Macri v R

The applicant's case

1. The applicant gave sworn evidence to being married at the time of the alleged offences but having had an extra-marital affair with the complainant's mother for some years. He agreed that he gave the complainant's mother the bracelet dated 25 December 1987 and accepted he was in a relationship with her at that time.
2. He stated that he always met Carol at her house, usually on a Monday, "definitely" on a Saturday and, if the children were not there, on a Wednesday. He agreed that when he visited Carol's house, he "always" had the Nissan 300ZX sports car which had pop-up headlights. He came into possession of the car in 1984 or 1985.
3. He would usually leave Carol's home at about 11.30pm on a Saturday night and 11pm on a Monday night because he had to work the following day. He agreed he had some contact with the children when he went there during the week. He adamantly denied ever reading to them or putting them to bed as he did not even do that for his own children.
4. He stated that he did not recall Carol ever sleeping when he was there. He denied ever drinking to excess when he was visiting Carol as he had to drive home. He accepted that it was possible he had spoken in Italian with the complainant. He denied paying any special attention to any of the three children stating, "I cared for the three of them". He saw the complainant's mother less when she moved to Casula as it was too far away. He thought the relationship ended in about 1994 when his mother died. He denied ever driving the complainant alone in his car.
5. He stated that he would only shower at Carol's place when the children were not there.
6. He remembered an occasion when the complainant was caught truanting. Carol confronted him on a Saturday afternoon and told him that the complainant had said he was "having sex with her". The complainant was at Casula High by then, so this was in the period from August to October 1991. His evidence was that nobody else was present at this time. He was asked what he said to Carol, and he responded as follows: "Q. What, if anything did you say to [Carol]. A. I told her 'no, no way'. Then we were sitting on the lounge at the time and we had - I can't remember the conversation we had but I remember saying to her, 'Would you mind if I spoke to [Donna] with you present?' And she said, 'Yes.' And I can't remember if we - if she called [Donna] into the lounge or into the kitchen, I'm not sure, but I spoke to [Donna]. Her mum was present. I said to her, 'Mum says you told her that I've been sex with you', 'Have I had sex with you?' And she said, 'No.' I said, 'Have I ever attempted to have sex with you?' She said, 'No.' I don't know how that conversation ended but that was it."
7. He continued the relationship with Carol after this discussion for another 12-18 months.
8. About two to three years after he ended the relationship with Carol, the complainant contacted him and asked for money. He agreed to meet her in Arncliffe. She sounded "a little bit upset". He gave her either $50 or $100. He gave her the money because he cared for her.
9. He was asked about the recorded telephone conversations with the complainant. He stated that he asked her to call back because he thought his wife might hear the conversation and he did not want that. He was in his home office for the first call. He went downstairs and into the backyard for the second call. He agreed that he knew by now that she had made an allegation against him. He was being truthful when he told her that he had been trying to track her down. When he said to her, "I've always cared about you", he meant he had cared about her family.
10. When he said to her, "I don't know what I've done", and that he was "really very sorry and if you tell me what you want, I'll agree to make amends", he explained that she sounded "a little distressed" and he wanted to appease her "just to keep her calm". He denied that he was apologising for anything in particular at that time. He explained that he agreed to make amends just to keep her "calm, happy" because he was worried that the affair would be exposed to his wife.
11. When he asked the complainant what she wanted during that call and stated, "I've always cared for you", and "I can't bring myself to believe that I have done something wrong," he was referring to the allegation of sexual abuse. At that time, he had a recollection of the conversation in Casula in 1991.
12. After 1991, he had had no contact with the complainant about that issue before the telephone calls that day. He did not know why he used the words, "I just don't believe I could do something like that". He explained that it was true that he had been searching for the complainant and her family (on the Internet) because he wanted to know how they were getting on.
13. He vehemently denied vomiting during the conversation (where Carol put the allegations to him) in 1991.
14. He explained that he apologised to the complainant during the calls as he was just trying to keep her calm and she "sounded like she was getting more and more excitable". He was not apologising for sexually assaulting her.
15. He otherwise denied each allegation.

