Mol v R

Grounds 1 and 2 - tendency evidence and separate trials

Relevant law

1. Section 97(1) of the Evidence Act 1995 (NSW) provides: (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
2. In Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190 at [124], Simpson J said: [124] Underlying s97 is an unstated but obvious premise. That is that proving that a person has a tendency to act in a particular way or to have a particular state of mind in some way bears upon the probability of the existence of a fact in issue. The fact in issue is the conduct, or state of mind, on a particular occasion relevant to the issues in the proceedings, of the person whose tendency is the subject of the evidence tendered. That is, evidence that a person has or had a tendency to act in a particular way or to have a particular state of mind is not tendered in a vacuum. It is tendered for the purpose of further proving (or contributing to proving) that, on a particular occasion, that person acted in that way or had that state of mind. Proof of the tendency is no more than a step on the way to proving (usually by inference) that the person acted in that way, or had that state of mind, on the relevant occasion.
3. In Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 303 at [359]-[360] the New South Wales Court of Criminal Appeal (comprised of Bathurst CJ, Hoeben CJ at CL and Simpson JA) held: [359] …Tendency evidence is evidence that provides the foundation for an inference. The inference is that, because the person had the relevant tendency, it is more likely that he or she acted in the way asserted by the tendering party, or had the state of mind asserted by the tendering party on an occasion the subject of the proceedings. Tendency evidence is a stepping stone. It is indirect evidence. It allows for a form of syllogistic reasoning. [360] …Tendency evidence is a means of proving, by a process of deduction, that a person acted in a particular way, or had a particular state of mind, on a relevant occasion, when there is no, or inadequate, direct evidence of that conduct or that state of mind on that occasion.
4. The requirements of s 97(1) were recently considered by the High Court in IMM v R (2016) 257 CLR 300; [2016] HCA 14. The plurality (French CJ, Kiefel, Bell and Keane JJ) at [44], [46] and [51] observed (footnotes omitted): [44] The assessment of "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue" requires that the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest. The definition must be read in the context of the provision to which it is applied. For the purposes of s 97(1)(b), the enquiry is whether the probative value of the evidence may be regarded as "significant". … [46] Cross on Evidence suggests…a "significant" probative value is a probative value which is "important" or "of consequence". The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding. … [51] At a practical level, it could not be intended that a trial judge undertake an assessment of the actual probative value of the evidence at the point of admissibility. As Simpson J pointed out in R v XY, the evidence will usually be tendered before the full picture can be seen. A determination of the weight to be given to the evidence, such as by reference to its credibility or reliability, will depend not only on its place in the evidence as a whole, but on an assessment of witnesses after examination and cross-examination and after weighing the account of each witness against each other.
5. Tendency evidence may only be admitted in criminal proceedings if it also passes the test in s 101(2) of the Evidence Act which provides: (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
6. In R v Ellis (2003) 58 NSWLR 700; [2003] NSWCCA 319, Spigelman CJ (with whom Sully, O'Keefe, Hidden and Buddin JJ agreed) said at [91]-[97]: [91] I find the following reasoning of McHugh J in Pfennig at 516 compelling: "If evidence revealing criminal propensity is not admissible unless the evidence is consistent only with the guilt of the accused, the requirement that the probative value 'outweigh' or 'transcend' the prejudicial effect is superfluous. The evidence either meets the no rational explanation test or it does not. There is nothing to be weighed - at all events by the trial judge. The law has already done the weighing. This means that, even in cases where the risk of prejudice is very small, the prosecution cannot use the evidence unless it satisfies the stringent no rational explanation test. It cannot use the evidence even though in a practical sense its probative value outweighs its prejudicial effect." [92] His Honour's judgment was a dissent. Nevertheless, this reasoning is directly apposite to the issue now before the Court, which is an issue of statutory construction. [93] It is one thing to determine that a common law test requiring balancing between different, indeed incommensurable, considerations, should be conducted in a particular way. It is quite another thing to say that statutory words should be given a construction which they are not capable of bearing. [94] The words "substantially outweigh" in a statute cannot, in my opinion, be construed to have the meaning which the majority in Pfennig determined was the way in which the common law balancing exercise should be conducted. The "no rational explanation" test may result in a trial judge failing to give adequate consideration to the actual prejudice in the specific case which the probative value of the evidence must substantially outweigh. [95] Section 101(2) calls for a balancing exercise which can only be conducted on the facts of each case. It requires the Court to make a judgment, rather than to exercise a discretion. (See R v Blick (2000) 111 A Crim R 326 at [20] per Sheller JA; F Bennion "Distinguishing Judgment and Discretion" [2000] Public Law 368.) The "no rational explanation" test focuses on one only of the two matters to be balanced - by requiring a high test of probative value - thereby averting any balancing process. I am unable to construe s101(2) to that effect. [96] My conclusion in relation to the construction of s101(2) should not be understood to suggest that the stringency of the approach, culminating in the Pfennig test, is never appropriate when the judgment for which the section calls has to be made. There may well be cases where, on the facts, it would not be open to conclude that the probative value of particular evidence substantially outweighs its prejudicial effect, unless the "no rational explanation" test were satisfied. [97] There are conflicting authorities in this Court. Nevertheless, the preponderance of authority is in favour of applying the Pfennig test by way of explication of the statutory formulation. That line of authority was, however, established before the High Court in Papakosmas clarified the correct approach to determining the relationship between the Evidence Act 1995 and the pre-existing common law.
7. In determining the prejudicial effect that evidence may have on a defendant, it is legitimate and appropriate for the judge to take into account the ameliorating effect of any directions that may be available to reduce the prejudicial effect: DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [171]; R v Ngatikaura (2006) 161 A Crim R 329; [2006] NSWCCA 161 at [32]; Hughes v R [2015] NSWCCA 330 at [192]. In BC v R [2015] NSWCCA 327 Beech-Jones J (with whom Simpson JA agreed) emphasised at [105]-[110] the critical importance of the specific identification of the prejudice to a defendant in conducting the weighing exercise required by s 101 and the importance of the consideration of directions which can be given in the particular case which could eliminate or ameliorate the identified prejudice.
8. Finally, while s 101(2) requires the court to make an evaluative judgement rather than exercise a discretion, in an appellate review of determinations made under this section, the principles in House v The King (1936) 55 CLR 499 at 504-505 governing appellate review of discretionary decisions apply: see generally Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136 at [6] per Basten JA (with whom Fullerton and RA Hulme JJ agreed) and DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [170] (although the question addressed in that case arose in the case of an interlocutory appeal to the Court).

