MAJW v Regina

CATCHWORDS: CRIMINAL LAW - appeal against conviction and sentence - whether Crown Prosecutor's final address implicitly asked the jury to accept the complainant's evidence because the accused had not established a motive for her to tell lies - whether Crown Prosecutor's final address or cross examination implicitly invited the jury to discount the accused's evidence because of his interest in securing his acquittal

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

Brown v R [2008] NSWCCA 306 DOE v R [2008] NSWCCA 203 House v The King [1936] HCA 40; (1936) 55 CLR 499 Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 Ramey v The Queen (1994) 68 ALJR 917 R v Attard [2004] NSWCCA 376 R v Booty NSWCCA (19 December 1994, unreported) CASES CITED : R v Henry [2004] NSWCCA 306 R v Lenati [2008] NSWCCA 67 R v MAJW [2007] NSWCCA 145; (2007) 171 A Crim R 407 R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 R v Swan [2005] NSWCCA 252 Robinson v The Queen [1991] HCA 38; (1988-1989) 180 CLR 531 S v R [2008] NSWCCA 186 South v R [2007] NSWCCA 117 Stafford v The Queen (1993) 67 ALJR 510

PARTIES: MAJW (Appellant) Regina (Respondent)

COUNSEL: A Francis (Appellant) N Noman (Respondent/Crown)

SOLICITORS: Legal Aid Commission (Appellant) Solicitor for Public Prosecutions (Respondent/Crown)

IN THE COURT OF CRIMINAL APPEAL CCA 2007/3826

MACFARLAN JA HOWIE J HISLOP J

WEDNESDAY 14 OCTOBER 2009 MAJW v REGINA Judgment 1 MACFARLAN JA: The appellant was tried in November 2006 before Solomon DCJ and a jury on an indictment containing 15 charges. On 14 November 2006 the trial judge directed a verdict of not guilty on count 14. On 16 November 2006, the jury returned verdicts of guilty on the remaining 14 counts which were as follows: (a) Aggravated indecent assault (s 61M(1) Crimes Act 1900) (counts 1, 4 and 5) (b) Aggravated sexual intercourse with child between 10 and 14 years (s 66C(2) Crimes Act ) (counts 6 to 12). (c) Aggravated sexual intercourse with child between 14 and 16 years (s 66C(4) Crimes Act ) (counts 2, 3 and 15).

(d) Produce child pornography (s 91H(2) Crimes Act ) (count 13). 2 Each of the offences was committed in relation to ZW who was the appellant's step-daughter. The evidence at the trial was that ZW, the complainant, believed the appellant to be her biological father until she was informed that that was not the case not long before the appellant was arrested. The complainant is the eldest of five daughters. They were living with their parents at the time of the offences. The complainant was then between 11 years and 14 years of age. 3 On 17 August 2007, the appellant was sentenced by Solomon DCJ. His Honour imposed an aggregate sentence of 10 years 8 months with an effective non-parole period of 9 years, dating from 28 March 2006. The delay in sentencing was occasioned by an application by the Crown for amendment of the indictment, with a subsequent referral of issues of law to this Court (see R v MAJW [2007] NSWCCA 145; (2007) 171 A Crim R 407). The application was unsuccessful but found by the Court to be unnecessary.

Grounds of Appeal 4 The appellant has appealed against his conviction and sought leave to appeal against the sentence imposed upon him. The grounds upon which he relies are as follows:

"Conviction 1. The Crown Prosecutor's address gave rise to a miscarriage of justice insofar as the address: a) invited the jury to speculate as to the reasons why the complainant would have a motive to lie; b) invited the jury to speculate about the motive the appellant may have to lie in asserting his innocence and; c) in combination invited the jury to speculate about which of the witnesses, namely the complainant or the appellant, had the greater motive to lie in their evidence. 2. The Crown Prosecutor's cross-examination gave rise to a miscarriage of justice by requiring of the appellant to address the proposition that he was lying in asserting his innocence because of his interest in the outcome of the proceedings.

