MH (a pseudonym) v R

Court of Criminal Appeal (NSW)|2021-07-02|Before: Payne JA, Rothman J, Button J

The applicant's evidence

The applicant gave evidence about the party. As I have said, he agreed he had consumed a good deal of alcohol and felt drunk. He gave evidence of the bikini parade and said that afterwards he went for a swim in the pool. He went back to the bedroom where CHL and SHL slept ("Bed 2" in Exhibit F) in order to change. CHL was in the room adjusting her make up. While taking off the bikini that he had put on to model, the applicant kissed CHL and that led to consensual sexual intercourse between the two of them of the kind described in counts 1 and 2. CHL remained clothed in the white dress she had been wearing. Their activity ceased because of a loud commotion that came from the kitchen.
The applicant heard his brother Ryan yelling and he decided to get up and put some clothes on. CHL got up from the bed and put her back to the door of the bedroom. The applicant wanted "to get a quick photo or video [of CHL's] bum" but Jamie was at the door, having returned from going out with Trent. She knocked on the door. The applicant's evidence was that after the door was opened, he tried to film CHL covertly without Jamie or CHL having knowledge of him doing so.

The state of the evidence about the time of the critical events

The importance of the timing of relevant events at the trial was that the applicant's evidence was that the first two recordings were made immediately after, "just" after or "very shortly" after the sexual intercourse he had engaged in with CHL. No other witness called at trial or present at the Kenthurst residence that night, including the complainant, was able to give evidence about the gap in time between the sexual intercourse the subject of counts 1 and 2 (which it was common ground had occurred) and the making of the first two recordings. In the videos, CHL appears sleepy or intoxicated. The Crown invited the jury to reason that as the applicant had told them that the videos were near contemporaneous with the intercourse, CHL was demonstrably not capable of consenting to that intercourse.
The applicant's case at trial was predicated on the sexual intercourse the subject of counts 1 and 2 occurring at some time immediately before 11:45pm, when he asserted the first two videos in Exhibit C were taken.
At the trial, the Crown case was always that the videos were correctly identified as being made at 12:45am and 12:46am. Exhibit D said as much. Detective Bressington gave evidence, on two separate occasions (having been called back to address this issue), that the times recorded in Exhibit D were correct, for the reasons he explained at some length.
It may be that the ultimate source of the applicant's belief at trial that the videos had been taken at 11:45pm and 11:46pm was derived from Court Attendance Notices (CANs) initially served on the applicant on 16 March 2016 for two counts of filming a person's genitals without consent. The CANs were prepared by a police officer who did not take part in the applicant's trial. The CANs particularised the offences as occurring between 11:45pm and 11:50pm on 6 February 2016. The CANs were not included in the appeal books, but it was not controversial that the timing recorded in the CANs was as described in the applicant's submissions.
The issue of timing was explored somewhat belatedly, Exhibit D having been tendered early in the trial. Detective Bressington was recalled to address the accuracy of the timing shown in Exhibit D and was cross-examined by the applicant's counsel about the timing of the first two video recordings. Detective Bressington explained the times identified in the CANs and the correctness of the timings shown in Exhibit D as follows: "Q. I understand that, you're aware, aren't you, however, in the course of your involvement in this investigation that initially the accused was charged with an offence of filming someone without their consent at 11.45pm on 6 February 2016. You're aware of that, aren't you? A. No, I didn't take part in any investigation except for receiving a phone and doing the download, so I didn't even know the offences they were charged with. Q. Are you aware, however, that a time of 11.45 pm on 6 February 2016 was at one stage attributed to the file image 8631, that's the first file that you downloaded? A. No, I'm not. Q. You weren't aware that one of the investigating police involved in this investigation downloaded the images to a USB file and that time appeared, being one earlier than what's indicated in exhibit D? A. Yeah, I - I have recently been told that, yes. Q. You've recently become aware of that. Is that right? A. Yes. Q. You have no explanation for that anomaly. Is that right? A. Yeah, I can explain that. If it's out by an hour, that normally means that when that file was copied onto the USB, the UTC time being zero on the file would have been converted to the local time. If the local time was..(not transcribable)..ten hours difference, it would have converted to that time. Q. So are you saying that at the it was downloaded, if it was converted, it might have converted ten hours forward rather than 11 hours forward? A. Yes, if it was downloaded during [Eastern] Standard Time. Q. But if it was downloaded in February or March of 2016, your understanding is that that would still have been Australian Eastern Daylight Savings Time. Is that correct? A. Yes."
There was some evidence at the trial which objectively established certain events. First, Jamie telephoned the police at 12:32am, [1] which indicates she must have returned to the Kenthurst residence by then. It will be recalled that in the first video, Jamie is heard entering the room, "Bed 2", that the applicant and CHL are in.
Secondly, SHL saw the applicant in the pool wearing the bikini but did not see CHL at this time. SHL changed into more comfortable clothes "(p)robably shortly after [the applicant] had swam". There was no one in the bedroom she shared with her sister ("Bed 2") when she changed. Ryan and Jessica returned home after SHL changed. SHL believed that they returned at 10pm, but her evidence about timing was inaccurate, given that she believed she had telephoned the police at between 10:15pm and 10:30pm. Ryan and Jessica's return was, however, before 12:15am, as that was when SHL telephoned the police about Ryan's behaviour.
The time at which CHL went to the lounge to lie down was not the subject of any reliable evidence. On any view, however, sexual intercourse took place in "Bed 2" when the applicant and CHL were the only people in the room. On SHL's evidence, CHL lay down on the lounge shortly after Ryan's arrival and remained there until SHL took her into their bedroom "once the police had left". She gave evidence that she could not have taken CHL to their bedroom at 2am because that was "way too late". At the trial, the Crown Prosecutor submitted that SHL was incorrect about the time she took CHL to their bedroom. It will be recalled that the applicant's evidence was that CHL returned to the lounge after they had intercourse in her bedroom and while she was dressed in the white dress that he had removed (but not put back on her). The applicant's evidence was that he, CHL, SHL and Jamie all went to "Bed 2" after the police had left.

