Mura v R

The charges and the matters in issue

1. The appellant was charged on indictment with six counts, four counts of participating in an act of child prostitution and two counts of possessing child abuse material. It was common ground that the appellant used the services of prostitutes provided by two sisters, AG and TG (the sisters). When the appellant wanted sexual services he contacted the sisters and requested that he be provided with a prostitute. The appellant did not contest that, at some time between 15 March 2010 and 2011, CL, who was 15, was provided to him for sexual services (count 1) and that on two occasions TB, who was 16, was provided to him for sexual services (counts 2 and 3).
2. The appellant's case on counts 1-3 was that, although he accepted at trial that CL and TB were under 18 years of age at the time he participated in acts of child prostitution, he honestly and reasonably believed that each was at least 18 years old. It was, accordingly, necessary for the Crown to prove either that the applicant did not honestly believe that the child was at least 18 years old; or, if the jury was satisfied that he held that belief, that such belief was unreasonable.
3. The appellant did not contest that child abuse material had been found on two computers in his house (counts 5 and 6). The nature and classifications of that material were the subject of a statement of agreed facts. The agreed facts indicated that the images which had been on the computers (and subsequently deleted) depicted girls between the ages of 6 and 15 in various sexual poses and engaged in various sexual acts. The applicant disputed that he had put the material on the computers or had any involvement in its being there. Neither computer was password-protected. The appellant raised as a hypothesis consistent with his innocence that his late father, who had had access to the computers, might have been responsible for the presence of the material.
4. The appellant disputed that he had procured TB for prostitution on a third occasion (count 4). The jury returned a verdict of not guilty on count 4 which need not be considered further.

The Crown's tendency evidence

1. It was common ground that the Crown had served a tendency notice pursuant to s 97 of the Evidence Act 1995 (NSW). The trial judge summarised the Crown's submission as to the appellant's alleged tendency in the summing up as follows: "[T]he Crown says that you can rely on the direct evidence which establishes an individual count on the indictment not only as evidence in relation to that count but also as evidence which can be taken into account when you are considering whether or not the accused has committed each of the other five counts on the indictment. This is because the Crown says the evidence it has presented in relation to each count on the indictment reveals that the accused had a tendency to have a particular state of mind, namely, a sexual interest in young girls, and that he acted on that state of mind by looking at images and videos of young females involved in sexual activities and also by engaging in sexual activity with TB and CL."
2. There is no challenge to the trial judge's directions about the use of tendency evidence in the Crown case.

The appellant's tendency evidence

1. Prior to the summing up, in the absence of the jury, the appellant's trial counsel notified the trial judge that the appellant sought to rely on tendency evidence to rebut the Crown's tendency evidence. The evidence sought to be relied upon was as follows.
2. The appellant gave evidence that on one occasion when he had made the usual arrangement with TG to pick up a prostitute, TG had sent a 12-year old prostitute, B. When the appellant saw B getting into his car, he refused to drive off with her because she was so young and directed her to get out of the car. While they were arguing, a third person opened the driver's door of the appellant's car and accused him of attempting to have sex with a 12-year old. The appellant responded that he was trying to get her out of his car. As part of a plan devised by the sisters, the person produced a knife and robbed the appellant of his available cash at least a portion of which he had intended to use to pay the prostitute provided to him by the sisters.
3. The appellant reported the robbery to police and gave a statement to the effect set out above. His complaint led to an investigation which brought the sisters' child prostitution business to the attention of police and resulted in the prosecution of the sisters and some of their clients, including the appellant.
4. The appellant relied on this evidence at trial in support of the submission that, if he actually had the tendency for which the Crown contended, he would have driven off with B to have sex with her. He contended that his conduct in refusing B because of her youthful appearance not only rebutted the Crown tendency evidence but also tended to prove that he was not interested in having sex with under-age prostitutes and did not have a sexual interest in young girls. The latter alleged tendency was particularly germane to counts 5 and 6 as the material found on the appellant's computers generally depicted girls who were significantly younger than either CL or TB.