Sentence 1. His Honour erred in imposing a sentence where the non-parole period comprises eighty-four percent of the overall term. 2. His Honour erred in his approach to, and in not finding, special circumstances. 3. His Honour allowed an inadequate discount for the assistance provided by the applicant."

The Crown's Case at Trial 5 The principal evidence called by the Crown at the trial was as follows. 6 The complainant gave evidence by remote CCTV of the commission of the offences the subject of the counts upon which the appellant was convicted. The earliest of these comprised aggravated sexual intercourse occurring between 4 February 2002 and 22 May 2003. Following further offences, and in particular following an incident of aggravated sexual intercourse which occurred in March 2006, the complainant confided in her friend, JH. She wrote JH a note saying "My dad molests me". As a result of a discussion between them, the two girls went to see a school counsellor and the complainant was subsequently interviewed by the police. 7 The evidence given by the complainant in relation to the offence of producing child pornography (count 13) was that on five occasions the appellant took nude or semi-nude photographs of her in a variety of explicit poses. 8 Counsel for the appellant put to the complainant in cross-examination that she was unhappy and angry with the appellant when the family had to move house due to a back injury suffered by him, that as a result of the move there was much arguing between the complainant and the appellant and that the appellant became very harsh in terms of his discipline of her. It was also put to her that she was unhappy with the appellant because he had forced her to change schools after an incident which suggested that she had been involved in drugs. 9 Other matters which were suggested in cross-examination to have made the complainant angry with the appellant, and to have provided a motive for her to make unfounded allegations against the appellant, included the following: - Over a lengthy period of time the appellant regularly and severely disciplined the complainant by use of a strap. - The family's financial position became difficult after the back injury was suffered by the appellant. - The complainant was caught consuming some of the appellant's medications. - The complainant's cousin had told her that the appellant was not the complainant's biological father. 10 The complainant denied that she was angry at the appellant for any of these reasons. 11 It was put to the complainant in cross-examination that none of the incidents of a sexual nature of which she gave evidence occurred. In particular, it was put to her that the appellant did not have erections and did not ejaculate and that the incidents could not have occurred because the appellant had great difficulty in obtaining an erection due to his back injury. Again, these propositions were rejected by the complainant. 12 The complainant's friend, JH, gave evidence by remote CCTV of the complaint by ZW and that ZW told her that there were photos, and possibly a video, which the family were looking for. 13 A sister of the complainant, EW, gave evidence by remote CCTV that the day after the arrest of her father she found a photo memory card, condoms and lubricant on a ledge above the bathroom door and that she had, without her father's knowledge, seen him putting the things there. 14 The complainant's mother gave evidence of EW's discovery of the items above the bathroom door, of having placed the photo memory card in a digital camera and of having recognised the complainant in the photos. These photos became the subject of Count 13, upon which the appellant was convicted. After the conclusion of the evidence at the trial, the Crown sought an order under s 100 of the Evidence Act 1995 permitting use of these photographs as tendency evidence in respect of the other offences with which the appellant was charged, notwithstanding that prior notice of this intended use had not been given pursuant to s 97. The trial judge refused the application and gave appropriate directions covering use of the evidence in his Summing-Up.

