Lai v R

Court of Criminal Appeal (NSW)|2019-11-08|Before: Gleeson JA, Walton J, Fullerton J

Judgment

GLEESON JA: On 12 April 2018, the applicant, Mr Pacino Kin Yu Lai, was convicted of two offences after a trial by jury before a District Court judge: 1. Count 1: administer intoxicating substance with intent to commit an indictable offence (sexual intercourse without consent), contrary to s 38(b) of the Crimes Act 1900 (NSW); 2. Count 2: sexual intercourse without consent, contrary to s 61I of the Crimes Act.
He seeks leave to appeal against his convictions only.
The two grounds of appeal contend that the trial judge's summing up was unbalanced and unfair and caused a miscarriage of justice.
These grounds require an assessment of the manner in which the trial was conducted and the evidence. Leave to appeal is required as the grounds cannot be said to involve "a question of law alone": Criminal Appeal Act 1912 (NSW), s 5(1)(b). For the reasons explained below, there should be a grant of leave to appeal as both grounds are reasonably arguable.

Crown case

The Crown case was that the accused and complainant were friends for several years, but there had been no romantic or sexual connection between them. The Crown alleged that whilst assisting the complainant to move house on the evening of 21 October 2015, the accused, without the knowledge of the complainant, administered a sedative to her by adding clonazepam to the complainant's glass of Solo soft drink (count 1). The complainant drank the Solo, became sleepy and went to bed. The accused then had sexual intercourse with the complainant while she was not conscious, without her consent (count 2).

