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[2026] NSWCCA 65
Court of Criminal Appeal (NSW)
2026-05-29
Adamson JA at [1] Roberts J at [213] R A Hulme AJ at [214]
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Ombelli v R [2026] NSWCCA 65
Hearing dates: 20 May 2026
Decision date: 29 May 2026
Before: Adamson JA at [1]
Roberts J at [213]
R A Hulme AJ at [214]
Decision: (1) Grant leave to appeal.
(2) Dismiss the appeal.
Catchwords: CRIME — appeal — four counts of sexual touching of a child
CRIMINAL PROCEDURE — trial — self represented accused — whether the trial judge failed to ensure the applicant was accorded a fair trial — whether the trial judge failed to make appropriate directions to the jury or prevent the admission of allegedly objectionable material — no miscarriage of justice demonstrated
CRIMINAL PROCEDURE — trial — definition of identification evidence in the Evidence Act 1995 (NSW) — responses given by complainant to propositions in defence case does not fall within the definition
CRIMINAL PROCEDURE — circumstances in which it is in the interests of a self-represented accused person that the Crown be permitted to make a closing address — need for consideration of all relevant circumstances — allowing the Crown to make a closing address may assist a self-represented accused to make a more helpful closing address and preserve procedural fairness
CRIMINAL PROCEDURE — leave to appeal — not opposed by the Crown except on the basis of merit — where notice of appeal filed out of time — where delay caused by solicitor briefing barristers, who retained the brief, in circumstances where their professional commitments did not allow for timely preparation of the appeal
Original judgment source is linked above.
Legislation Cited: Crimes Act 1900 (NSW), s 66DB
Criminal Appeal Act 1912 (NSW), s 5
Criminal Procedure Act 1986 (NSW), ss 294C, 294CB, 294I, 306M, 306V, 306ZL
Evidence Act 1995 (NSW), ss 38, 41, 43, 44, 66, 76, 97, 97A, 101, 114, 115, 116, 189
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5
Cases Cited: Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872
Browne v Dunn (1893) 6 R 67
Clark v R [2008] NSWCCA 122; (2008) 185 A Crim R 1
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
Director of Public Prosecutions v Alberto Bass (a pseudonym) [2016] VSCA 110
Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13
Lee v Cha [2008] NSWCA 13
MacPherson v The Queen (1981) 147 CLR 512
MS v R [2017] NSWCCA 252
R v Basha (1989) 39 A Crim R 337
R v Macdonald; R v Maitland (No 9) [2022] NSWSC 1449
R v Zorad (1990) 19 NSWLR 91
Trudgett v R (2008) 70 NSWLR 696; [2008] NSWCCA 62
TS v R [2022] NSWCCA 222
Walford v Director of Public Prosecutions (NSW) (2012) 82 NSWLR 215; [2012] NSWCA 290
Category: Principal judgment
Parties: Gismalla Ombelli (Applicant)
Rex (Respondent)
Representation: Counsel:
N Broadbent SC / M Davies (Applicant)
M Millward (counsel) / A Wilczek (solicitor advocate) (Respondent)
Solicitors:
Monica McKenzie Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2021/283874
Publication restriction: Publication or broadcast of names and any information or material that may lead to the identification of the complainant and the child witness is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A
[This headnote is not to be read as part of the judgment]
The applicant, Gismalla Ombelli, was convicted following a trial by jury of four counts of sexually touching a child contrary to s 66DB(a) of the Crimes Act 1900 (NSW). The applicant, who was self-represented at trial but represented on appeal by the Public Defenders Office, alleges that the trial judge failed to ensure his trial was fair in the following respects.
The applicant alleged that the trial judge failed to intervene to exclude alleged in-court identification evidence (ground 3); failed to give a sufficient direction as to identification (ground 4); ought to have prevented the prosecutor from making a closing address (ground 2); ought to have taken further steps to ensure the applicant had sufficient information about court practice and procedure; and ought to have excluded potentially objectionable evidence (ground 1). The applicant further alleges that the cumulative effect of these circumstances occasioned a miscarriage of justice that ought be remedied by retrial (ground 5).
The Court (Adamson JA, Roberts J and R A Hulme AJ agreeing) held granting leave to appeal and dismissing the appeal:
Identification (grounds 3 and 4)
(1) The complainant’s evidence did not fall within the definition of identification evidence, as defined in the Dictionary to the Evidence Act 1995 (NSW), since it was no more than a response to propositions put to her in cross-examination which comprised the Crown case as distinct from an assertion that the applicant was a person who was present at the place where the offences were committed or where an act connected with that offence was done (as required by the definition). Accordingly, the complainant’s evidence was not rendered inadmissible by s 114 of the Evidence Act: [124]-[128].
Trudgett v R (2008) 70 NSWLR 696; [2008] NSWCCA 62; Walford v Director of Public Prosecutions (NSW) (2012) 82 NSWLR 215; [2012] NSWCA 290; Director of Public Prosecutions v Alberto Bass (a pseudonym) [2016] VSCA 110 applied.
(2) No material deficiency was shown in the trial judge’s direction regarding the issue of identification. The direction was sufficient to preserve the fairness of the applicant’s trial and warn the jury of the need for caution when assessing certain evidence: [153]. Had the trial judge done more to highlight the complainant’s evidence, it would have served only to emphasise the strength of the prosecution case: [141]-[153].
Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13 distinguished.
Allowing the prosecution to make a closing address (ground 2)
(3) The trial judge did not err in permitting the Crown to make a closing address. The trial judge considered that the applicant’s own closing would benefit if he heard the recitation of the evidence on which the Crown relied to prove its case on each count and the evidence on which the Crown relied to prove its case that the complainant’s assailant was the applicant. Further, there was a potential for the applicant’s right to procedural fairness to be compromised if he first heard these matters in the summing up, to which he would have had no opportunity to respond: [157]-[164].
(4) In the circumstances, there was no unfairness in the trial judge permitting the Crown to give a closing address which was limited to a recitation of the evidence relied on in support of each count and in support of the inference that the applicant was the complainant’s assailant: [162]-[164].
R v Zorad (1990) 19 NSWLR 91; R v Macdonald; R v Maitland (No 9) [2022] NSWSC 1449; MS v R [2017] NSWCCA 252 distinguished.
TS v R [2022] NSWCCA 222 cited.
Alleged errors in allowing allegedly objectionable evidence to be admitted (ground 1)
(5) The trial judge was not in a position to determine whether the admission or exclusion of allegedly objectionable evidence was more beneficial to the applicant’s case. No miscarriage of justice was occasioned by the admission of such material: [179], [186], [190].
(6) The applicant did not establish that the admission of any of the allegedly inadmissible evidence at trial realistically affected the process of the jury’s reasoning to its verdict: [181]-[182], [190].
Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 cited.
ADAMSON JA: Gismalla Ombelli (the applicant) seeks leave to appeal against four convictions of sexually touching a child contrary to s 66DB(a) of the Crimes Act 1900 (NSW) during the period between 1 May 2019 and 1 August 2020. He was convicted following a trial by jury in the District Court (the Court below) over which Everson SC DCJ (the trial judge) presided which commenced on 12 February 2024 and concluded on 20 February 2024.
Leave to appeal is required under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) as the grounds involve mixed questions of law and fact. Leave to appeal is also required pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) as the notice of appeal was not filed until 17 December 2025. The notice of intention to appeal which was filed on 29 April 2024 expired on 28 April 2025.
In summary, the alleged offending occurred in the following circumstances. At the relevant time, AJ (the complainant) was living with DM, her stepfather, and MM, her half-sister, and DCM, her half-brother, at DM’s home in Seven Hills. LL, the mother of AJ, MM and DCM, lived in Blacktown. The applicant was a friend of DM’s and would frequently come and stay the night at DM’s residence. The Crown case was that on the four charged occasions and other occasions (relied on as tendency evidence) the applicant sexually touched the complainant who was then above the age of 10 years and under the age of 16 years. Count 1 is alleged to have been committed between 1 May 2019 and 31 December 2019 when the complainant was 10 years old. Counts 2, 3 and 4 are alleged to have been committed between 1 May 2019 and 1 August 2020 when the complainant was either 10 or 11 years old.
The applicant chose to represent himself at the trial. Each of the grounds of appeal arises, directly or indirectly, from this circumstance. The proposed grounds are:
1 The trial judge failed to take appropriate steps to ensure the applicant had sufficient information about the practice and procedure of the court to ensure that the applicant’s trial was not unfair.
2 The trial judge failed to prevent the Crown Prosecutor from making a closing address, which in the circumstances rendered the applicant’s trial unfair.
3 The trial judge failed to intervene to exclude inadmissible and prejudicial evidence.
4 The trial judge’s directions as to identification were erroneous because:
(a) The directions misstated the nature of the complainant’s identification of the accused;
(b) The directions failed to draw the jury’s attention to specific issues with the Crown’s identification case.
5 A miscarriage of justice was occasioned by the cumulative effect of the errors or irregularities.
The matter was listed for trial to commence on Monday 5 February 2024. However, when the matter was called on, the applicant announced that he would appear for himself. The trial judge explained that his obligation as trial judge was to make sure that the trial was not unfair but that he could not advise the applicant how to run his trial. In light of that circumstance and the Crown’s applications (set out below), the matter proceeded as a pre-trial hearing which ultimately lasted for five days.
The Crown applied for leave to:
amend the indictment by replacing the words, “being a child then between the age of 10 and 16 years, namely 10 years of age”, with “being a child then above the age of 10 years and under the age of 16 years, namely 10 years”; and
cross-examine MM (who did not support the complainant’s evidence of complaint) and the complainant’s mother in an identified respect.
Before the hearing of the Crown’s applications, the prosecutor provided the applicant with copies of the proposed amended indictment, the tendency notice dated 9 February 2023, Odgers’ Uniform Evidence Law textbook and Howie and Johnson’s Annotated Criminal Legislation (NSW). The applicant was also given a list of providers of free legal services and extracts from the Criminal Trial Courts Bench Book. The trial judge informed the applicant that the reason for the amendment was to bring the charge into line with the wording of s 66DB(a) of the Crimes Act. The trial judge allowed the amendment to the indictment, as sought.
After the applicant was arraigned, the trial judge proceeded to inform him of the elements of the offence of sexual touching; the Crown’s obligation to prove the elements of each offence charged beyond reasonable doubt; the applicant’s right to call or give evidence as well as his right not to call or give evidence; the availability of subpoenas to require a witness to come to Court; and the respective roles of the judge (to deal with matters of law and to direct the jury) and the jury (to decide what evidence to accept and what evidence to reject and to determine questions of fact).
His Honour informed the applicant of his right to object to evidence tendered by the Crown (which is relevant to ground 1), and explained the procedure which would be followed when dealing with objections, including that this process would usually take place in the absence of the jury:
I need to also tell you this - sometimes during a trial a question of law arises for me to decide. This might include arguments about whether particular evidence should be admitted. I may need to hear arguments from the Crown prosecutor and you before I make a decision about that. If that occurs it’s usually necessary for the matter to be debated in the absence of the jury.
…
So when the trial starts and the witnesses are called, you have the right to object to any of the questions that are asked by the prosecutor.
The objection, in order to be resolved, will require me to hear what you say and what the prosecutor says. Usually that needs to be done in the absence of the jury. So they have to go out while that’s occurring. If you want to object to a question what you need to do is stand up and say “I object” then we will deal with the objection. You can’t object just because you, if you just simply disagree with what the evidence is. There needs to be a proper legal basis for that. If you’re unsure about the legal basis for an objection tell me and we’ll deal with it. If the Crown proposed to tender a document such as like a photograph or something, you have the right to object to it if there is a proper legal basis for the objection.
The trial judge also explained that, once the jury had been empanelled, his Honour would invite the prosecutor to open the Crown case by outlining what the Crown expected the evidence to establish. His Honour informed the applicant that, immediately after the Crown opening, the applicant was entitled to address the jury in order to identify what matters were in dispute.