The Appellant's Case at Trial 15 The appellant gave evidence that all of the allegations against him were false. He said that he suffered a severe workplace accident in 2001, as a result of which the family's financial situation changed drastically and there was a need to move home. He said that the move made the complainant very angry and that, in response, he became angry and disciplined her using a strap. He said that between 2002 and 2006 there were times when he used the strap on the complainant on a daily basis. 16 He said that he was responsible for the complainant changing schools after a suggestion had been made that the complainant was involved in drugs and that her response to the change was one of great anger towards him. About the same time, the complainant was told that the appellant was not her biological father, resulting, so the appellant said, in the complainant becoming angry and calling him a liar. 17 He said that from 2004 to March 2006 the relationship between himself and the complainant was very confrontational and that he used strong measures to discipline her. 18 The appellant said that he had no recollection of the photo memory card and did not take the photographs of the complainant. He also gave evidence of serious erectile difficulties. 19 The cross-examination of the appellant by the Crown Prosecutor commenced as follows: "Q. You suggest that [ZW] has made all these allegations up for some reason? A. Yes". 20 After questions were directed to the time at which the appellant became aware of the allegations, the Crown embarked on a detailed and forceful cross-examination concerning the matters which the appellant said had caused the complainant to be angry towards him, and concerning various other aspects of the appellant's evidence. The cross-examination occupies some 20 pages of transcript. Near the end of the cross-examination the following exchange occurred: "Q. Look, the real situation is, isn't it, that you've come along here and you've tried to lie your way out of trouble? A. It's untrue. Q. To have this jury accept a whole bunch of lies by yourself to get yourself out of trouble? A. It's untrue". 21 The cross-examination concluded with the following: "Q. And I suggest to you that what you, and I've done this before but I'll do it this one last time, I suggest to you that what you've done is come along here and you've tried to lie your way out of this? A. You're wrong".

The Crown's Address 22 The portion of the Crown Prosecutor's address which is the subject of complaint by the appellant occurred near the commencement of the address and was in the following terms: "When you come to make assessments of witnesses, his Honour told you at the start of the trial that one of the things you do is you look at the way the witness gave the evidence, the demeanour of the witness. You saw in this courtroom the witness, [ZW], give evidence by means of closed circuit TV, same with [JH] - she gave it by means of the TV - doesn't mean that you give it any less or any greater weight than what you would any other witness in the case, it's simply a means of facilitating the evidence that that witness gave, but one thing you do do and you still had the opportunity to do was to look at the witness as she gave her evidence, and I'm talking now about [ZW], look at her as she gave her evidence; look at the way she gave the evidence, her demeanour, look at the mannerisms that she showed you as she gave her evidence, and you make the decisions whether or not you accept what she said or whether you don't. As with any other witness in the case as with the accused, you're entitled to scrutinise the evidence of the accused and [JH], scrutinise it carefully, say to yourself - Is there any reason why either of these people would want to tell us lies - they're all things that you can consider when you're going about your duty as jurors in deciding what you accept and what you don't accept" (emphasis as appearing in the appellant's written submissions on appeal). 23 At the next break, counsel for the appellant complained about this passage and also referred in a critical fashion to the Crown Prosecutor in cross-examination having put to the appellant questions to the effect: "you're trying to lie your way out of trouble" (see [20] above). At the conclusion of this morning tea adjournment, counsel for the appellant applied for the jury to be discharged. This application was rejected by the trial judge who said that he would nevertheless give a "strong direction" to the jury in respect of the onus of proof.

The Summing-Up 24 Early in the Summing-Up, the trial judge gave clear directions to the jury concerning the presumption of innocence and repeatedly referred to the Crown's onus of proof beyond reasonable doubt. Later in the Summing-Up he said the following: "Now members of the jury, you have heard the complainant give sworn evidence in the case. You have also heard the accused give sworn evidence in the case. The evidence of the complainant and the accused is in conflict in relation to many aspects of the case. I point out to you that this case is not a competition between the complainant's evidence and the accused's evidence. The issue in this case in respect of each count, is whether the Crown has proven its case against the accused beyond a reasonable doubt." 25 At the conclusion of his Summing-Up, the trial judge inquired of Counsel whether there were any matters which they wished to raise. Both indicated that there were not.