Complainant's evidence

The complainant gave evidence that in October 2015 the accused was assisting her to pack and move her belongings from her apartment in Chatswood to a new apartment in Campsie. She had been friends with the accused for two to three years, having met online through WeChat. They both spoke Cantonese and messaged each other in English or Cantonese.
On 21 October 2015, the complainant finished work at North Sydney at approximately 6 pm. She sent the accused a WeChat message. The accused collected her from her apartment in Chatswood and they drove to the Campsie apartment. At the Campsie apartment they set off some "bug bombs" and left the apartment. On their return to Chatswood they picked up some pizza at Roseville and a 1.25L bottle of Solo from a grocery store. They arrived at the complainant's apartment in Chatswood at approximately 9 pm or 10 pm. The complainant went immediately to the bathroom, where she remained for two to three minutes.
When the complainant returned from the bathroom, she sat down in her living room in front of a storage box, which had the pizza on top. The accused was in the kitchen, which was partially visible through a hole in the kitchen wall which operated as a form of food servery to the lounge room. The complainant said that she did not watch the accused pour the soft drink.
When the accused came into the living room he gave the complainant an 8-10 centimetre glass of Solo and he drank a glass of white wine. The complainant drank the Solo and ate about two slices of pizza over a 20-minute period. She did not notice anything unusual about the taste of the Solo.
After drinking the Solo, the complainant felt "really sleepy". She had not felt unwell prior to drinking the soft drink. The accused asked the complainant how she was feeling. She responded that she was very sleepy and needed to sleep. She lay down on a mattress in the living room. At this time, she was wearing jeans and a t-shirt.
The complainant next recalled waking up the following day, having slept through alarms she had set. She was woken by a phone call from the accused at approximately 9 am. He asked her whether she was okay. The complainant did not remember anything else that was said. She had no memory of or physical signs of any sexual activity. She was in her bedroom, wearing a nightie and underpants but no bra. She had no memory of changing her clothes, or as to how she came to be in the bedroom.
The complainant felt unwell and was unsteady on her feet. She sent messages to a work colleague, Mary, saying that she was unwell and would be late to work. Between 9.30 am and 11 am, the complainant had a shower. She was very dizzy and could not stand straight. After the shower, the complainant went back to her bed and slept again.
At about 11 am, the complainant called Mary and her boss, Phillip, and told them that she was still unwell and would not be coming into work that day. Mary gave evidence that the complainant sounded "groggy" and "shaky" during this call. Phillip gave evidence that the complainant seemed "very teary".
Shortly after 11 am, the accused came to the complainant's apartment and they had a conversation in Cantonese. According to the complainant, the accused said, "You were acting weird last night". The complainant said that she could not remember. The accused said, "We had sex". The Cantonese phrase the accused used was, "We had a relationship", which the complainant said in her evidence means "we had sex". The complainant asked the accused whether he had used a condom and he had replied that he had not, as "he was not prepared". The complainant could not remember any more of this conversation. She went back to bed to sleep. She thought that the accused was still in her apartment when she went back to sleep.
The accused returned later with some food at approximately 4 pm. The complainant was still unwell. The accused left after he dropped off the food.
At about 5 pm, the complainant, who still felt unwell, drove herself to the Healthpac Medical Centre in Chatswood and saw Dr Wang. The complainant had sent a text message to the accused when she left for the medical centre, and the accused was waiting for her when she arrived.
The complainant told Dr Wang that she had had sex without a condom, and she could not remember it. Dr Wang recommended the complainant should take a morning-after pill and also go to hospital. (Dr Wang's notes recorded that the complainant was not able to walk straight, and had reported that she "had sex with a married friend, last night, and not able to recall it".)
The complainant went to the chemist at the front of the medical centre and purchased a morning-after pill. She swallowed the pill at the chemist counter. She said that the accused was standing next to her at this time. The accused told the complainant that he could not drive her to the hospital and he drove her home to Chatswood. The complainant then arranged for her friend, Tracy, to drive her to Royal North Shore Hospital Emergency Department.
The accused sent a series of text messages to the complainant while she was waiting at the hospital emergency department. In one message, he said, "I am sorry what's happening last two days … I am same as you I don't mean that's would happen between us" and "I don't want to lose my best friend". The complainant said that she did not reply to these messages because she was angry about what the accused had done to her.
At the hospital, the complainant was initially seen by Dr Julliard, an emergency registrar who referred the complainant to the hospital's sexual assault service. (Dr Julliard described the complainant as unsteady and confused about the events of the last 24 hours. The complainant provided a history of having felt dizzy and nauseous after eating a slice of pizza and drinking Solo.)
Dr Foster, a visiting medical officer at the hospital, conducted a general examination of the complainant, including an examination of the complainant's genital area. That examination showed nothing of concern, which Dr Foster said was "the usual finding with a sexual assault".
The complainant told Dr Foster that she was worried that her drink might have been spiked, and that she may have been sexually assaulted. Dr Foster took a blood sample and vaginal swabs from the complainant. The complainant's underpants were also taken for testing.
Analysis of the blood sample found clonazepam in the complainant's blood. Subsequent testing found no DNA or semen on any of the complainant's vaginal swabs. Testing of the complainant's underwear located semen in the crotch and lower front area of the underpants. The evidence of the DNA expert is referred to below at [40]-[48].
The complainant returned home from the hospital at approximately 3 am on 23 October 2015. She observed that the glasses had been washed up from the night before and the pizza box was no longer in the apartment.
On 25 October 2015, the accused sent the complainant a message which stated: Where do I begin, I guess from the start. I know it doesn't seem that way but I never meant to hurt you never meant for things to go the way they did … sorry … I really don't want to leave, I don't really want to go without you … I don't really want to leave beside … I feel really bad, thinking about the way I hurt you makes me feel really sad. I'm sorry for all the hurt I've caused you … I know sorry's not enough because I'm such a screw up … But for whatever its worth I wanted to say, that you cross my mind every single day …
In a subsequent text message on 3 November 2015, the accused acknowledged that "saying sorry once won't help" and asked the complainant not to ignore him.
The complainant gave evidence of a conversation with a work colleague, Francois, in the week beginning 26 October 2015 during which, "I told her - I remember I told her, like, we had sex, I had sex with someone and I got drugged".
On 16 or 17 November 2015, the accused telephoned the complainant when she was driving and she spoke with him via Bluetooth. According to the complainant, the accused said that on the night of the incident, she fell asleep, and at some time during the night she woke up and needed help to go to the toilet. The accused said that after he had helped the complainant to the toilet, she asked him to have sex with her. He said he "couldn't refuse" even though he should have "push[ed] you away". The complainant told the accused that he should have called an ambulance instead of taking advantage of her. The accused agreed that he should have done that. The accused denied several times drugging the complainant. The accused asked the complainant whether she had received the results of a drug test and she replied that she had not, although she had been told by a doctor on 16 November 2015 that clonazepam had been found in her blood. The complainant accepted that she lied when she had told the accused that she had not received the results of the blood test.
The complainant reported the matter to the police on 18 November 2015.
On 24 November 2015 the complainant participated in a lawfully recorded conversation with the accused after attending the police station. The conversation was in Cantonese. An interpreter gave evidence at trial of that conversation, which included:

The complainant told the accused that a "sleeping medication" had been found in her blood. He denied giving it to her. He said that he "would not do such a thing" and that if he did, he would not have told her the following day.
The complainant said that she wanted to know what had happened that night when she lost consciousness after drinking Solo and eating the pizza. She said, "In fact you said that we had sex between us. Where did that in fact happen? Did I have any response?" to which the accused responded, "I tell you, you had a response". The accused said, "Where did that happen? Was it in the lounge room or in my room?" The accused replied, "In [your] room". The accused agreed that it happened on the complainant's bed to which the complainant replied, "Oh my God".
The accused said that before he left sometime after 3 am, the complainant said she was very tired and needed to sleep. He asked the complainant if she was okay. The complainant said she was okay, and he left about 15 minutes later. He said that he rang the complainant at 9 am the next morning and asked how she was. The complainant asked, "Why would you ring me at 9 o'clock for no good reason if you felt I was okay?" He responded, "You … on the previous night [sigh] … okay".
The following exchange then occurred: Accused: Yes, okay, on the previous night such a thing happened between me and you. Complainant: What thing happened? Accused: Okay, for no particular reason, I had sex with you. Why wouldn't I ring you up? Okay? Complainant: Did you know that I wasn't normal at the time? Accused: I didn't feel that you were abnormal. I didn't feel that you were particularly abnormal. Okay, I can tell you that on that night, in fact you … you …you …on that night, in the very beginning you had more things to say. Apart from having more things to say, I didn't feel that you were particularly abnormal.
The accused said that the following morning he came over to see the complainant, she was very tired and he stayed at her place while she slept. He said that when the complainant awoke she said she would be okay if she had a bath. The accused said he left with the complainant's house keys, and then went home to change his clothes. When the accused returned, the complainant was asleep again with only half of her body on the bed.
The accused asked the complainant what she thought he had done to her. The complainant replied that she was sure that she did not take the sleeping medication. The complainant asked whether the accused had sex with her. He responded, "In fact do we need to talk about these things in such details?" The complainant told him that she did not think that she would have had the ability to call out after she was drugged. He responded, "…[I]f I intentionally did something to cause you harm, would I have told you?" The accused denied drugging the complainant.

