Mortimer v R

[2021] NSWCCA 47

Court of Criminal Appeal (NSW)|2020-07-20|Before: Johnson J, Garling J, Wright J, Mr P

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2020-07-20

Before

Johnson J, Garling J, Wright J, Mr P

Catchwords

[2017] NSWCCA 34 Alford v Magee (1952) 85 CLR 437
[2013] NSWCCA 317 McKell v R [2017] NSWCCA 291 McKell v The Queen (2019) 264 CLR 307
[2019] HCA 5 NJB v R [2010] NTCCA 5 OKS v State of Western Australia (2019) 265 CLR 268
[2005] NSWCCA 20 RGM v R [2012] NSWCCA 89 Robinson v R (2006) 162 A Crim R 88

Source

Original judgment source is linked above.

Catchwords

[2017] NSWCCA 34 Alford v Magee (1952) 85 CLR 437[2013] NSWCCA 317 McKell v R [2017] NSWCCA 291 McKell v The Queen (2019) 264 CLR 307[2019] HCA 5 NJB v R [2010] NTCCA 5 OKS v State of Western Australia (2019) 265 CLR 268[2005] NSWCCA 20 RGM v R [2012] NSWCCA 89 Robinson v R (2006) 162 A Crim R 88[2006] NSWCCA 192 SC v R [2020] NSWCCA 314 Spurritt v R [2021] VSCA 7 The Queen v Dookheea (2017) 262 CLR 402Mr P Swaine (Applicant) Ms MA Kumar (Respondent)

Judgment (8 paragraphs)

[1]

The Applicant's Ground of Appeal

The Applicant relies upon what is said to be the cumulative effect during the summing up of the trial Judge raising a number of issues in a manner which infringed the proper function of a summing up and gave rise to unfairness to the Applicant and a miscarriage of justice.
Rather than addressing each subground separately, it is appropriate to gather the arguments made for the Applicant and the Crown and then respond to the ground of the appeal at a single point later in this judgment.

[2]