The significance at the trial of the first two recordings

The indictment, quoted at [2] above, did not identify a period of time, whether before or after midnight on 6 February 2016, as the time at which the offences were alleged to have occurred.
The Crown Prosecutor did not in opening address refer to the first two recordings. The last four recordings were referred to in the Crown's opening address as the basis for count 3. The recordings were played during the evidence of CHL. There was no objection to the playing of the first two recordings. The first two recordings were relevant as a record of the degree of CHL's intoxication at 12:45am and that she had been in "Bed 2" at that time while others at the party were still awake. The importance of the first two recordings to counts 1 and 2 no doubt increased as the trial progressed.
On the day after the recordings were first played, the jury asked whether the timestamps and duration of the videos comprising Exhibit C would be made available to it. Defence counsel noted that there was some disagreement as to the timestamps and that the applicant's mobile telephone recorded the times of those videos as one hour earlier than the timestamps showed. Defence counsel further observed that if the first two recordings were made at 12:45am and 12:46am then that would conflict with the presence of the applicant's brother Ryan and the police attendance between 12:30am and 2am as a result of Ryan's behaviour.
Defence counsel had not at that time commenced his cross-examination of CHL. He told the trial judge that he needed "some clarity in relation to that before I can at least finalise my cross-examination" but did not ask for an adjournment. Defence counsel also advised the trial judge that his instructing solicitor had "viewed the actual phone from which these clips have been downloaded and has a note that on the actual phone each of the clips is time stamped an hour earlier, meaning the first clip would be time stamped at 11.46pm on the evening of 6 February".
Partway through the cross-examination of CHL on Thursday 9 May 2019 (the third day of the trial), the Crown tendered Exhibit D by consent and without objection.
The evidence from Detective Bressington was that he had examined the applicant's mobile telephone and the times of the recordings were those recorded in Exhibit D.
The applicant had never observed any problems with the time depicted on his mobile telephone. In cross-examination the applicant was asked about the timing and content of the first two recordings: "Q. In due course, you took a number of video clips, I'll call them, on your mobile phone. That's right? A. Correct. Q. When you did that you say - if I understood your evidence on Thursday, you say that apart from on one occasion when [CHL] became aware that you were filming - apart from that one occasion - she wasn't aware that you were filming? A. Correct. Q. So what you've said on Friday was that essentially you'd just had sexual intercourse with her. You say that you heard your brother, Ryan, yelling. Do you remember that? And you say you put your clothes on; your shorts. And then that meant you then had your phone in the pocket. Is that right? A. Correct. Q. Then you said this, 'I was horny. Wanted to get a quick photo of [CHL's] bum to look at later.' That's right? A. Yes."
When the recordings were played during the applicant's cross-examination, the Crown Prosecutor referred to the times identified in Exhibit D. The Crown submitted that a reference to the recording of 12:45am was merely to identify to which recording the questions were being addressed. The following are examples of how the Crown Prosecutor referred to the videos: "Q. I want to suggest to you that what you said to Jamie on that particular video that we just saw, that at 12.45am is, 'Can we lay, can we stay for a bit. Where's Trent?' … Q. So when you took this video that we've just seen, part of exhibit C, the first portion of it at 12.45am. When you took the video, were you clothed? … Q. No, we don't want to go through it all. But you see, the second portion of the video that you take occurs about a minute later after 12.45, at 12.46am. Do you understand that?"
There was no objection to the Crown Prosecutor putting questions to the applicant based on the first two recordings having been made at 12:45am and 12:46am. Nor was there any objection to cross-examination based on the sexual intercourse in "Bed 2" occurring shortly before those times.
The applicant was cross-examined about the time between the sexual intercourse occurring in "Bed 2" and the making of the first two recordings: "Q. In effect. You're aware that there's evidence in these proceedings the police arrived at the house in Kenthurst in relation to Ryan's behaviour at about 12.30 am. That's right? A. Correct. Q. You told us that as at the time of taking the first piece of footage at 12.45am, you hadn't been out to see Ryan at that time. A. Correct. Q. You're aware, aren't you, that the police didn't just miraculously appear there. Somebody had to call them to get them to attend. That's right? A. Yes. Q. Do I understand your evidence that you had sexual intercourse with [CHL] in that bedroom that she was ordinarily staying in there at the time, and whilst you - was it after you'd finished having sex, or was it during having penile/vaginal sex that you heard Ryan outside the room? A. Yes. So, during - I heard Ryan yelling and screaming during - while we were in the room together. Q. And this was shortly before you took that film at 12.45, I take it. A. Shortly before I took the film. Yes. Q. And I mean very shortly, on your version, isn't it? A. Yes. So, Ryan came home. We heard the noise. [CHL] jumped off me, tried to hold the door shut. Then at that point, I thought quickly, get a quickly film - get a quick shot of her bum. And then Jamie came and knocked on the door. Q. So that's at 12.45. You agree with that? A. I'm not sure if that's the time. What was the time, from my understanding, it was just before the police arrived, so- Q. But the police arrive at 12.30. A. Yes. Q. So if the time on your phone is correct, the police had been there for about 15 minutes when you took that first piece of footage. A. No. So, that's what we're trying to figure out with this whole time thing, because I get - I filmed her before the police had got there. Q. So I suppose it's possible that there's a mistake in some area, either as to the time the police arrived. That's one possibility. GREEN: I object to that question. WITNESS: I didn't understand it, sorry. CROWN PROSECUTOR: I withdraw it, your Honour. Q. You're saying that you'd finished having sex with [CHL] before the police arrived. Is that right? A. Correct."
