, as a consequence, his use of Viagra, was but one of the many pieces of evidence placed before the jury to assist it to determine that issue. It did not have any particular significance in and of itself.
As the trial judge noted when discussing the admissibility of the evidence with trial counsel, it was open to the Crown to lead evidence which might rebut a matter raised by the applicant in his defence. Here, the applicant had asserted to investigating police officers that, in effect, he could not have committed the sexual assault offences because he could not, for medical reasons, have obtained an erection.
Favourably to the applicant, his Honour would not permit the Crown to call evidence from the applicant's former wife, evidence which, if accepted by the jury, is likely to have established that his claims to erectile dysfunction were untrue (and thus also giving rise to the possibility that the evidence could be used as evidence of consciousness of guilt). In the qualified way in which the PBS evidence was led it was largely neutral on that question, since it was made plain before the jury (in answer to a question from his Honour to Detective Dack) that it could only be assumed that the PBS records were complete and accurate.
His Honour further highlighted the very limited relevance of the PBS records in his directions to the jury, telling them, "Of course, whether the Pharmaceutical Benefits Scheme would, indeed, show whether, actually, [the applicant] received Viagra or any erectile dysfunctional drug is a matter actually not covered in the evidence by the Crown here" (SU26 of 8.9.2016).
I am not persuaded that, in permitting the Crown to lead the PBS evidence, the trial judge made a wrong decision of a question of law. The PBS evidence was of limited probative value and, although admissible, it was open to his Honour to exclude it. With the benefit of hindsight, it probably would have been preferable to exclude the evidence. However, even if the evidence should have been excluded, that does not necessarily mean that there has been a miscarriage of justice.
As has been frequently observed, a fair trial is not required to be a perfect trial: Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57; R v Ngo (2003) 57 NSWLR 55; [2003] NSWCCA 82; Jarvie v Magistrates' Court (Vic) [1995] 1 VR 84; Romolo v R [2016] NSWCCA 240 at [28].
The conduct of criminal trials is the product of human endeavour and, as such, it is not just likely that there will be some irregularity, it is almost inevitable. For those experienced in the conduct of criminal trials, many instances can be called to mind where an irregularity occurs: a witness answers a question with information, sometimes prejudicial to an accused person, which was not asked for; an object or document not in evidence is placed before the jury; counsel mistakenly refers to something that is irrelevant or even prejudicial; by error or omission relevant evidence is not tendered. Frequently, irregularity occurs by a jury hearing information that it ought not to have heard. As was observed by Mason CJ and Toohey J in R v Glennon (1992) 173 CLR 592; [1992] HCA 16 at 603, "The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial."
That a jury might hear evidence that, in a perfect world, it would not hear, does not mean that a trial has been unfair in the sense that there has been a departure from trial according to law, occasioning a miscarriage of justice: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at 54 - 55. As Brennan J said in Dietrich (at 325), "But the rhetoric that a trial must be fair before a conviction can properly be recorded is true only to the extent that unfairness leads to a miscarriage of justice. The legal question then is not whether a trial has been unfair according to community values but whether it is unfair in the sense that it has not taken place according to law."
In my view there has been no such unfairness here. The evidence adduced through Detective Dack was of very limited significance and did no more than establish that Viagra had not been dispensed to the applicant through the PBS in the period 2005 to 2012. The limitations of the evidence were drawn to the attention of the jury, both as the evidence was led, and then again in the applicant's closing address and the trial judge's summing up. The jury could have been in no doubt as to the limited significance and imperfections of the evidence, in that it did not rule out that the applicant had acquired Viagra, other than by way of subsidised dispensation through the PBS. That was abundantly clear.
Lest there was any risk that the jury misuse the evidence to conclude that the applicant had lied to police and was thus likely to be guilty of the offences charged, a Zoneff direction was sought by the applicant's counsel and given by the trial judge.
I would dismiss ground 4.
The proposed ground 5 relies upon what is asserted to be either fresh evidence or new evidence. It cannot be fresh evidence, since the evidence concerning the availability of Viagra through the PBS was evidence which was (at least constructively) available to the applicant at his trial by exercise of due diligence: R v Abou-Chabake (2004) 149 A Crim R 417 at [63].
Regardless of how the newly obtained evidence might be categorised, I do not conclude that the absence of this evidence from the trial has led to a miscarriage of justice. Had the evidence been before the jury, it would have done no more than establish the proposition the trial judge raised for the jury's attention, that being that there was no evidence that could show whether or not the applicant had access to a medication to treat erectile dysfunction.
There is no reasonable possibility that the evidence, if available at trial, would have been likely to have caused the jury to entertain a reasonable doubt as to the applicant's guilt: Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35, per Toohey and Gaudron JJ at 301; Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, per Mason and Deane JJ at 402.
There has been no unfairness and no miscarriage of justice. I am not persuaded that the applicant has lost a chance of acquittal that would have been fairly open to him in the absence of the evidence.
I would not grant leave to the applicant to rely upon the newly obtained evidence or advance this ground.

