MS v R

The evidence and convictions at the trial

1. The complainant LM gave evidence that she was subjected to the following sexual and indecent assaults allegedly committed by the appellant, and of which the appellant was convicted: 1. Indecent assault and sexual intercourse in May 2002 when LM was aged 8. The appellant was acquitted of a separate charge of committing an act of indecency alleged to have occurred on the same occasion. 2. Indecent assault in October 2003 when LM was 8 or 9 years old. 3. Indecent assault in 2006 or 2007 when LM was 12 years old. 4. Indecent assault in early 2008 when LM was 14 years old.
2. The appellant gave evidence denying any misconduct.

Ground 1: the trial judge erred by failing to adequately advise and inform the appellant about trial procedure to ensure that the appellant received a fair trial

Ground 6: the trial judge failed to consider the appropriateness of the Crown Prosecutor exercising her right to make a closing address

1. These grounds are dealt with together because they overlap to some extent.
2. At various stages of the trial, the trial judge explained to the appellant that: 1. The appellant would have the opportunity to ask questions of witnesses who gave evidence. 2. His Honour could not advise the appellant or conduct his case for him, rather his Honour's role was to ensure that the appellant had a fair trial 3. If the appellant's questioning was inappropriate his Honour would stop the appellant, but that otherwise the appellant would have the opportunity to test the evidence brought against him. 4. The appellant did not have a right to ask the complainant any questions, unless it was through another person (who would be a person from the court registry). 5. The appellant had a right to challenge prospective jurors. 6. The complainant would be giving evidence from the witness box but part of her evidence would be by way of a recorded interview. 7. If it was the appellant's case that events giving rise to the charges on the Indictment did not occur, that proposition should be put to the complainant. 8. At the end of the Crown case the appellant had a choice whether or not to give evidence, but if he did give evidence, he could be cross-examined by the Crown.
3. It is a fundamental requirement of the criminal justice system that an accused person receive a fair trial. If that has not happened, and the person has been convicted, a substantial miscarriage of justice will have occurred (Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [15]). In such circumstances, this Court's power under s 6 of the Criminal Appeal Act 1912 (NSW) to quash the person's convictions will be enlivened.
4. An accused person may appear personally at trial and conduct his or her case (ss 36 and 37 of the Criminal Procedure Act). However, a person who takes this course, either by choice or of necessity, faces significant disadvantages, as described by Mason CJ and McHugh J in Dietrich v The Queen (1992) 177 CLR 292 at 302; [1992] HCA 57: "An unrepresented accused is disadvantaged, not merely because almost always he or she has insufficient legal knowledge and skills, but also because an accused in such a position is unable dispassionately to assess and present his or her case in the same manner as counsel for the Crown. The hallowed response that, in cases where the accused is unrepresented, the judge becomes counsel for him or her, extending a 'helping hand' to guide the accused throughout the trial so as to ensure that any defence is effectively presented to the jury, is inadequate for the same reason that self-representation is generally inadequate: a trial judge and a defence counsel have such different functions that any attempt by the judge to fulfil the role of the latter is bound to cause problems" (citations omitted).
5. In the same case, Deane J put the position as follows: "If an ordinary accused lacks the means to secure legal representation for himself and such legal representation is not available from any other source, he will, almost inevitably, be brought to face a trial process for which he will be insufficiently prepared and with which he will be unable effectively to cope. In such a case, the adversarial process is unbalanced and inappropriate and the likelihood is that, regardless of the efforts of the trial judge, the forms and formalities of legal procedures will conceal the substance of oppression" (at p 335; citations omitted).
6. The Court attempts to reduce or eliminate these disadvantages to the extent that it is able to do so.
7. For example, in MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46 the High Court held that where a real question had arisen concerning the voluntariness of the accused's confessions, the trial judge should have advised the unrepresented accused of his right to seek a voir dire to determine whether the confessions had been made voluntarily. Gibbs CJ and Wilson J stated that, where an accused is unrepresented, a trial judge's obligation is to give the accused "such information as is necessary to enable him to have a fair trial" (at 524).
8. Mason J described the trial judge's obligations as follows (at 534): Giving full weight to the adversary character of a criminal trial and the difficulties of advising an accused who is not represented, I nevertheless consider that the trial judge is bound to ensure that an accused person has a fair trial. To that end he is under a duty to give the accused such information and advice as is necessary to ensure that he has a fair trial. Once an issue as to the voluntariness of a confession arises fairness to the accused suggests that he should be acquainted with his right to a voir dire hearing. If he is left in ignorance of it he loses a valuable opportunity of testing the admissibility of the evidence, an opportunity which is often availed of by counsel for the accused. A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as 'fair'".