Submissions for the Applicant

Mr Carroll, counsel for the Applicant, submitted that the cumulative effect of his Honour's directions in relation to the assessment of witnesses necessarily impinged upon the jury's assessment of the credibility of the complainants and denigrated the Applicant's submissions with respect to credit to the point that a miscarriage of justice occurred.
It was submitted that the trial Judge had, in a highly persuasive manner, imparted upon the jury a reasoning process which had not been advanced by the Crown nor supported by evidence or legal principle. The inference created was that evasiveness, external and internal inconsistencies and an inability to recall an event with sufficient details were not a marker of potential dishonesty or unreliability, but rather a benign artefact of the evidence of children.
The Applicant submitted that the trial Judge did not make the traditional statement to the jury that the jury was obliged to ignore any comment on the facts made by a trial Judge if it did not accord with the jury's own view. It was submitted that his Honour's directions and suggestions were delivered in terms which the jury would have understood as directions of law. With respect to the reasoning process the jury should follow when assessing the evidence of the complainants, it was submitted that the comments were expressed in mandatory terms.
It was submitted that, on two occasions, his Honour had identified explicitly that he was making a comment upon a fact in issue (at SU24 and SU60). It was submitted that, on both of those occasions, the statements made related to a factual matter which was not in dispute. It was said that no such qualifier was made when his Honour directed the jury as to how they were to assess the evidence of the complainants. It was submitted for the Applicant that the effect of the summing up was to warn the jury not to engage in a process of reasoning, favourable to the Applicant, in relation to fact finding concerning the honesty and reliability of Donna and Gail.
Mr Carroll submitted that neither the Crown nor the Applicant, in their respective opening and closing addresses, had made generalised prescriptive statements as to the quality of evidence given by children. The Crown did not call expert evidence in relation to the evidence of children, nor did the Crown lead specific expert evidence upon the cognitive abilities of Donna and Gail. The parties conducted their cases at trial upon the basis that it was for the jury to assess the evidence of the complainants calling upon the collective experiences of the jurors.
Counsel for the Applicant submitted that the trial Judge was not bound by statute or case law to give the directions or to make suggestions which are now challenged by the Applicant. It was noted that s.165A Evidence Act 1995 precluded any general statement which suggested that the evidence of children may be unreliable.
In support of Ground 1(a), counsel for the Applicant relied upon the following propositions in the summing up with respect to the evidence of children: 1. children, when they give evidence, are not little adults - they are children with a different sense of logic (SU6-7 at [61] above); 2. a child who is 11 years old and casting their mind back to when they were eight, is casting their mind back over a quarter of their life so you have to take into account the vagaries of memories - that is even worse if we are talking about a frequency of events (SU8 at [62] above); 3. a child's understanding of time and sequence may not be dynamic and the child may answer in a way which you think is a bit odd, but this does not necessarily mean that the substance of what they are saying is unreliable (SU10-12 at [63] above); 4. a child might be vague from time to time regarding details, but this does not necessarily mean that the substance of what the child is saying is unreliable (SU10-12 at [63] above); 5. a young person's understanding of what they are being asked is not necessarily the understanding that you as an adult listening might get (SU10-12 at [63] above); 6. no witness in the circumstances of these complainants would fare well when questioned by a senior barrister (SU56-58 at [78] above); 7. age (in combination with frequency of events and emotional state) provides an explanation as to why there would be some memory gaps and some confusion as between events and perhaps loose language (SU56-58 at [78] above); 8. when a child says "[the abuse] finished last year", you need to be a little careful about what that means (SU60-62 at [82] above).
It was submitted that these propositions have not been accepted at law with respect to the evidence of children and are contrary to s.165A Evidence Act 1995, which appears later in this judgment.
In criticising these statements in the summing up, counsel for the Applicant referred to CMG v R [2011] VSCA 416 at [13]-[14] where Harper JA (Ashley and Weinberg JJA agreeing) said: "[13] A real difficulty, however, remains. Her Honour was either giving evidence, or she was charging the jury on the law. But a judge cannot give evidence. He or she may of course comment on such evidence as is placed before the jury, but only after ensuring that the jury are aware that they must disregard those comments if they do not find them helpful. [14] The judge herself categorised what she had said to the jury as directions of law. If so, they were binding on the jury. The very real danger, therefore, is that the jury understood (for example) that they were bound to accept that a study as long ago as 1993 found that children, even very young children, are able to remember and retrieve from their memory large amounts of information; or that there is no evidence that indicates that the honesty of children is less than that of adults. As Latham LJ said in D [[2008] EWCA Crim 2557]: The judge is entitled to make comments as to the way evidence is to be approached particularly in areas where there is a danger of a jury coming to an unjustified conclusion without an appropriate warning. … But any comment must be uncontroversial. It is no part of the judge's task to put before the jury [a relevant expert's] learning without [that expert] having been called as a witness."
It was submitted that the trial Judge's suggestions as to the quality of evidence of children could be recast, with minor amendments, as the basis for a warning to a jury to be cautious to convict based upon the evidence of children, a step that would infringe s.165A Evidence Act 1995. It was submitted that this underscored that the contentions are apt to lead to decision making based on generalisations, prejudices and stereotyping as opposed to actual evidence.
In the absence of evidence relating to the particular complainants or a settled position in science as to the cognitive ability of all children, the Applicant submitted that the generalisations advanced by the trial Judge are fraught with difficulty.
It was submitted that, of critical importance to the issues joined in this trial was that the trial Judge, whilst putting the case for the Applicant, warned the jury to give little weight to the literal response by Donna that the abuse ended the previous year (2014) on the basis that it was said by a child (SU60-62 at [82] above).
With respect to the topic referred to at 98 above, concerning the question whether any witness "would fare well when questioned by a senior barrister", in the context of the defence case which relied predominantly on a submission that the cross-examination demonstrated that both complainants were dishonest or otherwise unreliable, it was submitted that it was devastating to the Applicant's case for the trial Judge to infer that the parameters of the complaint and the trial process itself would inevitably see a child witness flounder when questioned by Senior Counsel. In the absence of a similar statement from the Crown, it was submitted that this comment would have been interpreted by the jury as coming directly from the trial Judge and encapsulating the notion that it was the view of the Court, or a settled position in law, that the process of cross-examination is an extremely difficult task for a child complainant to navigate.
With respect to Ground 1(b), it was submitted that the trial Judge developed a powerful theme, enforced through repetition, that an apparent negative impression that the jury may have formed from their observations of the demeanour of the complainants may be no more than a reflection of their personality or maturity levels in the situation.
Counsel submitted that it was inferred from his Honour's comments that the difficulties confronted by witnesses when tested in cross-examination are amplified by youth and consequently criticism or doubt grounded in the observations of the child witnesses should be tempered. This direction was supported by statements as to his Honour's experience of witnesses. The jury were directed that, in their assessment of the demeanour of the witnesses, they must heed what his Honour told them about the varying ways that witnesses react when being cross-examined, such as getting angry and that such a reaction may not provide insight into the truthfulness of the witness.
In this context, it was submitted that this theme reached denouement when his Honour, summarising the argument for the Applicant that Gail presented as an unimpressive witness, retorted that Gail may have simply been giving Senior Counsel for the Applicant "the bird" by her conduct in the witness box (SU64 at [84] above).
It was submitted for the Applicant that the directions of the trial Judge in relation to demeanour constituted an impermissible encroachment upon the jury's role of assessing witnesses in a manner which contravened what was said in R v RTB [2002] NSWCCA 104. It was submitted that the jury was entitled to base its final judgment on its own impressions, but that the trial Judge's statements required the jury to absorb his Honour's own experience as to how a witness reacts to cross-examination and to insert that experience into the jury's assessment of the witness during their deliberations. It was submitted that such a task is impossible and that the directions with respect to demeanour could only have operated to warn the jury to give less weight to any initial negative reactions to the way in which the complainants presented.