The expert evidence

The Crown case included evidence from three expert witnesses: an interpreter who had interpreted the recorded phone call; a pharmacologist who gave evidence in respect of the effects of the drug clonazepam; and a DNA expert who gave evidence about DNA testing.

(i) The interpreter

An interpreter, Ms Teresa Yuk-Ling Lee, gave evidence that a particular phrase used by the appellant during the recorded telephone conversation - "Fat Seung Guan Hai" - translates to "has sex between … sexual intercourse between a man and a woman. That is not between husband and wife". Ms Lee said that the phrase did not refer to "any type of sex. It had to be sexual intercourse". Ms Lee said it did not include hugging, kissing or touching, and confirmed that her interpretation accorded with the Chinese/English Dictionary published by the Beijing University of Foreign Languages.
In cross-examination, it was put to Ms Lee that the phrase "Fat Seung Guan Hai" had a more general meaning of the complainant and the accused having a "relationship". Ms Lee disagreed. She said that whilst "word for word" the words were "happen relationship between us" …"no translator of the right sort would translate that". She was adamant that taken together the four words mean "to have sex".

(ii) The pharmacology evidence

Mr Farrar, a pharmacologist, gave evidence of the sedative effects of clonazepam, which is in the benzodiazepine class of drugs that is used clinically for the treatment of anxiety. He also gave evidence of how it is produced (in pill and in liquid form), how it is made available (by prescription), and its degree of solubility in fluids.
Mr Farrar said that the drug has "pronounced sedative side effects" explaining that meant "an actual inability to stay awake". He referred to other effects as including an inability to form memory (anterograde amnesia), impairment of activities such as walking and balance, confusion, dizziness and, rarely, nausea.
Mr Farrar said that it was unlikely that the drug would have a strong taste or smell based on its ingredients. He said that a 2 mg tablet would be "either completely or almost completely" soluble in a drink, and if the tablet were to be crushed, it could take less than a minute to dissolve.
Mr Farrar said that the sedating effects of the drug would be felt within 10 to 20 minutes of consumption, depending on how long it took the complainant to consume the drink. The complainant's account of having felt tired shortly after drinking the Solo is the effect that Mr Farrar said he would expect if clonazepam was present in the drink.
In cross-examination, Mr Farrar disagreed with the suggestion by the accused's counsel that clonazepam would not be soluble in a drink.
Mr Farrar was also cross-examined about a study conducted by an author referred to as "Dowd" involving 10 subjects who took single doses of 3 mg of clonazepam and were then observed for eight hours. Mr Farrar agreed that the participants in the study were not still sedated at the end of that period and noted that the study reported that the participants "were accompanied home" and that they were still impaired at that time. Mr Farrer noted that there was no mention in the study of the levels of clonazepam concentration in the participants' blood.

(iii) The DNA expert

Ms Wedervang, a DNA expert, gave evidence about DNA testing of the samples taken from the complainant and her underwear. She explained that there are many methods by which DNA can be transferred from one person to another and that the main methods were primary transfer - where somebody has direct contact with a person - and secondary transfer by, for example, touching an item containing another person's DNA.
Ms Wedervang stated that semen was not detected on the smears or the swabs that were taken from the complainant's vagina and vulva.
Ms Wedervang said that two areas of the complainant's underpants tested positive for semen. She explained that semen is comprised of a liquid component and sperm cells. Testing found sperm in both areas. In the crotch of the complainant's underpants, referred to as Area 1F1, testing was able to recover a mixture of DNA that originated from more than one individual. Assuming that there were two contributors, it was greater than 100 billion times more likely to obtain that mixed DNA profile if it originated from the complainant and the accused than if it originated from the complainant and an unknown unrelated individual in the Australian population.
In the lower front of the underpants, referred to as Area 1F2, the DNA recovered was of such a low level that testing could not determine anything beyond the sample being a mixture originating from more than one person.
Ms Wedervang could not say whether the DNA or semen detected on the underpants was deposited by direct or indirect contact, explaining that, if the semen stain was wet, it could have transferred onto the underpants from another area. Ms Wedervang could not say how long the semen had been present, other than it had been transferred to the underwear since the last time it had gone through the washing machine.
In cross-examination, Ms Wedervang explained that it had not been possible to undertake Yfiler DNA testing of inside the complainant's vagina, which could have detected skin cells belonging to another person, because "the cut off" for that test was 24 hours. She said that it would "not be unexpected" to find semen in the vagina after 27 hours if there had been a full ejaculation, but was not prepared to agree that the inverse was true.
In respect of the complainant's underpants, Ms Wedervang did not agree that more sperm would be expected than had been found if semen had flowed from the complainant's vagina onto her underpants. Ms Wedervang explained that liquid components of semen degrade in the vagina and are diluted by vaginal secretions. It would only be if there was a direct, full ejaculate onto the underpants that Ms Wedervang would have expected to see more sperm.
Ms Wedervang said that it was not possible in the present case to extract DNA from the sperm that was in the semen found on the complainant's underpants at Area 1F1. For this reason, whilst it was "most likely" that the male DNA that was located in the crotch of the underpants had come from the sperm, Ms Wedervang could not exclude the possibility it had not.
Ms Wedervang accepted that DNA may transfer from one item to another. She acknowledged studies in which DNA had been transferred from one garment to another when washed in a washing machine. She accepted that it is not unusual for the DNA of a person's spouse, or children, to be found on their clothing. She agreed that it was "possible" that if a person had semen on their hand, and the person then touched clothing that it would be possible for the sperm be transferred onto the clothing.