The tendency notices

1. The Crown served three tendency notices ahead of the trial. The tendencies the Crown sought to rely upon were: 1. A tendency to have a particular state of mind, namely to be reckless as to whether or not the young women who he engaged to model for him were consenting to sexual contact with him. 2. A tendency to act in a particular way, namely to engage in sexual activity with the young women engaged by him as artistic models. 3. A tendency to have a particular state of mind, namely to be reckless as to whether or not the young women (namely the complainants [HS, AY and KC]) who he engaged to model for him were consenting to sexual contact with him. The following circumstances were relied upon: 1. the sexual contact commenced with the accused touching the complainants' breasts without warning; and 2. in relation to the complainants HS and AY, the accused persisted in sexual contact with them despite their visible distress.
2. It was common ground that the third notice effectively subsumed the first and that the evidence relied upon was the tendency to act in a particular way described in the second notice and the tendency to have a particular state of mind described in the third notice.

Applicant's submissions - tendency to act in a particular way

1. The primary judge permitted the Crown to rely upon the asserted tendency to act in a particular way (to engage in sexual activity with young women acting as artists' models) to prove the disputed acts relating to HS (charges 3 - 9).
2. Mr Gartelmann SC, in the course of his thorough and helpful submissions for the applicant, conceded that the primary judge was correct to permit the evidence relating to tendency to act in a particular way to go to the jury. Although a document had been handed up for the purposes of a voir dire indicating informal agreement by the defence to the proposition that sexual activity had taken place with HS, subject to various qualifications, that question remained in issue before the jury.
3. That concession was correctly made. The case has a number of similarities with the tendency evidence addressed by this Court in Saoud at [49]-[53] regarding the significant probative value of modus operandi tendency evidence of the kind here engaged.
4. The disputed acts in relation to HS were in contest before the jury. The primary judge was correct to permit the Crown to rely upon the asserted tendency to act in a particular way (to engage in sexual activity with young women acting as artists' models) to prove the disputed acts relating to HS. That evidence had significant probative value within the meaning of s 97 and the probative value of that evidence substantially outweighed its prejudicial effect within the meaning of s 101.

