MR v R

JUDGMENT

1. HARRISON CJ at CL: MR appeals against convictions entered in the District Court of New South Wales following separate trials concerning assaults upon his stepchildren, TG and VL.
2. On 10 October 2022, MR was arraigned before his Honour Judge Townsden and a jury on an indictment relating to offences against his stepchildren TG and VL. TG and VL gave evidence in the trial, but the jury was discharged before it could be completed. On 1 February 2023, MR was again arraigned on an indictment relating to the same offending. The jury was again discharged before the trial could be completed. The counts relating to each complainant were then severed.
3. MR then elected to stand trial before his Honour sitting as a judge alone between 27 February and 2 March 2023 on an indictment containing one count of common assault contrary to s 61 of the Crimes Act 1900 and one count of assault occasioning actual bodily harm contrary to s 59(2) of the Crimes Act. These offences were alleged to have occurred against MR's stepson TG, when they lived together in Tahmoor between 28 July 1998 and 2 July 2001 (Count 1) and 28 July 2001 and 27 July 2004 (Count 2).
4. On 23 March 2023, his Honour found MR not guilty of Count 1 but guilty of Count 2. MR appeals against his conviction on the single ground that the verdict is unreasonable and cannot be supported by the evidence ("the first appeal").
5. In the meantime, between 7 and 17 March 2023, MR stood trial before his Honour and a jury on an indictment relating to the offences alleged against VL as follows: Count Offence Date of Offence Verdict 1 Aggravated sexual intercourse without consent (circumstance of aggravation: complainant under the age of 16 years. VL: 12 or 13 years of age) Between 1 January 2000 and 26 June 2001 Guilty S 61J(1) Crimes Act 1900 2 Aggravated indecent assault (circumstance of aggravation: complainant under the authority of the applicant) Between 7 October 2002 and 6 October 2005 Not guilty S 61M(1) Crimes Act 1900 3 Aggravated sexual intercourse without consent (circumstance of aggravation: complainant under the authority of applicant) Between 7 October 2002 and 6 October 2005 Not guilty 4 Common assault: Between 7 October 2002 and 6 October 2005 Not guilty S 61 Crimes Act 1900 5 Attempted aggravated sexual intercourse without consent (circumstance of aggravation: complainant under the authority of the applicant) Between 7 October 2004 and 6 October 2005 Not guilty S 61J(1) Crimes Act 1900

1. On 17 March 2023, MR was found guilty of Count 1 and not guilty of Counts 2 to 5 inclusive. He now appeals against that conviction upon the single ground that his Honour erred in failing to leave to the jury the question of honest and reasonable mistake of fact ("the second appeal").

Count 1 - summary

1. This count alleged that when TG was around 5, 6, 7 or 8, MR assaulted him by hitting him in the head and that his head then hit a linen cupboard, leaving damage to the lower part of the cupboard door.

Count 2 - summary

1. This count alleged that when TG was 10 or 11 years old, he stole a watch from school. When MR discovered this, he took TG's hand and forcibly held it onto a burning hotplate. TG's sister VL gave evidence that she saw this happen.