Ground of Appeal One - The Crown's Address 26 The terms of this ground of appeal are set out in [4] above. The appellant's written submissions in support of this ground included the following: "Whilst the Crown endeavoured to justify the submission to the jury on account of the fact that there had been a suggestion that the complainant had ill motive towards her father, the submission was not confined to a proper investigation of the motive contended for. Rather the submission invited the jury to consider at large what motives either witness may have for lying. … Both the Crown prosecutor and the accused are entitled to put arguments to the jury relating to the evidence of a motive to lie which has been asserted in relation to a witness in the particular case, and a satisfactory summing-up should include reference to those arguments: Regina v Uhrig at 16-17; Palmer v The Queen at [10] - [11]. To invite the jury to go beyond both the evidence supporting the asserted motive on which the accused relies and the evidence denying it on which the Crown relies, and to ask "Why would the complainant lie?" is to suggest to the jury that, in the absence of any other evidence beyond that on which the accused relies, they should accept the complainant's evidence." 27 In the final paragraph from his address quoted in [22] above, the Crown Prosecutor referred to scrutiny of the "evidence of the accused and [JH]". In my view, it should be assumed, favourably to the argument of the appellant on this appeal, that the jury may well have understood the reference to JH to have been intended by the Crown Prosecutor to be a reference to the complainant. JH's evidence of the complaint made to her by ZW appears to have been uncontentious as she was not cross-examined by the appellant's counsel. On the other hand, the jury was aware that the complainant's evidence had been the subject of forceful attack in cross-examination. What the Crown Prosecutor said only made sense if he was understood to have been referring to the complainant rather than JH. I therefore proceed upon the basis that he would have been so understood. 28 Reliance was placed by the appellant upon the following passage from the judgment of Hunt AJA in South v R [2007] NSWCCA 117: "Where there is evidence that the complainant had a motive to lie, the jury's task is to consider that evidence and to determine whether, in the light of such of that evidence as they accept, they are nevertheless satisfied that the evidence given by the complainant of the commission of the offence charged is true. The jury's task necessarily does not include speculation as to whether there is some other reason why she would lie: Regina v Uhrig CCA 24 October 1996 [BC 9605087] at 15-16; Palmer v The Queen at [8]). Nor does the jury's task include acceptance of the complainant's evidence unless some positive answer to that question is given by the accused: Regina v F (1995) 83 A Crim R 502 at 511-512; Palmer v The Queen at [8]" (at [42]). 29 In that case, Hunt AJA (with whom Simpson and Whealy JJ agreed) concluded that "the judge clearly did implicitly suggest to the jury by his question 'Why should she lie?' that it was open to them to find that the complainant was telling the truth because the accused had not established a motive to tell lies" (at [40]) and that this was objectionable. 30 As pointed out by Hunt AJA, it is objectionable also if a suggestion of this type is made to the jury by the Crown Prosecutor (see [41]). If that occurs, regard must however be had to the directions to the jury given by the trial judge in the Summing-Up, or otherwise during the trial, to ascertain whether the jury could have been left with the impression that it was entitled to act upon the basis of the objectionable suggestion. 31 When understood in the context of his address and of the course of evidence at the trial, the Crown Prosecutor's remarks in the present case did not in my view carry with them the implicit suggestion concerning the complainant's evidence which was found by Hunt AJA to have been conveyed in South v R. It is significant that the central evidentiary contest of the trial in this case revolved, first, around the appellant's attack on the complainant's evidence upon the basis that she was making unfounded allegations because, for a number of identified reasons, she bore animosity towards the appellant and, secondly, the appellant's evidence, again the subject of challenge, as to the existence of that animosity and the reasons for it. 32 By the conclusion of the evidence, the jury was well aware of a significant number of reasons why the appellant contended that the complainant had reason to lie. The portion of the Crown Prosecutor's address complained of was introductory to a description of the motives to lie which the complainant was said to have had. It was followed by a detailed discussion of those matters in the Defence Counsel's address and in the Summing-Up. As well, it was followed in the Summing-Up by repeated references by the trial judge to the Crown's onus of proof including (see [24] above) to that onus in the context of the statement by his Honour to the jury that the case "is not a competition between the complainant's evidence and the accused's evidence". 33 In these circumstances, I do not consider that it can reasonably be concluded that the jury was invited to speculate as to whether there was any reason other than the reasons raised by the appellant as to why the complainant would lie, or that it was suggested to the jury that it should accept the complainant's evidence unless the accused established a reason why the complainant might lie (compare South v R at [42]). In the circumstances of the trial, the question asked rhetorically by the Crown Prosecutor (see [22] above), insofar as it may have been understood by the jury as referring to the complainant (see [27] above), was "not directed to a speculative motive for lying" (see Brown v R [2008] NSWCCA 306 at [50] and also DOE v R [2008] NSWCCA 203 at [58-60]). 34 The appellant also relied upon Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1, which was followed in South v R. In Palmer, the majority of the High Court said: "To ask the accused the question: 'Why would the complainant lie?' is to invite the jury to accept the complainant's evidence unless some positive answer to that question is given by the accused. As a matter of common sense, such an invitation is also extended to the jury where either the Crown prosecutor or the judge asked the jury the same question" (at [8]). 35 In Palmer, the accused was expressly asked in cross-examination why the complainant might be lying. This did not occur in the present case, nor, for the reasons I have given above, was there any implicit invitation to the jury to act upon the basis that it was for the accused to prove a motive for the complainant to lie. 36 The other aspect of the appellant's complaint as to the passage in the Crown Prosecutor's address (quoted in [22] above) was that it invited the jury to consider "competing motives". It was submitted that the "inevitable inference was that the appellant had a greater motive to lie than the complainant because he is guilty. This is precisely the prohibited inference which the Crown put to the appellant on more than one occasion". Reference was then made to the questions in cross-examination (quoted in [20] above) which involved the assertion that the appellant had lied to get himself "out of trouble". 