In closing address, defence counsel told the jury that what was recorded in the first two recordings could not have occurred at 12:45am and 12:46am because the applicant's evidence was that they occurred very shortly after the sexual intercourse charged as counts 1 and 2; if the sexual intercourse could not have occurred at 12:45am then the recording could also not have been made at that time. The applicant's case was explained as being that the times of the video recordings in Exhibit D were not accurate, based on all the other evidence as to what occurred during the night of 6 February 2016 and the following morning, including: 1. CHL dancing at 9:45pm; 2. the police being called at 12:15am by SHL, attending the Kenthurst residence at 12:30am and remaining there until 2am; and 3. that for some period of time the applicant was involved in the interaction with his brother Ryan.
In closing address, the Crown Prosecutor invited the jury to consider Exhibit C on the basis that the video recordings showed CHL was not awake or moving: "Now, members of the jury, I was going to go through some of the evidence in relation to the various video clips that you saw this morning, but members of the jury, you've seen them. I've asked you or requested that you take time to - it might not be what you want to do, but to look at this exhibit C very carefully to establish what the situation is. I'd be putting to you - I won't go through it now in chapter and verse. You'll have to undertake this exercise for yourself, in my submission to you. It's a matter for you, of course, but I've suggested to you that what they show is, certainly in the latter stages, at the very least, [CHL] is not awake, she's not moving, she's not aware of what's happening to her, members of the jury. She doesn't shift between scenes, other than perhaps her pants being taken down to some degree during the five- or six-minute gap between two pieces of filming by the accused. So members of the jury, I will leave that with you. You've probably gathered my submissions to you about that already. There's no point in me droning on about it."
The Crown Prosecutor focused on SHL's evidence concerning when she took CHL to "Bed 2" and the applicant's evidence of when Ryan returned, relative to when the first two recordings in Exhibit C were said to have been taken. The Crown Prosecutor first addressed SHL's evidence that she took CHL from the lounge to "Bed 2" only after the police had left and that CHL had remained on the lounge until then, and submitted that the evidence was inconsistent with the timestamps of the recordings as set out in Exhibit D: "[SHL] gives some evidence that there was a point in time where [CHL] had laid down on this - I think it's a black lounge or black leather couch in the vicinity of the kitchen lounge room area. [SHL] tells you that [CHL] is apparently asleep there. She tells you - this is [SHL], in her evidence - that [CHL] was still in that position when the police arrived, and that the police in fact asked her, 'Who's that there?' and she told them when they're there. Now, [SHL]'s memory as to when [CHL] left that area - she tells you about, she basically picked her sister up and sort of frogmarched her a bit along the way down to the bedroom, but she says - [SHL] says in her evidence that that occurred after the police had gone. Well, members of the jury, that causes a difficulty in terms of that portion of her evidence. Now, it may be that [SHL]'s mistaken, members of the jury. None of us are perfect. She also had been drinking. This was a long time ago. She's telling you about some years down the track. But her memory as at the time of giving her evidence is that she didn't take [CHL] to the bedroom until after the police had gone which would have to be after 2 am. Yet, we've got the time markings on the phone indicating that these happened. You know, you've had the exhibit D which has all the times of the - 12.45, 12.46, and so on, am. Which would, it appear on the face of it, to be while the police are there. Members of the jury, my submission to you is that maybe [SHL] is mistaken. It may be, it's always a possibility, that the time markings are right."
The Crown Prosecutor submitted that the applicant's evidence did not have to be accepted: "But the accused gives his version. Basically, she comes and brings him a towel; that is [CHL]. She's not sleeping on a lounge at that stage. She gives him the towel and then the next thing you know, they're having sex and doing all sorts of things together. Then he says Jamie comes back and he hears a knock on the door. He hears Ryan's voice. Well, members of the jury, that doesn't make it right just because the accused says it."
The Crown Prosecutor submitted that the jury could conclude, irrespective of the time, that CHL had been sexually assaulted. He also raised the possibility that counts 1 and 2 occurred at a time other than shortly before 12:45am and advised the jury to be careful not to assume that time was correct: "But whichever way it is, members of the jury, it doesn't undercut or diminish, in my submission to you, the evidence of [CHL] in relation to what happened to her. She doesn't attribute time. She says she's unable to tell you what time it was and these things - when she's waking up and the accused is on top of her. Could it be that the filming took place at an earlier point in time, as indicated by the phone at 12.45, 12.46? Could it be that the actual memories that [CHL] has of him being on top of her, performing oral sex upon her, having penile/vaginal intercourse with her, happen at some other time. You see, one has to be careful not to assume that all these things happened at that time."
In the summing up, the trial judge told the jury: "The Crown made these submissions about the timeline of events. He reminded you that there is a difference between the honesty of a witness and the accuracy of a witness. You remember those instructions I gave you? It seems like a long time ago, yesterday. Having regard to the fact that the first video clip is at 12.45am and the police would have been at the house as the evidence indicates they were from 12.30 to about 2am, the Crown submitted that whilst [SHL] gave honest evidence, he invited you to conclude this portion of her evidence about helping [CHL] into the bedroom after the police left was simply mistaken or inaccurate. Having regard to these events having occurred some years ago and on a night when a lot of things happened, the Crown submitted to you that would not come as a surprise. If the 12.45 time stamp on the phone is wrong, of course, this clip of the video could have been taken after 2am as equally as it could have occurred before 12.45am."