The defence case

The accused did not give evidence. His account was contained in a record of interview (ERISP) that was tendered in the Crown case. He denied administering the clonazepam, denied having sexual intercourse with the complainant, and denied admitting having done so during his recorded phone call with her.
The accused agreed that he poured the complainant a glass of Solo but said that she was watching him while he did this. He said that after eating the pizza, the complainant said that she was tired and he told her to sleep for half an hour and they would then start packing again. He said that the complainant lay down on a mattress in the living room. She did not sleep; she watched TV and was talking to him and at some later stage she did fall asleep. He said she awoke and said she wanted to go to the bedroom to sleep. He said that the complainant asked him to help her change. He said that he could not do that, and the complainant then undressed and put on her pyjamas. He said that he helped her into bed and he sat with her for about 20 minutes until she slept. He then went home at either 2 am or 2.30 am.
The accused later clarified that after the complainant rose from the mattress in the living room, she went into her bedroom to collect her pyjamas before returning to ask the accused if he could help her change. He said that he told the complainant that he could not. According to the accused, the complainant then took him into her bedroom, holding his hand. The accused said that he did not have sex with the complainant and that the complainant did not ask him to have sex with her. He said, "From what I understand motion she do, probably maybe she, yes, she want to, but she didn't actually say it". The accused said that the complainant took off her own clothes, he put the pyjamas over her head. He said that the complainant was wearing only underwear. She had taken off her bra herself.
The accused said that he called the complainant the following day. He went to her apartment as he was concerned that the complainant had "suddenly" undressed in front of him, and he wanted to check that she was okay. He agreed that he took the complainant to the medical centre, but said that when she went to the chemist he was not standing next to her. He said that he did not know what the complainant purchased from the chemist.
The accused agreed that he sent various text messages to the complainant in which he said he was sorry. He said to the police in his interview that he did not want to lose his friend, that he did not care who was right or wrong.
The accused denied putting clonazepam in the complainant's drink. He denied having sexual intercourse with the complainant and denied ever telling her that he had sex with her. He disagreed that the phrase "we had a relationship last night" means "we had sex".