9. Brennan J spoke in similar terms (at 547): "Whether any and what advice should be given to an accused depends upon the circumstances of the particular case and of the particular accused. What can be said is that if it is necessary to give any advice, the necessity arises from the judge's duty to ensure that the trial is fair. That duty does not require, indeed it is inconsistent with, advising an accused how to conduct his case; but it may require advice to an accused as to his rights in order that he may determine how to conduct his case."
10. In R v Zorad (1990) 19 NSWLR 91 a "question" asked by an accused of a police officer giving evidence was expressed as the proposition "[y]ou are a liar". The Court of Criminal Appeal said (at 99): "That 'question' was correctly rejected. Then it is said that the judge gave to the appellant no assistance in reformulating questions such as that which were not in proper form and rejected for that reason. The judge was under no duty to do so. His duty is to rule on the questions, not to formulate them. His duty to give an unrepresented accused such information and advice as is necessary to ensure that he has a fair trial would include, if it became necessary, an explanation as to the form in which questions should be asked, but it is not to put the questions in that form for the accused. The judge's duty is to ensure that the unrepresented accused is put in a position where he is able to make an effective choice as to the exercise of his rights during the course of the trial, but it is not to tell him how to exercise those rights" (citations omitted).
11. This decision was applied in R v Anastasiou (1991) 21 NSWLR 394 where the Court of Criminal Appeal held that the trial judge should have given an unrepresented accused advice that in address he would not be permitted to put to the jury matters that he had suggested to police officers in cross-examination were true, but which the police officers had denied, unless the accused gave evidence or made an unsworn statement to that effect. The Court held that in the circumstances of the case before it, such advice was necessary to enable the accused to make an effective choice as to his rights. For this reason, it found that the accused had not received a fair trial and that his convictions should be quashed (see also Hamod v State of New South Wales [2011] NSWCA 375 at [309]-[316]).
12. It is not appropriate to attempt to identify the ambit of the advice that should be given in every case where an accused is unrepresented. As the authorities to which I have referred emphasise, the advice required will depend upon the circumstances of the case. Nevertheless, the Criminal Trial Courts Bench Book published by the Judicial Commission of New South Wales identifies at [1-820] and [1-830] the general advice that it will ordinarily be necessary and appropriate to give to an unrepresented accused. The suggested advice goes well beyond that given in the present case.
13. The appellant in the present case complains that he suffered particular prejudice as a result of the trial judge's failure to give him an adequate explanation of the role of closing addresses. In this context, he also complains of the trial judge's apparent failure to consider whether, in light of the accused's lack of representation, it was appropriate for the Crown to make a closing address. I turn to the latter issue first.
14. Where an accused is unrepresented, the practice is that the Crown Prosecutor does not make a closing address. This practice was referred to in Zorad. The Court in that case also stated however that, if the court considers it appropriate, the practice nevertheless "permits both the judge and the jury to have the assistance of an address from the Crown Prosecutor particularly where the factual issues are complicated" and that "the decision whether the Crown Prosecutor should exercise his right to make a closing address is for the trial judge to make in the exercise of his discretion" (at 95). Similarly, in the earlier decision of the Court of Criminal Appeal in R v E J Smith [1982] 2 NSWLR 608 Street CJ referred to the practice, but emphasised that the Court retained a discretion to permit departure from it (at 616).
15. In Zorad the Court added that the "fact that the transcript may be silent upon the subject does not mean that the judge did not turn his mind to it" (at 95). However, in light of the many undoubted irregularities in the conduct of the present trial, and the absence of proper advice to the appellant concerning closing addresses (to which I next refer), I would not draw the inference that the trial judge did in fact turn his mind in between "addresses", to the question of whether the Crown should have been allowed to give an address. The trial was therefore irregular in this respect.
16. I turn then to the first issue referred to in [24] above. After the Crown addressed, albeit briefly, the trial judge said to the appellant in the presence of the jury "[t]his is your opportunity to say what you want to say to the jury". His Honour did not otherwise explain the purpose of a closing address. The appellant commenced his address by describing his personal circumstances, of which there was no evidence before the jury. In the presence of the jury, the trial judge indicated that there was no evidence about those matters and told the appellant to confine himself to the issues in the trial. The appellant concluded his address after only a couple more sentences, which included the statement, "[y]ou've heard everything".
17. It does not seem that the appellant understood that his address was an opportunity for him to explain to the jury why it should reject the complainant's evidence and accept his evidence. It can be inferred that the appellant would have been assisted by advice, included in the Bench Book's suggested advice concerning closing addresses, that he could "present arguments as to why the jury should not accept the Crown case against [him], or as to why [he] should be found 'not guilty'". The need for the appellant to be given advice so that he could make an effective choice as to whether to give a closing address, and what to say to the jury, was emphasised by the fact that the Crown addressed, contrary to the usual practice where an accused is unrepresented.
18. The first trial was thus irregular in the respects that I have identified.