Consideration

The applicant appealed to this Court on the following ground: "There has been a substantial miscarriage of justice by the Crown addressing the jury on the basis that video recordings, taken around 12:45am, were important evidence negativing consent in circumstances where those recordings could not have contributed to eliminating reasonable doubt concerning lack of consent unless they were nearly contemporaneous with the offending and circumstantial evidence showed offending at around 11:45pm and the evidence was that there was no opportunity for the offending to have occurred around 12:45am."
The applicant filed a notice of intention to appeal on 3 September 2019. The applicant sought leave to extend the notice period under r 3A(2) of the Criminal Appeal Rules to 11 September 2020. Leave to appeal out of time should be granted, but the notice period should be extended to 8 December 2020 as this was the first date that a draft notice of appeal in the correct form was actually filed.

Relevant legal principles

I accept the applicant's submission that a miscarriage of justice may arise in circumstances where a Crown Prosecutor makes a submission that a particular conclusion can be drawn from a piece of evidence when such a conclusion is not open. The conduct of a Crown Prosecutor in a criminal trial can of itself lead to a miscarriage of justice that can found a successful appeal against conviction: see Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42. Whether there has been a miscarriage of justice depends on whether, in the circumstances of the case, the applicant was denied a fair trial: Whitehorn at 663-664 (Deane J).
It is, however, the case here that the applicant's case on appeal involves a change in his position about the period of time between when the sexual intercourse in "Bed 2" occurred and when the first two recordings were made. The starting point must be the actual issues in the trial from which the appeal is brought. Barwick CJ said in Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 at 517 (McTiernan, Stephen and Jacobs JJ agreeing): "It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law."
In The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, the Court (French CJ, Kiefel, Bell, Keane and Gordon JJ) said at [48]: "[48] … a criminal trial is accusatorial but also adversarial. Subject to well-defined exceptions, 'parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue'." (Footnote omitted.)
This Court (Bathurst CJ, RA Hulme and Beech-Jones JJ) said in Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371 at [6]: "[6] ... a criminal trial is an accusatory and adversarial process in which the prosecution and the defence, not the Court, are responsible for determining the issues in the trial and the evidence to be adduced (Ratten v The Queen (1974) 131 CLR 510 at 517; [1974] HCA 35; 'Ratten'; TKJW v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [106] per Hayne J; 'TKWJ'). Further, the forum for the identification and resolution of those issues is the trial before the jury and not the appellate court. Leaving aside the form of review undertaken by this Court when it is contended that a verdict of guilty is 'unreasonable, or cannot be supported, having regard to the evidence' (Criminal Appeal Act 1912, s 6(1)), which was not the case here, in addressing whether a trial was unfair this Court does not conduct its own form of retrial, does not reformulate the issues of fact identified by the parties at the trial and generally does not speculate about how the conduct of the trial might have been conducted differently or better. The principles governing an appeal from a conviction to this Court admit of exceptions to this such that, in some circumstances, issues and evidence that were not raised at trial can be raised and adduced on appeal respectively. However, those exceptions are limited."

