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[2012] NSWCCA 45
Court of Criminal Appeal (NSW)
2012-03-23
McClellan CJ, Garling JJ, Clellan CJ
Original judgment source is linked above.
The manner in which a trial is conducted, and in which the issues are shaped, especially where (as in the present case) an accused is represented by experienced and competent counsel, has a major influence upon the way in which the case is ultimately left to the jury, and upon the directions, comments and warnings, from the trial judge to the jury, that may be appropriate or necessary. Directions are not ritualistic formularies. Their purpose is to assist the jury in the practical task of resolving fairly the issues which have been presented to them by the parties. 141Apart from the absence here of a specific request to the Trial Judge to put to the jury what is now contended for, and a subsequent refusal by him to do so, the present case does not differ from RH v R - see especially at [59]-[61]. 142It must immediately be said that, although we consider that his Honour erred in not making some reference to the matters relevant to reasonable grounds for the Appellants' belief ("all the circumstances of the case"), no criticism can be levelled at his Honour in that regard. His Honour, as we have noted, did not have an easy task in directing this jury generally given the number and nature of the Counts charged, the subtle differences in the tests for consent between the Counts, and the failure (or deliberate decision) of Counsel to request his Honour to direct appropriately. In that regard Rule 4 must now be discussed.
Rule 4 143Three matters were argued on this appeal where Rule 4 has application. These concern (1) directions regarding O'Sullivan's admissions, (2) directions regarding the proper test for consent with respect to Count 5, and (3) directions with regard to factual matters relevant to reasonable grounds for belief in consent. Leave is, therefore, necessary to allow the grounds of appeal associated with those matters. The onus is on the Appellants to show that the asserted errors have caused a miscarriage of justice: Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at [72]. 144In respect of the first matter concerning O'Sullivan's admissions, whilst the matter is of some significance, if that were the only error made in the summing up, we would not regard the matter as appropriate for the grant of leave. That error alone is unlikely to have resulted in a miscarriage of justice. In relation to the direction concerning Count 5 different considerations apply. In Ka Chung Fung v R [2007] NSWCCA 250; (2007) 174 A Crim R 169 Latham J (with whom Spigelman CJ and Kirby J agreed) said in relation to Rule 4 at [48]: I acknowledge that a failure to direct correctly or at all, in relation to the elements of an offence, stands in quite a different category, and that in such a case an applicant will generally be able to persuade the Court that a miscarriage of justice may have occurred. 145Further, when all three Rule 4 matters are considered together with the s 293 matter we consider that leave should be granted. A refusal to do so is likely to result in a miscarriage of justice for the reasons we have discussed when considering the grounds concerned. .
Are the verdicts unreasonable?
O'Sullivan: Ground 5
Flanders: Ground 6
Tohu: Ground 5
NHR: Ground 1 146Each Appellant appeals upon the basis that the verdict of the jury was "unreasonable, or cannot be supported having regard to the evidence": s 6(1) Criminal Appeal Act 1912. 147When dealing with such grounds of appeal, the Court is required to make an independent assessment of the whole of the evidence to determine whether the verdicts of guilty could be supported: SKA v The Queen [2011] HCA 13; 243 CLR 400 at [21]. 148That assessment is made so as to determine whether: "... the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the applicant was guilty of the offences with which he was charged". SKA at [21]. 149In M v The Queen [1994] HCA 63; 181 CLR 487, the following propositions were made clear: (a)the question is one of fact: M at 492 per Mason CJ, Deane, Dawson and Toohey JJ; (b)in answering the question, the Court must pay full regard to: (i)the jury being the body entrusted with the primary responsibility of determining guilt or innocence; and (ii)consideration that the jury has had the benefit of having seen and heard the witnesses: M at 493. 150As the majority in M noted, if the Court upon reviewing the evidence has a doubt, then ordinarily that is a doubt which the jury should have experienced. However, there may be some cases in which a doubt experienced by a Court can be resolved because of the jury's advantage in seeing and hearing the evidence. If such a resolution is reached, then no miscarriage has occurred: M at 494. 151However, if a Court concludes, having made allowances for the advantage that a jury has, that there is "... a significant possibility that an innocent person is being convicted ...", then the verdict is bound to be set aside: M at 494. 152Each of the Appellants was found guilty on Counts 3, 4 and 5 in the indictment. The details of these counts are set out earlier at [25] and [26]. As well, the applicant, Flanders, was found guilty of Count 1. None of the other Appellants was charged with the conduct in Count 1.
NRH 153It is to be remembered that NRH was said to have been the principal offender with respect to the conduct in Count 2. It was said that he had penile/vaginal intercourse without the consent of the Complainant. NRH gave evidence in which he denied engaging in that conduct at all. Clearly the jury was not satisfied, beyond reasonable doubt, that the conduct occurred as was alleged by the Complainant. 154It was not said that he was a principal with respect to Counts 3, 4 and 5. Any conviction of NRH on those counts arises because of his participation in a joint criminal enterprise. 155As we have earlier recounted, NRH was introduced to the Complainant when she collected him and Tohu from outside The Webb. She drove them to her flat and, upon arrival, gave them a drink. 156Leaving to one side the Complainant's evidence about NRH engaging in sexual activity with her, which the jury must have rejected in order to find him not guilty on Count 2, the substantial evidence as to what NRH did at the Complainant's flat came from his own evidence at trial. 157In chief he denied that he was ever part of any understanding or arrangement to sexually assault the Complainant, he denied any knowledge of any understanding or arrangement between any other persons that they would sexually assault the Complainant and he denied that he in any way intentionally encouraged or assisted anybody to have sex with the complainant without her consent. 158In cross-examination, he gave evidence that based upon what O'Sullivan had told him, text messages which he had seen and the fact that there was contact between her and O'Sullivan in the early hours of the morning, as a consequence of which he was invited back to the complainant's house, he believed that there was to be a threesome involving the Complainant, O'Sullivan and Flanders. 159When asked how he came to be in the bedroom, he said that he just wanted to "be a sticky beak, just to see what they were doing". 160He said that when he looked into the room, the Complainant was already naked with Flanders on one side of her and O'Sullivan on the other. When pressed in cross-examination, he agreed he could not advance any particular reason why he remained in the room observing what was going on, but he simply "just watched" whilst O'Sullivan received oral sex. 161When pressed further in cross-examination he said: "I just didn't leave, I was just sort of shocked." 162He said that he left the bedroom when the Complainant called out "stop," and walked away from the doorway where he had been standing. 163The only other evidence was that from the Complainant when she said that immediately after she attempted to prevent O'Sullivan going to a drawer in her bedroom, whilst she was lying, still clothed, on the bed, NRH was in the bedroom. She said: "... that's when they were all in the bedroom by this time". Her evidence was that it was after that point in time that her clothes were forcibly removed and that she was then assaulted without consent. 