Applicant's submissions - tendency to have a particular state of mind

1. The primary judge permitted the Crown to lead evidence from HS, AY and KC to prove that the applicant had a tendency to have a particular state of mind, namely to be reckless as to whether or not the young women who he engaged to model for him were consenting to sexual contact with him.
2. The applicant accepted that the tendency evidence which was admitted about the applicant's state of mind met the threshold of admissibility in s 97(1)(b) of the Evidence Act as having "significant probative value".
3. It was submitted, however, that her Honour erred in failing to find that the probative value of the evidence did not substantially outweigh the prejudicial effect it may have on the defendant within the meaning of s 101(2) of the Evidence Act.
4. The prejudice identified by the applicant was that the jury may be confused about the use which could be made of the tendency evidence in dealing with the two different types of offences charged. The applicant submitted: The difference in the mental elements applicable to the two kinds of offences was subtle but important in the context of the issues in the trial. The directions permitted use of tendency without distinction and gave rise to the risk that the jury would conflate the differing issues applicable in determining the mental elements of the offences.
5. Whilst it was common ground before this Court that the mental element required to establish indecent assault contrary to s 61L of the Crimes Act was different to that required to establish sexual intercourse without consent contrary to s 61I of the Crimes Act, it was also common ground that recklessness as to consent was an element of each offence.
6. The primary judge accepted that directions limiting the use of evidence of the tendency would be "somewhat difficult" but not that they would be "impossible to follow" or "susceptible to misuse by a jury". The judge therefore concluded that the probative value of the evidence substantially outweighed its prejudicial effect.
7. The applicant submitted that the prejudicial effect of the evidence was significant because of the risk the jury might use it in the determination of issues not confined to recklessness as to consent, despite directions to the contrary. Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4 at [44]-[45] was relied upon. It was submitted that even if evidence of such a tendency had significant probative value, it was not such as to outweigh its prejudicial effect for the purposes of s 101(2) of the Evidence Act.

Decision of the primary judge about tendency to have a particular state of mind

1. In the judgment of 14 July 2015 her Honour dealt with this issue: Accordingly, I accept that the evidence sought to be led by the Crown as tendency is relevant to whether the Crown can prove that the accused was reckless as to whether the complainants consented or not. In this respect, it must be noted that the requirements of proof as between indecent assault and sexual intercourse without consent on the issue of consent are different. Section 61HA(3) of the Crimes Act does not apply to indecent assault. However, and significantly, a reckless state of mind on the part of an accused is a guilty state of mind when it comes to both indecent assaults and sexual intercourse without consent. When it comes to recklessness, there is no distinction. A guilty state of mind exists if the Crown can prove that the accused simply failed to consider whether the complainant was consenting and just went ahead, even though the risk that she was not consenting would have been obvious to a sober person with the accused's mental capacity, or that he realised the possibility that she was not consenting but went ahead regardless of whether she was consenting or not.
2. In addressing the critical balancing exercise required by s 101 of the Evidence Act, her Honour later said that: I must then undertake a balancing exercise under s 101. I accept that the evidence does bring with it prejudice; that prejudice is, in my view, somewhat lessened or lowered by the fact that the accused admits most of the acts of misconduct. Nevertheless, I accept that there is prejudice. Before I allow the evidence, the Crown must satisfy me that the probative value substantially outweighs its prejudice effect [sic]. Ms Francis [counsel for the applicant at trial] has argued that not only does the evidence lack significant probative value, it is in effect impossible to intelligibly limit the use of this evidence in the way contended for by the Crown. She argues that the Crown is endeavouring to prove both the state of mind of the accused but also the absence of consent on the part of the complainants, and that it is, in effect, impossible to compartmentalise the evidence. I do not accept that submission. The Crown must prove that each complainant did not consent to each of the acts under consideration, and each act must be considered separately. The tendency evidence does not, and cannot, have any bearing upon this element that the Crown must prove. And the Crown has been careful not to conflate the two. It is only if the Crown has satisfied this element, without the use of tendency evidence, that the jury will turn to the next essential element; that is, the element that the accused knew or was reckless as to whether the complainants consented. Here again, the Crown seeks to limit the use of tendency evidence to recklessness and not to actual knowledge. I accept that once one gets to this element, directions limiting use of the evidence become somewhat difficult, but I am not of the view that the directions will be impossible to follow or that the evidence is susceptible to misuse by a jury. Clear and concise directions will instruct the jury that they cannot use the evidence on the issue of whether the Crown has proven that the accused actually knew that the complainant was not consenting, but it is only if and when they are considering the alternate basis of recklessness that they may use the evidence. With the benefit of clear directions, I am satisfied that the evidence does substantially outweigh its prejudicial effect. Accordingly, I allow the evidence referred to by the Crown in its first and third tendency notices to be led as tendency evidence.

The primary judge's summing up

1. An important feature of the present appeal is that no ground of appeal asserted that her Honour erred in any part of the summing up and it was no part of the applicant's case that any part of the summing up itself revealed error. In her summing up, the primary judge addressed this aspect of the tendency evidence as follows: I have also told you that the Crown can rely upon a reckless state of mind on the part of the accused. If, and only if, you come to considering whether the Crown has proven a reckless state of mind on the part of the accused, you can use the tendency evidence. On this issue, the Crown case is that the accused had a tendency to have a particular state of mind, namely, he had a tendency to be reckless as to whether or not the complainant, whom he engaged to model for him, was consenting to sexual contact with him.
2. Her Honour's summing up continued: In seeking to prove that he had this tendency, the Crown relies on some circumstances which it submits apply in respect of each complainant. They are that the sexual contact commenced with the accused touching the complainants' breasts without warning, and in relation to the complainants HS and AY, the Crown asserts that the accused persisted in sexual contact with them despite their visible distress. The evidence suggesting that the accused had that tendency can only be used by you in the way the Crown asks you to use it, if you make two findings beyond reasonable doubt. The first finding is that you conclude beyond reasonable doubt that, in relation to one or more of the acts alleged, that the accused was, in fact, reckless as to consent. So before you can use any of the other counts, you must make a finding that the Crown has, in fact, proven that the accused is guilty of that count, and proven it on the basis that the accused was reckless as to the issue of consent on the part of the complainant. This involves, whether or not you do find that the sexual contact commenced, in relation to any of the complainants, with the accused touching the complainants' breasts without warning, and whether, in relation to HS and or AY, the accused did persist in sexual contact with them, despite their visible distress. If, and only if, you are satisfied beyond reasonable doubt that one or more of the counts has been proven by the Crown, on the basis that the accused was reckless as to lack of consent on the part of the complainant, then you must go on to consider the second finding.