Ground 2: the trial judge erred in allowing the Crown to tender the complainant's pre-recorded interview as an exhibit in the trial

Ground 3: the trial judge erred by failing to direct the jury about the complainant's evidence-in-chief in compliance with s 306X of the Criminal Procedure Act

1. The complainant's evidence-in-chief was, for the most part, contained in an interview conducted with the police on 16 February 2009 (over 6 years before the trial). It was supplemented by oral evidence.
2. The recording of the interview was played to the jury and was marked as an exhibit in the proceedings. The recording was provided to the jury during the course of its deliberations as one of the exhibits in the trial.
3. Although there is no absolute prohibition against it, a recording played as part of the evidence at a trial should not ordinarily be tendered as an exhibit and made available to the jury to play, unsupervised, in the jury room (R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278). As Hayne J said in Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55 at [96]: "If a jury asks to be reminded of the evidence of an affected child that was pre-recorded under [the provisions of the Evidence Act] and played to the jury as the evidence of that child, that request should ordinarily be met by replaying the evidence in court in the presence of the trial judge, counsel, and the accused … seldom, if ever, will it be appropriate to allow the jury unsupervised access to the record of that evidence" (see also at [3] per Gleeson CJ).
4. There were no special circumstances in the present case which justified departure from this ordinary rule. There was thus an irregularity in what occurred.
5. Section 306X of the Criminal Procedure Act is in the following terms: "306X Warning to jury If a vulnerable person gives evidence of a previous representation wholly or partly in the form of a recording made by an investigating official in accordance with this Division in any proceedings in which there is a jury, the judge must warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the evidence being given in that way."
6. It is mandatory for a trial judge to give this warning where a complainant's evidence is given (either wholly or partly) via a recording of a police interview, as occurred in the present case. A suggested warning is contained in the Criminal Trials Bench Book in the following terms: "This is standard procedure for [children]. You should not draw any inference against the accused or give the evidence any greater or lesser weight simply because it is given in this manner. You should assess [his/her] evidence in the same way as you would assess the evidence of any other witness: at [1-376]."
7. No such warning was given in this case. This constituted another irregularity in the conduct of the trial.
8. Further, as Howie J indicated in Galvin v R (2006) 161 A Crim R 449; [2006] NSWCCA 66 at [63], the seriousness of a failure to give a warning against placing too much weight on the evidence given by way of a complainant's recorded interview is heightened where, contrary to the preferred procedure set out in NZ, a jury is given access to the recording during the course of its deliberations. In the circumstances of the present case, both the failure to give the warning, and the jury's access to the recording were irregularities, and, the Crown conceded, in combination "had the potential to undermine the balance and fairness of the trial".