164In submissions to the jury, the Crown said this with respect to NRH: "NRH, the last accused to give evidence. He told you very clearly [he had] absolutely no interest in a sexual encounter that night. He agreed with the Crown that there was absolutely no reason for him to go anywhere near that bedroom that night. He knew about the threesome, but he wasn't in on it. So absolutely no purpose for him to go to that bedroom. He agreed, none of his business what was happening in there. He then tells us that he is not invited into the room, he goes in there, essentially to be a sticky beak, his words. He is not planning to be involved in any way, shape or form. He is a bit shocked by what he saw, but he stays there. And the Crown says to him, well, if you're not in on it, why do you stay there. And he's not sure, he can't give a reason for why he stood there. The Crown says to you that that is because, that's not why he was there, to have a sticky beak, he was in on it as well, he had already - he had a turn, he was the first to have a turn of penile/vaginal intercourse while Bradley O'Sullivan was having oral sex with the complainant. The Crown says there is no logical explanation why you stand there and watch your friends having a threesome if you have no interest in the sexual encounter and be shocked by it." 165In short the Crown submitted that the jury would not accept that explanation, and would accept the Complainant's evidence as to what NRH did to her. 166In this Court, the Crown submitted that the verdicts on Counts 3, 4 and 5 with respect to NRH were not unreasonable because NRH's presence in the room was not "mere presence" but, that his presence in the bedroom was capable of being seen by the jury as evidence of a desire to assist and encourage his co-appellants as required, and a willingness to assist as required. It also relied upon the failure of NRH to leave or intervene during such conduct as being significant in all of the circumstances. 167The Crown case was one of joint criminal enterprise. The jury rejected the participation of NRH in the events of that evening on the basis that he was a principal, and was taking his turn. There is no other conclusion available from the finding of a verdict of not guilty on Count 2. 168That meant that the jury was left to infer the participation of NRH in the joint criminal enterprise by being present at a time when a crime was being committed and with knowledge that the crime was to be, or was being committed, that he intentionally assisted or encouraged another participant in the joint criminal enterprise to commit the crime: see R v Tangye (1997) 92 A Crim R 545 at 556-7. 169We are not satisfied that it was open to the jury to conclude beyond reasonable doubt, that NRH's presence, without anymore being said or done by him, was in the circumstances anything more than mere presence. He provided no encouragement to the others. There was no evidence that he said or did anything to encourage the conduct by O'Sullivan, Flanders and Tohu, which formed the basis of Counts 3, 4 and 5. There was no evidence that he even knew that a crime was being committed. On the contrary, his evidence was that he understood that what was happening was a consensual arrangement. 170In all of those circumstances, we are satisfied that these convictions against NRH are unreasonable and cannot stand. On the evidence before the jury, it was not open to convict him of these offences. 171We would uphold this ground of appeal in respect of NRH, and direct the entry of an acquittal of him, on Counts 3, 4 and 5.
O'Sullivan, Flanders and Tohu
172The case against each of these three was with respect to Counts 3, 4 and 5, identical. There is no doubt that each accepted that they had participated in a joint activity in which each had sex with the Complainant, taking it in turns, one after the other. 173The principal issue joined between the Crown and these three Appellants was whether or not the Complainant consented to the conduct which was occurring. 174The Complainant in her evidence denied that she consented to having sex with these three Appellants. She said that her clothes had been forcibly removed from her, and that her participation in each of the assaults, which constituted Counts 3, 4 and 5, was a forced one. She said for example, that her head was forced into a position where oral intercourse occurred. She said she had no opportunity to, effectively, resist and that she was physically hurt by what occurred. 175On the other hand, each of the Appellants gave evidence, each denied that there was any force or violence involved in the assault and each asserted that the Complainant had consented, although not necessarily in express terms. 176There was evidence before the jury that corroborated the Complainant's account. This included, but was not limited to, the complaints and the contents of them, which she made immediately after what occurred. 177There was evidence, which the jury might consider corroborated the account of the Appellants. For example, there was no doubt that the Complainant had collected at least Mr Tohu from outside The Webb, and that she had welcomed Mr O'Sullivan and Mr Flanders to her home, and had provided them with alcohol. There was evidence that she had flirted, in a sexual manner, with the men present. There is no suggestion that, early in the morning, when these events occurred, that she had in any way asked any of the four males present in her small home, to leave. 178Ultimately, however, the question of whether the Complainant did or did not consent was a matter that depended on a careful scrutiny of the way in which the Complainant and each of these three Appellants gave their evidence. 179The principal issue between the Complainant and these Appellants was one which classically was a matter for the jury to determine. They were in a significant position of advantage when compared to an appellate Court. 180It would not be right, in accordance with the authorities to which earlier reference has been made, for us to prefer a reading of the evidence, any doubt which that might create and any conclusions which we might draw as to the existence of a doubt, to the conclusions of the jury in the circumstances here present, where the jury had a decided advantage in assessing the credibility and demeanour of the Complainant on the one hand, and the credibility and demeanour of these three Appellants on the other. 181Even if we were persuaded that a doubt exists, about which we need not reach any conclusion, it is a doubt which is properly resolved by the jury's advantage in seeing and hearing the witnesses. We are not persuaded, in those circumstances, that the verdicts were unreasonable, or that with respect to Counts 3, 4 and 5, the appeal by O'Sullivan, Flanders and Tohu ought be upheld on this Ground. 182Mr O'Sullivan was also convicted, Count 1, of an indecent assault. The issue which separated the evidence of the Complainant and Mr O'Sullivan on this count, was whether or not there was any consent. 183Consistently with our view on Counts 3, 4 and 5, this was a matter upon which the jury in making the determination, had a decided advantage. 184We would not be inclined to uphold the appeal on this Ground. 185In the result, on the Ground asserting that the verdict of the jury against each of the appellants was unreasonable and not supported by the evidence, we would propose that the appeal by NRH be upheld and that he be acquitted of the Counts against him. With respect to the remaining three applicants, we would not uphold this Ground.
Conclusion 186For reasons given earlier we consider that, in relation to O'Sullivan, Tohu and Flanders, there should be a new trial by reason of the fresh evidence and as result of a combination of the errors which have been identified in the way the trial was conducted. 187In our opinion the following orders should be made: (1) Appeals of each Appellant allowed. (2) Quash the convictions of the Appellants. (3) In respect of the Appellant NRH enter a verdict of acquittal. (4) In respect of the Appellants O'Sullivan, Flanders and Tohu order a new trial in respect of Counts 1, 3, 4 and 5.