Consideration of grounds 1 and 2

1. In this Court the applicant accepted that the tendency evidence relied upon to demonstrate the applicant had a particular state of mind had significant probative value within the meaning of s 97. When examined against the critical issues in the case, that concession was correctly made.
2. A critical issue at trial was whether the Crown had proved that the applicant had the required mental state in committing the acts alleged, many of which the applicant did not dispute. In determining whether the applicant was reckless as to whether the complainants consented to his sexual approaches, it was highly probative that the evidence, taken at its highest, showed that: 1. the sexual contact commenced with the accused touching the complainants' breasts without warning; and 2. in relation to the complainants HS and AY, the accused persisted in sexual contact with them despite their visible distress.
3. The question that arises is whether, within the meaning of s 101, the primary judge erred in weighing the competing considerations and concluding, assuming that clear directions would be given to the jury about the issue, that the probative value of the evidence substantially outweighed the prejudice identified, namely the risk the jury might use the tendency evidence in the determination of issues not confined to recklessness as to consent, despite being given directions to the contrary.
4. In this regard, the applicant made no specific complaint about the directions actually given by the primary judge, but relied upon those directions only to demonstrate that the risk identified was made patent or materialised.
5. It will be recalled that the Crown case included the following features: 1. all of the complainants were recruited having placed an advertisement on a website seeking casual work; 2. all were aged in their late teens; 3. all were invited to an artist's "studio" by the applicant; 4. the offences occurred when no other persons were present; 5. each of the complainants was subjected to unwanted and inappropriate touching by the applicant, including a clear sexual interest; 6. the sexual contact commenced in each case with the applicant touching the complainants' breasts without warning; and 7. the applicant persisted in sexual contact with HS and AY despite both young women crying during that sexual contact.
6. The last two matters (6) and (7), being the relevant tendency evidence about the applicant's state of mind, were in context highly probative. The jury were entitled to conclude that the fact that the applicant touched the complainants' breasts without warning was significant to the issue of whether the applicant had a tendency to be reckless as to whether or not the complainants, whom he engaged to model for him, were consenting to sexual contact with him. The jury were also entitled to conclude, in relation to the complainants HS and AY, that the fact that the applicant persisted in sexual contact with them despite their obvious and visible distress was significant, again limited to the issue of whether the applicant had a tendency to be reckless as to whether or not these two complainants, whom he engaged to model for him, were consenting to sexual contact with him.
7. The prejudice identified, the risk the jury might use the tendency evidence in the determination of issues not confined to recklessness as to consent, despite directions to the contrary, was relatively slight. Her Honour was entitled to conclude that clear directions could be given to the jury on this topic and to take that matter into account in the balancing test required by s 101(2). The absence of any ground of appeal or specific complaint about those directions is telling. While accepting that the tendency evidence may have a prejudicial effect, the primary judge's directions given to the jury, set out at [53]-[54] were sufficiently clear to eliminate or significantly ameliorate the identified risk. The applicant did not show, or attempt to show, that the directions actually given were incorrect or insufficient in all the circumstances of the case. The applicant failed to demonstrate that the risk identified was made patent or materialised by those directions. Certainly, the applicant did not show any House v The King error in the way her Honour weighed the competing considerations and reached her conclusion about s 101.
8. Before leaving ground 1, I should note that contrary to the written submissions of the applicant, nothing in the decisions of the High Court in Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4 at [44]-[45] or Stubley v Western Australia (2011) 242 CLR 374; [2011] HCA 7 prohibited the use of tendency evidence to establish a reckless state of mind on the part of the applicant and her Honour was correct to so conclude: 1. Phillips v The Queen did not address the presently relevant question. That case was not concerned with the statutory test in s 101. Moreover, in the passages relied upon, the plurality was addressing the state of mind of the victim and not the relevant question addressed here by her Honour, being the state of mind of the applicant. 2. Stubley was a case addressing a different issue under a different statutory regime for admissibility. In that case the prosecution had to negative the appellant's honest and reasonable but mistaken belief in consent (the appellant was the psychiatrist treating the complainants). In the High Court, the Crown did not advance any basis upon which the evidence of the three complainants might have tended towards negativing the asserted honest and reasonable but mistaken belief in consent save by recourse to the contention that the evidence of these witnesses demonstrated the appellant's psychological ascendency over his patients. Absent any feature of the evidence tending to demonstrate the appellant's awareness that his manipulation of his patients had not succeeded in procuring their assent to his predatory advances, proof of the imbalance of power did not rationally bear on the issues raised by the defence: see [83] in the judgment of the plurality in Stubley. The case is clearly distinguishable from the present.
9. For these reasons, ground 1 should be dismissed.
10. So far as ground 2 is concerned, the complaint about separate trials was parasitic upon ground 1. It was submitted only that if the use of tendency evidence was wrongly permitted for the reasons advanced under ground 1, the primary judge erred in refusing the separate trial application.
11. As ground 1 should be dismissed, it follows that ground 2 should also be dismissed.