Application of legal principles in this case

A key feature of the applicant's case at trial was reliance upon the statement of CHL given to a solicitor on 24 June 2016 ("Exhibit 1") referred to at [24] above. In that statement, CHL stated that she had engaged in consensual sexual activity at 11:45pm and that the applicant had filmed her while having sex with her knowledge and consent. The applicant's case at trial was always that there was a small gap in time between the sexual intercourse and the making of the videos, and that the times the first two videos were made as shown in Exhibit D were incorrect.
The applicant's new case on appeal is that the recordings were made at 12:45am and 12:46am; that is, after the police attended and at or after Jamie's return. The foundation of the applicant's case on appeal is that the applicant's own evidence at trial that the videos were taken in the immediate aftermath of consensual sexual intercourse was wrong.
The applicant relied upon what was submitted to have been his "chronological confusion" at the trial. The applicant submitted that the uncontradicted timing of the police's arrival at 12:30am and the undressing video taken at 12:46am meant that the only plausible scenario was that the sexual intercourse occurred in accordance with the following chronology: 1. the sexual encounter between the applicant and CHL occurred before Ryan's return at about midnight; 2. CHL moved to the couch after Ryan and Jessica's return; 3. the police were called at 12:15am and arrived at 12:32am; 4. CHL was on the couch when the police arrived; and 5. at around 12:45am, CHL and the applicant returned to the bedroom and the applicant took the two videos.
The applicant submitted that his evidence given at the trial was wrong in two respects. First, he was wrong about the chronology. Secondly, his version of consensual sex having taken place immediately prior to the first two videos was not credible. It was submitted that, but for these errors and implausible matters in the applicant's own evidence, the applicant enjoyed a significant possibility of acquittal: see Rodi v Western Australia (2018) 265 CLR 254; [2018] HCA 44.
The applicant on appeal submitted that this "chronological confusion" was engendered by his own solicitor who had viewed downloaded footage which carried the erroneous timestamp. The timestamp was erroneous for the reasons explained by Detective Bressington at [39] above.
The applicant submitted that his confusion about the time the first two videos were taken was understandable as it was shared by the police officer who produced the CANs for the summary offences described at [38] above. It was further submitted that Exhibit D, which contained the correct times, only emerged on the third day of the trial as described at [47] above. It was also submitted that confusion about whether the first two videos in Exhibit C were taken before midnight was shared by the lawyer acting for the applicant at the time of his arrest, whose understanding was the subject of further evidence on appeal. That solicitor, who viewed the mobile telephone footage on or about 20 June 2018, also understood that the videos were made at 11:45pm and 11:46pm. The applicant submitted that confusion in respect of the timing "permeated the trial from [the third day of the trial, when Exhibit D was tendered] to its conclusion".
It was submitted that the Crown's cross-examination of the applicant was guided by two inconsistencies: first, that the applicant's evidence that the video was taken at 11:45pm was wrong and the evidence of the time on the phone (12:45am) was right; and secondly, that the first two videos depicted CHL as in no state of consciousness to consent to the intercourse. The applicant contended that the inconsistency was that if the first proposition was correct (that is, the videos were taken at about 12:45am), then the impact of the second proposition (that is, the lack of capacity to consent) was much reduced as it depicted an intoxicated woman probably more than an hour after the sex in circumstances where: 1. CHL had been drinking heavily up to around the time when Jamie and Trent left; and 2. other evidence demonstrated no opportunity to offend around 12:45am and hence the applicant's evidence (that intercourse occurred before Ryan returned close to midnight) was the only plausible possibility.
I do not accept that a miscarriage of justice has been shown in this case. The fundamental issues faced by the applicant in relation to the videos were issues of his own making. The suggested critical importance about whether sexual intercourse between the applicant and CHL occurred approximately one hour before the first two recordings at 12:45am and 12:46am or immediately before that time does not give rise to any miscarriage of justice. The critical issue relied upon by the applicant in this Court relevant to an assessment of the first two videos in Exhibit C was not the time that the intercourse took place, but rather the gap between the intercourse and the making of the videos. The only evidence about the "gap" between the intercourse and the making of the recordings was the evidence given by the applicant. That remains the case on appeal.
The applicant's case on appeal is not merely that this Court should conclude that the applicant was wrong in his evidence about when the videos were made but that this Court should reject his evidence (which has never been retracted) that the two videos were made shortly after the intercourse. That is: even accepting that the applicant was confused about the precise time the videos were made, and accepting (for the sake of argument) that this confusion was engendered by the police who initially charged the applicant with summary offences and his former solicitor who made the same daylight savings related timing mistake, it remained the applicant's consistent evidence that the time "gap" between the intercourse and the making of the videos was a small one. The applicant's submission in this Court that a miscarriage of justice occurred at the trial was predicated upon the explicit rejection of his evidence about the time "gap" between the intercourse and the recording whilst continuing to accept the applicant's case as being that the intercourse took place approximately one hour before the videos were made. I am unable to accept these premises for the following reasons: 1. first, the applicant's consistent evidence was that the length of time between the intercourse and the making of the videos was very short. The applicant is the only person truly in a position to estimate the length of time between the intercourse and the making of the videos. Even now, there is not the slightest suggestion that the applicant's evidence about this issue has changed; 2. secondly, the applicant's case at trial was that the intercourse took place at approximately 11:45pm. The jury were seized of that issue and it was a matter for the jury to assess the applicant's evidence on this topic. It was the applicant who introduced the idea that the videos, although shown in Exhibit D to have been made at 12:45am and 12:46am, had in fact been made shortly after the intercourse and one hour earlier than Exhibit D identified; 3. thirdly, the time of Ryan's return does not assist in resolving when the intercourse took place, much less the time "gap" between the intercourse and the recordings. The evidence about Ryan's return does not advance an understanding about the length of time between the sexual intercourse in "Bed 2" and the making of the first two videos. It only establishes that Ryan must have returned before 12:15am when the police were first called; and 4. fourthly, the evidence in relation to Jamie's return is equally unhelpful. The applicant's evidence was both that Jamie's return was "shortly before the police arrived" and also that Jamie returned when she knocked on the door to "Bed 2". It is most likely that the intercourse the subject of counts 1 and 2 took place when Jamie was away from the house. Beyond that, the evidence does not throw light on the gap between the intercourse and the making of the videos.