Amendments 25 April 2014 - Publication restriction removed Amended paragraphs: Coversheet 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: 25 April 2014
In its strict sense, character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called "disposition - which is something more intrinsic to the individual in question". It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person. As the last of the above passages from R v Falealili demonstrates, however, the common law courts have not always drawn a distinction between character and reputation in a criminal context. The confusion can be traced to R v Rowton where a majority of the Full Court of the Crown Cases Reserved held that in a criminal trial the evidence for or against a person's good character must be confined to his or her general reputation. This is the established rule although, as this Court pointed out in Attwood v The Queen, the limitations inherent in the rule are not observed in practice. In New South Wales, the legislature long ago reversed the common law rule. (citations omitted) 100In Bull v R [2000] HCA 24; (2000) 201 CLR 443 the joint judgment of McHugh, Gummow and Hayne JJ said:
The width of the phrase 'relating to' is undoubted. Lord Macnaghten stated that '[t]here is no expression more general or far-reaching': Commissioner of Inland Revenue v Maple & Co (Paris) Ltd [1908] AC 22 at 26. Fountain v Alexander (1982) 150 CLR 615 at 629; 40 ALR 441; Colakovski v Australian Telecommunications Corporation [(1991) 29 FCR 429]; Secretary, Department of Foreign Affairs and Trade v Boswell [(1992) 36 FCR 367]; PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service [(1995) 184 CLR 301 at 329-330], although the addition of the words 'or depending on' was presumably intended to give the combined phrase 'relating to or depending on' a wider operation than 'relating to'. The difficulties of construction presented by such language have also been noted. Taylor J observed that '...the expression "relating to" ...is ... vague and indefinite...' and "... leaves unspecified the plane upon which the relationship is [to be] sought and identified': Tooheys Ltd v Commissioner of Stamp Duties (1961) 105 CLR 602 at 620. One area of debate has been whether, in particular legislation, a relationship need or need not be 'direct' or 'direct and immediate': see, for example, Ausfield Pty Ltd v Leyland Motor Corporation of Australia Ltd (No 2) (1977) 14 ALR 457 at 460, 462; [30 FLR 477 at 480, 483]; Re Dingjan; Ex parte Wagner [(1995) 183 CLR 323 at 364 and 370]; Joye v Beach Petroleum NL [(1996) 67 FCR 275 at 285]; see also Perlman v Perlman [(1984) 155 CLR 474]. Overall, the position judicially adopted has been that the operation of the phrase 'relating to' is determined by the statutory context and purpose: Butler v Johnston [(1984) 4 FCR 83 at 87]; Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 491." 17The construction that should be given to the term "evidence relating to" in s 293 was considered by the High Court in obiter dicta in Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443. In that case the issue before the Court was the correct construction of s 36BA of the Evidence Act 1906 (WA). Section 36BA provides that: "In proceedings for a sexual offence, evidence relating to the disposition of the complainant in sexual matters shall not be adduced or elicited by or on behalf of the defendant." 18While "disposition" is not a category referred to in the New South Wales provision, the Court gave detailed consideration to the meaning of the phrase "evidence relating to". In the majority judgment of McHugh, Gummow and Hayne JJ, their Honours referred to what they considered to be the correct interpretation of that phrase in the context of the New South Wales provisions currently under consideration. Their Honours said at [89] - [92]: "Also militating against the correctness of the first construction is the fact that the Western Australian Parliament used the words "evidence relating to" instead of the words "evidence disclosing or implying". In New South Wales, s 409B(3) of the Crimes Act 1900, [now s [293] of the Criminal Procedure Act 1986 (NSW)], which was in force at the time the 1985 Western Australian amendments were enacted, provided that "evidence which discloses or implies that the complainant has or may have had sexual experience" was inadmissible except on certain conditions. In his commentary on what was then s 409B(3) of the Crimes Act [now s 293(3)] Dr G D Woods QC stated: "Note that the evidence need only 'disclose or imply' sexual experience or sexual activity to fall within the prohibition. It is immaterial that such disclosure or implication might be unintentional or merely incidental." In contrast, the then s 409B(2) [now 293(2)] of the Crimes Act used the same "evidence relating to" formula as appears in s 36B of the Act: "In prescribed sexual offence proceedings, evidence relating to the sexual reputation of the complainant is inadmissible." Of this provision, Dr G D Woods QC stated: "This is an important provision, excluding irrelevant material about a complainant's supposed sexual behaviour as a proper basis upon which the facts of a particular allegation of sexual assault should be judged." The reference to "a proper basis" suggests that the purpose for which the evidence is adduced may be important. 19Their Honours ultimate conclusion, which is of relevance to the present case, was expressed in the following terms at [93]: "The juxtaposition in the New South Wales legislation of "evidence relating to" and "evidence which discloses or implies" indicates that the Parliament of that State intended "evidence relating to" a certain fact to mean "evidence adduced for the purpose of proving" that fact." 20The majority judgment also considered the nature of evidence that would constitute "evidence adduced for the purpose of proving" a particular fact. Their Honours said at [73]: "On the assumption that the words "evidence relating to" are confined to testimony that tends to prove reputation, disposition or experiences, one needs also to bear in mind that testimony relating to conduct and testimony relating to out-of-court statements stand in different positions. As we have pointed out, testimony relating to conduct may have the tendency to prove disposition, even though it has the tendency to prove a fact in issue. Because that is so, the plain language of s 36BA prima facie prohibits all testimony relating to conduct that tends to prove the disposition of the complainant in sexual matters, even if the evidence is relevant and is tendered only for some other purpose. However, testimony relating to out-of-court statements is much less likely to tend to prove such matters. Independently of ss 36B, 36BA and 36BC of the Act, testimony concerning out-of-court statements by or in the presence of the complainant will only be admissible in limited circumstances. Because the complainant is not a party to the proceedings, testimony on behalf of the accused concerning such statements will be admissible to prove a fact asserted in the statement only if it comes within a recognised exception to the hearsay rule. The hearsay rule, and not ss 36B, 36BA or 36BC, will ordinarily prohibit the admission of such testimony. In the present case, for example, assuming that evidence of the telephone conversation was admissible, it nevertheless had no probative value in respect of any of the matters asserted in the statements except to the extent that they could be used as admissions against Bull. At common law, the out-of-court statements of a complainant relating to that person's sexual reputation, disposition or experiences could not be adduced as evidence of the facts therein contained, whether evidence of the making of the statements was sought to be adduced in cross-examination or otherwise. They were excluded by the hearsay rule unless they fell within a recognised exception to that rule. Of course, if admissions could be obtained from the complainant as to the facts in such statements, they could be used to prove any fact in issue and the character and credibility of the complainant. No doubt the contents of the statements might be put to the complainant for various forensic purposes, but in principle proof that the complainant had made the statements would not prove their contents. Sometimes, however, testimony of an out-of-court statement is admissible to prove a fact relevant to a fact in issue such as the intention or purpose of the complainant or even the consent of the complainant. If the statement contains material that refers to matters relating to the reputation, disposition or experiences of the complainant in sexual matters, would it be evidence tending to prove those matters and prohibited by one or more of the three sections? We think not." (emphasis added) 21To my mind, the exchange between O'Sullivan and the complainant cannot be relevantly characterised as "evidence relating to" the complainant's sexual reputation. It consists of an out of court statement which, although it refers to the sexual reputation of the complainant, for the reasons set out by McHugh, Gummow and Hayne JJ in Bull, is not evidence tending to prove that reputation. The conversation was directly related to a fact in issue, namely the complainant's consent at the time of sexual activity. If accepted by the jury, the evidence was in essence an inquiry by O'Sullivan and confirmation from the complainant that she was consenting to group sex at a time when it was apparent that an activity of that nature was about to take place. The jury was not being invited to reason to a conclusion about whether the complainant consented or whether O'Sullivan believed that she consented based upon the complainant's reputation as a person likely (or not likely) to partake in sexual activities with multiple partners. 