Ground 5: The trial judge erred by failing to adopt the appropriate procedures in relation to s 294A of the Criminal Procedure Act

1. Section 294A of the Criminal Procedure Act is relevantly in the following terms: "294A Arrangements for complainant in prescribed sexual offence proceedings giving evidence when accused person is unrepresented (1) This section applies to proceedings in respect of a prescribed sexual offence during which the accused person is not represented by an Australian legal practitioner. (2) The complainant cannot be examined in chief, cross-examined or re-examined by the accused person, but may be so examined instead by a person appointed by the court. (3) The person appointed by the court is to ask the complainant only the questions that the accused person requests that person to put to the complainant. (4) Any such person, when acting in the course of an appointment under this section, must not independently give the accused person legal or other advice. (5) The court does not have a discretion to decline to appoint a person under this section, despite anything to the contrary in section 306ZL or any other Act or law. (6) This section applies whether or not closed-circuit television facilities or other similar technology (or alternative arrangements) are used by the complainant to give evidence. (7) If such a person is appointed in proceedings before a jury, the judge must: (a) inform the jury that it is standard procedure in such cases to appoint the person to put the questions to the complainant, and (b) warn the jury not to draw any inference adverse to the accused person or to give the evidence any greater or lesser weight because of the use of that arrangement. … "
2. In conformity with s 294A(2), the appellant was not permitted to cross-examine the complainant. Instead, as contemplated by the subsection, a person (namely a deputy registrar of the court) was appointed to examine the complainant on the appellant's behalf.
3. The trial judge informed the jury that a legal practitioner had been appointed for the purpose of asking the complainant any questions that the appellant wanted asked of her. His Honour did not, however, inform the jury that it is "standard procedure" to appoint a person to put questions to a complainant on behalf of an accused, nor did he warn the jury "not to draw any inference adverse to the [appellant] or give the evidence any greater or lesser weight" because of the use of that arrangement. Provision of that information and warning was required by s 294A(7).
4. As the requirements of subsection (7) are mandatory, there was thus an irregularity in the conduct of the trial in this respect.
5. In the context of this ground of appeal, the appellant submitted that a further irregularity occurred as the trial judge did not explain to the appellant why the first question asked of the complainant on the appellant's behalf was rejected. Nor did his Honour give the appellant an opportunity to formulate further questions. The first question put to the complainant on the appellant's behalf was "when did you and the accused have sexual intercourse?", to which the complainant replied "what do you mean by intercourse?". The trial judge then said: "I won't allow any further questions along those lines", without explaining to the appellant why he took that course. The appellant was not given an opportunity to re-formulate his questions in response to that ruling. Nor was he was given an opportunity to formulate additional questions after the complainant gave oral evidence-in-chief in addition to that given by way of her recorded interview.
6. These deficiencies in what occurred constituted further irregularities, and involved departures from the suggested procedure outlined in the Bench Book, which includes the following (at [1-845]): "(g) Once the complainant has given evidence-in-chief, the accused will be given the opportunity to add to and/or re-formulate the list of questions he or she has prepared. … (i) If necessary during the cross-examination [of the complainant], the judge will give the accused the opportunity to re-formulate the questions in accordance with the court's rulings on objections and admissibility."