The trial judge continued to outline the trial procedures to the applicant, including by reminding him that he could object to any question asked of a witness by the prosecutor or any document or thing sought to be tendered and that arguments about such objections would generally be heard and determined in the absence of the jury. His Honour also informed the applicant of his right to cross-examine all prosecution witnesses except the complainant and told him that questions could be asked of the complainant through an intermediary after any objections to those questions, which would have to be provided in advance in writing, had been determined by his Honour.
In the course of the pre-trial hearing on 5 February 2024, the trial judge warned the applicant of the difficulties he might encounter if he represented himself and urged him to seek legal representation, as follows:
Mr Ombelli, I am very much concerned that you don’t know how to properly present your case. I’m obliged, given you’ve got a right to represent yourself, but I’m obliged, whilst being neutral, I can’t give you legal advice, but in terms of informing you of what your rights and obligations are I need to do that. Based upon what you said earlier … there are some things I need to say to you. The courts over many years have come to identify, generally speaking, the difficulties that an unrepresented or a self-represented party such as you have. That’s because the courts have come to understand that a self-represented litigant is likely to face considerable barriers in presenting their case, particularly in a case like this where the other party is represented by a very experienced barrister and an instructing solicitor and have behind them the resources that the prosecution draws from within their own organisation and the police. My concern from having listened to you thus far is that you may not understand the complexities of the relevant legislation and case law, that you may not fully understand legal language, that you may not understand the court rules, and that you may not be skilled in advocacy such as to be able to adequately test the prosecution’s evidence or to effectively cross-examine. The result of all of those things, the experience of the courts, has shown that this tends to cause self-represented litigants to feel anxious, frightened, frustrated and/or bewildered. I am obliged as the judge of the law to give you the chance to present your case as positively as you can in the same way that a represented party is given that same chance. All of that though is in circumstances where I’m obliged to show neutrality in the measures that are taken to enable you as a self-represented party to present your case.
One of the things that I’m obliged to do is to check with you whether you have exhausted the possibility of obtaining legal representation, and I mean that via Legal Aid, a community legal centre, a pro bono scheme or a lawyer, that would appear in such a matter, and to make sure that you know how to access those things.
After further explanation about the available avenues for legal representation, the trial judge asked the applicant whether he had determined that he would appear for himself. The applicant described himself as “very determined in that position”. There followed a discussion in which the applicant said that he wanted to identify whether there were other people whom the complainant had accused of the same conduct. However, the applicant confirmed that his case was that the complainant had made up the accusations against him and not that the case was one of mistaken identity. The trial judge proposed that the issue raised by the applicant about other people being charged be dealt with by calling the officer-in-charge on the voir dire, which would permit the applicant to ask questions about the investigation.
The trial judge also explained to the applicant that if he wanted to adduce evidence that he was not known by the name “Smulla” (the name by which the complainant knew her assailant) or that he did not wear earrings (although the complainant said that her assailant did), it would be necessary for him to consider whether to call evidence from a witness as to these matters. These matters were germane to the issue of identification. The trial judge provided the applicant with passages in the Criminal Trial Courts Bench Book concerning identification. The trial judge reiterated the summary of how the trial would progress, including by informing the applicant of his right to make an opening statement to the jury at the end of the Crown’s opening, limited to an indication of the matters in dispute and the matters which the applicant wished to raise.
In the course of this explanation, the trial judge raised with the Crown the question whether the Crown proposed to make a closing address to the jury. The prosecutor responded:
It will be very neutral in the sense of I will direct the jury to the portions of evidence which they have to accept beyond a reasonable doubt.
The trial judge indicated that, if he permitted the Crown to make a closing address, his Honour would adjourn the Court at the end of the Crown closing, and resume for the applicant’s closing address only after the applicant had been provided with a transcript of the Crown closing.
The trial judge asked the prosecutor for a copy of the complainant’s Joint Investigation Response Team (JIRT) interview to obtain some idea of “what might potentially come up in cross-examination”. The prosecutor identified the matters which were germane to the identification of the complainant’s assailant as the applicant. These included:
the complainant’s evidence that she knew the assailant as “Smulla”, who was DM’s best friend; that he wore an earring and that he would stay overnight at DM’s house; and that he drove a dark green Toyota;
the evidence of Detective Sergeant Toni Procter, the officer-in-charge of the investigation, (the OIC) that the applicant’s mother owned a dark green Toyota; and
DM’s evidence that he was friends with the applicant who spent the night at his house from time to time while the complainant was living there.
The prosecutor confirmed in answer to the trial judge’s question that there had been neither a line-up nor photo identification.
His Honour raised the tendency notice which had been served by the Crown and directed the applicant’s attention to s 97 of the Evidence Act 1995 (NSW). The prosecutor also identified s 101 of the Evidence Act for the applicant’s consideration.
The prosecutor went through the complainant’s JIRT interview and identified the questions and answers which were germane to each count on the indictment. His Honour confirmed that the applicant had made a note of these passages.
His Honour returned to the issue of identification and the evidence to be relied on by the Crown to prove that the person whom the complainant knew as “Smulla” was the applicant. The prosecutor described the complainant’s evidence as more akin to “recognition evidence” rather than “identification evidence”. The trial judge asked the prosecutor whether there was any evidence of the applicant going by the name “Smulla”. When the prosecutor confirmed that such evidence was not in the statements, the trial judge observed that this could be cured by “asking the question in the absence of the jury”.
The following exchange ensued:
HIS HONOUR: So I’ll just explain to Mr Ombelli. What I’m proposing to do, with a view to the trial being not unfair, is to tomorrow have the officer in charge here, to answer questions about the six other people that were charged and those other issues you’ve raised and also so that you’re not caught by surprise in front of the jury, to find out what these witnesses are going to say about the two issues you’ve raised of the name Smulla and the earrings. Do you understand that?
ACCUSED: Yes, I understand that, your Honour.
HIS HONOUR: And then what would happen is you would have, we will have the transcript of the witnesses’ answers so that when they give their evidence in front of the jury, you’ll be able to compare what they’ve said before, to see if it’s the same or if it’s different. You may or may not want to cross-examine them about that. I’m doing that with a view to trying to remove any unfairness to you. Does that make sense?
ACCUSED: Yes, your Honour.
The applicant foreshadowed that he wanted to ask the complainant whether she had accused anyone else of sexually touching her. The trial judge raised s 294CB of the Criminal Procedure Act 1986 (NSW) (which provides that, with limited exceptions, evidence of a complainant’s sexual experience is inadmissible). The prosecutor responded that he expected that the complainant would give a negative answer to that question. I note that this question was asked of the complainant in her JIRT interview and she answered in the negative. The wrongful admission of this evidence is raised in ground 1.
On the following day, 6 February 2024, the trial judge examined the Local Court file to ascertain whether, as the applicant had indicated on 5 February 2024, six other people had been charged with offences against the complainant. The file indicated that the applicant had initially been charged with six offences against the complainant, of which two had been withdrawn, leaving four charges which corresponded with the counts on the indictment. The trial judge had also obtained the recording of the Local Court proceedings on 6 October 2021, which was played to the applicant before his Honour in order that the applicant could be reminded of what occurred on that day. After the tape was played, the applicant accepted that he may have been mistaken about what he heard that day.
Before the prosecutor called the OIC on the voir dire at the trial judge’s request, his Honour read out s 189 of the Evidence Act (which makes provision for a voir dire), of which the applicant had a copy. His Honour also explained that the questioning ought be done in the absence of the jury and involved the determination of the question whether particular evidence ought be admitted.
The trial judge explained to the applicant that the OIC would be called on the voir dire in order to permit the applicant to ask her questions. The OIC gave evidence in chief that, after the complainant’s JIRT interview on 23 October 2020, the OIC approached DM and asked for the contact details of the person whom the complainant knew as “Smulla”, which he gave to her. The OIC confirmed that no other persons had been charged with offences of a sexual nature against the complainant. The applicant asked the OIC whether she referred to him as “Gismalla” or “Jumilla”, to which the OIC responded that she would have used both names. In answer to the trial judge’s question, the OIC confirmed that there was a reference in the police facts to the complainant knowing the applicant by the name “Smulla” and that the police alleged that “Smulla” was a nickname for “Gismalla”.
The prosecutor then called the complainant’s stepfather, DM, on the voir dire. He gave evidence of the household arrangements: that the complainant lived with him and her half-siblings, MM and DCM, and that he had previously been in a relationship with LL, the children’s mother. He also gave evidence that the children called the applicant, “Uncle” or “Ismalla”. The applicant asked the complainant’s stepfather what name the police had used when they asked him about the applicant. DM confirmed that the OIC had said, “Gismalla” and that he had told the police that the applicant lived in Doonside.
The trial judge again raised s 294CB of the Criminal Procedure Act. His Honour informed the applicant that although he did not need to disclose in advance the questions he wanted the intermediary to ask the complainant in cross-examination, it might be helpful if the applicant showed his Honour the questions so that his Honour could determine whether they were inadmissible by reason of s 294CB. The trial judge referred to Clark v R [2008] NSWCCA 122; (2008) 185 A Crim R 1 as authority for the appropriateness of such a procedure and read out the relevant passage at [49]. The trial judge went through the proposed questions and indicated that each was inadmissible, either on the grounds of relevance or because it was not a question. Various iterations of the questions which the applicant proposed be asked of the complainant by the intermediary were marked for identification. His Honour again encouraged the applicant to obtain legal representation.
The trial judge ruled the following question (which the applicant proposed to ask the complainant) to be inadmissible on the grounds of relevance and because of s 294CB of the Criminal Procedure Act:
Have you accused any other individuals of any sexual experience [sic, touching], other than the accused whom you refer to as “Smulla”?
I feel like there’s nothing that I’m going to ask [the complainant] the Court is going to deem relevant.
I don’t feel you’re very neutral in this case. That’s my opinion.
The trial judge reiterated the expected process of the trial before turning to the admissibility of the evidence relied on by the prosecution to establish the tendency alleged in the tendency notice (that the applicant had a sexual interest in the complainant on which he tended to act in the manner alleged in counts 1-4). The trial judge identified the relevant sections of the Evidence Act: ss 97, 97A, 101. The trial judge explained to the applicant that the prosecutor submitted that the evidence had significant probative value and was not unfairly prejudicial. The applicant obtained confirmation that it was not suggested that he had a sexual interest in children generally but that the tendency was limited to the complainant. The trial judge ruled the evidence admissible for the tendency purpose.
The trial judge acceded to the prosecutor’s suggestion that his Honour explain the rule in Browne v Dunn (1893) 6 R 67 to the applicant. His Honour summarised the effect of the principle as follows:
… if you are going to be wanting to tell the jury at the end of a case that one or more of the witnesses were lying or wrong, you need to ask a question that puts them on notice that that’s what you are going to say as a matter of fairness. You can’t just not ask any questions about her and then make a speech and say, I believe they are lying or I say they are lying and you should believe that.
The trial judge repeated the explanation. His Honour asked the applicant to provide him with a list of questions that he intended to ask the complainant and the complainant’s half-sister, MM, the following morning at 10am so that his Honour could rule on the questions.
On 7 February 2024, the third day of the pre-trial hearing, the trial judge repeated what his Honour had already said about the charges, the elements of the offence of sexual touching, the respective roles of judge and jury, the process of the trial and that, in order to be evidence in the trial, the evidence needed to be tendered and ruled on. The trial judge emphasised the jury’s role on several occasions, including the following:
… the jury is the sole judge of the facts.
All disputes about matters of fact in this case will be decided by the jury and not me. Generally that means that it is entirely up to the jury to decide what evidence they accept and what evidence they do not accept. I am not involved in making decisions about the facts.
Documents and other material tendered in evidence during the trial are marked as exhibits. The exhibits are used by the jury in its deliberations. I pause there to repeat what I said to you yesterday. The material that is before the jury and the material that you are entitled to question witnesses about is the material that is relevant and that, subject to hearing some argument from the Crown about it, it should be in the material that you’ve been given in the brief of evidence. If that material is not in evidence because either the witness hasn’t said it or the document hasn’t been tendered, then it’s not in evidence, even though it may well be in the brief of evidence that the police have served on the DPP who in turn have served on you.
I’m making that point because yesterday it appeared to me that you thought that what you could do is talk to the jury at the end of the case about what’s in the statements you’ve got there. If they’re not in evidence in one way or the other you won’t be able to do that.