Conclusion on grounds 1 and 2

1. I would grant an extension of time to file the notice of appeal. As the applicant has raised an issue sufficiently important to warrant consideration by this Court, I would grant leave to appeal on grounds 1 and 2 but dismiss the appeal on these grounds.

Ground 3 - miscarriage of justice as a result of withdrawing a direction to the jury

1. The applicant submitted that a miscarriage of justice occurred as a result of withdrawing a direction to the jury regarding the issue of consent. The issue arose in an unusual way.
2. Her Honour provided a draft of her directions to the jury (MFI 17) to counsel. MFI 17 provided that "[c]onsents have to be free and voluntary". In dealing with the element of "without the consent of the complainant" the document distinguished in part between the sexual intercourse without consent offences and the indecent assaults. In respect of both, however, it was noted that "consent obtained by persuasion is still consent".
3. In her closing address, counsel then appearing for the applicant told the jury, in terms derived from the Western Australian case Holman v The Queen [1970] WAR 2 at 6: … her Honour will give you directions on the topic of consent, but suffice to say consent can be reluctant, it can be begrudging, it can even be teary. But if it is obtained, as was the case here, the accused is entitled to an acquittal.
4. In summing up, her Honour, in summarising the arguments of counsel for the applicant, told the jury "[counsel for the applicant] reminds you that consent can be reluctant, can be begrudging, and she submits, can be teary".
5. At the next break counsel for the applicant asked her Honour to re-direct the jury to the effect that it was not just a submission on behalf of the applicant that consent "can be teary" but that it was so as a matter of law; referring to Stubley at [70], which in turn referred to the relevant passage in Holman. Her Honour indicated she would do so. When the jury returned her Honour gave the jury "…two further directions. The first direction is that I direct you that at law consent can be reluctant, it can be given grudgingly and it can be given tearfully".
6. Later that day the Crown raised the issue with her Honour and asked that the re-direction be withdrawn. Written and oral submissions were made by the parties. Her Honour determined to withdraw the direction and re-directed the jury as follows: Good morning. I brought you in this morning to redirect you, because when I gave my oral directions to you earlier this week I did make an error. This was not an error made in written directions, but this was a direction that I gave you toward the end of my summing up. I said to you, in relation to the issue of the complainant's consent, that consent can be given hesitantly, grudging, or tearfully. That direction was an error. It was, in fact, a misdirection, and I now direct you not to follow that direction. As I say, it was an error on my part and I direct you to ignore it. I apologise to you for making that error and I invite you to now continue your deliberations.
7. The applicant does not in this Court submit that such a direction was correct in law. That concession was correctly made. Having regard to the statutory definition of consent under s 61HA(2) of the Crimes Act, being, "[a] person "consents" to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse", the submission made by trial counsel for the applicant that a direction based on Holman should be given was incorrect. Rather, the applicant submitted in this Court that the withdrawal of the direction at a late stage of the trial caused significant practical unfairness.
8. Counsel for the applicant in this Court accepted that trial counsel did not seek a re-direction following the direction that was ultimately given in answer to the jury's question. What was sought was a redirection about implied consent. It was common ground in this Court that a redirection about implied consent should not have been given. Mr Gartelmann SC initially submitted that her Honour should not have withdrawn the re-direction or should have discharged the jury. Neither application was made to the primary judge. He relied, by way of analogy, upon the decision of this Court in Robinson v R (2006) 162 A Crim R 88; [2006] NSWCCA 192 at [145]-[146]. Mr Gartelmann SC ultimately submitted that underlying the request for a re-direction about implied consent was a request for some guidance to the jury about the knowledge of the accused in respect of the consent of the complainant. He submitted that: … although it's conceded that the requested direction was not appropriate there was at least a request for a direction which would have involved some guidance in respect of what appeared to be the question troubling the jury, that is at least in part a question about the knowledge on the part of the accused regarding the complainant's consent. So in my submission r 4 need not be applied to this ground of appeal.