Cross-examination

1. The applicant was asked about his explanation in the pretext call that he was trying to keep the complainant calm and explained that he thought she might have attempted to have hurt herself. He agreed that he had no knowledge of the complainant ever hurting herself or attempting to do so. He stated that he was worried about the affair coming out. He stated that he was not worried about the allegations because they were not true. He agreed that that was not what he said to the complainant.
2. He stated that he did not know why he did not deny the allegation in the pretext calls. He agreed that he was emphatic in his denials before the jury but not in the calls with the complainant but stated that he had a "few more things" going on in his mind during the call. When asked how telling that he could not remember would keep her calm he responded that he was just trying to appease her. He agreed that he did not once suggest to Donna that she had made it up, even though he knew what she had told her mother in 1991.
3. He agreed that he could not dispute that his relationship with Carol started earlier than the date on the bracelet (25 December 1987).
4. He was adamant that Carol had never fallen asleep when he was there. He was also adamant that there was never a time the complainant was in his car alone with him.
5. As for giving Donna the money two or three years after she alleged to her mother that he had sexually assaulted her, he explained it was because he "cared for her". When asked whether he still cared for her even though she had accused him of sexual assault, he answered "[a]bsolutely".
6. He stated that he was more worried about his wife finding out about the affair than the allegation of sexually assaulting a child.
7. He agreed that the reason he asked Donna how he could make amends in the pretext call was so that she would not go to police. He stated that he kept talking to her because he was concerned about her wellbeing. He denied he told her about his pending results to make her feel sorry for him so she would not report the mater to police. He agreed that his memory was "reasonable" at the time of the call; he certainly remembered the 1991 conversation

Summing up

1. Her Honour gave the following warning to the jury with respect to disadvantage to the applicant as a consequence of delay: "DIRECTION ON DISADVANTAGE AS A CONSEQUENCE OF DELAY There is a warning I must give you relating to this issue of the delay in any complaint being made by the complainant and the accused being made aware of the allegations. The focus is on the consequences of the delay as distinct from mere delay. It is most important that you appreciate fully the effects of the delay and the specific difficulties encountered by the accused in testing the evidence of the prosecution or in adducing evidence in his own case. The period charged is a period of almost five years. The evidence at trial concerns a period of time up to 35 years ago. This is a considerable passage of time. The accused was not made aware of any specific allegations until his arrest in May of 2019. The complainant said she spoke to her mother in 1991 about the accused touching her and that the accused said he would go to gaol. The accused said this did not occur. He said the complainant did complain to her mother that he touched her when she was in trouble for truanting, but that she then retracted it. He said it was never spoken of again. The complainant's mother died in 2013, and there is no evidence from her about the movements in the house and the terms of the complainant and the accused's response. There is no dispute that in 1991 the complainant did tell her mother about the accused sexually abusing her. What is in issue is what was said in the presence of the accused. The passage of time has made it impossible to locate the home school liaison officer to ascertain if the complainant did make a complaint in 1991 and, if so, what was said. The witnesses who were told of sexual abuse were unable to be precise about the timing or content. When you consider the complainant's evidence, you should bear in mind that the fact that she no longer has a memory and could not answer a number of questions made it difficult for Mr Johnston to challenge her account or obtain further evidence from her. One of the purposes of cross-examination is to allow the defence to test evidence adduced by the prosecution for the purpose of seeking to demonstrate weaknesses in that evidence or to elicit further material to raise a doubt with respect to the allegation. The defence is substantially unable to do that in this case for reason that the complainant indicated she had no memory of the incidents beyond her account of the act and some additional points. The complainant's inability to recall precise details of the circumstances surrounding incidents makes it difficult for the accused to throw doubt on the evidence by pointing to circumstances which might contradict it. Had the accused learned of the allegations at a much earlier time, he may have been able to recall relevant details which could have been used by his counsel in cross-examination of the complainant. Had the accused learnt of the allegation at a much earlier time, he may have been able to find witnesses or items of evidence that might have contradicted the complainant or supported his case or both. He may have been able to recall with some precision what he was doing and where he was at a particular time or particular periods and to have been able to bring forward evidence to support him. Memories may fade and become distorted by time. Accordingly, because the accused is put in this situation of disadvantage, he has been prejudiced in the conduct of his defence. As a result, before you can convict the accused, you must give the prosecution case the most careful scrutiny."