22In light of this conclusion the question of whether the conversation is evidence that "discloses or implies" sexual experience must also be considered. In my opinion the evidence, particularly the complainant's alleged response to the applicant's statement, clearly implies that the complainant may have had sexual experience. However, the evidence is of events alleged to have taken place in the complainant's bedroom immediately prior to the alleged sexual assault. The evidence is therefore admissible pursuant to s 293(4)(a)(ii), which allows "evidence of events that are alleged to form a part of a connected set of circumstances in which the alleged prescribed sexual offence was committed". 23I would uphold this ground of appeal. 24DAVIES and GARLING JJ: The four Appellants appeared for trial at Gosford District Court on 19 April 2010 before King DCJ and a jury to answer an indictment containing seven counts relating to events which occurred on 12 January 2008. 25Count 1 related to the Appellant Flanders only, alleging that he had committed an indecent assault upon the Complainant JS by kissing her on the breast in the kitchen area of her house before the other incidents occurred. Counts 2, 3, 4, 6 and 7 charged all four Appellants with five counts of aggravated sexual intercourse without consent upon JS, the circumstance of aggravation in each case being that they were in company. Count 5 charged all four Appellants with an attempt to commit aggravated sexual intercourse without consent upon JS, the circumstance of aggravation being again that they were in company. In relation to Count 6 the Crown was unable to identify the principal offender. 26To enable an adequate understanding of the factual situation the following table indicates in relation to each of the counts 2-7 who the principal offender was alleged to be together with the sexual activity involved. Count Principal Sexual Activity 2 NRH Penile/vaginal intercourse 3 O'Sullivan Fellatio 4 Tohu Fellatio 5 Flanders Attempted penile/vaginal intercourse 6 Unknown Anal intercourse 7 Flanders Penile/vaginal intercourse
27On 10 May 2010 the jury returned verdicts of guilty against Flanders in respect of count 1 and against all Appellants on counts 3, 4 and 5. Each of the Appellants was acquitted on counts 2, 6 and 7. Each Appellant has appealed against his convictions. Tohu's appeal was filed out of time but, there being no opposition from the Crown, the time will be extended to permit him to appeal.
Background to the trial
28The first trial of the Appellants took place before his Honour Acting Judge Phegan and a jury of twelve in September 2009. The evidence proceeded for five days during which time the Complainant gave evidence and was cross-examined by counsel for the all of the Appellants. There was no re-examination. 29That trial then proceeded until a point during the cross-examination of the Appellant O'Sullivan when the jury was discharged. 30The trial in respect of which the appeals are brought commenced before Judge King SC on 19 April 2010. The evidence of the Complainant in its entirety was played to the jury from the recording of her evidence made at the first trial. There had been some technical difficulties at the time of that recording which resulted in a substantial portion of her evidence being recorded by audio means only. However nothing turns on that from the perspective of the present appeals. 31At the first trial counsel for O'Sullivan made an application under s 293 Criminal Procedure Act 1986 to cross-examine the Complainant and lead evidence about particular matters. One of these matters concerned an exchange between O'Sullivan and the Complainant whilst they were engaged in sexual activity. O'Sullivan said to the Complainant, "I didn't know you were like this" to which the Complainant replied "I'm full of surprises". 32Phegan ADCJ ruled evidence of that conversation was inadmissible on the basis that it was a comment on her reputation. The parties at the second trial before King DCJ agreed to be bound by the decision of Phegan ADCJ pursuant to s 130A Criminal Procedure Act 1986.
The facts
33The Complainant and the Appellant O'Sullivan had known one another since the end of 2006 or early 2007. She had worked casually at the Woy Woy Youth Centre where O'Sullivan worked full time. The Complainant had never met any of the other three Appellants before the night in question. 34Whilst both the Complainant and O'Sullivan were at the Woy Woy Bowling Club on 10 January 2008 they had a conversation where each mentioned that the other had broken up with their respective partners. The Complainant gave O'Sullivan her telephone number at this time. 35Thereafter on that night and on the following day the Complainant and O'Sullivan exchanged both telephone and text messages. Some of the text messages were of an explicitly sexual nature and suggested that a sexual encounter might occur between the Complainant and O'Sullivan on the night of 11 January 2008. 36There was a factual dispute about whether the Complainant indicated to O'Sullivan that she was interested in having a threesome with O'Sullivan and another person. The Complainant denied that she ever intimated that she wanted to have such a threesome. On the other hand O'Sullivan gave evidence that in one call the Complainant had asked O'Sullivan if he was interested in a threesome. O'Sullivan also gave evidence that a little after discussing a threesome with Flanders he rang the Complainant to see if she was really interested in a threesome and the Complainant said that she was. Both O'Sullivan and Flanders gave evidence that this conversation was heard by both of them because O'Sullivan's phone was on loud speaker at the time. 37What was undisputed was that the communications between the Complainant and O'Sullivan culminated in his requesting her to pick him up from The Webb at about 2:07am on 12 January 2008. The Webb was a youth centre on the corner of McMasters and Ocean Beach Roads, Woy Woy. That Centre was only a short distance from the Complainant's home. The message also asked if she would drop O'Sullivan's brother and his best mate off somewhere. 38The Complainant drove to The Webb. O'Sullivan was there with Tohu whom he introduced as his best mate and NRH whom he introduced as his brother. O'Sullivan told the Complainant that he had to go and see another mate, and he asked her to take his brother and best mate (NRH and Tohu) back to her home. He said that he would not be long and would be there in about five minutes. The Complainant pointed out the location of her home to O'Sullivan. 39The Complainant then drove Tohu and NRH to her home which was a small granny flat. She gave NRH a bottle of German beer and Tohu a bourbon and coke. A short time later O'Sullivan arrived at the premises with Flanders. O'Sullivan introduced him as his younger brother. The Complainant offered O'Sullivan and Flanders drinks. 40When they were standing in the kitchen O'Sullivan put him arms around her waist. According to the Complainant Flanders then pulled the right side of her top down, exposing her breast. He said "great tit" and put his mouth on her breast. 41Flanders' evidence was that the complainant herself exposed her breast and smiled at him when she did it. He agreed that he put his mouth on her breast. That was the basis of Count 1 charged against Flanders. 