Reliance was placed, as well, upon RGM v R [2012] NSWCCA 89 at [94], [97] and [102] and, in particular, the statement of Fullerton J expressing concern about the trial Judge's statement to the jury that they were to assess the complainant's evidence against the background that "if she was being truthful she might find difficulty giving her evidence because she was reliving the assaultive experience in the process". Counsel for the Applicant submitted that this was, in effect, what the trial Judge was saying to the present jury, "You have to look at the reality of what you are dealing with, a child who is not a lawyer, not a wordsmith, being tested on a subject upon which they might be quite emotional about if they are telling the truth" (SU57 at [78] above).
It was submitted for the Applicant that the trial Judge, when purporting to summarise the Crown case, used a similar reasoning process as to that criticised by this Court in RGM v R.
It was submitted for the Applicant that, when the entirety of his Honour's directions and comments are combined, whether expressed as his own or as "the Crown would say", there is little to distinguish this case, in terms of the reasoning process, from that contained in the summing up which led to the quashing of convictions in RGM v R.
With respect to Ground 1(c), Mr Carroll submitted that the trial Judge, in his summing up, made the following arguments which had not been raised by the Crown: 1. You cannot say, "The child should've said it all at once and the fact that they've taken so long to disclose it must mean that they're fabricating" (SU35). 2. The "reality is it is said that there is frequent touching, frequent 'humping' and it is the case that neither girl is able to identify every single occasion when they say things occurred ..." (SU50). 3. The "Crown says if you did not have [the context evidence] of [Donna] and [Gail], they might be found by you to be odd that there were these gaps if someone was infatuated with a child that they might only touch the child once every six months or there would be a year in between. That sort of thing might reduce the credibility" (SU50). 4. The "relevance then the Crown says of Dr Shackel is that it will mean that you will not be as critical, or critical at all, of the complainants in relation to things such as staggered disclosure" (SU54 at [75] above); 5. [The Crown says] "would a child ... necessarily know what is involved when you make a complaint or does the child just think you just have to complain about what has been done to you, just tell your mummy what has happened to you" (SU56 at [76] above). 6. The "Crown relies upon the context evidence as … a reason why you might think that they would struggle with their memory about recalling all the details ... you might think they tend to blur" (SU56 at [78] above). 7. The "Crown would say the reality that girls might not fare too well when cross-examined by a senior barrister, well, you know, would any of us fare too well when cross-examined in situations like that?" (SU56 at [78] above). 8. [The Crown says] "... remember their age, their emotional states, the frequency of events and that would provide you with some understanding of why there would be some memory and some confusion as between events and loose language. You know, do they necessarily understand that every single word they say is going to be dissected months later or did they just give general throw away answers?" (SU57 at [78] above). 9. "People do react poorly to be cross-examined and called a liar" (SU57 at [78] above). 10. "But you would need to have a look to see whether or not [Gail] claims, if you find that it was said, whether that was said after [Donna] had come forward and made her complaint. If there was no - at that stage, it is a bit late to tell [Donna] not to tell anyone; she already has" (SU61 at [82] above). 11. "When a child says, 'Oh, it finished last year...', you do need to be a little careful about being too pedantic" (SU62 at [82] above). 12. "'humping' does not involve the removal of any clothing and may be quickly ceased in terms of its conduct and [hence] less likely to be caught ..." (SU63 at [83] above). 13. "[Gail] may well have been simply giving Mr Rosser the bird by her conduct which would indicate no more or less than she was angry ..." (SU64 at [84] above).
With respect to 112 above, it was submitted that the Crown did not advance an argument that the context evidence was to be used as a reason for explaining deficits in memory and difficulty in recall. Rather, the Crown closing address repeated that the purpose of evidence of uncharged acts with respect to Donna was to demonstrate that the counts were not isolated incidents, but were occurring in a larger context of other acts being committed against Donna. Counsel for the Applicant submitted that the Crown's approach was consistent with the Criminal Trial Courts Bench Book direction with respect to the use of context evidence.
It was submitted for the Applicant that the direction with respect to context evidence and difficulties with recollection permitted the jury to use the context evidence of each complainant to bolster the credibility of that complainant. In the context of the trial, it was submitted that this reasoning process was significantly detrimental to the Applicant's case.
It was submitted that the denial by Donna of an incident involving "hide and seek" and "humping" which occurred whilst Gail was present, could be used to demonstrate that Gail had made this allegation "out of nothing" and that she was a dishonest witness. It was argued, however, that his Honour's direction allowed for a reasoning process that Donna was simply confused and that her memory of each occasion of "humping" was blurred. Accordingly, it was submitted that Donna's denial of the event captured by Counts 4 and 5 could be explained by deficit in memory rather than as evidence that the incident did not occur.
With respect to 112 above, it was contended that the trial Judge had developed a rebuttal to the argument as to the unlikelihood of the Applicant pressuring or threatening one complainant not to tell, and not the other, by suggesting that the difference was explained by a continuation of offending against Gail after Donna had complained to her mother. It was submitted for the Applicant that the Crown had not advanced such an argument to the jury.
It was submitted that the reasoning process advanced by his Honour was that the complaint by Donna led to a change in the Applicant's later conduct towards Gail and the incorporation of the threat not to disclose. It was submitted that, to demonstrate this argument, his Honour went to the dates on the indictment for Gail and pointed out to the jury that, using that date range, the offending against Gail post-dated the complaint by Donna to her mother. The evidence of Gail, however, was that the entirety of the offending against her, including the first occasion which occurred simultaneously with Donna (Counts 5 and 6) included the warning not to tell "… he pulled me over and said, 'this is our little secret'". It was noted that Counts 5 and 6 were said to have occurred when Gail was eight or nine years old and Donna was nine, 10 or 11 years old.
Contrary to the abstract argument advanced by the trial Judge developed by extrapolating the date range in the indictment concerning Counts 5 and 6, it was submitted that the evidence in the trial was that the Applicant was warning Gail not to tell prior to any complaint by Donna.
It was submitted that the Applicant had lost a real chance (or a chance fairly open) of being acquitted so that leave should be granted to him under Rule 4: ARS v R [2011] NSWCCA 266 at [148]. Counsel submitted that the suggested misdirection in this trial involved the fundamental task entrusted to the jury to determine from the jury's own experience the reliability of the complainants. The trial involved mixed verdicts and the impugned summing up undermined significantly the strength of the argument for the Applicant.
It was submitted that there could be no forensic advantage for the Applicant in having the trial Judge critique and dismantle the defence case and recast powerfully the case for the Crown. It was submitted that it is difficult to see how the summing up could have been rectified by corrections being made or the withdrawal of directions. Counsel for the Applicant submitted that the only practical remedy was to discharge the jury with such an application enjoying no prospects of success prior to the decision of the High Court of Australia in McKell v The Queen, a decision handed down on 13 February 2019 after the trial of the Applicant.
It was submitted for the Applicant that the summing up constituted, in effect, a second address for the Crown which answered the matters which had been "telegraphed" by the defence, but not met by the Crown. It was submitted that this approach was consistent with the prevailing view at the time (prior to McKell v The Queen) that a trial Judge had broad scope to make comment and suggestions upon the facts and the fact-finding process provided the jury is told that the ultimate decision remains theirs alone: McKell v R [2017] NSWCCA 291 at [100].
Counsel for the Applicant noted that Rule 4 had not been applied to refuse leave in RGM v R and that, although complaint had not been made by defence counsel, an appeal was allowed in NJB v R [2010] NTCCA 5 at [17] as "the impermissible directions went to the heart of the case".
It was submitted that, in both McKell v The Queen and OKS v State of Western Australia (2019) 265 CLR 268; [2019] HCA 10, the High Court had emphasised that it is fundamental to our system of justice that the trial Judge should not descend into the forensic arena with the equivalent of Rule 4 not being applied in OKS v State of Western Australia. It was submitted that the present Applicant should be granted leave under Rule 4 to rely upon the ground of appeal in this case.
Counsel for the Applicant submitted that the Court should order a retrial with respect to Counts 1 to 4, but that verdicts of acquittal should be entered with respect to Counts 7 and 8.
In support of the application that verdicts of acquittal should be entered upon Counts 7 and 8, it was submitted that, in a subsequent retrial upon these counts which concerned Gail, the Applicant would be denied the significant forensic advantage that he acquired by demonstrating: 1. that Counts 5 and 6 were contradicted by Donna; 2. that Count 9 was contradicted by Gail's mother who confirmed that there was no television in her room; and 3. that events captured by Count 10 were contradicted by Gail's sister who, amongst other things, saw no visible signs of distress and overheard Gail laughing at a time when, according to the complainant, she was swearing and fighting off the Applicant.
It was submitted that it was not possible for the Applicant to receive a fair trial upon Counts 7 and 8 if the evidence in relation to the verdicts resulting in acquittal is parsed from a subsequent trial, so that a new trial should not be ordered on those counts.