The Sentence Appeal

The Crown brings an appeal against sentence pursuant to s 5D of the Criminal Appeal Act. Mr Johnson is the respondent to this appeal, although I will continue for ease of reference to refer to Pickering SC DCJ, who imposed sentence, as the trial judge.
For the sexual offences the subject of the conviction appeal, together with two offences of supplying a prohibited drug, and an unrelated offence of accessory after the fact to aggravated break enter steal, the respondent was sentenced on 16 December 2016 to an aggregate sentence of 10 years imprisonment to date from 26 August 2019, and expiring on 25 August 2029. A non-parole period ("NPP") of 6 years and 2 months was fixed. The earliest release date is 25 October 2025.
The offences and indicative sentences are set out below. Count Offences Section & Maximum Penalty Indicative Sentence 1 Supply prohibited drug (cannabis leaf) s 25(1) Drug Misuse &Trafficking Act 6 months imprisonment 10 years imprisonment and/or 2000 penalty units 10% discount for guilty plea s 61M(2) Crimes Act 3 years imprisonment; 2 Aggravated Indecent assault (person under 16 years) 10 years imprisonment; NPP 2 years Standard NPP 8 years s 61J(1) Crimes Act 7 years imprisonment; 3 Aggravated sexual assault (person under 16 years) 20 years imprisonment; NPP 4 years & 6 months Standard NPP 10 years s 61J(1) Crimes Act 8 years imprisonment; 4 Aggravated sexual assault (person under 16 years) 20 years imprisonment; NPP 5 years & 3 months Standard NPP 10 years 6 Supply prohibited drug (cannabis leaf) s 25(1) Drug Misuse &Trafficking Act 12 months imprisonment 10 years imprisonment and/or 2000 penalty units 7 Aggravated commit act of indecency (person under 16 years) s 61N(1) Crimes Act 3 months imprisonment 2 years imprisonment 1 Accessory after the fact to aggravated break, enter & steal ss 112(2) & 347 Crimes Act 3 months imprisonment 5 years imprisonment 20% discount for guilty plea