Ground 4: the trial judge erred by failing to direct the jury about the admission of the context evidence and the way it could be used

1. The Crown led evidence from the complainant of many sexual acts allegedly committed against her by the appellant which were not the subject of charges on the Indictment. This evidence was of both a general and specific character. The Crown Prosecutor referred to the evidence in her opening address, indicating that the acts were not the subject of the Indictment and that the evidence "merely puts things in context". In closing address, she referred to both the specific acts charged and to the acts which were not the subject of charges. She then added: "It puts it all in context. Having regard to all those matters, the Crown would say to you, you would convict the accused in respect of each and every count".
2. The trial judge did not give any specific direction in relation to this context evidence. Instead, his Honour repeated the Crown's closing submission that I have just quoted and later referred again, without elaboration, to the Crown relying upon the evidence "as context evidence". His Honour emphasised to the jury the need for it to consider each charge separately and determine whether the specific acts alleged in the Indictment occurred.
3. Evidence of an accused's uncharged acts of sexual misconduct towards a complainant may be admitted where the evidence is "relevant to place the events giving rise to any charge in the indictment into context and to explain the conduct of the complainant and the accused upon the particular occasion to which a charge relates" (R v ATM [2000] NSWCCA 475 at [74]). Likewise, evidence of non-sexual domestic violence by an accused towards a complainant was considered in Roach v R (2011) 242 CLR 610; [2011] HCA 12 to be admissible so that the complainant's "statement of the appellant's conduct on the day of the offence would not appear 'out of the blue' to the jury and inexplicable on that account, which may readily occur where there is only one charge" (at [42]). In Wilson v The Queen (1970) 123 CLR 334; [1970] HCA 17, Menzies J stated that the admission of evidence regarding the nature of the relationship between the accused and his wife avoided a situation in which the jury would have to decide whether the accused accidentally discharged the gun that killed his wife "as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife" (at 344).
4. Where context evidence such as that admitted in the present case is before a jury, there is a possibility that the jury will use it for an impermissible purpose. In particular, it may be used as evidence that the accused had a tendency to act in a particular way, and thus be directly relevant to the jury's determination of the accused's guilt. If there is a real risk of context evidence being used in this way, the trial judge should direct the jury against so using it (JWM v The Queen (2014) 245 A Crim R 538; [2014] NSWCCA 248 at [147]; ATM at [75]).
5. The potential for tendency evidence to occasion prejudice to an accused was referred to by the plurality in Hughes v The Queen [2017] HCA 20 as follows: "The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years" (at [17]).
6. In my view, in the present case there was a real risk that the jury might use the context evidence to support tendency reasoning. As a result, the trial judge should have given the jury an appropriate warning not to do so. The present case is unlike Toalepai v The Queen [2009] NSWCCA 270 where the context evidence comprised "a vague, generalised and clearly exaggerated reference to other misconduct", the complainant having said that the conduct occurred "millions or hundreds of times" (at [42]). The context evidence in the present case was considerably less general than that considered in Toalepai and, as I have noted, was in some respects very specific.
7. Moreover the Crown's closing address (and the trial judge's repetition of the relevant part in the summing-up) came close to an invitation to the jury to use the context evidence as independent evidence of guilt. As noted above (at [44]), the Crown Prosecutor followed her reference to the context evidence with the submission that "[h]aving regard to all those matters, the Crown would say to you, you would convict the accused in respect of each and every count". Neither the Crown nor the trial judge made it clear to the jury that it could only use the context evidence for the purpose of better assessing the complainant's evidence concerning the charged acts. Instead, the Crown's submission tended to suggest that its use was not restricted in this way.
8. In these circumstances, the trial judge erred in not warning the jury against tendency reasoning. The Criminal Trial Courts Bench Book [4-222] contains an appropriate form of direction which includes the following admonition: "In particular you must not use that evidence to reason that, because [the accused] has behaved in a certain way on a particular occasion, [he/she] must have behaved in that or a similar way on the occasion giving rise to the charge. You must not use that evidence to reason that [the accused] is the type of person who will commit the offence with which [he/she] has been charged."
9. I note in conclusion on this ground of appeal that the Crown did not contend at trial (or on appeal) that the jury was entitled to use the evidence in question as evidence that the appellant had a sexual interest in the complainant and, because of that, was more likely to have committed the offences charged; that is, to use the evidence to support tendency reasoning (see for example BBH v The Queen (2012) 245 CLR 499; [2012] HCA 9 at [152]). If that had been the contention at trial, it would have been necessary for the trial judge to have regard to the provisions of s 97 of the Evidence Act 1995 (NSW) concerning tendency evidence and, if his Honour decided to permit such use, to direct the jury in accordance with [4-232] of the Bench Book.