Understood in this way, the suggested unfairness to the applicant was not that the videos were incorrectly described (by the applicant) as having been made an hour earlier than they were in fact made, but rather that the applicant's own evidence about the gap between the intercourse and the making of the videos was wrong. To paraphrase this Court in Xie, in addressing whether a miscarriage of justice has been shown, this Court does not reformulate the issues of fact identified by the parties at the trial and generally does not speculate about how the trial might have been conducted differently or better. No reason has been shown to think that the applicant's evidence about the time "gap" between the intercourse and the making of the videos might have been different had the investigating police preparing the summary charges or the applicant's own solicitor understood the timing difference created in the video records based on daylight saving time.
A number of the remaining assumptions underlying the applicant's submissions in this Court are equally unpersuasive.
First, there was no toxicological evidence at the trial, nor any other real evidence, from which it could be inferred that CHL was any more or less intoxicated at 12:45am than she had been at 11:45pm. That is, there was no evidence of what alcohol, if any, she consumed during that period, nor evidence of any greater or lesser degree of intoxication as a result of the alcohol she had already consumed between her state of inebriation at 11:45pm and that state at 12:45am. I do not accept the applicant's submission that in order to be relevant the videos needed "to have been taken nearly contemporaneously with the alleged offences". There was no miscarriage of justice shown in the way the applicant's case on this issue was addressed by the Crown or left to the jury by the trial judge. The applicant's case at trial, that the intercourse took place before 11:45pm and the videos were taken shortly thereafter, was put to the jury. The Crown case, that the intercourse could have taken place at any time on that evening and the video evidence was relevant to CHL's state of inebriation at 12:45am, was also put to the jury. Assuming, in favour of the applicant, that the intercourse took place at 11:45pm, the two videos remained relevant in demonstrating the state of inebriation of CHL at 12:45am. It is not the case that evidence of this kind needed "to have been taken nearly contemporaneously with the alleged offences" in order to be relevant and probative. The weight to be given to the videos was a matter for the jury.
Secondly, I am unable to accept the applicant's submission that the evidence disclosed "no opportunity to offend" at around 12:45am. The basis of the submission is that the police were at that time at the house. There is no precise evidence about where at this large property the police were at 12:45am. The records do not permit a conclusion about whether they were, at that time, in the house or waiting outside. Perhaps more fundamentally, it is now common ground that at 12:45am and 12:46am, despite the police presence at the property, the applicant and CHL were alone in "Bed 2" with the door closed. The applicant was making videos of an apparently intoxicated CHL's buttocks because he was "horny". The evidence was that the door to "Bed 2" was able to be locked and that the applicant assumed he had locked it. CHL could not (on the applicant's case on appeal) possibly have been sleeping on the lounge during the time the police were at the property. She was alone in "Bed 2" with the applicant at 12:45am. To be consistent with the theory advanced on appeal, CHL must have moved to "Bed 2", whilst the police were at the premises, when he decided then, whilst the police were at the house, to take videos of the apparently intoxicated CHL's buttocks. That conduct is fundamentally inconsistent with the submission that the presence of the police meant that there was "no opportunity to offend" at around 12:45am.
Thirdly, the suggestion that CHL was on the lounge when the police arrived is a key part of the applicant's new suggested chronology. In large part that chronology rests on SHL's evidence, which was demonstrated in many respects to be incorrect and unreliable, especially about times. SHL's evidence was that CHL was on the lounge throughout the time the police were present. On the applicant's case on appeal, that evidence cannot be correct. In any event, both CHL's and the applicant's evidence was that the sexual intercourse the subject of counts 1 and 2 took place in "Bed 2". SHL's evidence was that she was in "Bed 2" alone after the applicant paraded in the bikini. If SHL's evidence is correct, the possibility that counts 1 and 2 were committed at around 11:45pm is much reduced.
Fourthly, the applicant's submissions on appeal introduce a new event, the movement of the intoxicated and/or sleeping CHL by the applicant from the lounge to "Bed 2", before the first two recordings were made, at a time when on the applicant's evidence at trial he was walking outside with the police after they had arrived at the Kenthurst residence. There was no evidence that CHL and the applicant "returned to 'Bed 2'" at around 12:45am. The applicant's evidence at trial was that he saw CHL on the lounge after the police arrived and that she remained there until the police left. On the applicant's evidence, it was not until after the police left that the applicant, CHL, SHL and Jamie moved to "Bed 2". An insurmountable problem presented by this evidence, on the applicant's current case, is that he and CHL were alone in "Bed 2" at 12:45am when the police were on the premises. The suggested new chronology is really a completely different case being conducted on appeal, contrary to the principles in Ratten and Baden-Clay. The applicant is not entitled to reformulate his case on appeal and attempt to demonstrate that if he had given different evidence the trial might have had a different outcome.
Fifthly, the Crown at the trial did not invite the jury to overlook the possibility that the chronology was not as described by any of the key witnesses. The events and their timing were, quite correctly, explained to be a matter for the jury. In circumstances where all of the main players were intoxicated and there were very few objectively ascertainable times at which particular events occurred, this was quintessentially a case where the good sense of the jury as sole judges of the facts was of particular importance.