42The Complainant then alleged that O'Sullivan let her go and went into the bedroom. He went towards the bedside table where she kept her sex toys. She said that she went after him and dived across the bed to try to stop him. She rolled over on the bed and said at that stage that the four Appellants were in the bedroom. Someone referred to getting her pants off her and O'Sullivan and Flanders proceeded to do that. The Complainant said that at that point she froze, she felt numb and frightened and had no control over what was happening. 43She said that NRH then straddled her and placed his penis inside her vagina. That was the basis for Count 2 in the indictment. NRH denied this assertion of the Complainant. In fact, NRH claimed that he did not participate in any sexual activity with the Complainant. Rather, he said that he simply entered the bedroom to "stickybeak" on what was going on. All the Appellants gave evidence that NRH did not take part in the sexual activity. The jury did not convict on Count 2. 44At the same time, O'Sullivan was beside her with his fly undone and his penis out. Flanders had his hand on the back of her head. He pushed it towards O'Sullivan's penis and she was forced to have oral sex with him. That was the basis of Count 3. O'Sullivan agreed that oral sex took place between the Complainant and him but said that he did not force her to do so. The jury convicted on Count 3. 45Thereafter the Complainant said that Flanders was on top of her and Tohu had his hand on the back of her head, forcing her to perform oral sex on him. She said he ejaculated into her mouth. That was the basis of Count 4. Tohu agreed that he engaged in oral sex as described with the Complainant but said that he did so after O'Sullivan said to him, "She gives good head, get your dick sucked." The jury convicted on Count 4. 46The Complainant said that Flanders was on top of her but was having difficulty getting his penis into her vagina. He said "what the fuck is going on, I can't get it in". That formed the basis for Count 5 of attempting intercourse. Flanders denied that he attempted to have sexual intercourse with the Complainant. He agreed that when he unzipped his pants, thinking that he may engage in some sexual activity with the Complainant, his penis was soft and he could not get aroused. The jury convicted on Count 5. 47The Complainant said that there was then talk of lubrication and anal penetration with a vibrator which had been retrieved from the bedside table. She said that she then felt a sharp pain in her anal area but did not know if it was from the vibrator or from a penis. That formed the basis for Count 6. All the appellants denied any form of anal intercourse including with the vibrator. The jury did not convict on Count 6. 48Thereafter the Complainant said that Flanders had his penis inside her vagina and was moving backwards and forwards. That formed the basis for Count 7. Flanders denied that he engaged in any form of intercourse with the Complainant. The jury did not convict on Count 7. 49The Complainant said that when Flanders stopped having penile vaginal intercourse with her, she was told to get on her knees. She said that at that point she "lost it" and started yelling at them all to leave her alone. She said "fuck off, get out of here, just fuck off". Tohu, Flanders and NRH then left the room but O'Sullivan remained. 50The Complainant said that when the three males had left the room, she found something to cover herself with. O'Sullivan started walking up and down saying "what the fuck have I done, what the fuck have I done". He said, "I didn't mean for this to happen" and "I'm sorry". He also said, "if you have to dob, don't dob the others in, just dob me in" and "I'm not fucking going to jail". 51The Complainant then told him to "fuck off" and to leave. She then went into the bathroom, closed the door and put a cane basket against it. She said she could hear him asking what he could do to fix it and asking her if she wanted money. She then got into the shower and she did not hear from him again. 52When she got out of the shower she rang her friend Michelle Jackson. Ms Jackson and another friend, Catherine Poyner, came around to the Complainant's place within minutes. They contacted two other friends, Michael Dwyer and Amanda Stubbs, who also attended her premises. 53The Complainant was persuaded by Michael Dwyer to ring the police. Eventually she did so, the police arrived and she was taken to Gosford Hospital. 54O'Sullivan, Tohu and Flanders all gave evidence that they believed the Complainant was consenting to the sexual activity either because they had been led to believe she was interested in a threesome or because of her behaviour at her house or for both reasons. 55The Appellants have appealed on the following grounds.
O'Sullivan
56Ground 1: A miscarriage of justice resulted from the absence at the trial of fresh evidence. 57Ground 2: The following evidence was wrongly excluded on the basis that it offended against s 293(2) Criminal Procedure Act 1986: During the incident the Accused said to the Complainant " didn't know you were like this" to which the Complainant replied "I'm full of surprises". 58Ground 3: The Trial Judge erred in his direction to the jury as to what constituted reasonable grounds for a belief in consent. 59Ground 4: In relation to Count 5, the Trial Judge erred in directing the jury on the law of consent in accordance with s 61HA. 60Ground 5: The verdicts are unreasonable and cannot be supported having regard to the evidence.
Flanders
61Ground 1(a): The Trial Judge erred in failing to direct the jury as to what in law constituted reasonable grounds for a belief in consent for the purposes of s 61HA Crimes Act. 62Ground 1(b): The Trial Judge erred in failing to direct and explain to the jury that reasonable grounds for the purposes of s 61HA Crimes Act was not a reasonable person test. 63Ground 2: The Trial Judge erred in failing to advert at any point in the summing up to the evidence of the Appellant and its relevance to an innocent state of mind namely: (a) in respect of the indecent assault offence, an honest but mistaken belief in consent, and (b) in respect of sexual assault offences, an honest but mistaken belief in consent based on reasonable grounds. 64Ground 3: The Trial Judge erred in failing to advert in the summing up that an unreasonable but honestly held belief as to consent in respect of the indecent assault offence constituted an innocent state of mind. 65Ground 4: The Trial Judge erred in failing to identify in the summing up that the innocent state of mind as to consent differed in respect of the indecent and sexual assault offences. 66Ground 5: The Trial Judge erred in failing to direct the jury that the alleged admissions of the Applicant's co-offender Bradley O'Sullivan were not admissible against the Appellant (or any of the other Appellants) in consideration of their verdicts. 67Ground 6: The verdicts of guilty are unreasonable and cannot be supported having regard to the evidence and particularly so having regard to the Appellant's acquittal on grounds 2, 6 and 7 of the indictment. 68Ground 7: A miscarriage of justice resulted from the absence at the trial of fresh evidence. 69Ground 8: The following evidence was wrongly excluded on the basis that it offended against s 293(2) of the Criminal Procedure Act 1986: During the incident the Accused said to the Complainant "I didn't know you were like this" to which the Complainant replied "I'm full of surprises". 70Ground 9: In relation to Count 5 the Trial Judge erred in directing the jury on the law of consent in accordance with s 61HA.
Tohu
71Ground 1(a): The Trial Judge erred in failing to direct the jury as to what in law constituted reasonable grounds for a belief in consent for the purposes of s 61HA Crimes Act. 72Ground 1(b): The Trial Judge erred in failing to direct and explain to the jury that reasonable grounds for the purposes of s 61HA Crimes Act was not a reasonable person test. 73Ground 2: The Trial Judge erred in failing to advert at any point in the summing up to the evidence of the Appellant and its relevance to an innocent state of mind namely an honest but mistaken belief in consent based on reasonable grounds. 74Ground 3: The Trial Judge erred in failing to direct the jury that the alleged admissions of the Appellant's co-offender Bradley O'Sullivan were not admissible against the Appellant (or any of the other Appellants) in consideration of their verdicts. 75Ground 4: A miscarriage of justice resulted from the absence at the trial of fresh evidence. 76Ground 5: The verdicts are unreasonable and cannot be supported by the evidence.