The directions in the summing up

1. In the summing up the trial judge gave directions regarding the tendency evidence relied upon by the Crown. Her Honour directed the jury that they could only use tendency evidence in favour of the Crown if they were satisfied of the following two matters beyond reasonable doubt: that the relevant acts occurred; and that a conclusion ought be drawn that the accused had the tendency that the Crown alleged. These directions were overly advantageous to the appellant in that the Crown must prove beyond reasonable doubt only such matters as are elements of the offence or constitute an indispensable intermediate step in reasoning to guilt: The Queen v Bauer [2018] HCA 40 at [80] and Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56. However, nothing turns on this as the issue on appeal solely concerns the direction given by her Honour about the tendency evidence relied on by the appellant.
2. There was a discussion in the absence of the jury as to the appropriate direction to be given to the jury as to what standard of proof applied to the tendency evidence adduced by the appellant. Trial counsel for the appellant submitted that it needed only be proved on the balance of probabilities. Following this discussion, the jury returned and the trial judge gave a direction in the following terms: "Also on the issue of tendency I will move to a slightly different topic and that is the fact that the defence also calls in tendency evidence and it is to be used quite differently because of the different onuses of proof in a criminal trial. Unlike the Crown, because the burden of proof that only the Crown has, you do not have to be satisfied beyond reasonable doubt as to the facts that the accused relies on. You only need to be satisfied that it is likely. It is a different burden of proof, and what the accused relies on is what occurred with [B] in the car and the way it is said that the accused acted. Mr Sahade [trial counsel for the appellant] gave detailed submissions on these issues and says that it shows the reverse tendency on behalf of the accused, that is, a tendency not to be sexually interested in young girls, having rejected [B], notwithstanding that he was at the hotel(as said) for the purposes of sex, notwithstanding that he had the money on him and notwithstanding that she was there in his car, and it is said on the accused's behalf, and it is a matter for you whether or not you use this evidence in this way, that you would therefore reason that he is less likely to be someone who would have that tendency as being someone to be involved in child prostitution and to have possession of child abuse material. There is a third way that you can, should you wish to, use that evidence and that is when you are considering the Crown's case on tendency. So there are two ways you can deal with what I will loosely call "the [B] evidence". First, in the way that I have just described, you would not need to be satisfied beyond reasonable doubt but if you considered it likely that that is what occurred with [B] in the car, then you are entitled to and, it is a matter for you, to use that as evidence of tendency not to have a sexual interest in young children and, secondly, you can consider it when you are deciding whether or not you are satisfied beyond reasonable doubt about the acts that the Crown relies on as evidence of tendency. You are entitled, when you are considering the Crown tendency case, to take into account the evidence in respect of [B] in considering whether or not you are satisfied first in determining whether or not each of the acts that the Crown puts forward occurred beyond reasonable doubt and, having regard to that, even if you find that those acts did take place, you can consider it to assess whether it had the tendency that the Crown says it does. So you can use that evidence in consideration of both the Crown's case on tendency and the accused's case on tendency in those ways." [Emphasis added.]
3. The Crown accepted in this Court that the direction was erroneous in so far as the trial judge directed the jury that it needed to be satisfied that it was "likely" that the events in the car had occurred as the appellant had said they had. The Crown acknowledged that the appellant's tendency evidence did not need to be proved to a particular standard as it was not an indispensable intermediate fact. Further, the Crown accepted in this Court that the appellant bore no onus in relation to any issue in the trial, the burden of proof falling solely on the Crown.