Cumulative effect of irregularities at first trial

1. As noted earlier, the appellant did not contend that any one of the irregularities he sought to establish, considered by itself, necessarily justified his convictions being set aside. Rather, he contended that the effect of the totality of the defects was that he did not receive a fair trial and that, as a result, there was a miscarriage of justice and his convictions should be quashed. This approach is permissible, and was adopted by Barwick CJ (with the concurrence of the other members of the Court) in The Queen v Ireland (1970) 126 CLR 321 at 331; [1970] HCA 21, where his Honour said: "The basis of an order for a new trial is that the trial which has been had has not been a fair and proper trial. Quite clearly, in my opinion, an aggregate of faults, none of which if it were the only fault, would afford a justification for making an order for a new trial, may properly lead to the conclusion that the trial, as a whole, had miscarried so that there should be an order for a new trial." See also Zorad at 108-9.
2. I have no doubt that the cumulative effect of the irregularities that I have identified was to deprive the appellant of a fair trial. It follows that there has been a substantial miscarriage of justice and the proviso to s 6 of the Criminal Appeal Act, which authorises the Court to dismiss an appeal if it considers that no substantial miscarriage of justice has occurred, is inapplicable (see Filippou v The Queen at [15]).
3. In these circumstances, the appellant's convictions resulting from the first trial must be quashed and a re-trial ordered.

The evidence and convictions at the trial

1. The complainant CM gave evidence of the three indecent assaults which were charged in the Indictment. The appellant was convicted of two. Her evidence was that the assaults occurred between 1 November 2006 and 22 February 2007, when she was 10 or 11 years old.
2. The appellant gave evidence denying any misconduct.

Ground 1: the trial judge erred by failing to direct the jury about the complainant's evidence-in-chief in compliance with s 306X of the Criminal Procedure Act

1. The complainant's evidence was given in part by the playing of a recording of her interview with the police, and in part by further oral evidence given via AVL from a remote location. At no time during the trial did the trial judge give the warning that s 306X required be given (see [34]-[35] above). This constituted an irregularity.
2. Unlike the position at the first trial, the recording was not tendered as an exhibit and the jury was not given access to it in the jury room (compare [31]-[33] above). Thus, there was no irregularity in this respect.

Ground 2: the trial judge erred by failing to direct the jury in compliance with s 294A(7) of the Act

1. At this trial, the trial judge informed the jury that the appellant was being assisted in court by a registrar "for the purpose only of [the registrar] asking, on [the appellant's] behalf, any questions that he wants asked of the complainant". The trial judge also stated that the appellant had changed his location in court "so that he is in a position in the court where he is not visible to the complainant from a remote facility". His Honour added that it was "part of the process that this evidence is given from a remote facility so that complainants of sexual assaults do not have to confront those they accuse". His Honour had earlier told the jury that it was not unusual for complainants in sexual assault cases to give their evidence from a remote facility, nor for them to have a support person, and that the jury "should draw no adverse inference to [the appellant] in respect of that". However the trial judge did not give the warning required by s 294A(7) (as to which, see [38] above).
2. As at the first trial, the failure to give this warning constituted an irregularity. As the appellant submitted, the significance of its omission was heightened because the appellant's position in court was changed so that he could not be seen by the complainant (who was giving evidence by AVL), and a registrar put questions to the complainant on the appellant's behalf (as required by s 294A(2)).