NRH
77Ground 1: The verdicts of guilty upon Counts 3, 4 and 5 of the indictment are unreasonable and cannot be supported having regard to the evidence, particularly having regard to the acquittal of the Appellant on Count 2 (as well as 6 and 7) of the indictment. 78As is apparent, there is a large measure of commonality in the grounds of appeal. It is, therefore, convenient to deal with the grounds of appeal grouped into substantive issues.
Fresh evidence
O'Sullivan: Ground 1
Flanders: Ground 7
Tohu: Ground 4 79The Appellants O'Sullivan, Flanders and Tohu say that a miscarriage of justice occurred because of the absence from the trial of certain fresh evidence. 80The evidence was contained in a statutory declaration and was led at the hearing of the appeal from the deponent Michaela Pratten. Ms Pratten said that she had known the Complainant for about two years at the time of the relevant events and had developed a friendship with her in this time. 81She said that on 12 January 2008 she attended Woy Woy Leagues Club at about 1:30am after she finished working at the Bayview Hotel at Woy Woy. She was in the company of her then partner Dana Cooper. As she arrived she saw the Complainant leaving the Leagues Club and they stopped and had a conversation as follows: Pratten: Where you going? Complainant: I've organised to have a threesome with Brad and one of his mates. Pratten: Your (sic) fucking kidding aren't you. You're a fucking joke. 82Ms Pratten that she became quite upset and angry and felt that she just wanted to go home after this exchange. 83Since that time she heard that the Complainant had been raped and that four men were found guilty of raping her but she was not aware of the details. 84Until about eight weeks before the time she made the statutory declaration on 30 November 2010 nobody had approached her about the matter for the purpose of giving evidence or providing a statement. At about that time another friend Holly Johnston approached Ms Pratten at the Ettalong pub and was very upset about what had happened to the Appellant Flanders. Holly told her that the Complainant had testified that she was only going to have sex with Brad on the evening the assault took place. Ms Pratten said to Holly Johnston: That's fucking bullshit. She told me she had organised a threesome with Brad and one of his mates. Holly Johnston told her that Flanders was locked away for the assault, and that was when Ms Pratten realised she might have information that might assist. 85The principles concerned with adducing fresh evidence after a trial were summarised by Kirby J (Mason P and Levine J agreeing) in R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 at [63]. It is not necessary to set out those principles. It is sufficient to note that those principles make clear that a court hearing an application to adduce fresh evidence is ultimately concerned with whether there has been a miscarriage of justice by reason of the absence of the evidence from the trial. Further, in circumstances where a new trial is sought three questions need to be answered. First, is the evidence fresh? If so, is it "credible" or at least capable of belief or "plausible"? Thirdly, if so, would that evidence, with the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused? 86The Crown, in its written submissions, accepted that the Appellants were probably capable of establishing that the evidence was not available at the trial even with the exercise of due diligence. The Crown also accepted that the evidence could impact on the credibility of the Complainant, and could support the evidence of O'Sullivan regarding discussion of a threesome. 87The Crown's principal opposition to the fresh evidence was that it was not credible evidence and, when seen with the other evidence at the trial, would not be likely to have caused the jury to entertain a reasonable doubt about the guilt of the accused. 88The Crown cross-examined Ms Pratten to show (somewhat surprisingly in the light of the Crown's partial concession about the freshness of the evidence) that Ms Pratten was sufficiently aware of what had happened to the Complainant and the fact that the four Appellants had been charged and tried, and that she had ample opportunity to come forward at an earlier time. The Crown also cross-examined in the light of affidavits it had obtained from Dana Cooper to suggest that no such thing had been said by the Complainant to Ms Pratten. Further, the Crown suggested that since there was a lockout at the Leagues Club at the time Ms Pratten said she was intending to go to the Club, the evidence appeared to be less than credible. The Crown wished to lead this evidence on the application but the Court held that it was not entitled to do so. In our opinion it would rarely be appropriate for this Court to permit evidence to be led contrary to the evidence that is sought to be given. In such a situation the result of leading such evidence would be that it would be necessary for this Court to make factual findings, including credibility findings about competing witnesses. The Court's task is only to decide if the evidence is credible or plausible evidence. 89After hearing Ms Pratten's evidence the Crown submitted that there was no proper explanation that she had not come forward earlier. The Crown pointed to the fact that on the morning following the sexual encounter Ms Pratten was aware of the allegations made because she went to the Complainant's home to comfort her. The Crown also pointed to the fact the Ms Pratten attended at the trial, albeit for about five minutes during legal argument. In the Crown's contention she must have realised that her evidence was of significance. 90In Ratten v The Queen (1974) 131 CLR 510 Barwick CJ said at 520 that where the Court is considering whether the verdict of guilty should be set aside outright the Court should form and act upon its own belief in, or disbelief of, the evidence, whereas in cases where the Court is considering whether there should be a new trial the Court should consider whether the evidence was capable of belief and likely to be believed by a jury. For a guilty verdict to be quashed and an acquittal entered fresh evidence must be shown to have such cogency that innocence is shown by reason of the evidence: Abou-Chabake at [63] - fifth point. In our opinion the fresh evidence of Ms Pratten is not of that kind. At best it is evidence that the jury should have had available when it came to consider the competing accounts of events put forward by the Complainant on the one hand and by O'Sullivan and Flanders on the other. It is necessary to consider, therefore whether the evidence is capable of belief and likely to be believed by a jury. 91Despite the cross-examination of Ms Pratten she did not waver from her recollection that the conversation she had with the Complainant was as Ms Pratten related it. In those circumstances the evidence was credible. If it was placed before a jury and, if evidence is led by the Crown, such as the evidence of Ms Cooper that the conversation did not take place, whether it is believed will be a matter for the jury to determine. That position may be contrasted with a situation where a person in Ms Pratten's position began to doubt, by reason of the cross-examination, if she had accurately remembered the conversation, or accurately recalled that it had taken place at the time that she said it did. In such circumstances this Court might conclude that the evidence was not credible. 92It is then necessary to ask if there is a significant possibility that the jury, acting reasonably, would have acquitted the accused if this evidence was heard by them: Abou-Chabake at [63] - ninth point. 93In our opinion if this evidence went to the jury with the other evidence in the case there is such a significant possibility for two reasons. First, it would tend to undermine the evidence of the Complainant that she did not agree to have a threesome, and did not have the telephone conversation that O'Sullivan and Flanders said she had with them concerning a threesome. Her credibility generally might thereby be affected. Secondly, it would tend to support the credibility of both O'Sullivan and Flanders who gave evidence of such a conversation. Bearing in mind that (except in relation to the attempted sexual intercourse) the jury acquitted the Appellants on the counts where they did not admit to the sexual act alleged and convicted on those where they did, the diminution of the Complainant's credibility and the bolstering of the credibility of O'Sullivan and Flanders in relation to this present issue is likely to have caused the jury to have entertained a reasonable doubt about the guilt of the Accused. 94For this reason alone the appeals of O'Sullivan, Tohu and Flanders should be upheld and a new trial ordered.