Consideration of ground 3

1. Whist it would have been preferable if her Honour had not given a re-direction based on Holman, she was led into that course by counsel for the applicant at trial. As soon as the error was pointed out her Honour corrected the error. It was incumbent upon her Honour to do so. The jury could not have been allowed to deliberate in this case on the basis of directions about consent drawn from Holman. Those directions were clearly wrong, as is now accepted. The applicant's submission in this Court that the trial judge, faced with the error into which she had been led in the initial re-direction, "ought to have done nothing" must be rejected.
2. The decision in Robinson involved a very different case where the trial judge had raised a new case in summing up which had not been advanced by the Crown or touched upon by either party in closing address. That case provides no assistance, even by way of loose analogy, to the present applicant.
3. In the ultimate re-direction which was given, her Honour took complete responsibility for misdirecting the jury. No blame was attached to counsel for the applicant. Counsel then appearing for the applicant asked for a further re-direction in terms of implied consent. It is now common ground that her Honour was correct to reject that application. Any more general additional direction about consent of the kind suggested in this Court was not advanced before the primary judge.
4. There would have been dangers in any additional attention being given to this issue before the jury. Any additional explanation from her Honour about why she had given the original direction based on Holman and why it was now being withdrawn would, in my view, have been likely to have drawn unwarranted attention to the issue and may itself have led to prejudice to the applicant.
5. This question of additional directions was quintessentially a matter for determination at the trial in the atmosphere that the parties, including counsel for the applicant, were immersed. No re-direction of the kind now suggested was sought by trial counsel. A different, and incorrect, re-direction about implied consent was sought. No application to discharge the jury was made at the trial based on this issue.
6. This is not a case where there was any arguable miscarriage of justice in failing to give a further direction about consent or in failing to discharge the jury. The primary judge quickly and accurately corrected an error into which her Honour had been led by counsel for the applicant. The terms of that correction accepted the blame for the error rather than sheeting home responsibility to the applicant's counsel. No error has been shown in failing to give a further direction or in failing to discharge the jury. No such direction or discharge was sought at the time by experienced trial counsel.
7. I would refuse leave to the applicant to rely upon ground 3 under r 4 of the Criminal Appeal Rules.

Ground 4 - asserted error in directions addressing a note from the jury

1. The applicant submitted that the primary judge erred in directions given when addressing a note from the jury. After retiring to consider its verdict, the jury sent a note with the following question: May consent be a mindset? If touching was not expected, but it is [sic] complied to [sic] due to any reason, it is still considered as consent if the complainant's mind could only be determined after the touchings?
2. The primary judge provided the jury with the following written directions in response to that question: CONSENT The accused does not have to prove that the complainant consented. It is for the Crown to prove beyond reasonable doubt that the complainant did not consent. When you are considering whether the Crown has proven that the complainant did not consent, you are considering the state of mind of the complainant at the time the act took place. Sexual intercourse counts The complainant consents to sexual intercourse if she freely and voluntarily agrees to engage in sexual intercourse with the accused. Consent is a positive thing - it requires the complainant to freely and voluntarily decide, in her own mind that she will consent to sexual intercourse with the accused. If you find that the Crown have proven, beyond reasonable doubt that the intercourse took place without the complainant freely and voluntarily deciding in her own mind that she will agree to engage in sexual intercourse with the accused then the Crown have proven that the complainant did not consent to the sexual intercourse. Indecent assault counts In order to establish that the touching was unlawful and therefore an assault the Crown must prove beyond reasonable doubt that the accused touched the complainant without her consent. Consent involves conscious and voluntary permission by the complainant to touch the complainant's body in the manner that he did. Consent is a positive thing - it requires the complainant to consciously and voluntarily decide in her own mind that she will permit the accused to touch her body in the manner that he did. If you find that the Crown have proven, beyond reasonable doubt that the touching took place without the complainant consciously and voluntarily deciding in her own mind that she will permit the accused to touch her body in the way he did then the Crown have proven that the complainant did not consent to the touching. If you accept that the complainant did not have the opportunity to consider the issue of consent because she was touched without warning and so did not know she was going to be touched until after she was touched, then as a matter of law, the Crown have proven that she did not consent.
3. The primary judge also gave the jury oral directions in accordance with the above written directions.
4. Counsel for the applicant at trial requested that the primary judge give the jury a direction about implied consent based on the case of R v DMC (2002) 137 A Crim R 246; [2002] NSWCCA 513. Counsel for the applicant in this Court accepted that her Honour was correct to refuse to give such a direction.
5. It was submitted in this Court that in response to the question different directions to the jury ought to have been given. Those additional directions, it was submitted, should have made it clear that it was not necessary that the complainant communicate consent to the applicant. It was submitted that the direction that consent was a "positive thing" was capable of being understood as suggesting the contrary. The applicant also submitted in this Court that the directions to the jury in response to the question ought to have made clear that it remained necessary for the Crown to prove in respect of each of the indecent assault counts that the applicant did not have an honest but unreasonable belief as to the complainants' consent.