[3]

Submissions for the Crown

The Crown submitted that the ground of appeal does not raise a question of law alone so that leave to appeal is required under s.5(1) Criminal Appeal Act 1912. In addition, the Crown submitted that Rule 4 Criminal Appeal Rules applies in this case as none of the matters now complained of were the subject of an application or objection by Senior Counsel who appeared for the Applicant at trial.
The Crown did not accept that the trial Judge had impermissibly encroached upon the jury's task of determining the credibility of the complainants in this trial. Reference was made to parts of the summing up where his Honour had given directions to the jury which emphasised that it was a matter for the jury to determine issues of credibility concerning the complainants.
The Crown referred to parts of the summing up which addressed the following matters: 1. a direction concerning the different functions of the jury and the Judge with the jury being informed that its task was to be "the judges of the facts" and to make findings concerning "the facts as you find them" (SU2); 2. a direction that his Honour "will not be trying to make up your mind for you or suggesting that you make up your mind in a particular way" nor would he be "trying to subtly or not so subtly suggest anything in terms of your function" (SU3); 3. instructed the jury concerning the assessment of witnesses with the jury being told that "you just have to carefully look at all of the evidence to assess whether or not what is being said to you is impartial and objective, truthful and accurate, and that is entirely a matter for you" (SU7-11); 4. directed the jury that Dr Shackel's report did not go to whether the complainants are telling the truth (SU11), but that Dr Shackel refers to research amongst experts in relation to victims of child sexual abuse which indicates a number of things (SU34); 5. the drawing of inferences (SU13-14); 6. directions concerning the Applicant raising motive and the need for the Crown to convince the jury to accept the evidence of the complainants beyond reasonable doubt (SU14-16); 7. directions on the onus of proof and the requirement before the jury should convict that each complainant must be accepted as a witness of truth and reliability in relation to each count (SU20-23); 8. the trial Judge addressed each count and then stated that the real issue is whether the Crown has established that Donna and/or Gail are "honest and truthful witnesses, such as allowing you to be satisfied beyond reasonable doubt about their allegations" (SU29); 9. his Honour summarised the research findings in Dr Shackel's report and told the jury, "Incomplete or staggered disclosure should not be assumed to be consistent with the allegation being false. It cannot be assumed that it is true but it cannot be assumed that it is false" (SU34-37); 10. the trial Judge made clear that it was not a case of choosing the Applicant or the complainant, but that "in each case, it is a matter of the Crown satisfying you beyond reasonable doubt as to the … honesty or truthfulness … and accuracy of the witness who makes the allegation" and "… it would make common sense that where a jury has to rely upon one person's evidence that it is appropriate and reasonable for the jury to closely consider the evidence of such a witness so as to satisfy themselves that the witness is in fact both truthful and accurate" and that "the law requires you to do so that you carefully consider the complainant in each of these counts" (SU47); 11. the summing up referred to the Crown case (SU54-58) and the Applicant's case (SU58-65).
The Crown submitted that the trial Judge had discussed directions with the parties and had asked for input during the trial (T52), before the closing addresses (T218-221, T225 and T226-228) and during the summing up (SU41).
In addition, the Crown noted that his Honour stated during the summing up that he would say things which the parties had not specifically said, but that "It's my assessment of what your respective case is all about" (SU42 at [68] above). Further, before the jury retired to consider its verdicts, the trial Judge invited counsel to raise any matter and no further issue was raised before the jury commenced its deliberations (SU66).
The Crown submitted that the relevant question for determining whether there was a miscarriage of justice caused by the trial Judge's summing up was that stated by Meagher JA (Bellew and Lonergan JJ agreeing) in ABR (a pseudonym) v R [2020] NSWCCA 33 at [61]: "These grounds identify two instances during the evidence and five in the course of the summing up in which it is contended that there was unfairness to the applicant by reason of what his Honour said. Ultimately the question must be whether the trial judge's comments were inconsistent with his obligation to give the jury accurate and fair instructions to enable them to arrive at a just determination of the matters of which they are the sole arbiters. Thus, it must be shown that the judicial intervention created a 'real danger that the trial was unfair': Galea v Galea (1990) 19 NSWLR 263 at 281 (Kirby ACJ, Meagher JA agreeing)."
The Crown submitted that, in order to determine whether the summing up was unfairly balanced, it is necessary for it to be considered in its entirety and in the context of the issues and the evidence led in the trial: R v Sukkar [2005] NSWCCA 54 at [90].
The Crown submitted that the trial Judge's directions did not impinge upon the jury's task to assess the credibility of the complainants. Rather, the summing up made it clear that it was the jury's task to assess the credibility of the complainants with it being a matter for the jury as to whether they were satisfied beyond reasonable doubt as to the truthfulness and honesty of each of the complainants concerning each count on the indictment.
The Crown submitted that the trial Judge did not make generalised statements as to the quality of evidence given by children nor did the Judge state cognitive abilities of the complainants.
With respect to Ground 1(a), the Crown pointed to the trial Judge raising with the parties, in the absence of the jury, that he had often given directions to juries about not applying adult logic to an assessment of a child (T52 at [42] above). It was submitted that this flagged the topic sufficiently so that the parties were on notice that his Honour intended to say something on this issue.
With respect to the eight matters complained of by the Applicant under Ground 1(a) (see [98] above), the Crown submitted that these were proper matters for the trial Judge to point out and that they did not prevent or discourage the jury from fairly evaluating the evidence of the complainants: ABR (a pseudonym) v R at [66].
The Crown pointed, as well, to provisions now contained in s.293A Criminal Procedure Act 1986 (which commenced on 1 December 2018) which provide for directions to be given with respect to the evidence of complainants in trials of sexual offences.
The Crown submitted that the trial Judge told the jury that it was necessary to keep in mind the ages of the complainants and that the jury was not being told to disregard any concerns which they may have about their evidence. The trial Judge's comments did not express any opinion to the jury as to how they should resolve disputed issues of fact which would have contravened the principles stated in McKell v The Queen.
With respect to the complaint concerning the trial Judge's comment (at SU56 at [78] above) concerning cross-examination "by a senior barrister", the Crown submitted that this was a proper matter for the trial Judge to point out and that it did not prevent the jury from taking inconsistencies or any other matters into account in assessing the evidence of the complainants.
With respect to Ground 1(b), the Crown disputed submissions made for the Applicant concerning the effect of statements made by the trial Judge during the summing up. Insofar as the Applicant sought to rely upon what was said in RGM v R concerning the assessment of a complainant's evidence against the background of difficulty "because she was reliving the assaultive experience in the process", the Crown submitted that the trial Judge had made no such comment in respect of any difficulty of the complainants "reliving the assaultive experience" in the present case.
With respect to the statement by the trial Judge concerning Gail "giving Mr Rosser the bird" (SU64 at [84] above), the Crown submitted that the incident in question was part of the pre-recorded evidence where Gail, in an answer in cross-examination, said "this shit" and walked out of the room (MFI15, T10). The video depicted Gail putting her hand down on the table where there is a "stop" sign to indicate that she wanted a break and she then left the room. His Honour's comment was that the witness was, figuratively speaking, giving Mr Rosser "the bird" (that is, figuratively sticking her middle finger up at the cross-examiner) and that this was not surprising because people do get angry when they are cross-examined for all different reasons.
Contrary to the submissions for the Applicant, the Crown submitted that the trial Judge did not repeat the same reasoning process as was criticised by this Court in RGM v R. This was because his Honour's comments were not expressed as "his views about child witnesses": RGM v R at [96]. The Crown submitted that the summing up, read as a whole, did not suggest an approach to the assessment of a child's evidence such that it has the appearance of a direction of law: RGM v R at [97].
With respect to Ground 1(c), the Crown noted that this complaint asserted that there had been a miscarriage of justice on account of an unbalanced summing up. With respect to the complaint that the trial Judge had advanced arguments which had not been raised by the Crown, it was submitted that the comments made by the trial Judge were available on the evidence and that there had been no objection by Senior Counsel who appeared for the Applicant at trial.
The Crown noted that the Crown closing address at trial was brief and did not address two important aspects of the evidence, namely: 1. even though the Crown had presented a joint indictment with two complainants and had served a tendency notice in 2016 and run a joint trial, the Crown at trial did not put the Crown case to the jury on the basis of tendency reasoning with the Crown's oversight leading the trial Judge to warn the jury that it was prohibited from engaging in tendency reasoning (SU53); 2. the Crown did not make any submissions or challenge the good character evidence led by the Applicant with the trial Judge noting that there were "a lot of other areas … telegraphed that the defence would be running with that you didn't address" (T254 at [55] above).
Concerning the 13 matters relied upon by the Applicant (at [112] above), the Crown submitted that these were all proper matters for the trial Judge to point out and that they did not prevent the jury from taking into account any inconsistencies in assessing the reliability of the evidence of the complainants. It was submitted that his Honour's comments were unexceptionable and did not give rise to a miscarriage of justice.
In conclusion, the Crown submitted that the summing up, when considered as a whole, did not give rise to an unfair trial and that there was no miscarriage of justice. The summing up emphasised to the jury that the central issue was whether the jury accepted each complainant as a witness of truth and reliability in relation to each count on the indictment.
The jury was made aware of the fundamental issues in the trial, particularly the reliability and honesty of the complainants, since that issue was stressed by his Honour and made clear in his Honour's direction in accordance with R v Murray (1987) 11 NSWLR 12 (at SU47-48).
The Crown submitted that the trial Judge's summing up was not "apt to create a danger or a substantial risk that the jury might actually be persuaded of the appellant's guilt by comments in favour of the prosecution case made with the authority of the judge": McKell v The Queen at [42].
Relying on The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36, the Crown emphasised that the reaction of defence counsel on hearing the impugned portion of the summing up is a cogent consideration and that, in this case, where the Applicant was represented at trial by a most experienced Senior Counsel, the absence of complaint at trial supported a conclusion that no unfairness was detected at the trial and that a miscarriage of justice has not occurred.
The Crown submitted that leave under Rule 4 ought be refused in the circumstances of this case and that the appeal should be dismissed.
If the Court reached a contrary view concerning the appeal, the Crown submitted that the appropriate order would be a retrial on all of the quashed convictions.
It was submitted that Counts 7 and 8 are serious charges where the public interest in due prosecution and conviction of offenders, as well as the public interest in not usurping the role of the Director of Public Prosecutions in deciding to prosecute and the role of the jury in determining the guilt or innocence of an accused, are powerful factors in favour of a new trial: WX v R [2020] NSWCCA 142 at [95]. Further, the nature of any error in this case did not relate to the nature or quality of the evidence at trial and there was no ground asserting that the verdicts were unreasonable: WX v R at [100].