The trial judge's summing up

The trial judge's summing up commenced in the afternoon of 10 April 2019 and continued the next morning. It is generally only necessary to refer to those parts of the summing up to which complaint is made.
Early in the summing up, the trial judge told the jury: It is not for me to say, well, look the facts are X, Y, Z. It is entirely up to the 12 of you to determine what the facts are. I may have a view about the evidence and about what the factual findings should be and, frankly, I am entitled to express views, but I usually decline to do so. Whilst no objection is taken to this passage, it is relied upon by the appellant in contrast to later comments by the trial judge which are said to contain impermissible comment.
With respect to the expert evidence, the trial judge told the jury: Some parts of the evidence in some cases may appear baffling. Often that is the case with expert evidence or in cases where there is conflicting evidence from various witnesses. But the resolution of those conflicts and that bafflement comes down to the application of your common sense and each of you, obviously, will have bearing to bring in relation to that matter. The appellant says that this passage carried more weight when read together with the passage relating to the DNA evidence referred to below at [60].
The three passages of the summing up in respect of which specific complaint is made are as follows.
On the issue of whether the clonazepam was administered by the appellant, the trial judge said: One of the factors relied upon by the Crown here is that the only other person present according to the evidence of [the complainant] is the accused. That is an example of drawing inferences because the question then arises as to who caused the complainant to consume the drug. Unless you consider that she consumed it herself or that she consumed it inadvertently, then you may infer that it was consumed as a consequence of the administration of it by the accused. I am not suggesting that is a finding you will make, but that is an example of the sort of inference drawing that you can make based upon the factual evidence as it is established. (Emphasis added.)
With respect to the DNA evidence, the trial judge said: I just pause to note that you have heard Ms Avenell address you about what you should make of that. I have a view about it. You may have a view about it. Each of your views may differ about it but it is entirely up to you to decide what that means, but plainly the Crown relies upon the presence of semen, the accused's semen, on [the complainant's] underwear as being part of the circumstantial evidence which may satisfy you as to the two charges the subject of the indictment". (Emphasis added.)
As to the potential meaning of the text messages, the trial judge said: Another example of objective evidence, and it is a matter as to what you make of it, of course, are the messages exchanged between [the complainant] and her colleagues at work and also between [the complainant] and the accused. That is evidence that on its face, is objective. It is a matter for you to determine what can be drawn from that. For example, you might conclude from Exhibit R that the accused apologised to [the complainant] on 25 October in a message sent at about 10.17 pm. That would be the type of finding which you could readily come to without any real concern. As to what he is apologising for, of course, that is a matter which you must decide". (Emphasis added.) The 25 October message referred to in this passage is reproduced above at [25].
Later, returning to the topic of circumstantial evidence, the trial judge instructed the jury: So in a circumstantial case there is no individual fact that can prove the guilt of the accused and, of course, Ms Avenell capably has gone through the evidence and identified from her perspective the gaps in the evidence that might give rise to a reasonable doubt.
After the jury had been sent home on 10 April 2019, counsel for the accused indicated that she "had a few points" to raise, which included, relevantly to this appeal, that the trial judge had emphasised the Crown case at the expense of the defence case and had expressed a personal opinion on a number of factual matters. Counsel objected to the trial judge referring to the accused's presence in the unit as giving rise to an inference that he was responsible for the administration of the drug, and that the jury could "easily find" that the accused was apologising in the text messages.
The trial judge asked whether the submission was made that the summing up was unfair and the accused's counsel responded "at least as far as your Honour has got so far, it hasn't balanced out what your Honour has put by balancing out effectively the Crown case with the defence case". After further discussion, counsel for the accused requested that the trial judge "go through the circumstances that the defence relies on as well". The trial judge requested that counsel for the accused provide overnight a list of the circumstances that she sought to be mentioned to the jury.
The requested list was provided to the trial judge; it contained 18 points which followed the structure of counsel's address to the jury. Given its importance to the appeal, the defence note is reproduced in full: R v Jian Yu Li Note on defence case - 10 April 2018 Count (1): using intoxicating substance to commit an indictable offence 1. The context is of an absence of anything intimate between Mr Li and [the complainant]. 2. There is no evidence suggesting let alone proving Mr Li had access to Clonazepam. 3. It is not possible to find that Mr Li suggested getting a soft-drink. 4. [The complainant] saw Mr Li pouring the Solo; and did not see anything unusual about that. There was a real risk of detection of Mr Li surreptitiously put Clonazepam in the Solo. 5. [The complainant] drank the Solo over 20 minutes. The glass and drink looked and tasted normal. Characteristics of available Clonazepam potentially limit the options to Rivotril 2mg tablets. 6. [The complainant's] suggestion that Clonazepam may have been delivered to her by way of the pizza may be easily dismissed. It is also not the Crown case. 7. Mr Li's statements in the ERISP about the time after [the complainant] had the Solo and pizza may be seen as a reflection of his honesty on the topic. They are not what might be expected from a person who has intentionally administered a drug with sleep and anterograde amnesic effects. 8. [The complainant's] presentation late into the night of 22 October 2015 is not explained on the evidence. 9. [The complainant] did not contemplate and the police did not investigate any other manner of ingestion of the Clonazepam. [The complainant] did not compile a list of all that she ingested over 21-22 October 2015, and her recollection is now sketchy. This leaves the rather bare position that Solo is responsible. 