Background

1. TG and his sister VL lived with their mother JR. MR came to live with them at Tahmoor in 2000. They married in 2000. MR and JR had a son [CR] in 2002 and a daughter [A] in 2005.
2. When his mother first met MR, TG thought he was a good stepfather. However, the nature of their relationship changed after about a year and MR "started becoming more violent, more aggressive". TG suffered mental, physical and emotional abuse. MR regularly hit him with a spoon across his backside, hit him with a belt buckle and locked him in his room. TG admitted he was a "very troubled kid" and did lot of bad things or things that were not okay such as stealing food from the cupboard because he was hungry. He outlined various punishments he received from MR.
3. MR also used to rub TG's face in the sheets if he wet the bed. It was put to TG in cross-examination that this never happened. He said that such a suggestion was false. He agreed that he wore "pull-ups" until he was ten or eleven. TG said MR was always putting him down and made him believe he was stupid and worthless. He recalled one occasion when he was made to sleep on the trampoline as a punishment.
4. In cross-examination, TG admitted that he used to get into a fair bit of trouble at school, was suspended for behavioural problems including lying and stealing. It was put to TG that he was only ever smacked with a hand, which he rejected.
5. When he was about 5 or 6 years old, TG opened the door to the linen cupboard and saw a light coming from one side. He opened that side of the door even though he had previously been told not to and saw cannabis leaf in there. MR caught him looking at it and hit him. TG said, "he hit me in the head with that much force that I indented a solid - the wooden door." TG was bleeding and was afterwards locked in his bedroom. Evidence was led of a photograph showing damage to the bottom of the linen cupboard door.
6. TG described an incident after he had stolen a watch from school when he was aged 10 or 11 and in Year 4 or 5. He said it was something that he could not get out of his head: "He - he put the stove on and then walked out to my mother, which was in the computer room, and he said, 'Look what this little cunt stole from school.' And he grabbed me by the hand, and he forced my hand onto a hotplate which was burning orange…I was screaming. I was in that much pain."
7. TG said that MR placed his hand over TG's hand and forced it onto the hotplate. It was smoking and the smell was terrible. TG was sure his sister VL had seen it. TG was thrown into his room and the door was locked with a latch. His sister got some aloe vera from the next-door neighbour's yard. Other than that, he did not receive any medical treatment. He was not allowed to go to school after this for about a week and a half. In cross-examination, TG rejected the suggestion this did not happen. He said "I was there. I lived it." He agreed it was possible that when the watch was discovered he was taken down to school to own up, but said: "I took it. When I got home, he burnt my hand." TG rejected the proposition there was no lock on his door. He agreed there were times he would jump through the bedroom window and take off.