37 The appellant relied upon the decision in Robinson v The Queen [1991] HCA 38; (1991) 180 CLR 531 where, in the course of directing a jury about assessing the credibility of witnesses, the trial judge had said that it should take into account the interest a witness might have in the outcome of the case and that "you might think … that the accused had the greatest interest of all the witnesses … and that therefore, you should scrutinise his evidence closely". The High Court held that there was a serious misdirection in the Summing-Up, that went to the fairness of the trial of the appellant and undermined the presumption of innocence, because the trial judge's directions would have been understood by the jury "as meaning that the evidence of the appellant had to be scrutinised more carefully than that of any other witness" (at 536). 38 The Court said: " … his Honour's directions had the effect that the evidence of the appellant had to be scrutinised more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused. Fairness of such a direction is manifest, particularly when the outcome of the trial inevitably turned upon the jury's preference for the evidence of the complainant against that of the accused. Moreover, the directions virtually had the effect that the appellant was to be treated as a "suspect witness" in the same way as an accomplice, a complainant in a sexual case and a young child have been treated as "suspect witnesses", that is, as witnesses whose evidence is to be accepted only after the most careful scrutiny. An express direction which had the effect of his Honour's directions would have been a clear misdirection, as Mr Butler, counsel for the Crown, readily accepted. Furthermore, his Honour's directions on the point do not sit well with the presumption of innocence which is the consequence of a plea of not guilty. If that presumption is to have any real effect in a criminal trial, the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts … Nothing in the above is intended to suggest that the evidence of an accused person is not subject to the tests which are generally applicable to witnesses in a criminal trial. Thus, in examining the evidence of a witness in a criminal trial - including the evidence of the accused - the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings. But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses and the outcome of the case is to strike at the notion of a fair trial for an accused person except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown" (at 535-6 citations omitted). 39 The focus of the appellant's objection to the Crown Prosecutor's address is on the question he posed: "Is there any reason why either of these people would want to tell lies". Insofar as this would have been likely to have been understood by the jury as referring to the complainant, the statement was one which it would have been better for the Crown Prosecutor not to have made because it was not expressly confined to the particular matters put to the complainant in cross-examination. Nevertheless, for the reasons I have given above, in the context of the trial it was implicitly so confined and no unfairness to the appellant resulted. 40 Insofar as the question related to the appellant, again my view is that it would have been better if the question had not been posed. As pointed out by Grove J in R v Booty NSWCCA (19 December 1994, unreported) the "interest of an accused person in securing an acquittal is self evident". However, references to it in the course of the trial should be avoided to the extent possible because such references may unfairly prejudice the position of the accused by suggesting that he or she is to be treated as "a suspect witness" and undermining the presumption of innocence in the manner pointed out in Robinson. 41 Nevertheless, I do not consider that the Crown Prosecutor's questions created any unfairness to the appellant. The matter complained of falls far short of that found in Robinson to have prejudiced a fair trial. Here, the question contained no explicit reference to the appellant's interest in the outcome of the trial nor did it, unlike the directions in Robinson, suggest that the appellant's evidence was to be the subject of particular scrutiny. Nor did it compare the appellant's interest in the outcome with that of other witnesses. Moreover, the judge's subsequent Summing-Up clearly directed the jury as to the presumption of the appellant's innocence and contained repeated directions as to the Crown's onus of proof (see [24] above). Further, the judge specifically directed the jury that the case did not involve "a competition between the complainant's evidence and the accused's evidence" and reiterated the need for the Crown to prove its case against the accused beyond reasonable doubt (see [24] above). In my view, the jury was clearly apprised of the task it had to perform and the question posed by the Crown Prosecutor did not impair the fairness of the trial. 42 In their decision in Stafford v The Queen (1993) 67 ALJR 510 on a special leave application, three justices of the High Court referred with approval to Robinson and said that "[o]rdinarily … , it is preferable that a trial judge refrains from directing attention to the interest of the accused in the outcome of the trial as a relevant factor in assessing the reliability of his or her evidence" (at 510). The same may be said of the Crown Prosecutor, although in the present case, as I have indicated, no unfairness to the appellant resulted from such implicit reference to this matter as the Crown Prosecutor's address may be taken to have made. 43 In Ramey v The Queen (1994) 68 ALJR 917, three justices of the High Court, again in determining a special leave application, referred to the "rigour" of the principle in Robinson and referred to the "prohibition against the giving of a direction to evaluate the evidence of an accused on the basis of the accused's interest in the outcome of the case". This did not occur in the present case. 44 I would add in conclusion on this ground of appeal that it is of some significance in assessing the fairness of what occurred that counsel for the appellant at the trial did not seek any further direction beyond those given by the trial judge (see [25] above). Whilst counsel had earlier made an unsuccessful application for the jury to be discharged it was open to him, if he thought fairness demanded it, to seek further directions. The trial judge specifically enquired as to whether there were any further directions sought.