Consideration of ground 4

1. The applicant's submission on this ground rests to a considerable extent on a construction of the note from the jury. Those submissions proceed on the basis that it should be inferred that the jury were seeking guidance about the requirements upon the Crown to prove the applicant's mental state about the complainants' consent in respect of each of the indecent assault counts. This interpretation placed on the note by the applicant does not fairly arise on the language of the note. The note is addressing the requirements upon the Crown to prove the complainants' state of mind, and in particular, consent given only after an unexpected sexual touching.
2. This was the subject the primary judge addressed in her directions to the jury. The jury asked no follow up or additional questions following the direction given by the primary judge from which I infer that that her Honour had addressed the subject raised by the jury in the note.
3. The applicant's complaint that the direction that consent was a positive thing connoted a requirement for communication of consent does also not arise on a reading of the direction as a whole. Her Honour made clear that consent did not involve proof of communication of that consent to the applicant in the following passage: If you find that the Crown have proven, beyond reasonable doubt that the touching took place without the complainant consciously and voluntarily deciding in her own mind that she will permit the accused to touch her body in the way he did then the Crown have proven that the complainant did not consent to the touching. (italics added)
4. There was no realistic possibility that a failure to direct the jury in the terms now suggested caused the applicant to lose a chance of acquittal. The jury received the assistance that they had sought by her Honour directing the jury specifically about whether a complainant's state of mind after the event of sexual touching might constitute consent. This was the matter about which they had sought assistance. The suggestion that her Honour's directions implied that consent must be communicated to the applicant in order to be effective is inconsistent with the clear terms of her Honour's directions.
5. In the atmosphere of the trial, experienced trial counsel obviously did not read the note in the same way as was advanced on appeal. Nor was any difficulty about consent needing to be communicated discerned. No re-directions of the kind now advanced were sought.
6. Leave to appeal should be refused on ground 4 under r 4 of the Criminal Appeal Rules.

The application for leave to appeal against sentence

1. I agree with the reasons of Fullerton J about the application for leave to appeal against sentence and the order her Honour proposes.