If a Crown witness is able to say something or has material such as, for example, in the statement that they made to the police, which you think will assist your case, for example, something that’s in their statement to the police that’s different to what they’ve said in evidence before the jury, then you can ask the witness questions about that and indeed you may well be able to tender that material through the witness. If there is evidence you want the jury to consider which affects the reliability of the witness or the witness’s evidence, such as identification evidence, then you may test that by asking the witness questions. If you’re going to contradict the evidence of a Crown witness or suggest that the witness is telling lies in your argument, your final argument to the jury, you should make those allegations to that witness in the form of questions so that he or she has the opportunity to respond to your suggestions. It is also important for you to remember that any suggestion in a question you have asked during cross-examination is not evidence unless the witness agrees with you. For example, if you ask a witness this question, “You saw me wearing a grey jumper on 1 April, didn’t you?” and the witness says, “No,” or, “I don’t know,” or, “I don’t remember,” there is no evidence to support the particular question that you’ve asked.
His Honour provided the applicant with a full copy of the Evidence Act and drew his attention to relevant sections, including ss 41 (improper questions in cross-examination), 43 (prior inconsistent statements of other persons) and 44 (previous representations of other persons).
The trial judge explained the process of taking an objection to evidence as follows:
Now, you can object to any question asked by the crown prosecutor if you have a legal basis for doing so. An example of a legal basis for an objection is that a question is not relevant or is unfair. If you want to object to any question after it is asked but before it has been answered, you must stand up and say, “I object.” I will then hear whatever you want to say about the question, and depending upon why you are objecting I may do so in the absence of the jury. You cannot object simply because you disagree with the evidence. I pause there to say when I said to you a moment ago that you won’t be able to make an argument to the jury about things that are not in evidence, and when I say to you you cannot object simply because you disagree with the evidence, that is not me personally making up some rule. That is me as the judge of the law applying the law to this case. It’s the same law that applies in every trial, whether the person is legally represented or, as in your case, self-represented. If you’re unsure about your right to object or if you’re unsure about any of the legal matters that have arisen to this point in this case, ask me and if I can I will assist you. If the Crown seeks to tender material such as a document, photograph, video or other item, you have the right to object to its tender if there is a legal basis for its objection. If you want me to rule on the tender of any such material you should stand up and say, “I object.” I will then hear whatever you want to say. Again, I may do so in the absence of a jury.
(Emphasis added to indicate the passage relied on by the Crown to counter the applicant’s submission in this Court in support of ground 1 that he did not appreciate that he could object to the JIRT interviews.)
The applicant referred to the possibility of getting legal advice which led to an exchange concerning the various avenues listed in the document which the trial judge had provided earlier. His Honour stood the matter down to permit the applicant to make phone calls to obtain legal assistance.
The trial judge said to the applicant:
What I am wanting you to make sure you understand is that my job is to make sure that it’s a trial that’s not unfair. I’ve already told you that I am concerned that there would appear to be, from what I know of the prosecution brief, a particular type of defence that you have concerning proving beyond reasonable doubt that you were the man alleged to have committed these offences and I have also drawn your attention that the person that asks the questions of the complainant on your behalf, there are things that they can’t ask. There is perhaps some exceptions to that prohibition on asking questions about other sexual activity and just because there happens to be a barrister in the back of the room [Mr Ainsworth], I’m just going to give you one more opportunity, or I am going to give you another opportunity I should say …
Yes … I had a feeling that if I ask for time I will be given the time, but also I had to consider my current situation. Like I’m working interstate so I took time off work to come here for the trial, which is nine days. They said the trial would be from five to seven days. I have taken nine days. I am a casual employee so during this period I won’t be earning. There is a lot of things that I had to consider personally, so if I have taken more time off, I ask for more time, that means I will have to stay in Sydney, in New South Wales, and trace a, a lawyer and to get a lawyer. And all this requires financial, which I will not be able to obtain if I am not working and that’s why it’s best for me to just go through the trial. It’s been going for three years and I just want to be done with it.
The trial judge reminded the applicant that the maximum penalty for the offences with which the applicant was charged was 10 years’ imprisonment and indicated that the matter would be adjourned until 10am the following morning to see “where the matter is at”, thereby providing the applicant a further opportunity to obtain legal advice.
The prosecutor sought leave for the complainant, MM and the complainant’s mother to be permitted to give evidence from a remote location outside New South Wales. The applicant objected on the ground that it would be fairer to him if they had to give their evidence in the courtroom. The trial judge acceded to the prosecutor’s application and explained to the applicant that the law in NSW permitted this to occur and that he would direct the jury not to regard the evidence any differently by reason of its having been given remotely. The trial judge again raised the issue of identification, the absence of an identification parade and the desirability of the applicant obtaining legal representation. In mentioning the identification parade, the trial judge made it clear that he had not “read the brief” and that there may be sound reasons why questions (in the trial) about such a process might not be in the applicant’s interests. The trial judge asked the parties whether they would object to his Honour’s associate contacting the NSW Bar Association with a view to ascertaining whether anyone could give advice to the applicant regarding “some of these issues, particularly about the type of questions that are allowed to be asked of the child complainant”. The trial judge adjourned the Court to the following morning.
When the pre-trial hearing resumed for a fourth day on 8 February 2024, the trial judge put in a telephone call to Mr Strik, a barrister from the NSW Bar Association’s referral scheme, and indicated, over loud speaker which was broadcast in the court, the matters about which the applicant would benefit from advice, including the ambit and effect of s 294CB of the C**riminal Procedure Act, ss 41 and 44 of the Evidence Act and the rule in Browne v Dunn. The telephone link concluded at 10.23am, at which time the trial judge stood the matter down until 11am. When the hearing resumed, the applicant indicated that he would like more time to draft the questions which he proposed be asked of the complainant. The applicant agreed to the trial judge’s proposal that the matter be stood over to 11.30am the following day.
On the fifth day of pre-trial hearing, 9 February 2024, the applicant handed up a list of questions which he proposed to have the intermediary ask the complainant in cross-examination. The trial judge considered the questions and determined that none raised an issue under s 294CB of the Criminal Procedure Act but that their form was problematic. His Honour refrained from reading out the questions to avoid disclosing them to the prosecutor. His Honour indicated that the jury would be empanelled on the following Monday and that he would add a statement in his opening remarks that the applicant was self-represented, as was his right, and that no adverse inference ought be drawn from that circumstance. His Honour also indicated that he proposed to tell the jury that some questions were “disallowable” and provide examples. The trial judge also indicated that, as the applicant was self-represented, the jury would not be provided with a transcript of the complainant’s JIRT interview and would only be provided with it if the jury subsequently requested a transcript of the complainant’s evidence.
The prosecutor foreshadowed that he intended to make a limited application under s 38 of the Evidence Act to put a proposition to MM. The applicant’s attention was drawn to this section in the copy of the Evidence Act which had earlier been provided by the trial judge. The prosecutor indicated that what he proposed to put to MM was that the complainant had, contrary to what MM said in her JIRT interview, made a complaint to her about the applicant sexually touching her.
The trial judge and the prosecutor also drew the applicant’s attention to s 306ZL of the Criminal Procedure Act, which requires leave of the Court before an accused person may cross-examine a vulnerable person (which included MM because of her age: s 306M of the Criminal Procedure Act) other than through an intermediary. The applicant indicated that he may wish to cross-examine MM although her statement was generally favourable to him. His Honour ruled that the applicant may only cross-examine MM through an intermediary, in part because the appearance of justice would be better maintained if his Honour were to reject questions asked by the intermediary, albeit drafted by the applicant, rather than questions asked by the applicant.
The prosecutor confirmed that his closing address would be “short and neutral” and that he was happy for the Court to be adjourned after his closing to permit the applicant to have a transcript of it to give him an opportunity to prepare the defence closing in light of what the prosecutor had said. The prosecutor indicated that the applicant ought let him know if there was anything in the brief of evidence which he wanted the jury to have. The prosecutor also adverted to the applicant’s right to give evidence following the close of the Crown case. The matter was adjourned to 10am on the following Monday, 12 February 2024 for the jury to be empanelled.
Before the jury was empanelled on 12 February 2024, the trial judge raised the issue of character and obtained an assurance from the prosecutor that, if good character were raised, the Crown would not seek to rebut it. His Honour informed the applicant of his right to raise his good character and how he could do that (for example, by asking a prosecution witness whether the applicant had a criminal history). The trial judge also asked about alibi and the prosecutor confirmed that no notice of alibi had been served. The trial judge explained the process of empanelment to the applicant and informed him of his right to challenge prospective jurors.
The trial judge told the applicant that he was going to give each juror a document which was “designed to tell the jury, in effect, the things that they can’t do and the things that they can do”. His Honour provided the applicant with a copy of the document and invited him to read it and ask any questions arising from it. The document (which was MFI#8) included the following passage:
Your verdict/s must be based solely upon the evidence presented to you in court in the presence of the parties and their legal advisors, ie. The material they are aware of and have had the opportunity to test, challenge or rebut.
It’s important that you remember that any suggestion in a question that you’ve asked during cross-examination is not evidence unless the witness agrees with that suggestion. For example, if you ask a witness this question, “You saw me wearing a grey jumper on 1 April, didn’t you?” and the witness says, “No” or “I don’t know” or “I don’t remember” then there’s no evidence to support the particular question that you’ve asked.
The Crown then called the complainant and played part of her JIRT interview to the jury. The Court did not sit on 13 February 2024. When the Court resumed on 14 February 2024, the prosecutor, in the absence of the jury, identified which questions and answers in the complainant’s JIRT interview were referable to which counts on the indictment. The jury returned to the courtroom and the remainder of the complainant’s JIRT interview was played.
In her JIRT interview, the complainant spoke of various occasions on which she had been sexually touched by “Smulla” and the circumstances in which this had occurred. Her account was not given in chronological order. However, for present purposes, I propose to summarise her version in that order, since I accept the Crown’s submission that it assists in an appreciation of the issues raised on the appeal regarding the complainant’s opportunity to identify her assailant as the person she knew as “Smulla”.
I told [MM] that something weird happened last night, Uncle Smulla came into our room and I told her that she was deep sleeping … that he touched my thighs … kissed me on the lips … touched my vagina … [and] would lay on me and kiss me on the lips.
Q119 … Does anybody else live at that townhouse?
A Well, someone came and moved in.
Q120 Ah-hmm. Yeah.
A That was [MM’s] dad’s friend. Not Smulla. Someone else. He was sleeping in [DMC’s] room and [DMC] was sleeping in our room.
Q121 Do you remember this person’s name?
A No.
Q122 How long was he staying there?
A For, like, three to four months.
Q123 And is he still living there?
A No.
This passage is included because it is relied on by the applicant in this Court in support of grounds 3 and 4. It was common ground that the person referred to in this exchange was not the man referred to as “Dempsey” who had visited the house on various occasions.
The complainant also said that sometimes DM’s “other friend” would come over and all three of them (DM, Smulla and the “other friend”) would sleep in DM’s bed together. Later in the JIRT interview, the complainant identified a person as “Damsee” who was also Sudanese, would come to DM’s house and was DM’s “[b]est friend”. It was common ground that this person was the same person as “Dempsey” to whom the complainant referred to as having stayed over in her evidence in chief (see below).
In her examination in chief, the complainant said that she did not know her assailant’s full name but that she called him “Smulla”. She said that sometimes DM would have friends sleep over. She agreed that in her JIRT interview she had said that on such occasions, DM, “Smulla” and another of DM’s friends would sleep in DM’s bed. However, she said that she did not recall the name of the other person who would stay the night. She was asked whether it was “Dempsey” and confirmed that it was. The complainant said that her bedroom was upstairs and Dempsey did not come to her room. She said that she spoke with “Smulla”.
When asked about the occasion on which “Smulla” had made her “touch his thing”, the complainant said that the others in the house, MM, DM, DCM (DM’s son) and Dempsey were all asleep. She saw “Smulla” in DM’s room “watching his phone” when she walked past the room to go to the bedroom she shared with MM. She noticed that DM and Dempsey were both asleep.