10. There was nothing nefarious about Mr Li washing up and throwing out the pizza box. Count (2): sexual assault 11. The alleged admission on 22 October 2015 cannot be accepted as: it was a curious conversation; [the complainant] was in a terrible mental state; by contrast, Mr Li had a good recollection in the ERISP; the Cantonese expression supposedly used was not an explicit one for sex; and Dr Wang and Dr Foster's evidence is contradictory. 12. It is not possible to find Mr Li was aware [the complainant] bought and took the morning after pill from the chemist. 13. The alleged admission on 18 November 2015 cannot be accepted as: the circumstances of the call do not support the reliability of [the complainant's] account; [the complainant] does not remember what was said in Cantonese, rather her evidence was of her English interpretation; the statement attributed to Mr Li was somewhat equivocal in any event; and Mr Li denied it. 14. The portions of the recorded conversation on 24 November 2015 interpreted as about sex (and using the English word) must be scrutinised carefully. In the ERISP, Mr Li explained what he was talking about viz the undressing incident, knowing the police had recorded the conversation. 15. It is not disputed that Mr Li's DNA was on the crotch spot of the underpants. It cannot be found, however, that: the DNA was from the sperm; the sperm was from Mr Li; or the DNA and sperms' presence on the underpants was related to sexual intercourse. 16. There is otherwise no physical evidence suggesting sexual intercourse took place. 17. Mr Li's version of the evening is in the ERISP. The Crown has not excluded this as a reasonable hypothesis consistent with innocence. Mr Farrar said a person who has taken Clonazepam can: be awake and interacting but have no memory of it; wake up and be woken up; and exhibit disinhibited behaviour leading to inappropriate behaviour. 18. The SMSs must be read in context and bearing in mind Mr Li's explanation. The 25 October 2015 SMS is an odd way to apologise for intentionally drugging and sexually assaulting someone. It is not all appropriate to the circumstances. Moreover, if not satisfied of guilt on the basis of the other purported admissions and circumstances, cannot be satisfied on these SMSs. (Relevant to count (1) too.)
On the following day, the trial judge observed that the defence note, which was marked MFI 18, appeared to be a summary of the defence counsel's address to the jury. Counsel for the accused agreed and then applied for a discharge of the jury on the basis that "the summing up so far has been irretrievably unfair to [the accused]". Counsel submitted that whilst there was no allegation of bias, a wrong impression was created by the summing up, particularly the examples, with one exception, given to the jury of the process of inferential reasoning they had to undertake in what was a circumstantial case referred only to the Crown case.
The trial judge refused to discharge the jury.
The trial judge indicated that whilst he did not intend to recite the submissions for either the Crown or the accused, he would provide the jury with examples of drawing inferences that were unrelated to the case.
When the jury returned, the trial judge directed them as follows: I should just repeat what I said yesterday that the fact-finding process is entirely a matter for you, and whilst I gave you - I think I did give you examples of how you might draw inferences from established facts, it is entirely a matter for you as to whether (a) you find those facts, and (b) whether you draw those inferences. My reference to the evidence was not in any way an attempt to express an opinion or to give you a hint as to what the findings should be, and if any of you were of that view then I apologise and strongly and firmly repeat that it is not my role to determine the facts. It is entirely a matter for the 12 of you alone.
Later, in respect of the drawing of inferences, the trial judge directed the jury: When I gave you the examples about drawing inferences etc I was putting to you as an example matters which the Crown contends for. But as I said to you a moment ago, it is a matter for you as to whether you accept that evidence and whether you draw any inference. I will come back to the inferences in a moment but I was not suggesting to you that you ought to necessarily accept those facts or draw those inferences. His Honour provided an example of differing inferences which may be drawn based on the "telephone example" contained in the Judicial Commission Bench Book. His Honour advised the jury to apply their common sense to the evidence as it exists.
After referring to the possible outcomes in the trial, the trial judge also said: I have no view as to what the outcome should be, and nothing I have said to date and nothing I will say in the future is a hint to you or a suggestion to you that you should go in any particular direction. That is entirely a matter for you.
The trial judge then provided the jury with instructions as to the assessment of the evidence of the three expert witnesses: They, of course, were Ms Wedervang, the pathologist who gave evidence about the DNA test results, and you will recall cross-examination about that, a a matter for you. Also, Ms Lee, the highly energetic and spirited translator who was adamant in her evidence. That is my impression; you can form your own impression about that. Of course, there was Mr Farrar, the pharmacologist who gave evidence about the consumption of the drug and the likely effects of the drug. You might consider, as was submitted, that his description of the side effects, or rather, the effects of the drug, explain or correspond with [the complainant's] presentation on the night of the incident and perhaps for at least part of the day following …
After reminding the jury that the expert evidence was to provide the jury with assistance, the trial judge told the jury with respect to Ms Wedervang's opinion: … her opinion may provide you with assistance in relation to the DNA sample, and the semen located and the DNA located on [the complainant's] underwear. What conclusions you draw from that evidence of course is entirely a matter for you. Mr Farrar's evidence obviously will provide you with some assistance as to what the effects of the medication are likely to have been, and of course Ms Lee hopefully provided you with some assistance as to the translation of words from Chinese into English, and as to the meaning of those words in English.
The trial judge provided the jury with full directions as to the elements of the two charges, including the element of consent.
After the jury retired to consider their verdict, the trial judge asked counsel for the accused whether the wrong impression that counsel submitted had been created by the summing up so far had been ameliorated by his Honour's subsequent remarks in the remainder of the summing up. Counsel for the accused responded, "Yes, your Honour". The appellant submitted in this Court that this exchange cannot invoke rule 4 of the Criminal Appeal Rules (NSW), given that the trial judge had already rejected an application to discharge the jury, and an application that the defence case be put had also been rejected. The Crown did not submit to the contrary.