Consideration

1. TG, VL, SC and JR gave evidence. VL recalled the incident when her brother's hand was placed on the stove. His Honour formed the view that she was a very impressive witness. His Honour's judgment was in these terms: "[VL] was largely unshaken in cross-examination. Her description of seeing her brother's hand being held on the stove is largely identical to the description given by the complainant. Her description of how the complainant was treated, including being locked in his bedroom, being forced to eat chocolate, and where he was made to eat dinner, was consistent with the evidence of the complainant. Although she was cross-examined as to whether her evidence was concocted as a consequence of discussions with the complainant, I am satisfied that there was no suggestion of concoction when being asked to recall events and her observations in respect of this count."
2. SC gave evidence that she met JR around 1966. VL was about 10 at the time and TG was about seven or eight. His Honour referred to SC's evidence in these terms: "The evidence of [SC] in respect of the nature of the relationship between the accused and the complainant was consistent with that of both the complainant and [VL]. She also recalled the complainant being locked in his room and that she, [VL] and [JR] would sneak food into his room through the window. She further corroborated the complainant's evidence of going to the toilet in a bucket in his bedroom. Although I would accept there was some inconsistency when describing the lock on the bedroom door, such discrepancy would not be unexpected given the significant lapse of time."
3. His Honour was unimpressed with the evidence of JR, as the following extract from his judgment reveals: "[JR], at various times, offered three versions in respect to [CR] burning his hand. Throughout her evidence she struggled to recall what she had said moments earlier which at various times she attributed to poor memory. She was a particularly unimpressive witness. She was neither honest nor reliable, and it appeared to the Court she was a reluctant witness in the Crown case. An application was made by the Crown, which was unopposed, to cross-examine this witness pursuant to s 38 of the Evidence Act. The application was based on her prior inconsistent statement to police and evidence previously given. That application was granted. Having considered the totality of her evidence, I would reject the evidence she gave in Court in these proceedings. Her evidence was clearly at odds with the evidence of her daughter, [VL], who I found to be an impressive witness."
4. His Honour analysed the evidence given by TG with respect to Count 2 as follows: "Both the complainant and [VL] provided details of the alleged event. The complainant readily acknowledged that he was in trouble for stealing a watch which gave rise to the punishment. [VL] also recalled the reason why the complainant was punished. Both describe the event in detail, although there were some discrepancies as to what followed. Such a discrepancy is, in my view, to be expected given the lapse of time. I would accept their evidence beyond reasonable doubt and reject the accused evidence and that of [JR] as a reasonable possibility. The evidence of [CR], that he did in fact burn his hand on an electric frying pan, I would accept, however, this does not, to any extent, cast any doubts on the evidence of either the complainant or [VL]. I would reject the offender's version of events as a reasonable possibility. There can be no doubt that it would have been a terrifying experience for the complainant's hand to be placed on the stove as described, and given the lapse of time, any assessment of how long the hand was on the stove when it was described as burning orange must be viewed with a degree of circumspection. However, I am satisfied that the hand of the complainant was forced onto the hot plate by the accused by placing his hand on top of the complainant's hand. At one point the hotplate was seen to be burning orange and, as a consequence, burnt the complainant's hand which was subsequently bandaged. The complainant subsequently did not attend school for a number of days as a result of his injury, although no permanent injury was occasioned."
5. His Honour's conclusions were expressed as follows: "Although I could not be satisfied beyond reasonable doubt in respect to Count 1, given the strong corroborative evidence of [VL] and the largely consistent accounts given, and also noting the complainant was somewhat older when this incident is said to have occurred, I am not of the view that any concerns about the complainant's reliability as to the events giving rise to Count 1 would lead me to entertain a reasonable doubt in respect of [Count 2] and I would find that the Crown has proved each element beyond reasonable doubt and find the accused guilty in respect to Count 2."
6. The evidence otherwise revealed that TG and VL had discussed the events that gave rise to the proceedings over the years. Counsel for MR sought to contend that this gave rise to an inference that there had been collusion, contamination or concoction. The difficulty with that submission is that it is devoid of any content save for the bare inference that discussion between or among witnesses concerning a particular event witnessed several years ago should be regarded as suspicious. However, his Honour's assessment of TG and VL is significantly not the subject of any specific criticism that could assist the availability of the inference that MR seeks to draw. Indeed, there appears to be a tacit acceptance of the fact that his Honour enjoyed the special advantage as the tribunal of fact and that his assessments of the witnesses are matters that were entirely open to him.
7. Nor was MR able to draw any particular strength from a suggestion that the not guilty verdict on Count 1 was only explicable in a way that also imperilled the verdict on Count 2. TG was much younger when the linen cupboard assault allegation took place, a reasonable basis for a distinction. Secondly, his Honour explained why he had a doubt about TG's version about this incident in a way that did not cast any doubt upon his credibility: "Although I would not conclude the complainant was not attempting to provide truthful evidence, I am left with some doubt as to the reliability of his evidence in respect of the specific act relied upon by the Crown to make out Count 1 and could not be satisfied beyond reasonable doubt."
8. Finally, Count 2 was corroborated by VL with whose evidence his Honour was particularly impressed.
9. The principles to be applied in a case where the ground of appeal is that a verdict is unreasonable or cannot be supported by the evidence are well known: see SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14]; Elwood v R [2016] NSWCCA 18 at [21]. Having reviewed the whole of the evidence in the trial, I am satisfied that it was entirely open to his Honour to find beyond reasonable doubt that MR was guilty on Count 2.
10. I consider that the first appeal should be dismissed.

Count 1 - summary

1. As earlier indicated, VL is the daughter of MR's wife, JR. It was agreed at the trial that between 1 January 2000 and 23 June 2001, JR was in hospital after having suffered a miscarriage. On the evening in question, VL was at home alone with MR. At some time during the night, VL went to her mother's bedroom because she was scared. She was then aged 12 years. MR invited her to stay in the matrimonial bed. She did so and fell asleep. During the night, VL awoke to a sharp pain that was pushing into her anus. She ran to the toilet and locked herself in. A short time later, she heard MR call out, "JR, what's wrong?" VL later spoke to her mother by telephone and said, "it was something hard that went into my bum".
2. JR gave evidence that VL told her, "Dad tried to touch me. He must have thought it was you". JR then confronted MR, asking "what the fuck did you do?" He responded, saying that he would never do that, but did agree that he would never drink that much again. JR said that MR said to VL, "I'm so sorry. I didn't know it was you".