Before the complainant was cross-examined, the applicant confirmed that he no longer wanted to ask her whether she had complained that anyone else had done to her what she alleged that “Smulla” had done to her (which the complainant had answered in the negative in her JIRT interview). It would appear that the trial judge was unaware of this answer in the JIRT interview when his Honour expressed concern about the application of s 294CB of the Criminal Procedure Act when the applicant proposed to ask her whether she had made an allegation of sexual abuse against anyone else.
The complainant was cross-examined briefly by the intermediary on behalf of the applicant in accordance with the written questions he had prepared. It is convenient to set out these questions in full because the applicant submitted that the complainant’s evidence was capable of amounting to an in-court identification of the applicant. The applicant also submitted in this Court that his cross-examination of the complainant reflected his lack of comprehension of the nature and purpose of cross-examination and that the trial judge had failed to ensure that he had a fair trial by not instructing him further on that matter.
The following was the cross-examination of the applicant, which was conducted by Ms Crickett, an intermediary:
Q. You accused me of touching your thighs. I never did.
A. (No verbal reply)
HIS HONOUR
Q. Did you hear that question?
A. Yes.
Q. You’re being asked, do you agree or disagree or do you have something else to say about that proposition in that question.
A. That’s a lie. He did.
COURT APPOINTED QUESTIONER
Q. You accused me of touching your breast. I never did.
A. He did.
Q. You also accused me of touching your vagina. I never did.
A. I disagree.
Q. You said I kissed you. Also a lie. I never kissed you.
A. I disagree.
Q. You said I wore earrings. Again, you are lying. I never worn earrings in my life.
A. He did.
Q. [AJ], did you make these allegations in coordinance (as said) with your mother?
A. Do you mean, did I tell her?
HIS HONOUR: Just ask the question again, please. A bit slower.
COURT APPOINTED QUESTIONER
Q. Did you make these allegations in coordinance with your mother?
A. (No verbal reply)
HIS HONOUR
Q. Can I just say this to you, once you’ve heard the question from beginning to end, if you’ve understood it and you’ve heard it, then just answer the question. If you’ve neither heard the question nor understood the question, say so and I’ll deal with the consequence of that. Just ask the same question again.
COURT APPOINTED QUESTIONER
Did you make these allegations in coordinance with your mother?
CROWN PROSECUTOR: Your Honour--
WITNESS: Yes.
HIS HONOUR: Yes, Mr Crown.
CROWN PROSECUTOR: The answer has been given.
HIS HONOUR: Any other questions?
COURT APPOINTED QUESTIONER
Q. May I also add, why haven’t you raised these allegations sooner?
A. Don’t know.
HIS HONOUR: Just pause there for a minute. Ms Crickett, does it seem as if there might be some further questions?
COURT APPOINTED QUESTIONER: Not at this stage.
HIS HONOUR: All right, well, this stage is coming to an end because what’s going to happen now is I’m going to ask the prosecutor does he have any questions in re-examination.
CROWN PROSECUTOR: Yes, I do.
HIS HONOUR: Yes, Mr Crown.
(Emphasis added to indicate the portions of this evidence which the applicant contended in this Court amounted to an in-court identification by the complainant of the applicant.)
In the absence of the jury, the prosecutor applied for leave to cross-examine MM under s 38 of the Evidence Act on the basis of that part of her evidence in the JIRT interview (in which she said that the complainant had not told her of the offending conduct) which was “unfavourable” to the Crown case. A voir dire was conducted for that purpose, which included a Basha inquiry (after R v Basha (1989) 39 A Crim R 337). MM’s evidence on the voir dire was that, before MM’s JIRT interview on 30 November 2021, the complainant had not told her that the applicant had sexually touched her.
The prosecutor submitted that MM’s evidence was unfavourable to the Crown as MM denied that the complainant had complained to her about the alleged offending conduct at the time. The following exchange ensued between the trial judge and the applicant:
HIS HONOUR: That was questioning the witness on a voir dire, that is a particular procedure that’s provided for in the Evidence Act. And it was done by the Crown as a matter of fairness to you so that you could hear what the witness will say if she’s questioned about those matters in front of the jury. That’s what that was, that was a voir dire, that is a Latin or old French phrase that is used to describe something that in English translates roughly as a trial within a trial.
The expression, Basha inquiry, is taken from a decision of the Court of Criminal Appeal after a man named Basha, B-A-S-H-A. It is a procedure that was originally designed to cure deficiencies in committal proceedings, but it is done typically by the Crown as it was done here as a matter of fairness to disclose to the accused what else the witness is going to say. So that’s the answer to your question as best as I can give it.
ACCUSED: Okay, thank you for that. Yeah, if he wants to ask those questions again with the presence of the jury I do not object, he can ask that. But I also ask for an opportunity to be able to ask the witness questions th[r]ough my help [the intermediary] right here.
The prosecutor confirmed that he wanted to cross-examine MM about the following matters: first, MM’s denial that the complainant complained to her at the time; second, whether the complainant complained to their mother in MM’s presence; and, third, whether she knew that the applicant was called “Smulla” as well as “Uncle”.
The trial judge acceded to the prosecutor’s application under s 38 of the Evidence Act.
The prosecutor resumed his questioning of MM in the presence of the jury. Ultimately, MM admitted that the complainant had told her about “Smulla” sexually abusing her before MM’s JIRT interview and that she had been present when the complainant told their mother about the sexual touching.
In the presence of the jury, the prosecutor indicated that he had an application under s 38(3) of the Evidence Act (which entitles the examiner, with leave, to question a witness about matters relevant only to the witness’s credibility). The trial judge sent the jury out for that application to be heard.
I believe she already answered that question. The - the Crown just didn’t want to accept it. She said clearly at the time of the interview she didn’t know her sister had even spoke to her about it, she knew after five months. So I’m not sure why the - the Crown [would] like to go make an application for that. We heard the answers loud and clear. Until he get to a position where he get to get an - an agreement from her, and now he – she wants to know the difference. But she already stated the difference, she just doesn’t understand the full extent of the examination that is carried out by the Crown. So I will object to that.
I have also taken into account on the issue of leave the fact that Mr Ombelli, via the court appointed questioner, will have the opportunity to question the witness after that, and as I have said, he will be given time to do that. I have also had regard to the considerations for the grant of leave provided for in s 192 of the Evidence Act 1995. The child witness has said some things in the pre-recorded interview conducted with her by a member of a joint investigation response team. The answers that she has given now in evidence before the jury in a number of material respects are different to what she said previously and the questions that the Crown has indicated that he proposes to ask are seeking to clarify the reasons why she has given those different answers.
Q. Was there any other person who would visit your house whose name was Gismalla?
A. No. Only him.
Q. Was there any other person who visited your house who went by a name similar to Ismalla or Smalla or anything of that sort?
A. No.
The OIC confirmed that she had become involved in the investigation in August 2021, almost a year after the complainant’s JIRT interview on 23 October 2020.
The OIC contacted DM in August or September 2021. When asked why she contacted DM, the OIC said:
I was aware that [DM had] already assisted in the investigation. I was given some case file notes that he could assist with locating Mr Ombelli, so I made a call to him. Had a chat about the whereabouts of Mr Ombelli and [DM] was a little bit annoyed ‘cause the case had been going on for some time. He told me he’d already provided the information and I asked him again if he knew Mr Ombelli, Smulla, Mr Gismalla and he provided me his full name, a suburb and a phone number.
This aspect of the OIC’s evidence is relied on by the applicant in this Court in support of ground 3.
The OIC was asked about whether an identification parade had been conducted. The following exchange ensued:
… I had considered it during my investigation, but a number of years had [elapsed]. So, it was two years I think or thereabouts since the report, and then the time of my involvement in the investigation and appearances can change. So, I was relying on and I had considered what evidence I had, and the evidence from [DM] in relation to naming Mr Ombelli and having known a person by that name or nickname Smulla, come to the home. I proceeded with the next step.
Q. All right. And you say that some time had elapsed?
A. Yep.
Q. What impact did that have on the decision to not undertake a picture identification parade?
A. Just changes of appearance and fairness I guess, and just reliability of a child putting through that process, and whether she could in that two-year gap, consider that that would be still [re]liable or accurate.
(Emphasis added to indicate the further portion relied on by the applicant in support of ground 3.)
CROWN PROSECUTOR: … My intention as I said at the outset of this trial, was to limit my closing address to attempt to be of assistance to the jury. I haven’t got anything written down that I can present to your Honour, but I can say this. My intention was to take the jury through the portions of the complainant’s JIRT, which they must accept beyond a reasonable doubt in order to find the accused guilty.
To remind them of the onus and standard of proof. That’s something that your Honour will do in any event. And I had intended, and this is something I’ve been thinking about raising with your Honour. I had intended to, in a very skeletal fashion, to point to the portions of evidence which the Crown says connect the accused with the person Smulla, who the complainant identifies.
Namely, that that’s the person who according to the stepfather, the complainant called Smulla. There is no other such person.
That he drove there in a green car, as was confirmed by the stepfather, and also, to point out to the jury that there is at least two important points of discrepancy in the complainant’s evidence that the accused wore an earring, but there is evidence from [DM] that he never wore an earring. Sorry, your Honour. That the complainant said that the person who sexually touched her wore an earring, but there is evidence from [DM] that the accused never did.
…
I can say that the intention behind that is to at least inform the jury and not leave them in the dark as to how the Crown says they might reason towards guilt, and also in fairness to Mr Ombelli, to point out the deficiencies in the Crown case and acknowledge that those deficiencies exist and that they have to be considered in the jury’s ultimate question of whether they find the Crown case proven. And that’s really what I had intended to say. In my submission, that’s not taking advantage so to speak, of Mr Ombelli’s lack of representation.
That’s a proper exercise of the function of a crown prosecutor, to assist the jury in interpreting the evidence and it can be done, and I intend to do it in - well, I always do, but it will be done in as fair a way as possible. So, my submission is that your Honour would permit me to make a limited closing in that nature.
HIS HONOUR: Mr Ombelli, what did you want to say about that issue?
ACCUSED: Nothing, your Honour.
Having reminded myself of what the Court of Criminal Appeal said in the case of Zorad [(1990) 19 NSWLR 91], as well as a revisiting of the issue in the case of MS v The Queen [2017] NSWCCA 252, and the application of that in a decision of his Honour Judge Norrish [KC] in the case of Smith [2016] NSWDC 108[,] I have concluded that I should not exercise my discretion to prevent the Crown from making a closing address, because in the circumstances of this case, not only will that closing address assist me and the jury, but it will also assist the accused because the proposal as previously canvassed, is that the Crown’s closing would then be printed and given to the accused to assist him in arguing his case as to why it is that the Crown has failed to prove his guilt beyond reasonable doubt.
You might remember that [the complainant] was asked by the officer to talk about the last incident that she remembers and she spoke about this, she said that she was in her room and the accused - when I say, “The accused”, in fairness, the complainant called him “Smulla.” I’ll come back to that, but I’m using them interchangeably, but to be precise, she said she was in her room and the person she knew as “Smulla” came into her room …
(Emphasis added to highlight the passage relied on by the applicant in this Court in support of ground 3.)
It was put to the complainant that the accused didn’t do these things. That can mean two things, when you think about it. That can mean that the act happened, but it was someone else, or that the act didn’t happen. Whether the act happened is a real issue in this trial in the sense that it’s something that is not accepted. It’s something that you need to consider whether you can accept that it happened for each count.
How you reason, members of the jury, is entirely up to you. I’m not suggesting that I have some instruction to give you, but you might think that the very first question you ask is, do you believe [the complainant] when she says that these things happened to her?
The prosecutor then addressed what the complainant said, the way she said it (and physical actions demonstrated during her JIRT interview) as well as inconsistencies between the JIRT interview and her oral evidence. The prosecutor also referred to evidence of complaint.
Having addressed the first issue (whether the conduct had occurred), the prosecutor addressed the second issue, namely the identification of the applicant as the perpetrator, in part as follows:
… Members of the jury, the question of whether these events occurred at all, as I say, you might think is a logical place to start. If you find that [the complainant] was telling the truth about each of these matters, then as I said, there is a live issue in this trial about who it was that did it, and remembering by this stage, you have already found that it did happen.