Count 3

In relation to count 3, the applicant submitted that the only question was, as with the other counts, whether CHL consented. The videos in evidence were taken without CHL's consent. CHL did not appear responsive at the time the videos were taken.
The applicant submitted that if there was a reasonable possibility that the applicant's evidence about an earlier consensual sexual encounter (the subject of counts 1 and 2) was accepted, then it would be very difficult for the Crown to prove that the applicant knew that she was not consenting to the later digital penetration the subject of count 3. It was submitted that the applicant "might assume [that CHL's] earlier consent was continuing", and that the assumption would not be unreasonable.
My fundamental problem with this aspect of the applicant's case is that the applicant did not give evidence at the trial about a belief that CHL's consent was continuing. The applicant's evidence at trial was that both he and CHL were engaged in conscious and consensual sexual intercourse in "Bed 4", and that the recordings he took of CHL were made during the lulls in that activity. The applicant, in regard to count 3, mounted an entirely new (and inconsistent) case on appeal.
The applicant's conviction on count 3 was unaffected by the ground of appeal. The applicant's evidence in relation to count 3 was contradicted by the recordings of CHL in which she appears to be lying motionless. The jury were entitled to conclude that the applicant's evidence in relation to count 3 adversely affected his credibility in general, including in relation to counts 1 and 2.
Even if, contrary to the conclusion I have come to in relation to counts 1 and 2, it was accepted that the applicant suffered from "chronological confusion" such that his own evidence of the short time "gap" between the intercourse and the first two video recordings affected the convictions on counts 1 and 2, that conclusion would not affect the verdict in relation to count 3.

Conclusion

This was not a case where the Crown's cross-examination and closing address caused a miscarriage of justice. The Crown's cross-examination and closing address were conducted in accordance with the evidence at trial. The conclusion about the timing gap between the intercourse and the recordings urged on appeal as the "only plausible conclusion" was never considered during the course of the trial. It is an entirely new case. The conclusion that the Crown submitted the jury should reach in this case about CHL's condition at a time after the sexual intercourse in "Bed 2" was open on the evidence.
The Crown Prosecutor did not rely on a particular time for counts 1 and 2. The probative value of the recordings was underlined by the applicant's own evidence. The now agreed incontrovertible fact is that the two recordings were made at 12:45am and 12:46am. It was the applicant's consistent evidence that he made the recordings shortly after the intercourse had taken place. The recordings showed CHL in an inebriated state. Nothing said by the Crown at the trial, or contained in the CANs or the evidence in Exhibit 1, directly touched that critical part of the applicant's evidence; that there was only a small gap in time between the intercourse with CHL and the making of the first two videos. I do not accept that there was "no opportunity" for offending shortly before the videos were taken.
The trial judge gave careful directions, making clear that the factual findings about when the intercourse took place and the effect, if any, of the recordings on the question of consent to that intercourse, were factual matters for the jury to consider.
Having regard to all of the evidence, I do not accept that it has been shown that there was a miscarriage of justice of the kind described in Rodi, being a reasonable possibility that the applicant lost a chance of acquittal fairly open to him.