Honest and reasonable mistake of fact

1. The issue of honest and reasonable mistake of fact was raised with the trial judge during the course of the evidence as a matter that would need to be determined. At the close of the evidence, counsel for MR applied to the trial judge to have it left to the jury for their consideration on the question of whether the Crown had established the elements of the offence.
2. MR argued that there was sufficient evidence led in the Crown case to satisfy the evidentiary onus that he had an honest and reasonable but mistaken belief that VL was his wife. This was because of VL's reference to hearing MR say, "JR, what's wrong" and her other evidence that after she heard her mother speak to MR on the phone, her mother said to her, "he thought it was me".
3. The Crown opposed the application on the basis that MR had not satisfied his evidentiary onus, relying on CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25 and Ibrahim v R [2014] NSWCCA 160. The Crown submitted that the subjective state of mind as to an honest and reasonable belief was not established on the evidence and the mere fact that MR had spoken his wife's name when VL left was insufficient in the circumstances where there was no reasonable basis for that belief. Further, the Crown submitted that even if it were accepted that MR honestly and reasonably believed the person he had sexual intercourse with was his wife, there was no evidence that the sexual act was consensual, in which case his belief as to who was in the bed did not make his conduct innocent.
4. His Honour declined to direct the jury as to honest and reasonable mistake of fact on the basis that there was insufficient evidence to discharge the onus.

His Honour's judgment

1. His Honour's judgment was delivered on 17 March 2023 and included the following: Counsel for the accused makes application for the defence of an honest and reasonable but mistaken belief as to the fact be left to the jury in respect of Count 1 on the Indictment. The Crown opposes the application on the basis that it has not been established by the accused to the necessary evidentiary standard. Counsel for the accused in support of the application referred to the evidence of the complainant who recalled the accused saying "[JR], what's wrong?" before she ran into the bathroom after the alleged incident in the bedroom. '[JR]' being a reference to the accused's wife and also the complainant's mother. When describing the alleged offence in the bedroom, it was the complainant's evidence that she "had woken up to a sharp pain that was pushing in towards her anus." During the course of cross-examination, the accused [sic] wife, [JR] was asked a number of questions in relation to her sexual relationship with the accused. She agreed they had quite a healthy sex life and said that once [TG] and [VL] went to bed, she "would try and tiptoe" into the bedroom and she then said, "he would be like 'hi sweetie' or 'good morning, sweetie' if it was past midnight because he was a light sleeper" (transcript at p 431 line 3). She agreed with the proposition that when she was instigating this, it would work in reverse. In re-examination, she was asked further questions about the sexual relationship from January 2000 until the time their son [CR] was born and said that [MR] was a light sleeper and that when she went into the bedroom, he would go "hello baby" (transcript p 187 line 18). She was then asked whether before she had sex with the accused, there would be some conversation and she replied at transcript p 187 line 27, "Yeah, yeah. Or we'd just cuddle up but he would wake up". She was then asked [sic] question, "Well, how do you know how he woke up on those occasions?" And she replied, "He would speak" (Transcript at p 187 line 30). [JR] gave evidence that the accused told her that he thought that the complainant was his wife, telling her, "I thought it was you." There is no dispute that the accused during his record of interview stated that he had no recollection of the incident including both immediately around the time and later at the hospital. Counsel for the accused submits that the fact that the accused has not given evidence about this aspect of the case may be relevant to the jury's ultimate assessment of an honest and reasonable belief but it is not a barrier to the defence being left to the jury and that the evidentiary basis for the defence was raised in the Crown case and the jury should be directed in relation to it. During the course of oral submissions, counsel for the accused agreed that the accused's intoxication is not to be taken into account when considering the accused's state of mind at the time. When giving evidence, [JR] stated that she had a conversation with the accused on the telephone prior to the alleged offence and she said that she could "Hear it in his voice that he was drunk as" (transcript at p 53 line 15). … During the course of submissions, I referred the parties to the decision of Day v R [2017] NSWCCA 192 where one of the grounds of appeal was that there had been a miscarriage of justice when the jury was not directed that they had to consider whether the prosecution had disproved the applicant had an honest and reasonable but mistaken belief as to consent arising from the mistaken identity of his sexual partner. The case concerned the victim going to sleep in the spare bedroom. She woke to find the applicant on top of her with his penis inside her. During the course of the applicant's record of interview, he stated that he had mistaken [sic] and gone into the wrong bedroom and that he believed it was his partner in the bed, he denied penetrating the victim and said he had consumed a substantial amount of alcohol. Although that decision was in part considering the application of s 61HA, which was introduced after the present allegation, it was nonetheless relevant from a number of respects. There can be little doubt that the accused on the evidence of [JR] was drunk at the time of the allegation… … The only evidence of the alleged offence is that from the complainant and what she subsequently relayed to her mother and later to her husband…The only evidence is that she was asleep at the time in circumstances where she went into her mother's bedroom because she was scared and the accused told her to come in and go into the bed… … The accused is to be treated as being sober. His actions in inviting his stepdaughter into bed and proceeding later to have sexual intercourse whilst she is asleep does [sic, do] not satisfy the albeit lower evidentiary standard. The application is refused.