The nature of the appeal

The grounds of appeal rely upon the third limb of s 6(1) of the Criminal Appeal Act, namely that, "on any other ground whatsoever there was a miscarriage of justice". The third limb covers cases where, by reason of irregularity or otherwise, an accused person has not received a trial according to law or has not received a fair trial: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [14] (French CJ, Bell, Keane and Nettle JJ).
The appellant's complaint is that as a consequence of the asserted unbalanced summing up, he did not receive a fair trial. Although in dissent in Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59, Gageler J uncontroversially observed at [54] that it is necessary for the appellant to establish a causal connection between the irregularity and the conviction in the sense that but for the irregularity, the result might have been different and the appellant might have been acquitted.

Appellant

In submitting that the summing up caused a miscarriage of justice, the appellant relied upon two separate but related complaints.
First, that the summing up was unbalanced and ultimately unfair because the trial judge impermissibly commented on the case in three respects: (a) the issue of whether the clonazepam was administered by the appellant; (b) the DNA evidence; and (c) the potential meaning of the text messages sent between the appellant and the complainant on the days after 21 October 2015.
Second, that the summing up was unbalanced in that the trial judge summarised the Crown case in detail but did not summarise the basis of the defence case. It was emphasised that the trial had run for 10 days, counsel for the accused had taken issue with many of the witnesses in the Crown case, particularly the medical and the DNA witnesses, and counsel had asked the trial judge to address the issues contained in MFI 18, which were the essential submissions made on behalf of the accused to the jury.

Crown

The Crown resisted the appellant's first complaint, arguing that none of the passages of the summing up identified by the appellant contained personal comments of the type deprecated by the High Court in McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5. It was submitted that these passages contained no more than a summary of the Crown case.
The Crown accepted that there were greater difficulties in resisting the appellant's second complaint that the trial judge had failed to put the defence case to the jury.
The Crown acknowledged that if the appellant established that the summing up was unbalanced and unfair, then it did not contend that the proviso in s 6(3) of the Criminal Appeal Act, or rule 4 of the Criminal Appeal Rules applied.

Consideration

It is convenient first to address the second aspect of the appellant's complaint.

Ground 2 - failure to put the defence case properly to the jury

As explained in Roos v R [2019] NSWCCA 67 at [113] (Gleeson JA; Harrison and Davies JJ agreeing): A judge presiding over a criminal trial with a jury is not required to summarise the evidence in every case: Criminal Procedure Act 1986 (NSW), s 161. In Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46, Kiefel CJ, Bell, Nettle and Keane JJ said at [59]: … How the judge structures the summing-up and the extent to which the judge reminds the jury of the evidence is a matter for individual judgment and will reflect the complexity of the issues, and the length and conduct of the case …
Aside from the question of summarising the evidence, a trial judge must fairly put before the jury the case that the accused makes - an obligation which extends to explaining any basis for which the jury might properly return a verdict in the accused's favour: RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 at [41]-[43]; Castle v The Queen; Bucca v The Queen [2016] HCA 46; (2016) 91 ALJR 93 at [59].
The reference to the accused making a case is to be understood to encompass any challenge to the prosecution evidence and submissions: Dickson v R [2017] NSWCCA 299 at [14] and Roos v R at [115]. In Domican v The Queen (1992) 173 CLR 555 at 561; [1992] HCA 13, the High Court said that whether a trial judge is bound to refer to an evidentiary matter or argument: … ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence.
The test is ultimately one of fairness, which is necessarily context-based: Dickson v R at [106].

Application of principles to the facts

The appellant's complaint is not that the trial judge failed to summarise the evidence in the defence case, rather the complaint is that the trial judge failed to fairly put the defence case to the jury.
That complaint is made in circumstances where the focus of the summing up was on the detail of the Crown case, and in explaining the use of circumstantial evidence and inferential reasoning, the examples given by the trial judge had focused on the evidence in the Crown case, such as the concentration of clonazepam in the complainant's blood and the evidence of the appellant's DNA on the complainant's underpants. The appellant's complaint is that the summing up was unbalanced because it failed to alert the jury to the essential grounds of the defence case.
With respect to count 1, the defence case relied upon the following essential matters:

the accused had shown no previous romantic or sexual interest in the complainant and had plenty of prior opportunities to act;
there was no direct evidence of the accused obtaining clonazepam, for example, through prescription; and
there was no direct evidence of the complainant seeing the accused put the drug in her soft drink. These matters had been identified by counsel for the accused in MFI 18 at pars 1, 2 and 4. None were put to the jury by the trial judge.

With respect to count 2, the defence case relied upon the following essential matters:

there was no physical evidence of penetration;
the text messages and conversation between the complainant and the accused were clouded by issues of interpretation, in particular the meaning of the phrase "Fat Seung Guan Hai": see above at [32]-[33].
the DNA evidence was not conclusive; and
the accused had denied the assault in his interview with the police. These matters had been identified by counsel for the accused in MFI 18 at pars 14, 15, 16, 17 and 18. The first three matters were not put to the jury by the trial judge.

As to the DNA evidence, the defence case in cross-examination of Dr Wedervang and in closing submissions advanced three essential propositions. First, that there was no conclusive evidence tying the sperm cells found in the crotch of the complainant's underwear to the DNA trace connected to the accused. Second, that sperm cells are persistent in that they can cling to objects and people. Third, the possibility of transference of semen from one item to another. None of these matters, which had been summarised in MFI 18 at par 15, were put to the jury by the trial judge.
It is common ground that the only aspect of the defence case put to the jury by the trial judge was the reference to the accused's denial in his ERISP of the allegations against him, specifically that the accused denied administering the drug to the complainant and denied any sexual intercourse.
Insofar as the trial judge made a general comment to the effect that counsel for the accused had summarised the defence case in her closing address and identified the gaps in the evidence which, it was submitted, might give rise to reasonable doubt (see above at [62]), that was a wholly inadequate substitute for fairly putting the defence case to the jury.
Accepting that s 161 of the Criminal Procedure Act 1986 (NSW) does not require a judge to summarise the evidence in every case, the trial judge failed to put before the jury the defence case in relation to both counts. It was no answer for his Honour to say that he did not intend to summarise either the Crown case or the accused's case. In the context of the issues raised at trial, and given the cross-examination of the expert witnesses, fairness required that the trial judge alert the jury to the essential grounds of the defence case, being at least, those matters set out in MFI 18 referred to above at [91]-[93]. The failure to do so rendered the summing up unbalanced.
Ground 2 has been made out.