Section 293(2) Criminal Procedure Act 1986
O'Sullivan: Ground 2
Flanders: Ground 8 95At the trial before Judge Phegan, O'Sullivan made application on the second day under s 293 Criminal Procedure Act to lead evidence (and cross-examine the Complainant) about a conversation between O'Sullivan and the Complainant which took place at an unspecified point during the events giving rise to the charges. Although the time was unspecified the conversation must have taken place when the four men were in the bedroom with the Complainant. O'Sullivan said to the Complainant "I didn't know you were like this" to which the Complainant replied "I'm full of surprises". 96The application was said to be about evidence; that would or may imply that the Complainant has had a sexual experience or sexual experiences at about the time of the commission of this offence. It may be taken, therefore, that it was sought to make the evidence admissible under s 293(4)(a). 97Section 293 relevantly provides: 293 Admissibility of evidence relating to sexual experience (1) This section applies to proceedings in respect of a prescribed sexual offence. (2) Evidence relating to the sexual reputation of the complainant is inadmissible. (3) Evidence that discloses or implies: (a) that the complainant has or may have had sexual experience or a lack of sexual experience, or (b) has or may have taken part or not taken part in any sexual activity, is inadmissible. (4) Subsection (3) does not apply: (a) if the evidence: (i) is of the complainant's sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and (ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed, 98It was not made clear precisely when, during the sexual encounter, this conversation was said to have occurred. The Crown submits that it was apparently at a time before oral intercourse commenced with Tohu, and when it was apparent that the Complainant was going to have a sexual encounter with multiple men. The Crown submits, therefore, that the comment was effectively O'Sullivan saying: Given what I know about your sexual reputation, I didn't know that you were the type of girl who would have sex with multiple men. Accordingly, the Crown submits that Phegan ADCJ was correct in ruling that it was a comment about the Complainant's sexual reputation and was therefore inadmissible under s 293(2). 99In Melbourne v R [1999] HCA 32; (1999) 198 CLR 1 McHugh J said:
In discussing evidence concerning the character of an accused in a criminal trial, the New Zealand Law Commission has pointed out that: On the one hand, the law distinguishes between evidence of general reputation and evidence of individual opinion and, in the case of the defendant in criminal proceedings, has historically recognised only the former. On the other hand, it is not always clear what is meant by reputation. On occasion, it appears to be used interchangeably with character. It may be important therefore to distinguish between character as public estimation - which is perhaps more correctly referred to as reputation - and character as disposition - which is something more intrinsic to the individual in question. (original emphasis)
The concept of disposition referred to in this passage obviously refers to a person's tendencies or propensities as things intrinsic to the individual in question which exist independently of other persons' opinions of those features. They are part of the character of the person so that given a relevant set of conditions or circumstances the person concerned has a tendency or propensity to act in a particular way. In contrast, the general opinion that others have of those features may constitute part of the person's reputation. Thus, a person who anonymously donates large sums of money to charity may have a reputation for being miserly, but in truth that person's disposition is charitable. 101It appears to us that the evidence sought to be admitted by the Appellants went not to the reputation of the Complainant but to her disposition. Certainly her own response cannot be regarded as having anything to do with her reputation. O'Sullivan's statement is not a reference to the public estimation or repute of the Complainant but is concerned with things intrinsic to the Complainant which may properly be described as her disposition. 102Sub-section (4) sets out the exceptions to the prohibition contained in sub-s (3). In our opinion the evidence sought to be admitted falls within the exception in para (a). The result is that the evidence ought to have been admitted. 103If this evidence had been admitted, it was evidence that clearly related both to the issue of the consent of the Complainant to what was happening and to the issue of the belief of O'Sullivan, and any of the other Appellants who heard the conversation, that the Complainant was consenting to what was happening. It was a significant piece of evidence for the jury to weigh in the balance with other evidence at the trial.
The admissions of O'Sullivan
Flanders: Ground 5
Tohu: Ground 3
104At one point during the sexual encounters the Complainant allegedly told the Appellants to "fuck off, [to] get out of here, just fuck off and leave me alone". When she did so Flanders, Tohu and NRH left the room but O'Sullivan remained. The Complainant gave this evidence: Q You also indicated in evidence that the accused, Bradley O'Sullivan, stayed in the room at that point after you said those words and the other three ran off? A. Yeah. Q. Is that right? A. Yep but I could still hear their voices and that and I remember Bradley saying that "They're gone" and I said "No, I know they're" - no I knew they weren't, you could hear the voices and that and Bradley went to go out and I thought he was leaving the cabin as well and I was heading into, got up because actually I remember I was trying to find something to cover myself and that and I found on the right side down on the bed some clothing, some pants, jama pants or something and Bradley had walked back into the room. I tried putting my top down too. My top was still on but it was up here and I pulled that down and that's when Bradley lost it. Q. Well can I just stop you there, you've said to us that you got up to find something to cover yourself? A. Uh huh. Q. At this point in time what clothes did you have on? A. I only had on my bra, singlet and black top still but they were up above, under my armpits. Q. You indicated you found something to cover yourself? A. Yeah. Q. And you indicated it was then that Brad lost it? A. Yes. Q. What do you mean by that? A. Bradley O'Sullivan started walking up and down the bedroom saying "What the fuck have I done, what the fuck have I done" and that. "I didn't mean for this to happen and he apologised "I'm sorry", he should never. He was walking down, he was, I trusted him. ... Q. You were telling us about your conversation you were having with Bradley O'Sullivan after the other three had left the bedroom? A. Yes. Q. Did the accused, Bradley O'Sullivan, say something like, "If you have to dob, don't dob the others in just dob me in"? A. Yes. Q. Did he also say something like, "I'm not fucking going to gaol"? A. Yes. Q. When he was saying that what was he doing? A. I was sitting at the end of the bed crying and he's walking up and down in front of me of the bed with his hands to his head just doing this, "What the fuck have I done" and just like at a real frustration or - he was upset. Q. Can I say this, when you've given that evidence, what you've demonstrated is that you put your two hands up above your forehead on your hair? A. Like this, yeah. Q. And you've been moving your head forward and back? A. He was walking up and down. He was walking up and down, yes, like this, "What the fuck have I done. I'm sorry. I didn't mean for this to happen" and at that I told him just to get out to fuck off again, I said that a lot for him just to leave. Q. And when you said that to him did he leave? A. No. Q. What happened next? A. I just got up and walked and went to the bathroom, closed the door, put the cane basket up against it and I could hear him saying things in the effect of offering what he could do to fix it if I wanted money. I said, "I don't want your fucken money" and I - and I was in the shower and that's where he must have left because I never seen him again after that - that night. 