Application for a permanent stay

1. On 13 August 2020, the applicant filed a notice of motion before his Honour Judge Ingram SC seeking, inter alia, that the indictment be permanently stayed. The applicant relied on the affidavit of his solicitor, Gayanie Walton, affirmed on 13 August 2020 and the written submissions dated 12 August 2020. The Crown relied on written submissions dated 16 August 2020.
2. His Honour heard the application on 17 August 2020 and on 18 August delivered his reasons for refusing the application.

Reasons of Ingram SC DCJ

1. His Honour set out the Crown case and relevant procedural history. He went on to summarise the submissions in support of the application for a permanent stay as follows: 1. That the timeframe in the indictment was too broad being almost 5 years. 2. That 33 years has elapsed since the time of the alleged offending. 3. That not one of the indictment, the Crown case statement or any of the witness statements disclose sufficient particulars to allow the applicant to present any defence.
2. His Honour noted the applicant's position that the range of dates disclosed is unreasonably broad and unfair. It was submitted that it precluded the accused from having a fair trial and would bring the administration of justice into disrepute.
3. It was further submitted that the delay resulted in significant forensic disadvantage to the accused by reason of several factors including the diminution of the complainant's memory. Reliance was also placed on the fact that the complainant's mother had died. It was submitted that a warning pursuant to s 165B of the Evidence Act 1995 (NSW) in relation to the significant forensic disadvantage would be insufficient in the circumstances of this case.
4. His Honour went on to set out the relevant legal principles in some detail citing Jago v District Court of NSW (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378; Adler v District Court of NSW (1990) 19 NSWLR 317; Barton v Regina (1980) 147 CLR 75; Regina v Moore (2015) 91 NSWLR 276; Regina v RD [2016] NSWCCA 84; S v The Queen (1989) 168 CLR 266; Regina v Littler [2001] NSWCCA 173; and Jackmain (a pseudonym) v Regina [2002] NSWCCA 150.
5. In refusing to grant a permanent stay his Honour noted that the focus of the applicant's submissions was the prejudice to him to the exclusion of other considerations such as the public interest and public confidence in the administration of criminal justice. He was satisfied, however, that the applicant accepted that those broader factors weighed against the grant of permanent stay in the applicant's matter.
6. His Honour referred to the allegations of "serious child sexual assault offences" against the applicant and stated his satisfaction that the factors of public interest and public confidence weighed heavily against a permanent stay being granted. In considering the issues of delay and prejudice to the accused, his Honour noted that some evidence was no longer available but went on to observe that the prejudice could be cured either through the evidence of a Crown or defence witness and/or submissions of senior counsel appearing for the accused and/or by directions. His Honour then concluded in the following terms: "Having regard to all the relevant circumstances including those relied upon by the accused, the court was not satisfied that the accused had discharged the heavy burden of establishing that the continuation of the prosecution is inconsistent with the recognised purpose of criminal justice and should be stated as an abuse of the court process. Further, the court was not satisfied that there is a fundamental defect going to the root of the trial which is of such a nature that there is nothing that a trial judge can do to relieve against its unfair consequences."