Consideration

1. In the course of his Honour's assessment of the issue of MR's belief concerning the identity of the person with whom he had anal intercourse, his Honour placed considerable emphasis on the related but narrower issue of whether or MR could have believed that VL was consenting to what occurred, having regard to the fact that she was asleep at the time. The issue gained prominence in light of the evidence that suggested, on one view, that MR and JR had an arrangement between themselves that the initiation of sex by one of them when the other was asleep was an accepted and acceptable part of their intimate relationship. MR wished to contend that the fact that VL was asleep and that he proceeded notwithstanding to commence to have sex with her was a matter that went to the honesty and reasonableness of his belief that it was JR in his bed at the time. This was said to be because what he did allegedly conformed with the arrangement about the initiation of sex that he had with his wife.
2. Some of the discussion between counsel and his Honour on this topic is instructive and is as follows: "HIS HONOUR: I go back to the same point; the mistake of fact you're saying is, as I understand it, that he believed that the complainant was in fact [JR]. PRINCE: Correct. HIS HONOUR: But the issue is more than identity, it goes to the identification, but also the issue of consent and knowledge of consent. There are two issues there. Because if there was no consent, the identity is irrelevant, or he knew that there wasn't consenting [sic]. There's still committing an offence. If you're committing an offence, the defence of honest and reasonable mistake of fact doesn't arise because it's not an innocent act."
3. MR wished to contend that the viability of the issue of honest and reasonable mistake of fact, in that he believed he was having sex with his wife, was not vitiated at the threshold, as it were, simply because VL was asleep. Indeed, MR embraced that as an indication to him, albeit mistaken, that VL was in fact his wife, having regard to the way in which he sought to characterise their previously described sexual regime.
4. MR submitted in this Court that, in the absence of the presumption in s 61HA, there was no authority to support a proposition that initiating sexual intercourse pursuant to a long-standing agreement between two adults could not be considered consensual. To the contrary, he relied upon the remarks of Basten JA in WO v DPP [2009] NSWCCA 275 at [71] that: "… in the case of a stable relationship, the circumstances may allow for a factual finding that the partner had had an 'opportunity to consent' whether or not she was asleep at the time the sexual intercourse was attempted."
5. MR submitted that whether his wife's evidence was to be accepted was entirely a matter for the jury: it could not be assumed or presupposed by the trial judge simply because VL was asleep that any reliance on his having an honest and reasonable mistake of fact was for that reason doomed to fail. However, that submission invites a consideration of the evidence in question. JR's evidence about this was as follows: "Q. I just want to ask you some questions now about your sexual relationship with the accused. I think you were asked some questions by the prosecutor about the nature of your sex life in the early years of your relationship. A. Yes. Q. The early years of your marriage. You've described it as you chasing him around. A. Yes. Q. Is that right? A. Yes. Q. I take it from you that in those early years - and this is pre-[CR], okay. So let's say pre-2002 you had quite a healthy sex life. Would that be a fair way to put it? A. Yes. Q. If you wanted it you would instigate it. A. Yes. Q. Take it and -- A. I would - because the kids were up late, like, on the weekends let's say - once they went to bed - because we never the let kids by themselves. One of us would be awake which would be me because [MR] -- Q. You mean [TG] and [VL]? A. As - yes. Q. At that stage. A. Once they went to bed I would try and tip toe in there and he would be like, 'Hi, sweety' or, 'Good morning, sweety' if it was past midnight because he was a light sleeper. Q. And, similarly, that would be you trying to instigate sex. But did it work in the reverse? That if he-- A. Yes. Q. If he wanted-- A. Yep. Q. -- sex he'd instigate it and-- A. Yep. Q. And that included times if either of you would be asleep and the other one was feeling like it. You'd instigate it with each other. A. Yes. … Q. You were asked some questions in relation to what would happen if you wanted to have sexual intercourse with the accused? A. Yes. Q. Just want to focus on what would happen if the accused wanted to have sexual intercourse with the accused? [sic] A. Yes. Q. I just want to focus on what would happen if the accused wanted to have sexual intercourse with you, and focusing on the same period of time that you were