And again, you go back to [the complainant’s evidence], and [the complainant] says quite clearly, that the person who did this was a person she knew as Smulla. I’m not sure exactly how it should be pronounced, but you remember what she said to the police. Now, she didn’t waver in any sense, from that evidence. So, she said that Smulla was the one who did this. Smulla was a friend of her father’s. Smulla was a person of Sudanese background. She gave a description about him wearing jeans, having a beard, perhaps you might think not the most useful description.
She said that this person, Smulla, stayed there overnight on occasion. She said that this person, Smulla, drove there in a green car. In her words, it’s another one of those situations where it’s important that the words are relayed.
… She was asked;
“Q. How did he get from his house in Doonside to Deng’s house?
A. To Seven Hills. He has a car. Toyota. A green - dark green car.
Q. What’s the number plate
A. I have never looked at is numberplate.”
All right. So, there is a few other features as well. Now, you have heard some cross-examination of the officer in charge who is sitting in Court, and you have heard the evidence of Mrs Woul, the accused’s mother. You heard that this morning. What I say, is this. There are two parallel things happening here. The first thing that’s happening, is [the complainant] has said to you via her police interview, that the person she knew as Smulla, did these things to her. Not anybody else. She identified Smulla.
The critical identification can I suggest, a matter for you, but I submit the critical identification is the one in count 3. When another gentleman is at the home, sleeping in the same room as her stepfather, and she walks past on route to her bedroom, sees Smulla on his phone. The only one who is [awake], and then tells you about what Smulla did thereafter. So, [the complainant] says that Smulla is the one who did this. [DM] said, “A number of friends used to visit my home. One of those friends was Gismalla Ombelli.” That’s the accused.
“That person’s name was not pronounced properly by my children.” I won’t try and repeat it, but they pronounced it without the G. Ismalla. “That person travelled to my house in a green car.” And so, the complainant is telling you that the person who did this is Smulla, and the only person in that house who could correspond to that name, is the accused. And that’s the chain that you may follow. Whether you do or not, is a matter for you. The parallel thing that’s happening, is the police and what the police do. Because at the time of the interview, the police have this name, Smulla, and you have heard that the matter changed [hands] a number of times.
[DM] was contacted, and the police contacted the accused. But the fact that the police contacted the accused, is a separate consideration to the fact that there is a link between the person called Smulla that the complainant identifies, and the accused. Two things, one doesn’t follow the other, and I hope I have made my point that there is really no equivocation here. The complainant says it was Smulla, and the only person who could be Smulla is the accused.
Now, whether you accept that and accept it beyond a reasonable doubt, is a question for you. As I said, there are two live issues in a sense. Did the acts happen? Yes, or no. Or if the acts happened, was it Smulla? Was it the accused who did it? But can I submit that there is really no question that Smulla is the accused. That’s comfortably made out on the evidence, you might thin[k]. When considering that, members of the jury, there are, and I have to in fairness, direct your attention to matters which I don’t for a moment believe have escaped your notice.
But you will remember that the complainant, part of her description of her attacked, was that he wore and pardon me, this is another time I need to be very careful. Part of her description was this;
“Q. Is Smulla a name? Like, a short name?
A. That’s his first name.
Q. That’s his full first name?
A. Yeah.
Q. Okay, does he have any piercings or tattoos or anything else about his body that you remember?
A. No. He has worn earrings before.
Q. Mm-hm.
A. Yeah, that’s it.
Q. Earrings in his ear?
A. Yeah.”
All right. So, that’s something that the complainant said. She also said that some of these occasions or that the accused, Smulla, would stay over her house on weekdays from time to time. And straight away, you will be thinking no doubt, about the evidence of [DM] who was asked in cross-examination, “You have known me for a long time.” I will read it to you. This is a question by Mr Ombelli. “You have known me for quite some time now. Did I ever wear earrings?” And the answer is, “No, I never seen.”
And you remember of course, [DM] also said that because of work commitments, that these late-night FIFA meetings would take place on weekends. So, straight away, that’s a part of the evidence. And it’s an imperfection and it’s not something that you can ignore. It’s something you need to consider. And what you do with it, is up to you collectively, to decide whether these portions of evidence are of such significance and so seriously undermine the complainant, that you can’t believe her, or if there is another explanation for them in your own minds.
The trial judge informed the parties of the directions which his Honour proposed to give, including as to identification.
The trial was adjourned to Monday 19 February 2024 for the defence closing in order that the applicant would have the transcript of the Crown closing before being required to address the jury himself.
Again, members of the jury, I would like to inform you that I was not a stranger to the complainant. She knew me, I know her family, know her father, as I can quote them, or quote them, I have them in reference here. My point is if she were to describe me personally she will have described me accurately, or with a bit more accuracy, but as have you seen from her description, which I will quote later, and I just want to bring that to your attention and it is up to you what you make of it. As you have heard from her father, the kids will usually ask when I will visit, if I haven’t visit, and similar situation like that, and that I only visit on the weekend and not every weekend but possibly, or at best, every other weekend.
…
The first question was, “You accused me of touching your thighs. I never did.” Her answer was, “That’s a lie, he did.” Second question, “You accuse me of touching your breasts. I never did.” Her answer was, “He did.” “You accused me of touching your vagina, which I have never did.” Her answer was, “I disagree.” “You accuse me of kissing you, which is a lie, I never kissed you.” Her answer was, “I disagree.” Question number 5, “You said I wear earrings while you are describing the character that carried the act. Again you are lying, I never did wore earrings on my life.” Her answer was, “He did.” … My point is this, in the question number 5 … you can clearly see that she also told a lie. I never did wore earrings, and it was proven by the Crown witness here, [DM], that I never did wore earrings, and you can verify for yourself if you wanted to check, that I never did.
My point is she answered these questions, where – the part that she says he did in all the same tone of nature, so whether question number 5 was an intentional lie or she is describing someone else completely different, that is something I consider very important and I hope you look at it with great attention to be able to see if she was telling the truth in her other part of the answers. Now we watch through – we watch her through the screens here on how she answered these questions, we have all seen, she was standing there and she was answering the questions.
The nature of how she answer it, that is we all seen. I may have seen something else, you may have also individually all seen something else. I just hope that we be able to get to the truth from all of this. Now, I would like to – on the question number 6, the reason I ask her whether she did this on behalf of her mother or not is because her mother was the initial person that raises the accusation to the authorities at the time, she also confirmed here she was in the process of trying to regain custody of her kids. Considering the nature of how she lost her kids and also the nature of the father end up having to fight with what I say the authorities to be able to get custody of his kids, I was friend with him at the time, as he said we have been friends since 2017. He got custody in 2019. I have seen how hard he fought for the kids, and I have seen what he had to sacrifice from work to be able to be a parent and care for them at home, I have seen all this.
The trial judge sent the jury out to remind the applicant that he was not permitted to give evidence from the bar table and that he was not permitted, accordingly, to refer to the custody dispute involving the complainant’s mother since there was no evidence of this.
In the course of his closing address, the applicant referred to evidence given by MM on the voir dire, which was not evidence in the trial. The relevant passage is as follows:
One of the witness[es] I consider to be a main witness in this case is the sister, as [the complainant] claims in her story she was the first individual that she have told. To me, I’m not sure the – the – the Crown may have considered her unfavourable, to them, but to me that was the main witness, first person that she initially spoke to, it’s very important in this case.
The main witness in this is [MM], her stepsister [sic, half-sister]. First I would like to remind you that during her police station she was residing here in New South Wales. The interview happened here in New South Wales.
At the time she lived with her father and her brother, and during the time she made the appearance she made that appearance from Melbourne, where she is now with her mother and her sister [the complainant], and which will also explains a lot to do with the nature of how she told her story then and how her story progressed throughout the case.
I’ll mention quotes, now, from her, personally, when she made the appearance. First question she was asked when she made the appearance was: Q. [MM], can you hear me?” Her answer was: “Yes.” Second question:
“Just want you to take a couple of portions of the interview, the one that we watched. I’m just going to read that to you from the transcript. I know you don’t have the transcript in front of you, but we will see if you understand what I’m talking about. You were asked this: ‘Why do I need to know?’ Because we’re trying - we are the police we are trying to help your sister. And I think what she may have had a chat to you about something and you said she didn’t talk to you about anything. Do you remember hearing this?”
Her answer was: “Yes.”
“You remember saying you do not know a person by the name Ismalla or Smulla?”
Her answer was: “Yes.”
*“*And do you remember another portion towards the end of the interview where you and [the complainant] said to you - you were asked and [the complainant] told you anything about being sexual abused, you said “no” or you said “no”. Do you remember that?”
Her answer was: “Yes.” You later on said: ‘I never knew anything’.” Her answer was: “Yes.”
Those questions were asked by the Crown prosecutor. There was a question from his Honour himself: “Do you mind if I ask her a question?” “Not at all” her answer was. She agreed to take a question from his Honour.
(Emphasis added in italics to indicate the portions which related to evidence which was adduced on the voir dire and was not before the jury.)
The trial judge summarised the evidence, including as to identification. There was no indication that his Honour regarded the complainant’s answers to questions asked of her in cross-examination as amounting to an in-court identification of the applicant.
Because it is a central part of the applicant’s appeal that the trial judge’s directions regarding the issue of identification were inadequate, I propose to set out the direction given:
I turn then to the issue of identification. As you know [the complainant] identifies the accused as the person who sexually touched her in each of the four counts on the indictment. Evidence that the accused has been [identified] by a witness in any given case must be approached with caution before a jury can accept it as reliable. These directions that I am giving you now relate only to the reliability of the identification evidence given, not to the honesty of [the complainant]. A witness may be honest, but that does not necessarily mean that the witness will give reliable evidence, because the witness who gives evidence of identification honestly and sincerely believes that his or her evidence is correct. That evidence will usually be quite impressive, even persuasive. So here even if you thought [the complainant] was entirely honest in the evidence that she gave, you must still approach the task of assessing the reliability of her evidence with caution. Caution is necessary before accepting identification evidence because of the possibility that a witness may be mistaken in their identification of a person accused of a crime. Now, the experience of the criminal courts over many decades, so many that we are talking about over 100 years, in New South Wales, Australia, and in other democratic countries too, has demonstrated that identification evidence may turn out to be unreliable. There have been some notorious cases over the years in which evidence of identification has been demonstrated to be wrong after innocent people have been convicted.
You must carefully consider the circumstances in which [the complainant] made her observation of the person that she says sexually touched her as relied upon by the Crown in proof of the four counts on the indictment. As you know, [the complainant] says that it was Uncle Smulla that sexually touched her. A number of matters raised in this case require your consideration in that context. For example, was Uncle Smulla a stranger to [the complainant]? It is obviously harder to identify strangers than it is to identify people that is well known to us. What opportunity did [the complainant] have to make her observations of the person she referred to as Smulla? What was the lighting like? Was she under stress? Was there any special reason for remembering the person she says is Smulla? Does [the complainant] come as the same racial background as the background identified? That is also something you can bear in mind. It may be more difficult for a member of one race to identify an individual of another racial group. Equally, it may or may not be easier for a member of one race to identify an individual of the same racial group.
In this case the evidence of [the complainant] is that she recognised someone that she knew as a friend of [MM’s] father [DM]. She said it was someone who regularly slept over at the house. It is perhaps easier to understand the possibility of error when the evidence is given by someone who has not previously known the person Smulla but errors may also occur even when the witness previously has known the person. Mistakes have been known to have been made by friends and even by relatives of a person who thought it was their friend or relative whom they had seen. This is something you should bear in mind. Just because the witness claims to have known the person there remains a possibility of mistake. I also remind you that we are not talking about a single incident of identification but a number of different incidents over the timeframe as pleaded in the indictment.
(Emphasis added to indicate the passage which the applicant relies on in this Court for the submission that the direction is erroneous because the complainant did not identify the applicant (as opposed to give evidence which circumstantially allowed the inference to be drawn that he was “Smulla” and that “Smulla” was the perpetrator.)