Conclusion and orders

1. I propose the following orders be made: 1. Time to file the notice of appeal extended to 1 September 2016. 2. Leave to appeal against conviction on grounds 1 and 2 of the notice of appeal granted. 3. Appeal against conviction on grounds 1 and 2 of the notice of appeal dismissed. 4. Leave to appeal against conviction on grounds 3 and 4 of the notice of appeal refused under r 4 of the Criminal Appeal Rules.
2. JOHNSON J: I have had the advantage of reading the draft judgments of Payne JA with respect to the conviction appeal and Fullerton J concerning the application for leave to appeal against sentence. I agree with the reasons and proposed orders as contained in those judgments.
3. FULLERTON J: With respect to the appeal against conviction, I have read the draft judgment of Payne JA and agree with his Honour's reasons and proposed orders.
4. The applicant relied on three grounds of appeal against the aggregate sentence imposed after trial: 1. The judge erred in finding the offences were aggravated because of a breach of a position of trust; 2. The judge erred in finding the applicant abused his professional position to commit the offences so as to warrant less weight being given for prior good character; and 3. The judge erred in taking into account post-offence conduct in assessing the seriousness of the offences.
5. The third ground of appeal concerns a passage in the sentencing remarks where the sentencing judge found that the applicant had destroyed a memory card from his camera as potential evidence during the course of the police investigation.
6. In the filed submissions, the destruction of the memory card was said to be a reference to post-offence conduct erroneously taken into account by the sentencing judge as an objective feature of the offending.
7. In the course of the hearing of the appeal, the applicant's counsel did not seek to argue against another construction of the same passage which counsel accepted would not constitute error.
8. In the course of detailing various features of the offending conduct which her Honour was satisfied were proved to the criminal standard for sentencing purposes, she said: … Next, I find that the offender must have known and did know that the victims did not consent. HS, early in the event, told him she had changed her mind. HS and AY cried. The offender displayed intimidating and aggressive behaviour and he destroyed potential evidence after the events. I conclude he did so because he feared the truth. He feared that the photographs of the victims would reveal their true demeanour, unlike his sketches. The offender knew that each of the victims consented to modelling for him and that there would be nudity. I find that it was clear that consent went no further than that. …
9. Read in context, I am satisfied that her Honour's reference to the applicant's destruction of the memory card was intended to exemplify that he knew the complainants were not consenting to sexual intercourse, a matter clearly relevant to the assessment of the objective seriousness of those counts where consent was an issue.
10. The third ground of appeal is not made out.
11. I am not persuaded that either of the first or second grounds of appeal against sentence are made out.
12. The first ground of appeal concerns the operation of s 21A(2)(k) of the Crimes (Sentencing) Procedure Act 1999 (NSW) ("the Sentencing Act") which provides that an offence will be aggravated if the offender abuses a position of trust or authority in relation to the victim in the commission of the offence.
13. The applicant submitted that it was not open to the sentencing judge to find that the applicant had abused a position of trust or authority relative to any of the complainants since, as young women who had consented to modelling for him naked or semi-naked, he owed them no duty of care. Counsel submitted that it was not enough to invoke the operation of s 21A(2)(k) that the complainants placed their trust in the applicant not to sexually abuse them or to indecently assault them once they had contracted with him to model naked.
14. Consistently with the features of aggravation listed in s 21A(2) of the Sentencing Act reflecting the common law (see R v Johnson [2005] NSWCCA 186 at [21]), I accept that s 21A(2)(k) was not intended to extend the categories of what might constitute a breach of trust or authority in the commission of an offence at common law where the special relationship between an offender and a victim imposes mutual obligations not to act to the detriment of the other. However, in a given case, the particular nature of the relationship between an offender and a victim may be such that their relationship transcends the duty of care that arises between people otherwise engaged in business or social communion, thereby imposing on them a particular responsibility not to act to the detriment of the other and an obligation the breach of which will operate as a statutory feature of aggravation (Suleman v R [2009] NSWCCA 70 at [22]).
15. After reviewing the authorities that have considered the nature of a relationship, breach of which will operate to aggravate the offending as provided for in s 21A(2)(k), the sentencing judge regarded the relationship between the applicant, who had represented himself as a professional artist, and the complainants, who had agreed to pose nude or partially nude as models, as constituting a "special or peculiar relationship" of trust which the applicant breached when he sexually and indecently assaulted them.
16. I am satisfied there was no error in the sentencing judge's analysis of the relationship between the applicant and the complainants as being within that category.
17. To the extent that the second ground of appeal alleges error both in the sentencing judge's finding that the applicant used his professional position to commit the offences and, having made that finding, to have afforded less weight to the applicant's prior good character in determining the appropriate sentence, neither error is made out.
18. The sentencing judge found that the applicant "… took each of the victims to his flat on the pretence, or pretext, that he was only interested in them for an artistic purpose" and that he "… used his position as a professional artist in order to convince the victims to come to his flat and remove their clothing". In that way, her Honour found he had used an aspect of his good character to facilitate the offending. The applicant does not submit that these findings are unsupported by the evidence adduced at trial, rather that they were not reasonably open on the evidence. That submission must be rejected.
19. HS gave evidence that she was contacted by the applicant who represented himself as a figurative artist seeking topless models. She gave evidence that it was after talking with the applicant and seeing samples of his work that she was led to believe she would be modelling for an artist pursuing a legitimate artistic endeavor. She gave evidence that having formed that belief she attended the applicant's studio and complied with his request to remove her top and bra.
20. KC and AY also gave evidence that they attended the applicant's studio and partially removed their clothing on the same basis. AY also gave evidence that when she hesitated in removing her clothes, the applicant sought to reassure her that he was a professional artist, "not a molester or rapist".
21. It was accepted by the sentencing judge that the applicant had no record of prior convictions and, prior to the commission of the offences for which he was convicted, that he had led an exemplary life as a loving and caring family man who had made a valuable contribution to the community through his work as an art teacher and designer. This was supported by a body of testimonial and oral evidence from family members and from his former colleagues in the arts.
22. The sentencing judge noted that the applicant's prior good character was a mitigating factor under s 21A(3)(f) of the Sentencing Act, as to which she said: … I do intend to give this factor weight, but I do accept the Crown Prosecutor's submission that the weight I give to this factor should be limited by virtue of the nature of the offending … [and] because the offender used an aspect of his good character in order to facilitate the offending.
23. In my view, there is no error in this approach, it being entirely in accordance with settled authority.
24. In KAB v R [2015] NSWCCA 55, Wilson J (with whom Ward JA and Simpson J agreed) stated at [48]: The obligation imposed upon sentencing judges is to "take into account" an offender's former good character, but the weight to be given to that feature is a matter for the sentencing judge, whose discretion in that regard is wide…
25. The rationale for good character being given less weight when sentencing for certain offences was discussed by Howie J in R v Kennedy [2000] NSWCCA 527 at [21] : It is unnecessary for the purposes of determining this appeal to consider the circumstances in which a court may legitimately determine that it will give less weight to prior good character as a mitigating factor. Generally speaking such a situation might arise where general deterrence is important, the particular offence before the court is serious and it is one frequently committed by persons of good character. Another situation may be where the prior good character of the offender has enabled him or her to gain a position where the particular offence can be committed.
26. I propose that the application for leave to appeal against sentence be dismissed.

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