asked questions about. So, from the time that you were married until [CR] was born. Do you understand the period of time I'm talking about? A. From-- Q. So, from January of 2000 when you were married-- A. Yep. Q. -- until [CR] was born in January of 2002. So, focussing on-- A. So, we were newlyweds, yes? Q. Yes, so focusing on that two-year period. Over that time, would the accused instigate sex with you? A. [MR] was a light sleeper, so when I went into the bedroom he would go 'Hello baby.' So-- Q. So, is that you instigating sex or him instigating sex on those occasions? A. That's him. Q. So, before you had sex with him, would there be some conversation between the two of you, even if it was 'Hello baby' or something along those lines? A. Yeah, yeah, or we'd just cuddle up, but then he would wake up. Q. Well, how do you know he woke up on those occasions? A. He would speak." [emphasis added]
6. Having regard to this material, his Honour did not accept that JR's evidence about the issue of consent in their sexual relationship was sufficient to establish that MR could have had an honest (subjective) belief, at the time he commenced his physical engagement with the sleeping person in his bed, that it was his wife and that she had given her consent for him to act in that way. Accordingly, his Honour disallowed the application to have the "defence" left to the jury was because the person in MR's bed was asleep. In my opinion, it was open to his Honour to form that view: JR's evidence does not establish that her understanding or arrangement with MR amounted to pre-authorised consent to intercourse whilst the other partner was asleep. In the present case, where the evidence established that the act of penetration commenced when VL was asleep, and where JR's evidence did not support a conclusion that she and MR had an understanding or arrangement which authorised this, there was no evidence of consent from VL. Accordingly, there was for this reason no viable evidentiary basis to leave the issue to the jury.
7. However, it is presently unnecessary to express a view about the correctness of this aspect of his Honour's decision, which was based more broadly than simply upon the absence of consent. Quite apart from that issue, all of the other evidence and surrounding circumstances, taken at their highest, were not capable of satisfying a jury that MR's conduct was (objectively) reasonable. This is for the following reasons.
8. First, MR was aware that his wife was not at home but was in hospital having suffered a miscarriage. That fact alone is entirely inconsistent with a belief that his wife was in bed with him.
9. Secondly, and by way of emphasis, MR agrees that he consumed alcohol on that evening because of his grief and sadness about his wife's miscarriage. MR was painfully aware that his wife was not at home to comfort him.
10. Thirdly, VL did not end up in MR's bed without his prior knowledge and approval. It is accepted that she had specifically asked him if she could get into bed with him and he agreed. It is not possible reasonably to accept that this fact somehow slipped his mind.
11. Fourthly, VL was at the time between 12 and 13 years of age. There was obviously a significant discrepancy between the ages of VL and her mother. That discrepancy must necessarily have meant that their bodies were physically different in size and shape, if not otherwise, so that MR could not reasonably have mistaken his 12/13 year-old stepdaughter for his wife.
12. Fifthly, and in a related sense, I am unable to accept that in the course of any physical interaction between MR and VL in his preparation for, but not including the commencement of, intercourse with her, he could possibly have failed to become alerted to the fact that the person with whom he was about to have intercourse was not his wife. It is in my view simply unbelievable that MR could have thought that the way his "wife" was responding to him was in any way "usual" or "familiar" or what he had come to expect having regard to the length and character of their intimate relationship.
13. MR placed emphasis on the evidence that suggested he called out his wife's name when his stepdaughter went to the bathroom. He seeks to reason that his words after the event bespeak the existence of the mistake upon which he relies, even after the intercourse had concluded. However, whether or not these words are capable of supporting the existence of the mistake he asserts, about which it is unnecessary to comment, they say nothing at all about whether the so-called mistake was reasonable. I am unable to accept that calling out his wife's name as his stepdaughter went to the bathroom is in any way relevant to the issue of the reasonableness of MR's belief.
14. For these reasons, I am not satisfied that any error has been established in his Honour's refusal to leave the issue of honest and reasonable mistake of fact to the jury.