Before turning to the proposed grounds of appeal, it is useful to set out the fundamental principles which are relevant to the trial of an accused who chooses to represent themselves. They are:
subject to (2), no one other than a qualified legal representative is entitled to represent an accused person;
an accused person is entitled to represent themselves;
the trial judge is independent of the parties and is required to be impartial and accord procedural fairness to each party; and
the trial judge has an obligation to ensure that the trial of an accused is fair.
In any given case, the reconciliation of these principles must pay regard to each. No principle ought be permitted to subvert another. Thus, the trial judge’s obligation to ensure that an accused’s trial is fair must not be permitted to compromise the trial judge’s independence or impartiality. Further, it is nigh inevitable that a person who chooses to represent themselves will be at a forensic disadvantage compared with an accused person who is represented by a competent legal practitioner. However, the role of the trial judge does not extend to overcoming this forensic disadvantage by becoming, in effect, defence counsel. The steps required to be taken by the trial judge are limited to what is required to ensure that the accused’s trial is fair.
The duty to ensure that a trial is fair is an overriding duty: Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57. The discharge of this duty requires a trial judge to take steps to ensure that an unrepresented party has sufficient information about the practice and procedure of the court as is reasonably practicable in the circumstances: MacPherson v The Queen (1981) 147 CLR 512 (MacPherson) at 523, 534-535 and 546-547; [1981] HCA 46. The purpose of the duty is to put the accused in a position where he is able to make an effective choice as to the exercise of his rights but it is not the trial judge’s role to tell or advise an accused how to exercise those rights: MacPherson at 534-535. Thus, although the duty is described as “overriding”, the ambit of the duty is constrained by the other principles identified above.
The application of the relevant principles expressed in these general statements varies depending on the circumstances of the case, including between trials with and without juries: Lee v Cha [2008] NSWCA 13 at [48] (Basten JA, Hodgson and Bell JJA agreeing).
The applicant submitted that part of the evidence which was before the jury on the issue of identification was inadmissible and, further, that the direction given by the trial judge concerning identification evidence fell short of what was required in all the circumstances. Mr Broadbent submitted that these circumstances gave rise to a miscarriage of justice.
This submission included the following propositions:
the process by which the intermediary cross-examined the complainant proceeded in such a way as was likely to give rise to an in-court identification of the applicant, which was inadmissible by reason of ss 114 and 115 of the Evidence Act;
the evidence of the OIC which made the link between the person whom the complainant described as her assailant and the applicant was inadmissible hearsay and opinion evidence and ought to have been excluded;
the presence of an unidentified person who lived in DM’s house was insufficiently explored, giving rise to a hypothesis consistent with the applicant’s evidence that this other person may have been the assailant;
the effect of the Crown closing and the summing up had the effect of minimising, if not entirely removing, the issue of identification from the jury, which was whether the person known as “Smulla” was in fact the applicant; and
the trial judge’s direction concerning the issue of identification was inadequate.
The applicant submitted that the issue of identification was central to his trial, the only other issue being whether the applicant, having been effectively identified as the assailant, had in fact committed the acts alleged. Mr Broadbent submitted that the errors identified could have affected the jury’s reasoning towards verdict.
identification evidence means evidence that is—
(a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where—
(i) the offence for which the defendant is being prosecuted was committed, or
(ii) an act connected to that offence was done,
at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time, or
(b) a report (whether oral or in writing) of such an assertion.
Section 114 has been held to apply to an identification of an accused made by a witness in court in the absence of an identification parade. The effect of s 114 is to make the in-court identification evidence inadmissible, unless it would have been unreasonable to have held a parade before the identification was made (or is presumed to have been unreasonable because it would have been unfair to the defendant for such a parade to be held): see the discussion in Walford v D**irector of P**ublic Prosecutions (NSW) (2012) 82 NSWLR 215; [2012] NSWCA 290 at [12]-[22] (Basten JA).
Mr Broadbent submitted that the complainant had identified the applicant in court and that this amounted to “visual identification evidence” which was inadmissible and ought to have been excluded. He submitted that the wrongful admission of such evidence made the trial unfair.
It is convenient first to address the question whether the process by which the intermediary cross-examined the complainant proceeded in such a way as was likely to give rise to an in-court identification of the applicant since, if it did, it would have amounted to “visual identification evidence” within the meaning of the Evidence Act.
Mr Broadbent submitted that the complainant’s answers, “He did”, to the intermediary’s questions of her in cross-examination were capable of amounting to an “in-court” (bearing in mind that the complainant was elsewhere and visible on a screen) identification of the applicant, who was in court, as her assailant. When asked in oral submissions to confirm whether he made the submission that what occurred amounted to an in-court identification of the applicant, Mr Broadbent did not put it any higher than saying that it was “capable” of being seen as one.
I understand the standard practice to be that the view of the courtroom afforded to a complainant who is giving evidence from a remote location (as occurred in the present case) does not include a view of the accused. There is no indication in the transcript that this standard practice was not followed. If this standard practice was followed in the present case, there is no possibility that the complainant actually identified the applicant as her perpetrator when she was giving evidence in court since she could not see him. However, even if the standard practice was not followed, the complainant’s answers did not, in my view, amount to visual identification evidence. As is evident from the applicant’s cross-examination of the complainant, the applicant appreciated the import of Browne v Dunn and was merely putting his case, through the intermediary, to the complainant. The complainant’s answers did no more than indicate that she disagreed with the propositions put to her by the applicant. Further, neither the trial judge (subject to what appears below) nor the prosecutor gave any indication that these answers given by the complainant were regarded as visual identification evidence.
This Court (Spigelman CJ, R S Hulme and Latham JJ agreeing) held in Trudgett v R (2008) 70 NSWLR 696; [2008] NSWCCA 62 that evidence of a physical description of an assailant and the name by which the complainant knew the assailant does not involve an “assertion … to the effect that the [accused] was, or resembles … a person”, being the putative offender: see also Director of Public Prosecutions v Alberto Bass (a pseudonym) [2016] VSCA 110 at [38]-[50] (Priest, Santamaria and Kyrou JJA). Thus, if the complainant’s evidence set out above (at [74]) does not amount to “identification evidence” as defined in the Dictionary in the Evidence Act (and I have found that it did not), the balance of the evidence of identification of the applicant does not fall within ss 114 or 115 of the Evidence Act.
However, Mr Broadbent further submitted that the following sentence in the summing up either indicated that the complainant had in fact identified the applicant in court or that the direction was erroneous:
As you know [the complainant] identifies the accused as the person who sexually touched her in each of the four counts on the indictment.
Without more, this sentence is capable of giving the impression that the complainant actually identified the applicant as the perpetrator. If the sentence is read that way, it carries the necessary implication that, as there was no out-of-court identification, there must have been an in-court identification of the applicant by the complainant. However, when the sentence is read in the context of the summing up as a whole and the passages concerning identification in particular, it is, in my view, plain that no such impression could reasonably have been given. The sentence was merely an introduction to the issue of identification and the warning which the trial judge gave to the jury about accepting the complainant’s evidence as to that issue. It does not amount to an indication that the trial judge regarded an in-court identification as having actually occurred.
It follows that s 114 of the Evidence Act, which relates to visual identification evidence, as defined, does not apply. I note that the only basis on which Mr Broadbent put that there was visual identification evidence was that there had been an in-court identification of the applicant by the complainant in her cross-examination by the intermediary.
As referred to above (at [67], the complainant gave evidence in her JIRT interview that, implicitly at a time separate from the time of the offending conduct, a man was living in DM’s house while she was there. At the time this man was living at DM’s house, DMC slept in the bedroom which the complainant shared with MM. This man was not referred to by DM when he was asked who else stayed over at his house. Mr Broadbent made several submissions about the alleged problem that this was said to create for the Crown case. However, it is difficult to see what can be made of the apparent difference between the complainant’s evidence and DM’s evidence. It is possible that, had DM been reminded that at some prior time, another person had lived in the house, he might have remembered who it was. It is also possible that the complainant was mistaken about there being another man there, as she had resided in several different residences before and after she lived with DM, although this may be less likely as she recalled that DCM slept in the bedroom she shared with MM while the unidentified man was living in the house and occupied the bedroom which was otherwise occupied by DCM.
I do not regard the hypothesis, which was only faintly suggested on appeal, that there was a possibility that the unidentified man was the assailant as other than fanciful, in light of the evidence which was adduced and the way in which the trial was conducted. Nor do I regard the potential discrepancy as capable of adversely affecting the complainant’s credibility, including as to identification, since it was not explored. The complainant’s evidence about the offending conduct was that it occurred in the bedroom she shared with MM. There is no indication in her evidence that DCM, who had his own bedroom except for the period when the unnamed male was living in DM’s house, was sharing the bedroom with MM and the complainant. In these circumstances, the trial judge was not obliged to canvass this evidence in his Honour’s direction about identification.
The evidence of the OIC to which objection was taken is extracted above (at [90] and [92]). The applicant submitted in this Court that the effect of this passage from the OIC’s evidence was to draw the threads which had not been established from the complainant’s evidence about the identity of “Smulla” in such a way as to connect that person with the applicant’s address and phone number. Mr Broadbent submitted that the effect of the evidence was that:
the OIC gave an objectionable hearsay opinion that “Smulla” and the applicant were one and the same person;
“Smulla” was “Gismalla Ombelli”; and
the police had determined that a photo identification parade was not necessary because they had good identification evidence that “Smulla” was the applicant.
Mr Broadbent submitted that DM did not identify “Smulla” as the applicant and that the OIC’s evidence “bridged the gap” in an impermissible way.
I do not consider that the evidence of the OIC has the effect for which Mr Broadbent contended. It is plain from the evidence of DM that he did not say that “Smalla” was the applicant. What he said was that the children called the applicant “Ismalla” or “Gismalla” either with or without the prefix, “Uncle” and that no other visitors to the house were called “Smulla” or anything similar to that. The evidence of the OIC was unnecessary and simply replicated evidence given on the voir dire in the pre-trial hearing but could not, in my view, have materially affected the jury’s reasoning to verdict. In so far as the OIC purported to recount what DM had told her, it was admissible as firsthand hearsay under s 66(2)(b) of the Evidence Act in any event. If it was to be relied upon, the prosecutor ought to have asked DM about the conversation but as it was of such peripheral relevance, no criticism can be levelled at the prosecutor for not having done so.
The purpose of this evidence was not to prove, by opinion evidence, that DM considered “Smulla” to be the applicant or that the applicant was “Smulla”. Rather, the evidence was being tendered to identify aspects of the investigation and why certain steps were taken or not taken. Accordingly, s 76(1) of the Evidence Act (which provides that “[e]vidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed”) does not apply.
[The complainant] said that she was in her room and the accused - when I say, “The accused”, in fairness, the complainant called him “Smulla.” I’ll come back to that, but I’m using them interchangeably, but to be precise, she said she was in her room and the person she knew as “Smulla” came into her room …
Mr Broadbent submitted that this aspect of the Crown closing was significant and detrimental to the applicant because it effectively assumed the very proposition that the jury had to determine: namely, that “Smulla” and the accused were one and the same.
I reject this submission. Even if this impression were given when the first few words of the passage were uttered, the prosecutor was quick to correct any such impression by saying immediately, “to be precise, [the complainant] said she was in her room and the person she knew as ‘Smulla’ came into her room”. In this context, the jury would have understood that the complainant’s assailant was the person she knew as “Smulla” and that it was the Crown case that “Smulla” and the applicant were the same person.
Further, I am not persuaded that the Crown closing suggested that identification was not a live issue in the trial. Indeed, the prosecutor identified it as such and addressed it separately from the alleged acts. I reject Mr Broadbent’s submission to the contrary.
As you know [the complainant] identifies the accused as the person who sexually touched her in each of the four counts on the indictment.
(1) If identification evidence has been admitted, the judge is to inform the jury—
(a) that there is a special need for caution before accepting identification evidence, and
(b) of the reasons for that need for caution, both generally and in the circumstances of the case.
(2) It is not necessary that a particular form of words be used in so informing the jury.