Applicant's submissions

1. The applicant acknowledged that the decision whether to grant or refuse an application for a permanent stay involves the exercise of a discretion by the trial judge. Therefore, on appeal, "some error must be demonstrated in accordance with the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40". The applicant submitted that "it was not reasonably open to his Honour to refuse the permanent stay application having regard to the breadth of the indictment and the issues flowing from the delay".
2. The applicant then set out some principles relevant to the determination of applications for a permanent stay of criminal proceedings (discussed below at [130]-[135]).
3. The applicant submitted that the date range on the indictment was "an extraordinarily broad period spanning almost 5 years", giving rise to incurable difficulties, being the following: "(1). The circumstances of the alleged offending were distinctly vague. (2) There was an almost complete lack of any details of events, facts or circumstances surrounding the alleged offending. (3) The Crown case was not even able to particularise the sequence of alleged acts in counts 1, 2 and 3 (that is, which alleged at occurred first, second or third). (4) The lapse of time and the impact on both memory, and availability of evidence. (5) The applicant was not in a position to properly understand the time that the alleged offences were said to have occurred. (6) The applicant was hamstrung in his ability to properly challenge the Crown case and effectively test prosecution evidence. (7) The applicant was, in effect, limited to a blunt and basic denial of the allegations (which a jury may well have found unconvincing as a result of the rudimentary nature of the simple basic denials)."
4. The applicant contended that as a result of the broad date range on the indictment and the resulting difficulties he was unable to receive a fair trial and could not raise a proper defence or alibi. This was said to be consistent with the observations of Gaudron and McHugh JJ in S v The Queen (1989) 168 CLR 266; [1989] HCA 66 at [10] to the effect that the accused in that case was "denied the opportunity to test the credit of the complainant by reference to the surrounding circumstances" as would have been possible if the acts charged had been better particularised in time or otherwise. In this case, the applicant submitted that the uncertainty could not be cured by way of further particulars, as the complainant was unable to provide any further detail of surrounding circumstances, sequencing, or timeframe.

Crown submissions

1. The Crown relied upon the decision in Bandao v R; Bruce v R [2018] NSWCCA 181 at [155] (discussed below) as to the relevant test and submitted that there was a significant degree of overlap between the complaints made under this ground and ground 2.
2. The Crown noted that no specific error was identified by the applicant in relation to the trial judge's decision to refuse the application for permanent stay. The complaint, as understood by the Crown, was that "it was not reasonably open" to refuse the stay and that the stay "ought to have been granted", "presumably invoking the fifth limb of House v The King". It was submitted that not only is no error identified in the decision of the trial judge but that the way the trial unfolded showed that his Honour's refusal of the application was well open.

Consideration

1. The applicant appeals against his conviction under s 6(1) of the Criminal Appeal Act. That section provides that in addition to allowing a conviction appeal if the court is of opinion that the verdict of the jury is unreasonable ("the first limb"), or that that there has been a wrong decision of any question of law ("the second limb"), an appellate court shall allow an appeal if it is of the opinion that "on any other ground whatsoever there was a miscarriage of justice" ("the third limb").
2. The applicant does not contend under this ground that there has been a wrong decision on any question of law, and unreasonable verdict is the subject of ground 2; thus, the resolution of this ground turns on whether there has been a "third limb" miscarriage as a result of the refusal by Judge Ingram SC to permanently stay the trial.
3. The relevant principles regarding the granting of a permanent stay are well established and are derived from a number of decisions of the High Court: Tuckiar v The King (1934) 52 CLR 335; [1934] HCA 49, The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16 ("Glennon"), Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 ("Dupas"), Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53 ("Strickland"), The Queen v Edwards (2009) 83 ALJR 717; [2009] HCA 20 ("Edwards'"), Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48 ("Barton"), Jago v The District Court of NSW (1989) 168 CLR 23 [1989] HCA 46 ("Jago"), Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77, and Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41. The principles derived from these decisions, and decisions of this Court, can be summarised as follows:
4. The power to permanently stay proceedings will only be granted in an extreme or exceptional case: Barton at 111; Jago at 34; Glennon at 605-606; Agar v Hyde at [57]. In order to justify a permanent stay, there must be a fundamental defect which goes to the root of the trial of such a nature that there is nothing the court can do to relieve against its unfair consequences: Jago at 34; Glennon at 605-606; Dupas at [18], [35]; and Strickland at [106].
5. As the High Court observed in Dupas at [39], fairness to the accused is not the only relevant factor. Rather, a trial judge determining whether to permanently stay proceedings must: "[39] … take into account the substantial public interest of the community in having those who are charged with criminal offences brought to trial; the 'social imperative' as Nettle JA called it, as a permanent stay is tantamount to a continuing immunity from prosecution. Because of this public interest, fairness to the accused is not the only consideration bearing on a court's decision as to whether a trial should proceed."