The proviso

1. The Crown submitted that, even if this Court were to find that his Honour's failure to direct the jury that the prosecution had to prove beyond reasonable doubt that MR did not honestly and reasonably mistake the identity of VL was an error leading to a miscarriage of justice, the proviso to s 6(1) of the Criminal Appeal Act 1912 should apply. An error in a trial judge's directions to a jury, even a misdirection as to the elements of the offence, does not preclude a reliance upon the proviso: Kalabasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 at [12]. Each case will turn on its own facts, the disputed elements at trial and the evidence: Kalabasi at [16], [55] and [60].
2. The Crown argued that any alleged miscarriage of justice in this case must be limited to the absence of the direction for which MR contended. Such an error could not have had an effect on the jury's understanding of any of the other elements of the offence, such as penetration, lack of consent and knowledge of lack of consent, VL being asleep at the time, all of which were of a different nature: Bazouni v R [2021] NSWCCA 256 at [198].
3. Finally, the Crown submitted that in the circumstances of this case, and putting aside any disputed evidence, there is compelling evidence to find beyond reasonable doubt that MR did not possess an honest and reasonable belief that the person in his bed was his wife.
4. The only relevantly "disputed" evidence was that given by JR about the circumstances in which she and MR had agreed that sex could be initiated with a sleeping partner. In truth, that evidence was not so much disputed, in the sense that its truthfulness or reliability were challenged, as much as whether or not it supported the conclusion for which MR contended. His Honour decided that the evidence did not justify MR's assumption that the sleeping complainant consented to intercourse even if the evidence otherwise established an honest and reasonable mistake about her identity. However, as explained earlier at [40]-[44], the evidence in my view entirely precluded the reasonable possibility that MR could have mistakenly believed that he was having sex with his wife.

Conclusion

1. I consider that the second appeal should be dismissed.
2. GARLING J: I agree with the orders proposed by the Chief Judge and with his reasons for making those orders.
3. McNAUGHTON J: Having reviewed the evidence for myself, I agree with the orders proposed by Harrison CJ at CL and his reasons for those orders.

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