I am not persuaded that any identification evidence (as defined in the Dictionary to the Evidence Act, set out above at [119]) was adduced in the present case since none of the evidence, properly construed, amounted to an assertion that the applicant was the assailant. Rather, as is evident from the Crown closing, the Crown case that the applicant was the assailant was a circumstantial case, which drew on several strands, none of which involved the relevant assertion but which, taken together, were adduced to prove that the applicant and the man the complainant knew as “Smulla” were one and the same. Thus, the present case was more akin to the complainant’s evidence in Trudgett that her assailant was introduced to her as “Adam”. In that case, the Crown also relied on other evidence that the appellant’s name was “Adam” and that he was present in the vicinity at the time of the alleged offending.
Mr Broadbent submitted that, even if the complainant’s evidence did not amount to visual identification evidence, the trial judge’s direction regarding identification was inadequate.
The trial judge’s direction to the jury as to identification has been set out above at [110] in full. As was accepted by Mr Broadbent, the present case bears no resemblance to a case such as Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13 (Domican) where the purported identification was fleeting and of a stranger.
By contrast, in the present case, the complainant’s evidence was that the sexual touching happened with considerable frequency. There was a strong inference that the same perpetrator was responsible for each of the acts. While at times, the complainant deliberately kept her eyes shut in order to feign sleep, count 1 followed an earlier occasion when the applicant visited the bedroom which the complainant shared with MM and licked his lips and count 2 occurred during the day. Further, the applicant was well known to the complainant because of the number of times he visited DM and the applicant’s close relationship with DM. The conduct in count 3 was alleged to have occurred after the complainant had seen that the applicant was still awake in DM’s bedroom and was looking at his phone at a time when all other occupants of the house were asleep. The complainant identified “Smulla” by seeing him, hearing him (including when he spoke to her and called her by name in the course of some of the offending conduct) and observing the clothing of her perpetrator which corresponded with the clothing that she was used to seeing “Smulla” wear.
The only aspect of the complainant’s evidence of identification of the applicant which was apparently unreliable was her recollection that the applicant wore earrings, which was not corroborated by DM.
In addition to the complainant’s evidence linking her assailant with the man she knew as “Smulla”, the Crown also relied on the following evidence:
DM’s evidence that the complainant, MM and DCM called the applicant “Ismalla”, “Gismalla” or “Smalla” with or without the prefix “Uncle” and that no one else who visited his house “went by a name similar to Ismalla or Smalla or anything of that sort”;
the complainant’s and DM’s evidence that the person whom the complainant knew as “Smulla” drove a dark green Toyota; and
the evidence of the OIC that a dark green Toyota was registered in the name of the applicant’s mother.
Despite the significant factual differences between the present case and Domican, Mr Broadbent nonetheless submitted that a similar warning as was held to be required in Domican ought to have been given in the present case.
In Domican, the appellant was convicted of shooting the victim with an intent to murder him. The prosecution relied on the evidence of the victim’s wife who identified the appellant as the gunman. However, the victim’s wife did not know the appellant; nearly nine months elapsed before she identified him; when she saw the gunman, he was some distance away and she was hiding behind another vehicle; and she had only a fleeting opportunity to observe the gunman. In her evidence she said that the gunman was wearing a false moustache and wig but she had not, in her police statements, mentioned that he was disguised. Two prisoners and another person who had been given immunity from prosecution gave evidence implicating the appellant. In the defence closing, the appellant had referred to weaknesses in the victim’s wife’s evidence, to which the trial judge referred in the summing up. The trial judge gave the jury a general warning about the dangers of acting on identification evidence but did not relate it to the weaknesses in the identification evidence which had been tendered at the trial.
It was held in Domican that where there is a significant issue of identification and there is an issue about the reliability of the evidence of identification, the trial judge is obliged to direct the jury as to the factors which may affect its consideration of the identification evidence in the circumstances of the actual case. It was also held that a warning in general terms is insufficient as the jury’s attention was required to be drawn to any weaknesses in the identification evidence and that the trial judge was required to isolate and identify any significant matter which might reasonably be regarded as undermining the reliability of the identification evidence.
When pressed by the Court to identify the alleged deficiencies in the warning given in the summing up, Mr Broadbent submitted that there should have been a greater reference to the evidence of the lighting at the time of each count. In my view, any such greater reference to lighting would only have served to highlight the number of opportunities which the complainant had to observe and identify her assailant, including at the time of count 3, which was said to have occurred in the daytime.
Further, I reject Mr Broadbent’s submission that the effect of the trial judge’s summing up was to take the issue of identification away from the jury by implying that it was not an issue. In the summing up, the trial judge was fastidious in identifying the two issues: whether the acts had occurred; and whether the applicant was responsible for them.
I regard the trial judge’s direction about identification as sufficient to warn the jury of the need for caution when assessing evidence which is advanced to prove identification of an accused person. The direction was sufficient to preserve the fairness of the applicant’s trial in so far as the issue of identification was concerned. I am not persuaded that there was any material deficiency in the trial judge’s direction regarding identification evidence in the present case (which is set out in full above at [110]). His Honour detailed the potential deficiencies in the complainant’s evidence at length. The trial judge did not expressly refer to the complainant’s evidence that “Smulla” wore earrings in the warning given about identification, although it was elsewhere referred to in the summing up. Indeed, had his Honour done more to recount the complainant’s evidence, it would have served only to make clear to the jury that the complainant had abundant opportunity, because of the frequency of the acts and the period over which they occurred, to know that it was “Smulla” who was the perpetrator and, taking into account other evidence of the name and the car he drove, that “Smulla” was the applicant.
Neither ground 3 nor ground 4 has been made out.
In support of ground 2, Mr Broadbent distinguished the applicant from a sophisticated accused such as John Maitland, who represented himself in a judge-alone trial where he was charged as an accessory before the fact to misconduct in public office. The trial judge in R v Macdonald; R v Maitland (No 9) [2022] NSWSC 1449 (Dhanji J) (Maitland) held that the Crown ought be permitted to make a closing address on the basis that the trial was complex and lengthy; the documentary evidence and the transcript of oral evidence was also lengthy; there was a substantial defence case; the trial was by judge alone; Mr Maitland had demonstrated his capacity, in the conduct of the trial, to prepare an effective submission in his defence; and it would be of benefit to the trial judge to have a Crown closing.
As Mr Broadbent submitted, the circumstances of the present case are very different from Maitland in several obvious respects. There is little documentary evidence; the oral evidence was relatively brief; the applicant, though able to express himself, is not sophisticated; and the trial was by jury. Mr Broadbent submitted that a practice had evolved in NSW “to mitigate the unfairness in pitting a trained advocate against an untrained accused during the final stages of the trial” (R v Zorad (1990) 19 NSWLR 91) and that the trial judge’s decision to allow the Crown to give a closing address resulted in the trial being unfair.
In MS v R [2017] NSWCCA 252 (MS), Beech-Jones J (who took a different view from the other members of the Court on this matter of principle) said:
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…. 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 [a] case of this kind I am not so satisfied.
Unless there is to be a new legal obligation to consider the exercise of the discretion as to whether the prosecutor should address or not, the reasoning of Beech-Jones J [in MS] is to be preferred. It is consistent with the underlying rationale of the “practice”, namely that the role of the trial judge is to ensure a fair trial, absence of which results in a miscarriage of justice, under the third limb of s 6(1) of the Criminal Appeal Act 1912 (NSW). Unless there were demonstrable unfairness in allowing the prosecutor to address the jury, whatever the general practice, there is no sufficient basis to set aside the resulting conviction or convictions. Indeed, if the judge is not persuaded that to allow a final address to the prosecutor would result in the trial being unfair to the accused, the source of the power of a judge to deny one party an opportunity to address the jury is by no means clear.
(Footnotes omitted.)
The present trial was altogether different from the one considered by this Court in MS where it was held that the trial judge had failed to give the appellant a sufficient explanation of the purpose of a closing address and that the trial was irregular on that basis. In MS*,* the Crown address tended to emphasise the deficiencies in the appellant’s address, which were the result of his not being told that he could present arguments as to why the jury should not accept the Crown case against him: [28]. However, the principle as stated by Beech-Jones J in MS and restated in TS is applicable in the present case. The trial judge expressly referred to MS in his brief ex tempore reasons for permitting the Crown to make a closing address.
As the authorities, including those referred to above, demonstrate, the question whether the Crown ought be permitted to give a closing address is nuanced and is not to be determined by crude considerations such as whether an accused can be described as “sophisticated” or otherwise.
It is apparent from the trial judge’s reasons for permitting the Crown to give a closing address that a significant factor in his Honour’s decision was a limited Crown closing might assist the applicant in the preparation and presentation of his own closing address. To this end, the trial judge assured the applicant that he would be given time and the transcript of the Crown’s closing address before being called upon to deliver his own. Further, the prosecutor indicated that he proposed merely to direct the jury’s attention to the evidence in support of each count and tell the jury how the Crown sought to prove the issue of identification. This was an important aspect of the Crown closing as the Crown case on identification was circumstantial and involved various strands of evidence. I do not regard the prosecutor as going beyond the bounds which had been stipulated.
I am not persuaded that there was anything unfair in the trial judge permitting the Crown to give a closing address. Indeed, I consider that the decision to allow this to occur was an important aspect in the according of procedural fairness to the applicant. Had there been no Crown address, the applicant would have been deprived of a structured summary of the evidence and the way in which the Crown put its case. In that event, the applicant would have had to wait for the summing up to learn how the Crown case was put, by reference to the evidence which was adduced at the trial. The applicant would have had no opportunity to respond to the summing up and may have felt justifiably aggrieved to have heard the Crown case put by the trial judge when it had not been put after the close of the evidence by the prosecutor, in circumstances where he had no opportunity to respond.
The advantage of the course adopted by the trial judge was that the applicant could put his case in a more structured way by reference to the evidence. I reject Mr Broadbent’s submission that the applicant was unable to respond appropriately to the Crown’s closing address. As is indicated by the transcript of the applicant’s closing address, which is largely extracted above (at [106] and [108]), the applicant made some significant points in his favour. He referred to the fact that the complainant had said that he wore earrings in the same tone and same way as she had said that he committed the offences, in circumstances where this evidence was contrary to that of DM. He also referred to the custody dispute between the complainant’s mother (who was also MM and DMC’s mother), and DM and insinuated that the complainant may have made the complaint at her mother’s behest. While part of this submission was illegitimate as it was not based on the evidence, its content indicates that the applicant was well aware that it was important for him to impugn the complainant’s credibility in his closing address.
I am not persuaded that ground 2 has been made out.
In his written submissions, Mr Broadbent relied on the following alleged failures in support of ground 1:
failure to inform the applicant that he was entitled to object to the complainant’s JIRT interview;
failure to explain to the applicant that he had a right to object to hearsay evidence;
failure to explain to the applicant the nature and purpose of a voir dire;
failure to explain to the applicant the nature and purpose of cross-examination; and
failure to provide the applicant with guidance about the operation of s 114 of the Evidence Act.
In light of my conclusion regarding grounds 3 and 4, it is not necessary to address s 114 of the Evidence Act, since it did not apply.
This sub-ground raises distinct issues, of which the first is whether what the trial judge did say to the applicant was sufficient to inform him of his right to object to evidence, including the JIRT interviews.
It is apparent from the extracts set out above (at [10] and [40]) that the trial judge explained the process of objection and how his objection could be indicated. His Honour also informed the applicant that he was entitled to object to evidence, including that sought to be elicited in answer to the prosecutor’s questions, photos or videos. The JIRT interviews were the only videos sought to be tendered by the Crown in its case. Accordingly, in informing the applicant that he could object to videos, the trial judge was, in effect, informing him that he could object to what was in the JIRT interviews.
In this Court, the applicant relied on s 306V(4) of the Criminal Procedure Act, which provides that the Court may rule as inadmissible the whole or any part of the contents of a recording adduced as evidence. Mr Broadbent submitted that the trial judge failed to inform the applicant of his right to object to the complainant’s or MM’s JIRT interviews and that this was a “fundamental trial procedure about which he remained ignorant”. The applicant identified passages from the JIRT interviews which he submitted ought to have been excluded, had objection been taken.
The Crown helpfully collated the evidence which the applicant contended in this Court was objectionable in an annexure to its submissions. By the end of the hearing, after exchange between Bar and Bench, Mr Broadbent had considerably narrowed the evidence which he contended ought to have been excluded by the trial judge of his Honour’s own motion.