The effect of the erroneous direction

1. Accordingly, it was common ground that the only issue for this Court was whether the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) applied. In other words, it was accepted that the Court ought allow the appeal on the basis of the erroneous direction unless the Court "considers that no substantial miscarriage of justice has actually occurred."
2. The appellant contended that his tendency evidence was relevant to all counts on the indictment since it tended to show that he was not interested in sex with under-aged girls and therefore was less likely to have engaged in child prostitution or to be responsible for the presence of child pornography on the computers in his home.
3. Mr Odgers SC, who appeared with Mr Sahade for the appellant, submitted that the erroneous direction caused a miscarriage of justice since the jury, or some members of it, may have refrained from using the appellant's tendency evidence in their deliberations because they may not have been satisfied that it was "likely" but, had they used it, it may have caused them to have a reasonable doubt as to the appellant's guilt on all counts. Mr Odgers submitted that, in such circumstances, it was inappropriate to refuse leave to the appellant to rely on that point by reason of its not having been taken at trial (rule 4 of the Criminal Appeal Rules) or to dismiss the appeal by applying the proviso in s 6(1) of the Criminal Appeal Act.
4. The Crown submitted that the present case is relevantly indistinguishable from Restricted Judgment [2018] NSWCCA 246 where a similar error was made with the concurrence of the accused's counsel. The direction in that case implied that acts relied on by an accused person as evidence of tendency must be proved on the balance of probabilities. In that case, the tendency evidence put forward by the appellants was to the effect that the deceased was an extremely violent man. This Court in Restricted Judgment dismissed the appeal on the ground that it was "inconceivable that the introduction of a standard of proof of the factual matters relied on as tendency evidence had any effect on the jury deliberations": [65] (Simpson AJA, Bellew and Wilson JJ agreeing). Simpson AJA also said at [65]: "The tendency the appellants sought to raise was the tendency of [the deceased] to violence. That tendency was the subject of evidence of an admitted member (or former member) and senior office holder of an outlaw motorcycle club, whose evidence was not in any way challenged and, although counsel disavowed reliance on the findings of Hidden J in relation to [the deceased's] manslaughter convictions as tendency evidence, those facts were nevertheless before the jury. The jury could have been in no doubt that [the deceased] was a violent man."
5. The Crown relied on the following four matters in support of the submission that the erroneous direction had no conceivable effect on the jury: 1. the tendency direction was confined to what occurred in the appellant's car and the Crown did not challenge the appellant's evidence as to this matter; 2. in its final address, the Crown did not submit to the jury that what the appellant said happened in the car did not happen; 3. there was unchallenged evidence from an investigating police officer that the appellant went to the police station after the robbery and gave an account of what occurred which was consistent with his evidence at trial; and 4. there was unchallenged evidence that the police officer had, as a result of the appellant's complaint, charged the person who had threatened the appellant with robbery.
6. The Crown submitted that it could confidently be inferred that the jury would have accepted that what happened in the car actually happened. Accordingly, it submitted that the erroneous direction would have had no impact on the jury's deliberations.
7. In reply, Mr Odgers submitted that the jury may not have understood the trial judge's direction to be confined only to what occurred in the car. He contended that there was a risk that the jury would have applied the direction to the surrounding evidence of the appellant, which was to the effect that when he was sent a text by one of the sisters offering him a 16-year old girl he replied by sending a text which said: "I am not interested. I want someone older than 18."
8. Further, Mr Odgers submitted that, in the absence of an indication from the Crown that it did not challenge the appellant's account of what occurred in the car, there was a risk that the jury would not appreciate that they could, in those circumstances, more comfortably accept the appellant's evidence. Mr Odgers submitted that the circumstances of the present case were distinguishable from Restricted Judgment as in that case, there was overwhelming evidence that the deceased was violent, whereas in the present case, the only evidence of what occurred in the car was that of the appellant whose evidence was largely self-serving. In these circumstances there was an issue for the jury whether to accept the appellant's account at all.
9. The assumption that juries abide by directions given by trial judges (The Queen v Glennon (1992) 173 CLR 592 at 603 (Mason CJ and Toohey J); [1992] HCA 16) leads to the inevitable conclusion that the jury understood that they could only use the appellant's tendency evidence in his favour if they were satisfied that what he said happened in the car was "likely". I am not persuaded that the trial judge's directions were not apt to create a material misapprehension in the minds of the jurors or some of them of the use to which the evidence could be put. Nor am I persuaded that it was by any means inevitable that the jury would have been satisfied on the balance of probabilities (being the legal form of words which corresponds with the term "likely", as in "more likely than not") as to what the appellant did in the car when presented with B. The effect of the Crown's not challenging him in cross-examination as to that matter is something which is likely to be appreciated only by lawyers who are familiar with trial procedure and the rule in Browne v Dunn (1893) 6 R 67 (that if evidence is challenged it ought, as a matter of fairness, be put to the relevant witness (in this case, the appellant) in cross-examination). No assumption can be made as to what, if anything, the jury made of the forensic circumstance that the appellant's account of what happened in the car was not challenged in cross-examination or disputed in the Crown address.
10. It is a matter of speculation in the present case whether the erroneous direction made any difference to the jury. Unlike what occurred in Restricted Judgment, I am unable to infer that the jury would have accepted that the appellant's account of what occurred in the car with B was "likely", thereby depriving the error of any practical consequences. In these circumstances I am not persuaded that no substantial miscarriage of justice has occurred. This is not a case where any conclusion can be drawn as to the appellant's guilt such as would make the proviso applicable: cf. Kalbasi v Western Australia [2018] HCA 7; (2018) 92 ALJR 305 at [60] (Kiefel CJ, Bell, Keane and Gordon JJ). Rather, this is a case which turned on questions of credibility. Accordingly, this Court is not in a position to assess whether guilt would have been proved to the criminal standard but for the erroneous direction.
11. As the tendency evidence relied on by the appellant was germane to all five counts on which he was convicted, all five convictions ought be quashed.
12. I regard the present case as one in which leave under rule 4 of the Criminal Appeal Rules should be granted. While the appellant's counsel at trial contributed to the erroneous direction, it was also the obligation of the Crown to assist the trial judge to apply the fundamental principles of a criminal trial, including those as to onus of proof and the use of relevant evidence. In any event, such was the nature of the error, that, irrespective of its cause, it must be corrected. It can only be corrected by quashing the convictions and ordering a new trial.
13. In these circumstances, it is not necessary to address the application for leave to appeal against sentence, which must be set aside with the convictions.

Proposed orders

1. For the reasons given above, I propose the following orders: 1. Grant leave to the appellant under rule 4 of the Criminal Appeal Rules to raise the ground of appeal against conviction. 2. Allow the appeal. 3. Quash the convictions for counts 1, 2, 3, 5 and 6 and set aside the aggregate sentence imposed for those offences. 4. Order a re-trial. 5. List the matter for mention before the District Court on 1 March 2019 at 9.30 am.

Amendments 11 February 2021 - Publication restriction removed - judgment republished 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: 11 February 2021