Proposed orders

As I have said, the applicant required an extension of time to file his notice of appeal, which should be granted. In addition, as the applicant's case raised a question of mixed fact and law, leave to appeal is required: Criminal Appeal Act 1912 (NSW), s 5(1)(b). Leave to appeal should be granted but the appeal should be dismissed.
For the foregoing reasons I propose the following orders: 1. Extend time for the filing of the notice of appeal to 8 December 2020; 2. Leave to appeal granted; 3. Appeal dismissed.
ROTHMAN J: I agree with the orders proposed by Payne JA and with his reasons.
BUTTON J: I agree with Payne JA.

Endnote

SHL had called the police at 12:15am. Jamie's call was the second call made to the police that night. 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: 27 September 2021

HEADNOTE [This headnote is not to be read as part of the judgment] On 28 August 2019, following a trial before a jury in the District Court of New South Wales, the applicant, MH, was convicted of three counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). All three offences were committed by the applicant against CHL, the applicant's cousin who in February 2016 was visiting Australia together with her twin sister, SHL. CHL and SHL were both staying at the applicant's parents' home in Kenthurst at the time. The offences were alleged to have occurred during a party held on the night of 6 February 2016 at the applicant's parents' home. The applicant used his mobile telephone to take seven video recordings of CHL which were in evidence at the trial. Those recordings were played by the Crown to CHL during her evidence in chief, tendered without objection and marked "Exhibit C". A table, which was tendered by the Crown by consent and became "Exhibit D", provided details of the number of recordings, their duration and their timestamps. Exhibit D identified the time at which the first two recordings were taken as 12:45am and 12:46am on 7 February 2016. The police officer who downloaded the contents of the applicant's phone gave evidence on two separate occasions (having been recalled) that the times set out in Exhibit D were correct. The Crown case at trial was always that the first two recordings were taken at 12:45am and 12:46am. It was common ground on the appeal that those times were correct. At the trial, however, the applicant's case was that Exhibit D was not correct and that the videos were recorded one hour earlier, at 11:45pm and 11:46pm on 6 February 2016. The applicant gave evidence that he engaged in consensual sexual intercourse with CHL in her bedroom and that the first two recordings were made immediately or very shortly thereafter. The Crown Prosecutor relied upon the applicant's evidence about the proximity between the sexual intercourse and the first two recordings and submitted that those recordings revealed CHL to be asleep or unconscious and therefore not able to consent to sexual intercourse. On appeal, the applicant contended that there had been a substantial miscarriage of justice in the Crown addressing the jury on the basis that recordings taken around 12:45am were important evidence negativing consent. His argument was that those recordings could not have contributed to eliminating reasonable doubt unless they were nearly contemporaneous with the offending, and the evidence demonstrated no opportunity for the offending to have occurred at around 12:45am. It was submitted that the only plausible scenario was that the sexual intercourse occurred before midnight but the applicant and CHL returned to the bedroom at around 12:45am, at which time the applicant recorded the videos. The Court (Payne JA, Rothman and Button JJ agreeing) held, granting leave to appeal but dismissing the appeal: As to counts 1 and 2:

The Crown's cross-examination and closing address was conducted in accordance with the evidence at trial and did not cause a miscarriage of justice. The critical issue relied upon by the applicant was not the time that the intercourse took place, but rather the gap between the intercourse and the making of the recordings. The only evidence at trial and on appeal about that gap in time was the evidence consistently given by the applicant that he made the recordings shortly after the intercourse had taken place. No reason was shown to think that the applicant's evidence about that gap in time might have been different had there not been confusion at the trial as to whether the recordings were taken one hour earlier at 11:45pm and 11:46pm. The applicant did not establish that there was "no opportunity" for offending shortly before the videos were taken at 12:45am and 12:46am: [72]-[74], [86]-[87] (Payne JA); [92] (Rothman J); [93] (Button J).
The trial judge gave careful directions, making clear that the factual findings about when the intercourse took place and the effect, if any, of the recordings on the question of consent to that intercourse, were factual matters for the jury to consider. Having regard to all of the evidence, it was not shown that there was a miscarriage of justice: [88]-[89] (Payne JA); [92] (Rothman J); [93] (Button J). Rodi v Western Australia (2018) 265 CLR 254; [2018] HCA 44, applied. As to count 3:
The applicant mounted an entirely new and inconsistent case on appeal in relation to count 3. The applicant's conviction on count 3 was not affected by the ground of appeal. The jury were entitled to conclude that the applicant's evidence in relation to count 3 adversely affected his credibility in general, including in relation to counts 1 and 2: [83]-[84] (Payne JA); [92] (Rothman J); [93] (Button J).

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