Ground 3: the trial judge erred by failing to direct the jury about the admission of the context evidence and the way it could be used

1. The Crown led only limited context evidence in this trial. This comprised evidence of an occasion in early 2007 when the appellant allegedly rested his hand on the outside of the complainant's skirt in the area of her vagina for a few seconds. When the evidence was put to the appellant in cross-examination, he denied that the incident occurred.
2. In her closing address, the Crown Prosecutor referred to the complainant's evidence of the incident. The Crown acknowledged that the incident was not the subject of a charge on the Indictment, but put to the jury that it was "part of the context, part of what the parties were living," and that the night on which the two incidents (in relation to which the appellant was convicted) occurred "was just not one isolated event".
3. In summing-up, the trial judge referred to the evidence as "evidence as to the context of their relationship and the context in which the Crown alleges the three counts on the indictment occurred". However his Honour did not give the jury any warning against tendency reasoning (see [47]-[51] above).
4. Unlike that in the first trial, this context evidence was limited to evidence of one incident. In these circumstances it is not obvious how the evidence would have assisted the jury to understand the relationship between the complainant and the appellant, and therefore the context in which the charged acts occurred. Instead, the nature of this "context" evidence heightened the risk that the jury may have impermissibly used the evidence to reason that, because the appellant had committed an indecent assault on one occasion, he was more likely to have committed the charged acts on other occasions.
5. On balance, I consider that there was a real risk that the jury might use the evidence of the uncharged act in an impermissible way (see [47] above). As a result, the trial judge should have warned the jury against using the context evidence to support tendency reasoning. The failure to do so was another irregularity in the trial.

Ground 4: the trial judge erred by failing to consider the appropriateness of the Crown Prosecutor exercising the right to make a closing address

1. As at the first trial, the Crown gave a closing address notwithstanding that the appellant was unrepresented. There is no indication in the trial transcript that the trial judge turned his mind to the question of whether this was appropriate, nor is there any other basis for inferring that his Honour considered the question.
2. This constituted a further irregularity as there were no circumstances which rendered it appropriate to depart from the ordinary practice that the Crown does not give a closing address when the accused is unrepresented (see [25] above).

Cumulative effect of irregularities at the second trial

1. The need for a warning against tendency reasoning in respect of the context evidence was clearer at the first trial than at the second. Further, some irregularities at the first trial were not submitted to have occurred at the second. Nonetheless, I consider that the cumulative effect of the irregularities that did occur at the second trial was that the appellant was denied a fair trial and a substantial miscarriage of justice resulted. As a result, the convictions arising out of this trial should also be quashed and a new trial ordered.

ORDERS

1. For these reasons, it was appropriate for the Court to make orders on 8 September 2017 in each appeal quashing the appellant's convictions and directing his retrial.
2. BEECH-JONES J: I joined in the orders made by the Court on 8 September 2017. Subject to one matter I agree with the reasons of Macfarlan JA as to the basis for the making of those orders.
3. The one matter of exception concerns the conclusion that the failure of the trial judge to "consider" whether to exercise their discretion to allow the Crown Prosecutor to address the jury at the conclusion of the first and second trials was an irregularity that contributed to a miscarriage of justice (see R v E J Smith [1982] 2 NSWLR 606 at 616 per Street CJ). Whether the failure of the trial judge to consider the exercise of that discretion resulted in, or contributed towards, a miscarriage of justice is to be determined by what in fact did or did not occur at the trial and whether any such act or omission caused a miscarriage of justice (TKWJ v R [2002] HCA 46; 212 CLR 124 at [31] per Gaudron J and at [103] per Hayne J). In this context the failure of the trial judge to consider whether to allow the Crown to address could only contribute to a miscarriage of justice if it could be concluded that a proper consideration of that discretion would have led to the Crown being prevented from doing so. In case of this kind I am not so satisfied. However, the balance of the irregularities in the first and second trial identified by Macfarlan JA clearly demonstrate that each trial involved a substantial miscarriage of justice.
4. WILSON J: For the reasons set out by Macfarlan JA I joined in the orders made by the Court on 8 September 2017.

Amendments 17 December 2018 - publication restriction lifted DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 December 2018