Ground of Appeal 2 - The Crown's Cross-Examination 45 The appellant contended that the questions asked of the appellant by the Crown prosecutor near the end of his cross-examination (see paragraph [20] above) were objectionable and prejudiced the appellant's fair trial. It is significant that no objection was taken to these questions at the time that they were asked nor after the adjournment which occurred shortly thereafter. The questions were first criticised when objection was later taken to the Crown Prosecutor's address during the discussion referred to in [23] above. 46 In Regina v Booty (see [40] above), the following exchange occurred in the course of the cross-examination of the accused: "Q. You see you're the person with the motive not to tell the truth aren't you? A. Why? Q. Because you want to get yourself out of the trouble which you have got yourself into. A. How can you get in trouble when you don't hit someone". 47 After pointing out that the interest of an accused person in securing an acquittal is self evident (see [40] above), Grove J (with whom Abadee J agreed and with whose judgment Simpson J was in general agreement) said: "The jury is not forbidden from considering the self interest of the accused but exploration of it in the course of evidence would carry considerable risk that there by the jury might conclude that the evidence of an accused may be regarded as in a different category from that of other witnesses and requires closer scrutiny. The Crown was just as bound as the judge by the principle of Robinson in being prohibited from insinuating that the evidence of the appellant may be assessed on a different footing from the testimony of others … the questions which were asked - a sample of which [is referred to in [38] above] - demanded a warning to the jury that they should avoid the possible error: Stafford v The Queen". 48 The warning in Stafford referred to by Grove J was one that the jury "must approach the case on the basis that the accused is presumed innocent of the acts which are the subject of the indictment and that it would be wrong and unfair for the jury to discount the evidence of the accused simply for the reason that, as the accused, he or she has a particular interest in the outcome of the trial" (at 510-511). 49 As is apparent from what I have said above, I agree with Grove J that exploration of the accused's interest in acquittal carries the risk to which he refers. I do not however consider that the questions asked in cross-examination in the present case conveyed a suggestion to the jury that the evidence of the appellant was to be "assessed on a different footing from the testimony of others". Whilst it was appropriate for the trial judge in his Summing-Up to emphasise the Crown's onus to prove the case against the appellant beyond reasonable doubt and to make it clear that the case was not simply one of competition between witnesses, it was not in my view necessary to ensure the fairness of the trial for the trial judge to go further and give the latter part of the direction referred to in Stafford (see [42] above). In the context of the present trial, this would in my view have had the effect of drawing undue attention to the interest of the appellant in the outcome of the trial, in circumstances where there had hitherto been little, if any, reference to that matter. 50 In Booty, Simpson J pointed out that the Crown prosecutor's cross-examination had referred to the trouble which "you have got yourself into" and that that phrase contained an assumption of the guilt of the accused. The questions in the present case did not go quite as far, nor did they contain the proposition embodied in the question in Booty that the accused was "the person with the motive not to tell the truth" (emphasis added). That tended, in that case, to encourage the idea that the accused's evidence should be assessed on a different basis to the evidence of other witnesses. Moreover, in Booty there were a number of other matters which, in combination, required the conclusion that the fairness of the trial had been impaired. Grove J, who gave the principal judgment, emphasised that he would have been reluctant to conclude that there had been a miscarriage of justice if any of the matters upon which the appellant relied had stood alone. 51 For these reasons, I consider that both grounds of the appellant's appeal against conviction fail and that the appeal should be dismissed.