[4]

Determination of Ground of Appeal

It is appropriate to commence with several important statements of principle before moving to consider the matters complained of in this appeal. The Role of the Trial Judge
Some general observations should be made concerning the role of a Judge in a criminal trial and the functions to be fulfilled in a summing up.
A criminal trial is conducted as adversarial litigation involving an accusatorial process in which the prosecution bears the onus of proving the guilt of the accused person beyond reasonable doubt: Robinson v R (2006) 162 A Crim R 88; [2006] NSWCCA 192 at [138]. In Robinson v R, the Court said at [140]: "… the judge's role in a criminal trial is to hold the balance between the contending parties without himself taking part in their disputations; the judge does not exercise an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side, nor is it part of the function of the trial judge to don the mantle of prosecution or defence counsel: Whitehorn at 682. The fundamental task of a trial judge is to ensure a fair trial: R v Meher [2004] NSWCCA 355 at paragraph 76. Trial judges should normally refrain from advancing an argument in support of the Crown case that was not put by the Crown. There are two reasons for the unacceptability of a judge using the summing up as a vehicle for strengthening the Crown case - first, it is inconsistent with judicial impartiality and secondly, to do so denies the prosecution and the defence the opportunity either to disavow, or to meet the argument: R v Meher at paragraphs 87-93."
Soon after, the Court said in Robinson v R at [146], [148]-[149]: "146 Unfairness to the accused in the conduct of the trial resulting from the trial judge's direction to the jury upon a basis for conviction not relied upon by the Crown may arise from a range of tactical disadvantages, including an inability to cross-examine Crown witnesses, adduce evidence in the defence case and make closing submissions to the jury on the matter: Solomon at 328, 336; GAS at 863; Carr at 285 [49]. Even if the prejudice to the accused was confined to the inability to address the jury upon the question, that itself is capable of being a most significant area of prejudice: R v RTB [2002] NSWCCA 104 at paragraphs 55-61; Meher at paragraphs 113-116, 130; Carr at 285 [49]. … 148 Fifthly, where the trial judge raises in the summing up a basis for conviction which was not relied upon by the Crown, there is the added difficulty that the direction carries particular force because it is coming from the judge and not the Crown: RTB at paragraphs 57, 60. It may produce positive mischief if the judge raises arguments which could have been, but which were not put or requested by counsel: R v Heuston (1995) 81 A Crim R 387 at 393. 149 Sixthly, the question to be considered by the Court of Criminal Appeal is whether there has been an unfairness to the accused which gives rise to a miscarriage of justice by reason of the conduct of the trial and which requires the Court's intervention: Solomon at 328, 336; R v King at 187; Carr at 285 [49]." Limits of Trial Judge's Summing Up to Jury
In Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317 at [36], the Court (Bathurst CJ, Simpson and Adamson JJ) summarised the duty of a trial Judge using propositions drawn from Alford v Magee (1952) 85 CLR 437 at 466; [1952] HCA 3: "The duty of a judge in a jury trial is: to explain to the jury the relevant law (without excursions into interesting but inapplicable legal principles); to place that explanation in the context of the facts of the case; to explain how the law applies to the facts of the particular case; to give these explanations in the context of the issues in the particular case; to identify the issues in the case as they have been fought between the parties; and to direct the jury on what those issues are."
These principles provide an important structure for a summing up by a trial Judge to a jury in a criminal trial with the Judge having the function referred to in Robinson v R (see [156]-[157] above) with an overriding duty to act fairly to the parties at the trial.
These considerations are of central importance where it is said that a trial Judge has introduced important concepts or arguments during a summing up which did not emanate from the evidence in the trial or the arguments of counsel who appeared for the Crown and the accused person.
The scope for a trial Judge to express opinions on the facts when summing up to a jury has been a topic of recurring consideration by appellate courts. In R v Heron [2000] NSWCCA 312 (at [77]-[87]), Priestley JA (Foster AJA and Simpson J agreeing) considered a number of decisions which identified a degree of tension in the proposition that a trial Judge can express an opinion to a jury whilst, at the same time, stating that the facts are for the jury and not the Judge.
In R v Taleb [2006] NSWCCA 119, Simpson J referred to this topic in the context of an appeal based upon a trial Judge advancing arguments to the jury which had not been advanced by counsel. Her Honour said at [68]-[71]: "68 … On a number of occasions the judge put what can only fairly be described as arguments, inimical to the defence case, that had not been the subject of address by the Crown Prosecutor. 69 The comments were frequently introduced by the words 'you might think'. These were frequently followed by a reminder, variously expressed, that determination of the issues posed was 'a matter for you'. 70 Both of these phrases are familiar in criminal trials. The first, in particular, is one frequently used by counsel. It usually signifies a proposition that counsel is urging the jury to adopt. That is, it is a term of advocacy. 71 In my experience the phrase is used less frequently by judges. When it is used by judges, it is usually in the context of a proposition that is uncontroversial - e.g. 'You might think that you can accept that piece of evidence because it was not challenged'. It is not, in my opinion, appropriately used by a judge when putting argumentative or controversial propositions. Its tenor is to suggest acceptance of the proposition it precedes."
In determining to allow the conviction appeal in R v Taleb, Simpson J said at [84]: "One difficulty as I perceive it in the present case is that the questioned passages in the summing up are not presented in clear terms as the judge's view. They are framed in terms of directions undermining facts and matters put in the defence case. In some passages the summing up reads rather like a Crown address. They would therefore not readily be perceived by the jury as the kind of comment to which the earlier direction, that the jury should discard any expression or view of the judge on the facts (unless it accorded with their own), applied. Even the time honoured direction (that the jury should discard the judge's view unless it happened to accord with their own) suffers from the logical flaw identified so eloquently and clearly in Pavlukoff. Why should the jury not ignore the judge's comment where it does accord with their own, independently arrived at, view? The direction, to me, implies that the jury might use the judge's view to support, or bolster, their own similar view."
The existence and scope of a trial Judge's discretion to comment on facts and submissions in a summing up to a jury in a criminal trial were considered in McKell v The Queen, where reference was made to authorities including Taleb v R and R v Pavlukoff (1953) 106 CCC 249. Bell, Keane, Gordon and Edelman JJ ("the plurality") commenced their judgment in the following way at [1]-[5] (footnotes omitted): "1 In RPS v The Queen [(2000) 199 CLR 620; [2000] HCA 3 at [41]-[42]], Gaudron A-CJ, Gummow, Kirby and Hayne JJ, while discussing 'the difficult task trial judges have in giving juries proper instructions', adverted to the view that 'has long been held that a trial judge may comment (and comment strongly) on factual issues'. Their Honours went on to say that: 'although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel.' (emphasis in original) 2 This statement in favour of judicial circumspection was made after their Honours had acknowledged that '[t]he fundamental task of a trial judge is ... to ensure a fair trial of the accused'. This fundamental task falls to be performed within a framework in which it is 'for the jury, and the jury alone, to decide the facts'. 3 A trial judge's 'broad discretion' to comment on the facts of the case in a criminal trial is an aspect of the power by which a trial judge discharges the fundamental task of ensuring a fair trial of the accused. The discretion is to be exercised judicially as part of ensuring that the facts of the case are put 'accurately and fairly' to the jury. It is not exercisable, at large, independently of the fundamental task described above. A fortiori, the trial judge's summing-up is not an occasion to address the jury in terms apt to add to the force of the case for the prosecution or the accused so as to sway the jury to either view. For that reason, as the plurality in RPS stated, judicial circumspection is required in the exercise of the discretion to comment. 4 In the present case, statements by the trial judge during the course of his summing-up were so lacking in balance as to be seen as an exercise in persuading the jury of the appellant's guilt. The statements were unfair to the appellant and gave rise to a miscarriage of justice. As a result, the appeal must be allowed and the appellant's conviction quashed. 5 In addition, it should be clearly understood that the risk of such unfairness is such that a trial judge should refrain from comments which convey his or her opinion as to the proper determination of a disputed issue of fact to be determined by the jury."
Later in McKell v The Queen, the plurality said at [35]: "A trial judge must sum up for the jury the case presented by each of the prosecution and the accused after each side has addressed the jury. In Domican v The Queen [(1992) 173 CLR 555 at 561; [1992] HCA 13], Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ observed that 'the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury'. In carrying out this task, it is no part of the trial judge's role to 'don[] the mantle of prosecution or defence counsel's. As Gibbs CJ said in Cleland v The Queen [(1982) 151 CLR 1 at 10; [1982] HCA 67], '[i]t is clear in principle that a trial judge, when directing a jury in a criminal trial, must hold an even balance between the cases of the prosecution and the accused'."
Their Honours emphasised the need to guard against comments by the trial Judge in the summing up becoming "a second address by the prosecution". The plurality said at [43]: "In B v The Queen [(1992) 175 CLR 599 at 605-666; [1992] HCA 68], Brennan J, with whom Deane J agreed, confirmed the 'broad discretion' of a trial judge to comment on the facts and to choose the language in which to do so, while emphasising that the 'comment must stop short of overawing the jury'. The risk identified by Brennan J is the risk that the jury might be overawed notwithstanding that they are told that the decision on the facts is for them because 'the language of the judge is so forceful that they may be under the impression that there is really nothing for them to decide or that they would be fatuous or disrespectful if they disagreed with the judge's views'. But there is a further risk, which is of particular concern in the present case, that the jury might be persuaded to convict by what was, functionally, a second address by the prosecution."
Their Honours said at [45]: "What has sometimes been described as the 'right' of the trial judge to comment on the facts of a case is not some form of entitlement standing free of constraints imposed by the judge's duty to give the jury accurate and fair instruction to enable them to arrive at a just determination of the matters of which they are the sole arbiters. Where a trial judge's summing-up so favours the prosecution as to deny the accused a fair trial, the miscarriage of justice that results cannot be justified or excused by invoking the judge's 'right' to comment on the facts."