105In the course of her address the Prosecutor said this of that evidence: Interesting too, what did she say Brad O'Sullivan says after this incident. She says a number of things. She tells you about conversations she had with Brad O'Sullivan. He says a number of things and they are these. "What the fuck have I done?" and he's got his hands on his head. You remember she demonstrated, he was going backwards and forwards saying, "What the fuck have I done?" Then he says, "I'm not fucking going to gaol." And, "If you have to dob, don't dob the others in, just dob me in." Now if we just think about that, not going to gaol, don't dob on the others, you might think why is he asking her not to dob on the others if they hadn't been involved. No reason to say, "Don't dob in the others," if two out of four didn't participate in any way, shape or form. And why is he concerned about going to gaol. Well the Crown says that suggests, you might think, that he knew precisely what had happened in that room and he knew, having regard to her distressed state at this time that she would report the matter and that he and his friends would be in big trouble and that's why he says that to her and you also, if you accept the evidence of JS, know that when she's in the shower, through the bathroom door he offers her money to fix it. To fix what, if nothing's happened. They're all matters the Crown says support JS in relation to certainly Bradley O'Sullivan's feelings about his responsibility and wrongdoing on this night. 106When the Trial Judge summed up to the jury his Honour did not tell the jury that that evidence was only admissible against O'Sullivan. Further, when dealing with the evidence of each of the Appellants in his summing up, he said this: You have heard the evidence of each of the accused in respect of those matters, and you are entitled to consider, in respect of the case for each individual accused and the Crown case, the evidence of each of the other accused. That is, the evidence given by each of the accused during the course of the trial is generally available for your consideration in respect of the whole of the case. I say that to distinguish it from the only exhibits which were tendered on a limited basis, and those were Exhibits P, Q, R and S, which were those documents referred to as being "admissions", where each of the accused admitted they had been at the premises on the relevant night, and in addition, Mr Flanders admitted that he had been wearing a red t-shirt. Those admissions can only be used in respect of the case in respect of the individual accused, because he is the one making the admission. However, in the circumstances of this case, you might think you have abundant evidence otherwise, and in fact, when the accused have given evidence, they have said they were there, and that evidence they gave in the trial, can be used in respect of each of the cases. So you may well think that Exhibits P, Q, R and S take you no further than the evidence that was in fact given, except to the extent that the accused were prepared to make those admissions. 107His Honour reinforced that direction later in his summing up by saying this: I told you in my opening remarks this was a joint trial, and that really what you had occurring was four separate trials, one in respect of each accused, that they were being held together because as you have seen from the progress of the trial, the bulk really with the exception of Exhibits Q, R, S and T (sic), all of the evidence is admitted and available generally in the trial. So it is a matter of convenience and economy to proceed with one trial to which the four accused are party rather than four separate trials and have to repeat the matter on four occasions. 108A little later in his summing up his Honour made reference to the Prosecutor's address dealing with this evidence where she said: Why would he [O'Sullivan] be making those sorts of comments unless it was an acknowledgement that all that had happened beforehand was without consent, and an acknowledgement of the participation of each of the other Accused in those events. His Honour made no comment to the jury that that evidence was only relevant to the case against O'Sullivan. 109None of the counsel for the other Accused sought a direction from the Judge at the trial notwithstanding the Crown's address and notwithstanding what his Honour had said in his summing up. Rule 4 applies in the circumstances. No evidence has been put before the Court to explain the decisions made by counsel at the trial. 110The Crown submitted that it was impossible to know if the jury had acted on the evidence set out in paragraph [104] above, with the verdicts they returned not confirming that they did so. The Crown submitted further that it was difficult to see how the jury would have used the second aspect of the admissions made by O'Sullivan against the other three Appellants. The Crown submitted that all that the evidence was capable of showing was that O'Sullivan felt regret for what had happened, and it could not establish the relevant guilty states of mind of the other Appellants. 111In our opinion the fact that the trial judge identified particular parts of the evidence which could not be used against all of the Accused is likely to have conveyed to the jury that the remainder of the evidence, including these admissions of O'Sullivan, could be used against all of the Appellants. It is unfortunate that no counsel sought a redirection in terms of those admissions. Nevertheless, in our opinion the judge should have instructed the jury that this evidence was admissible only against O'Sullivan. The matter touching Rule 4 will be discussed later.
The issue of consent
Tohu: Grounds 1 and 2
O'Sullivan: Grounds 3 and 4
Flanders: Grounds 1 to 4, and 9 112By reason of the joinder of the counts charged it was no easy task for the trial judge to differentiate the different tests for knowledge about consent applicable to the different counts charged in a way that would be readily understandable by the jury. Counts 2, 3, 4, 6 and 7 were governed by s 61HA Crimes Act 1900 whereas Counts 1 and 5 were governed by the common law. So much is clear: WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275 at [80]. The distinction would not have been an easy one for the jury to appreciate and would have even been harder to apply to the different counts charged in the consideration of the facts that gave rise to each of those counts. 113Section 61HA relevantly provides: 61HA Consent in relation to sexual assault offences (1) Offences to which section applies This section applies for the purposes of the offences under sections 61I, 61J and 61JA. (2) Meaning of consent A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse. (3) Knowledge about consent A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if: (a) the person knows that the other person does not consent to the sexual intercourse, or (b) the person is reckless as to whether the other person consents to the sexual intercourse, or (c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse. For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case: (d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but (e) not including any self-induced intoxication of the person. ... (7) A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse. (8) This section does not limit the grounds on which it may be established that a person does not consent to sexual intercourse. 114When his Honour summed up to the jury he dealt with the issue of consent first when dealing with Count 1. No criticism is made of the directions in respect of Count 1 in that regard. His Honour then dealt with the issue of consent in relation to Count 2 and relevantly said this: On the other hand, you may decide that he might have believed, although wrongly, that the Complainant was consenting to intercourse with him. Whether that belief amounts to a guilty state of mind depends on whether the Accused honestly held it, and if so, whether he had reasonable grounds for that belief. ... Now, I have already indicated that the Crown can prove the Accused had a guilty state of mind in one of two ways. Either he actually knew that JS was not consenting, or he had no reasonable grounds for his belief that she was consenting. 115There could be no criticism of his Honour's direction in relation to consent in that regard in relation to Count 2. However, his Honour went on to say this: The elements of the offence are the same in respect of Counts 3, 4, 5, 6 and 7. ... [Y]ou should commence your deliberations by determining those first three elements. That is,
[2001] HCA 46
(2000) 201 CLR 443
(2001) 208 CLR 343
(1999) 198 CLR 1
(1999) 196 CLR 297
(1971) 124 CLR 107
(1974) 131 CLR 510
(1961) 105 CLR 602
(1987) 162 CLR 645
(1996) 67 FCR 275
(1995) 183 CLR 323
(1995) 69 ALJR 829
(1996) 70 ALJR 550
(1992) 36 FCR 367
(1999) 168 ALR 211
(1982) 150 CLR 615
(1991) 29 FCR 429
(1995) 184 CLR 301
(1977) 14 ALR 457
(1984) 155 CLR 474
(1984) 4 FCR 83
(1987) 15 FCR 487
(1990) 19 NSWLR 91
[1999] HCA 37