Sentencing Grounds 1 and 2 52 By Ground 1 the applicant (as I will refer to him in connection with his application for leave to appeal against sentence) complains that the non-parole period fixed represents 84 percent of the overall term. Section 44(2) Crimes (Sentencing Procedure) Act 1999 provides that the balance of the term of a sentence must not exceed one-third of the non-parole period unless special circumstances are found. The section does not however require that where a number of sentences are imposed the balance of the overall term of the sentences (in the absence of special circumstances) not exceed one-third of the overall non-parole period (see for example R v Swan [2005] NSWCCA 252 at [19] per Rothman J). A difficulty in the present case is however that the sentencing judge appeared to indicate an intention that, although it was not mandated by s 44, the relationship between the overall non-parole period and the overall sentence would nevertheless accord with the statutory ratio specified in s 44. His Honour said in the course of the sentencing hearing that he intended to partially accumulate the sentences "and then attempt to apply the … 75 percent rule in terms of the sentencing". There is nothing in his Honour's Remarks on Sentence, made later on the same day, to suggest that he turned his mind to this issue and changed his mind about the matter. It is probable that his Honour simply overlooked returning to the point at that later stage. 53 As a result, error has been demonstrated in that the sentencing judge's evident intention has not been translated into the sentences in fact imposed. This has occurred in the following manner. 54 The non-parole period in respect of counts six, seven and eight (60 months) is cumulative upon the non-parole period for count 13 (48 months), this being the longest of the non-parole periods in respect of the other sentences. The result is that the total non-parole period is 108 months. Because the head sentence of 80 months in respect of counts six, seven and eight does not commence on the expiration of the longest of the other sentences but on the expiration of the longest non-parole period for the other sentences (that for count 13), the head sentence in respect of counts six, seven and eight is partially concurrent with that in respect of count 13. The result is that whilst the non-parole periods and balances of term for each individual sentence conform with the statutory ratio prescribed by s 44, the overall ratio is different from that. This effect of partial accumulation of sentences has been referred to in a number of cases and is capable of constituting special circumstances justifying the setting of a shorter non-parole period in respect of one or more individual sentences (see for example R v Henry [2004] NSWCCA 306 at [21] and R v Attard [2004] NSWCCA 376 at [21]. By this means the overall ratio can be adjusted to ensure that it accords with that specified in s 44 if that result is thought appropriate by the sentencing judge. 55 In my view, the non-parole period in respect of counts six, seven and eight should be adjusted to achieve the result intended by the sentencing judge and for which the applicant contended.