Applicant's submissions

1. The applicant set out the relevant principles when determining whether a verdict or verdicts are unreasonable under s 6(1) of the Criminal Appeal Act. The focus of the applicant's submissions on this ground was that the Crown case relied wholly on the complainant's testimony and the evidence of complaint, and that the overall quality of the evidence was so lacking that this Court would be satisfied that a jury acting reasonably ought to have entertained a reasonable doubt in respect of each count. The applicant then detailed his complaint by addressing the following issues in turn.
2. First, the applicant raised "issues with the evidence of the complainant". The applicant submitted that the recollection of the complainant was "exceptionally vague and lacking in particulars", noting especially her inability to give any meaningful detail about time, sequence, or circumstance. The applicant characterised the nature of the complainant's recall as "no more than a feeling". In relation to the first count, it was pointed out that the complainant was uncertain if she in fact had a memory of the incident prior to the first "flashback". In relation to the second count, the applicant noted that the complainant did not remember seeing the applicant but simply "knew" it was him. The complainant's evidence was affected by a "real and tangible inadequacy", preventing the applicant from challenging her evidence or credit, that ought to have created a reasonable doubt.
3. Secondly, the applicant addressed "the evidence of complaint". It was noted that complaint evidence is not "independent" but simply "additional" evidence (citing SB v R [2020] NSWCCA 207 at [217]). It was submitted that the complaint evidence could not overcome the lack of particularity of the allegations themselves and that the complaint witnesses' accounts differed somewhat to the complainant's evidence of complaint. On the applicant's submission, the same generality and vagueness affected the complainant's complaint to her mother in 1991 and the subsequent "confrontation" with the applicant. There was also no evidence to corroborate the complainant's evidence in respect of the school counsellor; in fact, the counsellor's evidence somewhat contradicted the complainant's evidence.
4. Thirdly, the applicant pointed out that the pretext call contained no admissions and that he was of good character (no criminal record). These factors meant that the jury ought to have either accepted the applicant's evidence or that at least it raised a reasonable doubt.

Crown submissions

1. Counsel for the Crown identified the relevant principles and the decisions from which they are derived. He also responded to each of the complaints made by the applicant under this ground in turn. I have considered those responses in my determination of this ground below.

Consideration

1. The applicant contends that his convictions are unreasonable and cannot be supported having regard to the identification evidence of him as the perpetrator. The relevant principles for an appellate court to apply when considering whether a verdict is "unreasonable" in this context are well established. In M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mason CJ, Deane, Dawson and Toohey JJ explained the relevant test in this way (at 493) (footnotes omitted): "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is 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. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." (Emphasis added.)
2. The High Court re-stated the applicable test in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. In their joint judgment at [13]-[14] French CJ, Gummow and Kiefel JJ stated the following (footnotes omitted): "[13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.' … [14] In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make 'an independent assessment of the evidence, both as to its sufficiency and its quality'. In M, Mason CJ, Deane, Dawson and Toohey JJ stated: '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'.'"

ORDERS 1. Leave to appeal granted. 2. Appeal dismissed.

1. LONERGAN J: I have had the significant advantage of reading the judgments of N Adams J and Beech-Jones CJ at CL in draft. I have carefully and critically examined the record of the trial, mindful of the task articulated in Pell at [38]. There is precision and cogency in the descriptions given by the complainant of the specific acts that constitute the criminal conduct of which the applicant was convicted by the jury. The language she uses to describe the acts and her recollections of them is clear and unembellished.
2. I am satisfied that it was well open for the jury to convict the applicant on all three counts.
3. I agree with her Honour's reasons and the orders that she proposes, save that I am not convinced that the pretext calls added much to the strength of the Crown case. I agree with the additional comments of Beech-Jones CJ at CL.

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