The plurality made general observations concerning the scope for comment by a trial Judge during a summing up to a jury in a criminal trial. Their Honours said at [47]-[54]: "47 It is well settled that a trial judge's discretion to comment on the facts should be exercised with circumspection. The need for circumspection is not merely a matter of prudence or politeness. Recently, in Castle v The Queen [(2016) 259 CLR 449; [2016] HCA 46 at [61]], Kiefel, Bell, Keane and Nettle JJ, with whom Gageler J relevantly agreed, said, referring to the passages from RPS with which these reasons commenced: '[U]nless there is a need for comment - as, for example, in dealing with an extravagant submission by counsel - the wise course will often be not to do so. Where the judge chooses to comment, the following statement of Brennan J in B v The Queen is to be kept in mind: '[The comment] must exhibit a judicial balance so that the jury is not deprived 'of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence'.' (footnotes omitted) 48 In RPS and Castle, the discretion of the trial judge to comment on the facts was located squarely within the duty of a trial judge to assist the jury with a fair and accurate statement of the case presented by each party. That being so, little would be gained by a review of the practice of trial judges in earlier times, when the trial judge occupied a more dominant position in the conduct of criminal trials. The point made in the observations of the plurality in each of RPS and Castle is that there is a risk that comments that are unnecessary for the performance of the duty to give fair and accurate instructions to the jury may occasion a miscarriage of justice, and so a trial judge should be astute to avoid that risk by refraining from comment that is not so required. These points are most compelling in relation to expressions of opinion by a trial judge as to the determination of disputed issues of fact. 49 In the first place, given that the jury is the 'constitutional tribunal for deciding issues of fact', expressions of opinion by a trial judge as to the determination of a disputed issue of fact are hardly consistent with the function of the trial judge as it is now understood. It is difficult to conceive of a situation in which the performance of the trial judge's fundamental task of instructing the jury would be advanced, consistently with the role of the jury, by suggesting the determination of a disputed question of fact, the resolution of such questions being the exclusive province of the jury. Once, perhaps because of disparities in educational opportunities and attainment within the community, it might have been thought that juries would welcome judicial guidance as to the performance of their function that included indications of the judge's view of disputed facts, but it cannot be assumed that today's juries welcome such gratuitous solicitude on the part of the judiciary. Certainly, insofar as today's judiciary is concerned, the respect due to juries as the constitutional tribunal of fact strongly supports judicial reticence as to the determination of questions of fact. 50 Secondly, there is no little tension between suggesting to the jury what they 'might think' about an aspect of the facts of a case and then directing them that they should feel free to ignore the suggestion if they think differently. There is a risk that the jury may actually be swayed by the trial judge's suggested determination. It would be to maintain an altogether hollow and unconvincing distinction to say that, while a trial judge may not go so far in his or her comments as to create a risk that the jury may be 'overawed', it is nevertheless permissible for a judge to use language that 'makes him [or her] appear a decided partisan'. 51 In any event, the jury are likely to be bemused by the tension between the suggestion and the direction. It is difficult to see what good purpose is served by confronting citizens doing jury service with this complication in the due performance of their duty. In R v Pavlukoff [(1953) 106 CCC 249 at 266-267], in the British Columbia Court of Appeal, it was said that: 'It seems an absurdity for a Judge after telling the jury the facts are for them and not for him, then to volunteer his opinions of facts followed then or later by another caution to the jury that his own opinion cannot govern them and ought not to influence them. If his opinion ought not to govern or influence the jury then why give his opinion to the jury. To a person who is not a lawyer, but has some training in the science of correct thinking and some knowledge of the workings of the human mind, a Judge who expresses his own opinions to the jury is in effect unconsciously perhaps but nevertheless subtly and positively undermining the plain instruction he has given the jury that 'the facts are for them and not for him'; in reality he is in true effect attempting to persuade the jury not to exercise their own minds freely (as in law he has told them they must do) but instead to be guided by the factual conclusions he volunteers to them.' 52 There is much force in these observations. They were referred to with approval by Olsson J, with whom Millhouse and Williams JJ relevantly agreed, in R v Machin [(1996) 68 SASR 526 at 540-541], and by Simpson J in Taleb v The Queen [[2006] NSWCCA 119 at [76]]. 53 To accept the appellant's submission on this point is to say nothing that detracts from the duty of a trial judge to direct the jury as to the issues which arise on the evidence for their determination. Further, to accept the appellant's submission on this point is not to deny that there remains scope for comment by a trial judge. It is not difficult to imagine cases where judicial comment, but not an expression of opinion on the determination of a matter of disputed fact, may be necessary to maintain the balance of fairness between the parties. In Green v The Queen [(1971) 126 CLR 28 at 33; [1971] HCA 55], Barwick CJ, McTiernan and Owen JJ gave, as an example of a case where it would be 'proper and indeed necessary' for a trial judge to 'restore, but to do no more than restore, the balance', a case where: 'during the course of a trial, particularly in his address to the jury, counsel for the accused has laboured the emphasis on the onus of proof to such a degree as to suggest to the minds of the jury that possibilities which are in truth fantastic or completely unreal ought by them to be regarded as affording a reason for doubt'. 54 The present case affords another example of an appropriate occasion for judicial comment, in that fairness required that the trial judge correct the impression mistakenly left by the plainly untenable suggestion by the appellant's counsel to the jury that the appellant's online accounts were evidence that the appellant was a successful gambler. A correction of this kind, to correct errors of expression or errors that might otherwise adversely affect the jury's ability to decide the case fairly on the merits, is plainly not objectionable."
The plurality concluded (at [55]) with the following emphasis upon the limits of a trial Judge's capacity to comment on the facts of the case and the need for "practical fairness": "55 In the course of argument, it was said for the respondent that to accept the appellant's submission would tend to blur the 'bright line' around the 'right' of the trial judge to comment, and so introduce undesirable uncertainty in the conduct of criminal trials. In particular, it was said that there may be difficulties in identifying the point at which permissible comment crosses the line into impermissible expression of an opinion on the determination of a disputed question of fact. But there should be little difficulty in a trial judge refraining from expressions of opinion on the determination of disputed issues of fact. Once it is accepted that the trial judge's 'right' to comment is best understood as a judicial power or discretion to be exercised judicially for the purpose of ensuring that the jury have a fair and accurate understanding of what they need to know to do justice in deciding the issues of fact that arise for their determination, any concern about the blurring of what is said to have been previously a 'bright line' can be seen to be illusory. The provision by a trial judge of fair and accurate instruction to a jury is not always a matter of 'bright lines'. It is, however, always concerned with practical fairness to both sides, as has been recognised in statements of high authority such as the passages from RPS with which these reasons commenced."
It should be noted that the plurality in McKell v The Queen (at [50]-[52]) endorsed the approach of Simpson J in Taleb v R together with statements made by the British Columbia Court of Appeal in R v Pavlukoff.
The decision in McKell v The Queen has been understood to restrict or narrow the ability of trial Judges to express opinions or make comments to juries in criminal trials. The law has been tightened in this respect. The fact that McKell v The Queen has served to narrow the law in this way has been noted in several decisions of intermediate appellate courts: Pyliotis v Director of Public Prosecutions [2020] VSCA 134 at [63]; Decision Restricted [2020] NSWCCA 256 at [55]; Spurritt v R [2021] VSCA 7 at [187].
As noted earlier (at [132]), the Crown referred to the decision of this Court in ABR (a pseudonym) v R. It should be noted that the applicant in that case was unrepresented and that no reference was made to McKell v The Queen in determining the ground which complained about the trial Judge's comments to the jury, with that ground being determined (at [61]-[70]) by reference to the principles in Galea v Galea (1990) 19 NSWLR 263 at 281. In those circumstances, caution is required in applying ABR (a pseudonym) v R in determining the present appeal.
The principles to be applied in determining the ground of appeal raised in the present case are those contained in McKell v The Queen. Comment by Trial Judge on the Evidence of Children
It is appropriate to refer next to the task of a trial Judge when summing up to a jury in a trial for child sexual assault offences. This is an area where statutory provisions have been enacted and where courts have been conscious of the need to fairly provide assistance to juries when considering the evidence of children.
In the present case, the expert evidence concerning child witnesses in general was confined to the report of Dr Shackel which was tendered as an exhibit and read to the jury (see [38] above). Apart from that evidence, the jury observed the recordings of the two complainants giving evidence on an earlier occasion, in accordance with the provisions contained in Part 29 of Schedule 2 of the Criminal Procedure Act 1986. The Crown and Senior Counsel for the Applicant at trial addressed the jury by reference to the evidence adduced at the trial.
There are certain statutory restrictions upon warnings which may be given in relation to children's evidence.
Section 165(6) Evidence Act 1995 made clear that s.165(2) did not permit a Judge to warn or inform a jury, in proceedings where a child had given evidence, that the reliability of the child's evidence may be affected by the age of the child, with any such warning or information to be given only in accordance with s.165A(2) and (3) of that Act.
Section 165A Evidence Act 1995 provides as follows: "165A Warnings in relation to children's evidence (1) A judge in any proceeding in which evidence is given by a child before a jury must not do any of the following - (a) warn the jury, or suggest to the jury, that children as a class are unreliable witnesses, (b) warn the jury, or suggest to the jury, that the evidence of children as a class is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults, (c) give a warning, or suggestion to the jury, about the unreliability of the particular child's evidence solely on account of the age of the child, (d) in the case of a criminal proceeding - give a general warning to the jury of the danger of convicting on the uncorroborated evidence of a witness who is a child. (2) Subsection (1) does not prevent the judge, at the request of a party, from - (a) informing the jury that the evidence of the particular child may be unreliable and the reasons why it may be unreliable, and (b) warning or informing the jury of the need for caution in determining whether to accept the evidence of the particular child and the weight to be given to it, if the party has satisfied the court that there are circumstances (other than solely the age of the child) particular to the child that affect the reliability of the child's evidence and that warrant the giving of a warning or the information. (3) This section does not affect any other power of a judge to give a warning to, or to inform, the jury."
At the time of the Applicant's trial in February 2018, s.293A Criminal Procedure Act 1986 had not come into force. That provision commenced on 1 December 2018.
Section 293A Criminal Procedure Act 1986 provides as follows: "293A Warning may be given by Judge if differences in complainant's account (1) This section applies if, on the trial of a person for a prescribed sexual offence, the Judge, after hearing submissions from the prosecution and the accused person, considers that there is evidence that suggests a difference in the complainant's account that may be relevant to the complainant's truthfulness or reliability. (2) In circumstances to which this section applies, the Judge may inform the jury - (a) that experience shows - (i) people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time, and (ii) trauma may affect people differently, including affecting how they recall events, and (iii) it is common for there to be differences in accounts of a sexual offence, and (iv) both truthful and untruthful accounts of a sexual offence may contain differences, and (b) that it is up to the jury to decide whether or not any differences in the complainant's account are important in assessing the complainant's truthfulness and reliability. (3) In this section - difference in an account includes - (a) a gap in the account, and (b) an inconsistency in the account, and (c) a difference between the account and another account."