Sentence Ground 3 - Discount for Assistance 56 The sentencing judge allowed a discount of 30 percent on the sentences which he imposed to take account, pursuant to s 23 of the Crimes (Sentencing Procedure) Act, of assistance provided, and to be provided, to the law enforcement authorities. He allowed 15 percent in respect of past assistance and 15 percent for future assistance. 57 The evidence upon which the discount was based was contained in Exhibit 3 tendered at the sentencing hearing. This was, and remains, a confidential exhibit. The judge did not characterise the assistance in his Remarks on Sentence but did say during the sentencing hearing that the assistance was of "great significance" and that he proposed to allow a discount of 30 percent. 58 The applicant relies upon R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 where it was said: "54 While there is no fixed tariff for assistance to the authorities, discounts customarily ranged between 20 percent and 50 percent. There have been comparatively rare cases where a discount in the order of 55 percent or 60 percent has been given. Generally speaking however, a discount of 50 percent is regarded as appropriate to assistance of a very high order. No doubt, that is in part a reflection of the principle that a discount for assistance must not produce a result which is disproportionate to the objective gravity of a particular offence and the circumstances of a particular offender ." 59 In that case, the sentencing judge allowed a composite discount of 45 percent to take account of the offender's plea of guilty and his assistance to authorities. The judge had said in relation to the plea of guilty alone that it warranted a discount of "slightly higher than 20 percent but slightly lower than 25 percent" (at [49]). The conclusion of Latham J (with whom McClellan CJ at CL and Howie J agreed) was that in the circumstances of that case a composite discount of 45 percent was excessive. Her Honour said that the respondent's assistance could not be characterised "as assistance of a very high order". Assuming that the discount allowed in respect of the plea of guilty was in the order of 20 to 25 percent and, subject to any compression effect which reduced the composite percentage (see as to this R v Lenati [2008] NSWCCA 67 at [35] per Simpson J; S v R [2008] NSWCCA 186 at [9] per Bell JA), the discount allowed by the sentencing judge for assistance was in the order of 20 to 25 percent for the assistance of "a very high order". In the same case, Howie J referred to this Court having expressed the view that "the appropriate range for the plea of guilty and assistance is between 20 and 50 percent" ([3]). His Honour was referring to the composite discount, as was Latham J in the passage quoted from her judgment. 60 The sentencing judge's allowance in the present case of a discount for assistance of 30 percent reflected a discretionary decision on his part. This Court can only intervene if an error in his approach is established or his decision is shown to be "unreasonable or plainly unjust" (see House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505). It has not been contended that there is any error in the way in which his Honour approached his task and I do not agree with the submission that the discount he allowed was outside the range reasonably open to him. I have examined the material contained in Exhibit "C" upon which his Honour based the discount. Whilst I accept that the assistance provided, and to be provided, was significant, I regard the percentage allowed by his Honour as well within the appropriate range bearing in mind that the discount allowed was not, as it was in Sukkar, a composite one, because the applicant here did not plead guilty. 61 As a result, this ground of the application for leave to appeal has not been made good.

(3) Sentences imposed by Solomon DCJ are varied by substituting for the non-parole period of 5 years fixed in respect of the sentence as to the conviction on counts six, seven and eight, a non-parole period of 4 years commencing on 28 March 2010 and expiring 27 March 2014. The applicant will be eligible for release on parole upon the expiration of that later date. No change is made to the total sentence which expires on 27 November 2016. 63 HOWIE J: I agree with Macfarlan JA. 64 HISLOP J: I agree with Macfarlan JA.

15/10/2009 - Typograhpical error - Paragraph(s) [45]

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