The additional offence of accessory after aggravated break enter steal occurred on 9 April 2015: the respondent aided a then girlfriend to remove items of property from a friend's home, initially believing the property belonged to his girlfriend. Having discovered the property did not belong to her, he continued to assist her.
The delayed commencement date for the sentence was a consequence of it being partially accumulated upon a sentence the respondent was serving at the time sentence was imposed by the trial judge, that being a sentence imposed by Madgwick QC ADCJ on 22 October 2015, for sexual offences committed by the respondent against another young girl.
After sentence was imposed upon the respondent in this matter, this Court quashed the convictions recorded by Madgwick QC ADCJ: Johnson v R [2017] NSWCCA 31. Although the total term or NPP could not be varied, necessarily, the commencement date of the sentence now under appeal was altered, pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW), such that it commenced on 26 August 2015. The NPP will expire on 25 October 2021.
In bringing its appeal the Crown argues that the sentencing exercise conducted by Judge Pickering SC was conducted on the basis of a premise - the extant sentence imposed by Judge Madgwick QC - that no longer exists. Since it is clear from his Honour's Remarks on Sentence that the sentence imposed for these offences was reduced because of the principle of totality, the sentence should be corrected to one which adequately reflects the criminality of these offences, standing alone.
The Crown relies on R v Tolmie (1994) 72 A Crim R 416 at 418 where Hunt CJ at CL (with the agreement of Smart and Badgery-Parker JJ) said, "The remaining sentences no longer are appropriate to the criminality of the remaining offences standing alone. If they were also manifestly inadequate in relation to those offences standing alone, then there should be no reason why a Crown appeal should not be allowed."
Further support for that proposition is found in R v JDX; JDX v R [2017] NSWCCA 9 at [23], [28], and [90] -[96].
The respondent, whilst conceding that the sentence imposed by his Honour was less than intended because of the operation of the totality principle, argues that the sentence is not unjust or unreasonable. He contends that, in any event, the Crown is at fault for not seeking to have its sentence appeal heard prior to the successful conviction appeal and thus, even if the sentence is inadequate, the Court should, in the exercise of its residual discretion, decline to intervene.
It is particularly clear from his Honour's remarks when imposing sentence upon the respondent that the sentence ultimately handed down was reduced specifically to reflect the principle of totality. Had the respondent not been serving a sentence, a longer sentence would have been imposed upon him.
Having set out the facts of the offences consistent with the evidence of the complainant at trial, his Honour referred to the degradation to which the young complainant was subjected by the respondent, and the fear in which she had been placed. He condemned the respondent's utter selfishness in using a young girl in this manner for sexual gratification, and denounced it as utterly disgusting. The respondent's act in trying to buy the complainant's silence by supplying her with cannabis was noted by his Honour to be a particularly serious example of such an offence, and condemned as a morally repugnant act.
The limited utilitarian value of the late plea of guilty to one count of supplying prohibited drug was recognised by a discount on sentence of 10%; whilst that attributable to the somewhat earlier plea entered with respect to the ss 112/347 offence was reflected in a discount of 20%.
His Honour outlined the respondent's personal circumstances, noting his poor health and age, being 53 at the time of sentence. His Honour was not able to give weight to the respondent's untested hearsay account of his circumstances to a psychiatrist and psychologist, and concluded that he had shown no remorse at all. The judge referred to the respondent's negligible criminal history, prior to the matters dealt with by Madgwick QC ADCJ in 2015.
As to that, his Honour observed that he was required to take the earlier sentence into account to reflect the principle of totality. He said, "Ultimately, the importance of the particular remarks of Acting Judge Madgwick is that I, effectively, when I sentence for this matter, have to consider totality, not just for the matters before me but the totality of the matter before Acting Judge Madgwick as well. I have to consider what ultimately is the overall sentence consecutively, including Acting Judge Madgwick's sentence, to make sure that my sentence reflects the totality of all those matters" (ROS15 of 16.12.2016).
His Honour made plain that he would not have made a finding of special circumstances, but for the need to take into account the principle of totality. He said, "In many ways I did not think that he was a suitable person for special circumstances to be found at all. There is nothing in his subjective case that would justify the finding of special circumstances. […] However, because of totality, and the totality not just within this matter but the totality of the Penrith matter, I have had to find special circumstances or, ultimately, the total consecutive time of his sentence in indicating also the Penrith matter would have put this matter outside the 75% ratio" (ROS20 of 16.12.2016).
Later in his remarks his Honour stressed, "I have no desire for him to have special circumstances overall" (ROS21).
The trial judge noted that the total effective sentence, inclusive of the sentence imposed by Madgwick QC ADCJ, was one of 14 years imprisonment, with a NPP of 10 years and 10 months.
Had his Honour not been obliged to reduce the sentence imposed for the offences before him to reflect the overall custodial term the respondent would serve, inclusive of the Penrith sentence, the sentence would not have included a reduced NPP. Absent a finding of special circumstances, the NPP would have been one of 7 years and 6 months.
As in JDX, the (now) false basis upon which his Honour imposed sentence was relevant and highly material to the determination of the NPP. Once the sentence for the Penrith matters was quashed as a consequence of the successful conviction appeal, there was no justification for the reduction in the NPP.
To the extent that it is necessary to so conclude, the sentence and the ratio adopted is an affront to justice, in the sense that the basis upon which a reduction that the trial judge would not otherwise allow was made, is no longer extant. As a consequence, the NPP is manifestly inadequate. To continue to allow the reduction renders hollow the assessment of sentence made by the trial judge, and the sentence that he otherwise thought should have been imposed upon the respondent to reflect the grave criminality of these offences.
I would allow the Crown's appeal against sentence and set aside the sentence imposed. I would re-sentence the respondent with a view to achieving the sentence Pickering SC DCJ intended to impose, absent the totality issue, no lesser sentence being warranted in law. The totality principle and its application will be a relevant feature for the District Court to take into account when imposing sentence for the Penrith offences, of which the respondent has again been convicted.

Conviction Appeal 1. Leave to advance ground 2 and the proposed ground 5 is refused. Leave to advance ground 3 is granted. 2. The appeal against conviction is dismissed.

Sentence Appeal 1. Crown appeal allowed. 2. Sentence imposed on 16 December 2016 is quashed. 3. In lieu, the respondent is sentenced pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) to an aggregate term of 10 years imprisonment, to date from 26 August 2015, and expiring on 25 August 2025. I fix a non-parole period of 7 years and 6 months, which will expire on 25 February 2023. The indicative sentences are as follows: 1. Count 1 (supply prohibited drug): 6 months imprisonment 2. Count 2 (aggravated indecent assault): 3 years imprisonment 3. Count 3 (aggravated sexual assault): 7 years imprisonment 4. Count 4 (aggravated sexual assault): 8 years imprisonment 5. Count 6 (supply prohibited drug): 12 months imprisonment 6. Count 7 (Aggravated commit act of indecency): 3 months imprisonment 7. Accessory after aggravated break, enter and steal: 3 months imprisonment.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 November 2017

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