It may be seen that s.293A permits a trial Judge to give directions to a jury concerning differences in the account given by a complainant at a trial for a prescribed sexual offence. However, this provision did not apply to the trial of the Applicant. Section 293A is not confined, in any event, to the evidence of child witnesses. The provision applies to all complainants in trials for prescribed sexual offences generally. It may be observed that s.293A would apply to any retrial of the Applicant if this Court allowed the appeal and ordered a retrial.
It is appropriate to refer to authorities concerning the scope of a trial Judge to comment with respect to children's evidence in summing up to a jury, all of which were decided before McKell v The Queen.
In the 2012 decision in RGM v R, this Court (Fullerton J, McClellan CJ at CL and myself agreeing) referred (at [94]) to a lengthy extract from the summing up of the trial Judge in a child sexual assault trial. Fullerton J then said at [95]-[97]: "95 The complaint is not that his Honour's remarks breached the prohibition in s 165A of the Evidence Act although parts of the extract above are, in my view, capable of such a reading. That section operates to prohibit a trial judge from warning a jury that children as a class, or by reason of their immaturity, are unreliable witnesses, or that their evidence is less credible or reliable or that it requires more careful scrutiny than the evidence of adults. The complaint is that the trial judge's commentary had the potential to deflect the jury from their task of assessing the complainant's credibility. 96 In my view that complaint is well founded. Despite defence counsel's failure to ask his Honour to make clear to the jury that his views about child witnesses were by way of comment only and that they were not obliged to assess the complainant's evidence by reference to them, the extent of his Honour's commentary and its content, coupled with the real risk that the jury might have been inclined to a view adverse to the accused because of it, satisfies me that leave should be granted to permit this ground of appeal to be argued. 97 A trial judge has a wide discretion to offer guidance to a jury as to how to approach the evidence of a child witness which should be tailored to meet the particular circumstances of the case and the issues that the jury are likely to encounter in their deliberations. Save only where a trial judge is satisfied that the evidence of a particular child may be unreliable in a particular respect, and that there is a need for the jury to exercise caution in assessing the evidence thereby invoking the exception in s 165A(2) of the Evidence Act, it is important that a trial judge refrain from suggesting an approach to the assessment of a child's evidence in such a way that it has the appearance of a direction of law."
Any permissible warning under s.165A can only focus on matters relative to the particular child complainant in the particular circumstances of the case and not upon the mere fact that the witness is a child or an inherent feature of children more generally: AL v R (2017) 266 A Crim R 1; [2017] NSWCCA 34 at [77]. A warning of the latter kind contravenes ss.165A and 294AA Criminal Procedure Act 1986: AL v R at [78].
It is within the trial Judge's discretion to decline to give a warning for matters evident to the jury which the jury can assess without assistance: AL v R at [81]. There is a distinction between the need for a warning about matters of which the jury have little understanding or appreciation, but where the Court would have such an understanding, and matters which the jury are able to assess without particular assistance: AL v R at [81].
In RGM v R Fullerton J (at [102]) said with respect to the trial Judge's summing up: "While in the present case his Honour's observations about children speaking and thinking differently from adults might have been classed as legitimate comment, I am satisfied they were overtaken by other observations sourcing from his Honour's personal experience and personal views about children such that there was a blurring of the essential distinction between a judicial direction and a comment. Some of his Honour's remarks could only have been understood as directions given the imperative language in which they were expressed. The most serious of these being the requirement that the jury were to assess the complainant's evidence against the background that if she was being truthful she might find difficulty giving her evidence because she was reliving the assaultive experience in the process. This direction had the effect of inviting the jury to find that defence counsel's submissions about her demeanour in the witness box were of no weight in undermining her credibility. Other observations were nothing more than his Honour's personal views about the complainant but which were again cast in terms that would have signalled to the jury in unmistakeable terms that his Honour regarded her as a reliable witness. To describe her as someone who was in fact in control of her emotions while giving evidence (in effect despite her inner turmoil as a victim of the assaults) far exceeded the bounds of permissible comment in a case where the credibility of the complainant was a significant and contentious issue." Addressing the Summing Up in the Present Case
In determining the present appeal, it is necessary to keep in mind the proper limits of a summing up in the adversarial and accusatorial process which constitutes a criminal trial. There are limits upon what a trial Judge can say to a jury in the proper exercise of summing up to the jury.
It is the task of counsel for the Crown and the accused person, in the adversarial process of a criminal trial, to advance arguments to the jury in their respective closing addresses. It is not the task of a trial Judge to give a "second address" for the Crown or the accused person.
If the trial Judge has in mind raising matters which were not mentioned in closing addresses, it is necessary for the Judge to raise those topics with counsel in the absence of the jury so that submissions can be made as to the appropriateness or otherwise of that proposed course. It is not sufficient for the trial Judge to say generally that he has in mind referring to some unparticularised matters in the summing up.
Compliance with this approach will guard against the prospect of counsel and the jury hearing, for the first time, what the trial Judge says on particular topics when the Judge is saying it to the jury.
With these principles in mind, it is appropriate to consider the impugned parts of the summing up to determine whether what was said may be characterised as permissible comment (or a direction) to the jury emerging for the first time during the summing up by the trial Judge. It will then be necessary to consider, as well, the cumulative effect of the matters in relation to which complaint is made for the Applicant.
That part of the summing up in which his Honour stated to the jury that "children are not little adults" (SU10-12 at [61], [63]) above is permissible comment. Statements to a similar effect were accepted as being open to a trial Judge in CMG v R at [10]-[11]. These paragraphs in CMG v R were also referred to by this Court in RGM v R at [100]-[101].
Likewise, statements to the jury concerning children's logic (or how they think and speak) have been said to be permissible: RGM v R at [102]; ABR (a pseudonym) v R at [75]-[76].
In the present case, the trial Judge referred to these aspects of children and their evidence (see SU7, SU10, SU57 and SU62). On their own, these statements do not give rise to error.
As observed in RGM v R at [102] (see [186] above), an area of particular difficulty is where the trial Judge recites his or her personal experiences and views with this being said to be impermissible.
In this case, the trial Judge made comments which may be so interpreted. There are problems with these aspects of the summing up.
A particular difficulty arises where the Judge uses imperative language so that comments or remarks may be treated by the jury as directions. This is impermissible: RGM v R at [102]; NJB v R at [12]; McKell v The Queen.
By way of example, in the present case, the trial Judge used language in the nature of a direction when saying to the jury (SU56 at [78] above): "… there are a lot of criticisms and I will come to those shortly, but you do have to look at the reality of what you are dealing with, a child who is not a lawyer, not a wordsmith, being tested on a subject upon which they might be quite emotional about if they are telling the truth."
In determining the extent of permissible comment by a trial Judge, it is necessary to keep in mind the statements made in February 2019 by the High Court of Australia in McKell v The Queen which serve to confine permissible comment in the context of a jury trial.
Even before McKell v The Queen, however, and certainly since the decision of this Court in RGM v R in 2012, trial Judges have needed to be especially careful in what is said to a jury in a criminal trial by reference to the evidence of children who have testified at the trial. Apart from the need to comply with statutory provisions such as s.165A Evidence Act 1995, a number of cases, including RGM v R, have identified principles which necessitate caution before a trial Judge volunteers comments to the jury on this topic, in particular where the comments to be made have not been the subject of addresses by counsel and where the trial Judge did not put counsel on notice of precisely what was intended to be said to the jury.
Ground 1(a) asserts that the trial Judge erred in giving directions to the jury that the credibility of the complainants was to be assessed having regard to generalisations as to the quality of the evidence of children to retain, recall and recount sexual abuse.
Some of the matters complained of under Ground 1(a) involve a form of permissible comment. However, the accumulation of these matters gives rise to difficulty with respect to the summing up.
Ground 1(b) asserts that the trial Judge erred in directing the jury that the credibility of the complainants was to be assessed having regard to his Honour's observations as to how witnesses generally react to cross-examination.
The matters complained of under this subground are more problematic again. The summing up should relate to the evidence in the trial and the addresses of the parties with any additional statements, comments or directions to be made as authorised by law. The trial Judge is not entitled, in effect, to give evidence or express expert opinion on issues in the trial. An accumulation of the matters complained of under Ground 1(b) with Ground 1(a) fortifies a conclusion that irregularity occurred in the summing up in this trial.
Ground 1(c) asserts that the trial Judge erred in directions to the jury that the credibility of the complainants is to be assessed having regard to arguments raised in the summing up which were not advanced by the Crown and/or were not supported by the evidence.
I am satisfied that the trial Judge attributed to the Crown in the summing up, arguments which had not been raised by the Crown. It was not sufficient to inform counsel that this may happen without (at the very least) indicating, in the absence of the jury, what his Honour had in mind saying.
I am satisfied that a combination of matters referred to in Ground 1(a), (b) and (c) meant that the summing up in this trial did not comply with the proper limits of a summing up as required by law as identified in cases including RGM v R and McKell v The Queen.
In my view, as in RGM v R, the cumulative effect of what the trial Judge said in this case crossed the line in a number of respects so as to infringe the approach identified in RGM v R and the demanding principles stated more recently by the High Court in McKell v The Queen.
There is a very real prospect that the jury at this trial would have taken a number of statements volunteered by the trial Judge as directions rather than mere comments. I am satisfied, in the circumstances of the case, that the matters complained of by the Applicant in his ground of appeal have merit. It is necessary to consider next what flows from the absence of any objection by Senior Counsel who appeared for the Applicant at trial.