Ground 1 - impermissible comment by the trial judge

It is well established that a trial judge's discretion to comment on the facts should be exercised with circumspection: McKell at [3] and [47], citing RPS v The Queen at [42]. In McKell, the plurality (Bell, Keane, Gordon and Edelman JJ) posed the relevant question as follows at [42]: The issue is whether the trial judge's comments were apt to create a "danger" or a substantial risk that the jury might actually be persuaded of the appellant's guilt by comments in favour of the prosecution case made with the authority of the judge. (Citation omitted.)
The joint judgment in McKell cautioned at [5] that a trial judge should refrain from comments which convey his or her opinion as to the proper determination of any disputed issue of fact to be determined by the jury. This is because expressions of opinion by a trial judge as to the determination of disputed issues of fact are hardly consistent with the function of the trial judge: at [49]. Their Honours noted the tension between a trial judge suggesting to the jury what they "might think" about an aspect of the facts of a case and then directing them that they should feel free to ignore the suggestion if they think differently: at [50]. The risk is that the jury may actually be swayed by the trial judge's suggested determination: at [50]. Their Honours accepted that there may be cases where judicial comment, but not an expression of opinion on the determination of a matter of disputed fact, may be necessary to maintain the balance of fairness between the parties: at [53].
In light of the conclusion on ground 2 it is not necessary to deal with ground 1. However, given its general importance, I will indicate my views.

Whether clozanepam was administered?

A disputed issue of fact on count 1 was whether the complainant had knowingly consumed the drug clozanepam herself or had consumed it inadvertently or as a consequence of it having been administered by the accused. The trial judge's comment on this issue is set out above at [59].
Whilst the comment was put as an example of an inference that could be drawn based on the evidence, as already mentioned, the jury was not alerted to the defence case on this issue. The trial judge's suggestion to the jury as to what they "may infer" about the circumstances in which the complainant consumed the drug, followed by a direction to the jury, "I am not suggesting that is a finding you will make," carried the very type of risk identified in McKell at [50] that the jury may actually be swayed by the trial judge's suggested determination. The difficulty with this comment was heightened by the trial judge's earlier comment that he usually declined to express a view on factual findings.

DNA evidence

There are two difficulties with the trial judge's comment on the DNA evidence, which is set out above at [60].
First, the comment contains a misstatement of the evidence of the DNA expert, Ms Wedervang. Rather than referring to the accused's semen being detected on the complainant's underwear, the reference should have been to the accused's DNA, which, while most likely coming from the deposit of sperm cells, may possibly have come about through skin cells or transference. Ms Wedervang accepted that the sperm cells were not conclusively shown to have originated from the accused.
Second, as the Crown fairly conceded, the trial judge's comment was prefaced by the observation, "I have a view about it", which was entirely otiose and should not have been made. The difficulty with this comment was heightened by the trial judge's incorrect summation of the Crown case on the DNA evidence.

The text messages

The trial judge's comment on the potential meaning of the appellant's text messages is set out above at [61].
Contrary to the appellant's submission, it was not impermissible for the trial judge to describe this text message as an apology. Plainly it was. At trial, counsel for the accused did not contend that the text message did not contain an apology; the submission was that the accused was not apologising for intentionally drugging the complainant. The trial judge correctly identified the real issue as being what the accused was apologising for. However, as explained in relation to ground 2, having correctly identified the real issue, the trial judge failed to fairly put the defence case to the jury to the effect that the text messages and conversation between the complainant and the accused were clouded by issues of interpretation.
Ground 1 has been made out in part. Accepting that the summing up must be viewed as a whole (McKell at [39]), the comments by the trial judge conveying his opinion as to the disputed issues of fact concerning administering the drug clonazepam, and the DNA evidence, crossed the line of permissible comment. These comments were apt to create a danger or a substantial risk that the jury might actually be persuaded of the accused's guilt by the trial judge's comments in favour of the Crown case: McKell at [42]. To that extent, the summing up was unfair.

Conclusion and orders

The appellant has established that a miscarriage of justice occurred by reason of the unbalanced and unfair summing up. It was common ground that if this ground was established then, in addition to quashing the convictions, there should be a retrial.
I propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal against conviction on counts 1 and 2. 3. Quash the appellant's convictions on counts 1 and 2. 4. Direct a retrial on counts 1 and 2, and that the matter be listed for mention before the District Court at Sydney on 17 January 2020.
WALTON J: I agree with the orders proposed by Gleeson JA. I agree with his Honour's reasons with respect to ground 2 of the appeal and his observations regarding ground 1.
FULLERTON J: I agree with Justice Gleeson.

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: 05 February 2021

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