[5]

The Rule 4 Issue

As in RGM v R, defence counsel at the trial raised no objection to the matters volunteered by the trial Judge nor was any application made for the withdrawal of the comments nor for the discharge of the jury. No evidence has been placed before this Court to explain why counsel did not object to the impugned parts of the summing up.
In these circumstances, the Applicant is obliged under Rule 4 Criminal Appeal Rules to establish that the particular ground of appeal under consideration is arguable and that a miscarriage of justice has resulted from either the trial Judge's misdirection or a failure to direct the jury in accordance with law in the sense that a real chance (fairly open) of acquittal has been lost: R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20 at [20]-[24]; RGM v R at [19].
It is difficult to see that there was any forensic advantage to the Applicant by any decision not to object to the volunteered comments made by the trial Judge in the context of this trial. The likely impact of the trial Judge's comments was to operate adversely to the Applicant concerning the approach which the jury may take to an assessment of the credibility and reliability of the evidence of the child witnesses.
In my view, the extent of the trial Judge's commentary and its content, taken with the real risk that the jury might have been inclined to a view adverse to the Applicant because of it, warrants a grant of leave under Rule 4 for the Applicant to advance the ground of appeal. In RGM v R, the Court said at [96]: "… Despite defence counsel's failure to ask his Honour to make clear to the jury that his views about child witnesses were by way of comment only and that they were not obliged to assess the complainant's evidence by reference to them, the extent of his Honour's commentary and its content, coupled with the real risk that the jury might have been inclined to a view adverse to the accused because of it, satisfies me that leave should be granted to permit this ground of appeal to be argued."
Similar considerations apply here so that the Applicant should have leave under Rule 4 to rely upon the ground of appeal.
Having considered the evidence adduced at the trial and the summing up as a whole, I am satisfied that a miscarriage of justice has resulted from the trial Judge's volunteered comments made on several occasions to the jury concerning the evidence of the child witnesses. The approach adopted by the trial Judge was not consistent with what this Court said in RGM v R and did not accord with the more recent and emphatic statements by the High Court of Australia in McKell v The Queen concerning the limits of permissible comment by a trial Judge to a jury in a criminal trial.
In fairness to Senior Counsel who appeared for the Applicant at trial, it is necessary to keep in mind that the trial of the Applicant predated the decision in McKell v The Queen.
I would uphold the Applicant's ground of appeal.

Parties

Applicant/Plaintiff:

Mortimer

Respondent/Defendant:

Cases Cited (43)

Ground of Appeal

The Applicant relies upon a single ground of appeal with several components: Ground 1 - The learned trial Judge erred in directing the jury as to how the evidence of the child witness complainants was to be assessed by: 1. directing the jury that the credibility of the complainants is to be assessed having regard to generalisations as to the quality of the evidence of children to retain, recall and recount sexual abuse; 2. directing the jury that the credibility of the complainants is to be assessed having regard to his Honour's observations as to how witnesses generally react to cross-examination; and 3. directing the jury that the credibility of the complainants is to be assessed having regard to arguments raised in his Honour's summing up which were not advanced by the Crown and/or were not supported by the evidence.
As will be seen, the complaints now made before this Court were not the subject of complaint or any application on the part of Senior Counsel who appeared for the Applicant at trial. In these circumstances, it will be necessary for the Court to consider the application of Rule 4 Criminal Appeal Rules in the course of determining the appeal.
The issues raised by this appeal concern the limits operating on a trial Judge to volunteer comments to a jury concerning the evidence of child witnesses, with this question to be considered by reference to the decision of the High Court of Australia in McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5, a judgment delivered on 13 February 2019, a year after the trial of the Applicant.
The Applicant does not seek to appeal with respect to sentence.

The Crown Case Against the Applicant

As is apparent, the ground of appeal in this Court is directed to the trial Judge's summing up to the jury and matters raised by his Honour which are now the subject of complaint. In the context of this appeal, a relatively brief narrative of the charges against the Applicant which gave rise to the verdicts will suffice.
The Applicant was born in August 1969. In 2009, Donna's mother formed a relationship with the Applicant. In April 2010, the Applicant moved in with Donna's mother, Donna and Donna's 20-year old sister at an address in the Newcastle area. The Applicant had a son who was about the same age as Donna and the son would stay at the Applicant's home on weekends and during holidays as part of a parenting plan.
Donna and Gail are cousins. Their mothers are sisters. The families lived in the same area and were close, with the complainants attending the same high school. On the Crown case, Donna told her mother in mid-2014 that the Applicant had touched her sexually on two different occasions. Donna's mother confronted the Applicant who provided an explanation for each incident. The Applicant temporarily moved out of the home whilst Donna's mother considered the situation. A decision was made not to report the matter to police and the Applicant moved back home about a week later.
On 4 December 2015, Gail complained to her mother and older brother that the Applicant had been touching her sexually. Arrangements were made for Gail to speak to a general practitioner and, on 9 December 2015, Gail was taken to Waratah Police Station. Gail disclosed sexual offending against her and also told police that she had witnessed the Applicant committing an offence against Donna.
Gail participated in four recorded interviews with police between December 2015 and April 2016. Donna participated in one interview with police on 18 December 2015.
The Applicant was arrested and charged with offences against Donna and Gail on 21 December 2015.
The proceedings against the Applicant were conducted under the Child Sexual Offence Evidence Program Scheme at the Newcastle District Court, in accordance with the provisions in Part 29 of Schedule 2 to the Criminal Procedure Act 1986 considered in SC v R [2020] NSWCCA 314 at [16]ff. The evidence of Donna and Gail was pre-recorded and conducted, with the assistance of a child witness intermediary, before her Honour Judge Girdham SC. The evidence of Donna was taken on 30 January 2017 when she was 15 years of age. The evidence of Gail was taken on 31 January 2017 shortly before her 14th birthday.
As noted earlier, the trial of the Applicant proceeded before his Honour Judge Ellis and a jury commencing on 12 February 2018, with verdicts being returned on 23 February 2018. Count 1 - s.66A(1) Crimes Act 1900 Offence Against Donna Between 1 July 2009 and 30 September 2011 (Verdict: Guilty)
It was the Crown case that, a few months after Donna's mother commenced dating the Applicant, Donna (then about eight years old) was home alone with the Applicant. Donna's mother was working. Donna and the Applicant were watching the DVD "Finding Nemo" in the downstairs lounge room. They were on the lounge suite covered by a doona. The Applicant started tickling Donna under the arms and on her feet. He then started blowing raspberries on Donna's stomach. The Applicant moved further down Donna's body and pulled her pants down and then touched her vagina with his hands. The Applicant inserted his finger inside Donna's vagina. Count 2 - s.66A(1) Crimes Act 1900 Offence Against Donna Between 1 July 2009 and 30 September 2011 (Verdict: Guilty)