The submission that certain evidence was inadmissible was ultimately confined to the following.
The complainant gave evidence at various points in her JIRT interview that MM was “deep sleeping” or “sleeping” during the alleged offending. I reject the applicant’s submission that this evidence was inadmissible as opinion evidence. The complainant’s evidence ought be understood as evidence of her observation of MM. There was no suggestion that MM saw anything or was other than asleep when the applicant allegedly entered the bedroom which MM and the complainant shared. While the statement that someone is asleep necessarily incorporates an inference or a conclusion drawn from primary facts, this does not render the statement one of inadmissible opinion rather than fact. The basis for the conclusion was elucidated in the complainant’s answer at A 329 that MM did not move at the time (and therefore the complainant inferred that she was asleep).
Had the applicant objected to this evidence, it can be expected that the prosecutor would have been given the opportunity to adduce the evidence in proper form. In these circumstances, it is likely that the complainant would have said that MM was breathing deeply and not moving, from which the inference could be drawn that she was asleep. There was no material forensic effect of the applicant not objecting to this evidence.
Q312 O.K. So we’re just talking about the last time. From what you’re talking about it happened a lot of times.
…
Q424 I know it’s happened a lot of times, but we’re just talking about the first time. O.K. So you said he’d lay on top of you.
I reject Mr Broadbent’s submission that each of these questions suffered from the same vice: they incorporated an impermissible opinion which was put to the complainant in a leading manner. In both cases, the interviewer was doing no more than trying to get the complainant to focus on the occasion about which she was speaking.
At Q/A 77-84 and Q/A 168 the complainant said that the applicant touched her inappropriately “every day” that he stayed over at DM’s place. Thus, the complainant said that it had “happened a lot of times” (the wording of Q 312). In Q 312, the interviewer was seeking to get the complainant to focus on the last occasion on which it happened, as distinct from the many other occasions on which it had happened. The focus in Q 312 was important since, if no distinction were drawn between particular occasions, it would have been difficult if not impossible to charge the applicant with specific counts. In Q 412, the interviewer was adopting the same technique to get the complainant to focus on the first occasion. I do not regard this technique, which is not uncommon in examination in chief, as objectionable.
Q509 O.K. So that was this year about June or July. O.K. And so you’re in your room at [DM’s] house. Tell me the conversation that you had with your mum? What did you say?
A That this guy, Smulla, kept touching me at night or during the day or something. And then my [Mum] said, what did he do? But I didn’t really tell her much ‘cause I was uncomfortable.
Q510 Yeah. I can imagine. Well tell me what you did tell her?
A Well this is the stuff I told her. That he was touching my thighs and um, and my legs. Um, that’s all I told her ‘cause I was uncomfortable about telling her the other stuff.
Q511 Yeah. O.K. **Because you’**re really brave talking about it today. You know that, right?
A Mmm.
Mr Broadbent submitted that the opinions of the interviewer were inadmissible and prejudicial and that the trial judge ought to have intervened to exclude them. Mr Broadbent accepted that, in the context of a police interview with a child, the highlighted form of words might be an entirely appropriate way of eliciting evidence from a child. However, he submitted that, in circumstances where a JIRT interview is taken to be the evidence in chief of the interviewee (by reason of s 294I of the Criminal Procedure Act), the threshold question of relevance applied. Further, he submitted that the highlighted portions tended to elicit a sympathetic or emotional response from a jury which was inconsistent with the direction which juries are given to avoid engagement of their emotions and to decide rationally.
While it may be that, had the applicant been represented, his legal representative would have objected to the highlighted portions, it is questionable whether the portions were adverse to the interests of the applicant and, more importantly for present purposes, whether the trial judge was in a position to judge whether it was in the applicant’s interests for these portions to be before the jury or not. The applicant’s case was that the complainant was lying about the offending conduct and that, in any event, he was not the perpetrator. That the complainant needed to be, effectively, cajoled into disclosing the conduct might be regarded as a circumstance which made it easier for her to fabricate a story (which was the defence case) since she was not being interrogated in a hostile environment. These are the sort of judgments which a legal representative is equipped to make, in part as a result of the opportunity to have the privileged communications with the client which allow the legal representative to assess what is in the client’s interests. A trial judge dealing with an unrepresented litigant is in an entirely different position. I am not persuaded that it was incumbent on the trial judge to intervene with respect to the highlighted portions, whether by way of explanation to the applicant or otherwise.
Q568 Has anybody else done this to you, what Smulla has done to you?
A No, only him.
The Crown accepted that the evidence was inadmissible and that the trial judge ought to have excluded it. As referred to above (at [30] and [31]), the trial judge rejected the evidence on the voir dire in the pre-trial hearing but was persuaded by the prosecutor that the ruling ought be revisited, which did not occur. I accept the applicant’s submission that this evidence ought not have been admitted and that this portion of the complainant’s JIRT interview should have been excised. The trial judge’s duty to ensure that the applicant’s trial was fair extended, as his Honour plainly appreciated (as was evident in the pre-trial hearing), to rejecting evidence which was inadmissible under a provision such as s 294CB of the Criminal Procedure Act.
However, the applicant has not established that the admission of this evidence had any bearing on the trial. While the applicant initially wanted to ask this question himself, he decided not to when he appreciated that the six charges in the Local Court were made against him and not, as he had originally believed, against six other men. The question and answer were not the subject of any further comment in the trial, whether in the evidence, the closing submissions or the summing up. The applicant’s case was not that the complainant may have been sexually touched by more than one person; rather, his case was that, if she had been touched, it had not been established that he was the perpetrator. This evidence cannot be said to have realistically affected the process of the jury’s reasoning to its verdict.
Q92 OK. Is there any way I can make you feel, more comfortable about talking to me today, ‘cause what I think you might have to say is really important.
A Um, why do you need to know it?
Q93 Why do I need to know it, because I’m, we’re trying to, the police are trying to help your sister, and I think that you might, she might’ve, maybe, had a chat to you about something.
A She didn’t talk to me about anything.
Mr Broadbent submitted that, although these questions might be legitimate in the context of a police interview with a child, they were not a legitimate way for evidence in chief to be adduced. He submitted that it was inappropriate for an interviewer to insinuate that the interviewee might be holding back information or to suggest that the interviewer expected certain answers to be given.
These matters might be accepted. However, the question is whether there was any forensic detriment to the applicant arising from the questions, as asked, forming part of the evidence before the jury. MM said in her JIRT interview that the complainant had not disclosed anything to her about what happened (this being a reference to the offending conduct). This assisted the applicant because it contradicted the complainant’s evidence that the morning after the conduct which constituted count 1 occurred, she complained to MM about it. In this context, it was arguably beneficial to the applicant that even the suggestive and leading interviewing of MM did not elicit a response which would have been favourable to the Crown case by corroborating the complainant’s evidence of complaint.
The question whether an objection ought be taken may admit of a clear answer. However, where the potential benefit to an accused of taking an objection is dubious or lacking or where the exclusion of potentially objectionable material may be detrimental to the accused case (as with the example from the JIRT interview addressed above), it can hardly be expected that the trial judge, who is generally unaware of the interstices of a defence case, is in a position to make a judgment about whether an objection ought be taken. This is particularly so where, as here, the applicant decided not to make a defence opening submission after the Crown opening. While there were indications of what the applicant’s case was, it did not emerge in its clearest form until his closing address. The questions which Mr Broadbent submitted ought to have been excluded were objectionable. However, I am not persuaded that there was any forensic advantage to be gained by the applicant through their exclusion. Indeed, for the reasons given above, there was a forensic advantage to be lost by the applicant had objection been taken and the questions been excluded.
Q 189-192 are in a similar category and need not be separately addressed.
Q195 No. Do you remember anything else about when she, when she stopped living with you?
A Hh, I’ll just tell you one thing.
Q196 OK.
A First, when they sent us the letter, apparently [the complainant] said, this is from [the complainant]’s words, not my words, this is what we got in, from the letter from the DOCS, they said, they said, uh, they are going to, uh, [the complainant] be, like, sexually, like, abused from him. But I actually don’t know that how it, my, like, and apparently he used to ..... ‘cause sometimes, sometimes - - -
Q197 Uh-huh.
A - - - uh, [AJ], [AJ], she’s, like, sometime, I know when she was, like, like, ss, apparently they said, like, you’ve been sexy abused. But I don’t know anything about that, so, th - - -
Q198 OK.
A - - - that’s what was in the letter.
Q199 OK. **That’**s, well, thank you for telling me that, ‘cause I, I wasn’t aware of that letter, if it came from FACS, so, thank you for telling me that. Um, so, did [the complainant] tell you anything about being sexually - - -
A Nope.
Mr Broadbent submitted that the reference to the letter was second hand hearsay based on an unproduced letter from DOCS/FACS which was neither explored nor clarified and which contained a vague assertion of sexual abuse. Mr Broadbent submitted that the trial judge ought to have excluded this evidence of his own motion because it was so plainly inadmissible. I accept that this was a course open to his Honour. Indeed it is unlikely that the prosecutor would have pressed these passages at all had objection been taken. However, the evidence had the capacity to indicate that MM obtained her knowledge of the sexual abuse of the complainant from a source other than the complainant herself, which would have been in the interests of the applicant. Otherwise, it is difficult to discern any impact this evidence might have had on the jury. In these circumstances, I am not persuaded that the trial judge was obliged to do anything about this evidence.
In summary, I am not persuaded that the admission of any of the allegedly objectionable material relied on by the applicant (as a consequence of the putative loss of opportunity to object to it) was capable of giving rise to a miscarriage of justice. It is necessary for the purposes of this sub-ground to establish not only that the portions identified were inadmissible but also that the admission of the inadmissible evidence could realistically have affected the jury’s reasoning to verdict: Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 (Brawn) at [3], [10] and [42]-[43] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ). The applicant has not established the latter in respect of any of the allegedly objectionable items of evidence taken individually or cumulatively.
For these reasons, this aspect of ground 1 has not been made out.
The applicant submitted that, although the trial judge had told him of his right to object to evidence and that a voir dire was a trial within a trial, he understood neither the nature nor the purpose of a voir dire, nor how evidence adduced on a voir dire could be used in the trial. He instanced the paucity of cross-examination of MM in support of this submission as well as the submission made by the applicant in closing address which relied on evidence adduced in the voir dire, which was not before the jury (extracted above at [108]).
That the applicant referred to evidence on the voir dire in his closing is insufficient to indicate that he did not appreciate the distinction between evidence given on a voir dire and evidence in the trial. Such an error could have been made even by experienced counsel. However, in any event, it is difficult to see what difference it could have made in the Brawn sense had the evidence given by MM on the voir dire been before the jury.
What the evidence before the jury established was that, in her JIRT interview, MM denied that the complainant had told her anything about the sexual touching. In her evidence she gave various versions: first, that she had not known about the sexual touching before her JIRT interview; and, second, that she had known about the sexual touching at the time because the complainant had told her “something”. Further, MM was unable to explain why she had given different versions. In her JIRT interview, MM confirmed that, at that time (30 November 2021) she was living with her father and her brother and that the complainant had moved out “[s]ince the carers took her”. In her evidence at the trial, she confirmed that she was living with her mother at the time of the trial (February 2024).
While the applicant in his closing referred to evidence which MM had given on the voir dire but not in the trial, this was of no moment since the evidence MM gave was to similar effect: namely, she accepted that she had denied in her JIRT interview that the complainant had told her anything about the conduct and that she accepted in her oral evidence that the complainant had told her “something” (although she could not remember what) and that she could not explain why her versions were different.
I am not persuaded that, even were I to accept the applicant’s submission that he did not appreciate the distinction between the voir dire and the trial itself, this matter could realistically have affected the jury’s reasoning to verdict.
Mr Broadbent accepted that the trial judge explained some aspects of cross-examination. However, he submitted that the trial judge concentrated on the questioning which would be impermissible, rather than assisting the applicant to test the complainant’s version or the Crown case more generally. Mr Broadbent submitted that the applicant’s cross-examination of the complainant was entirely ineffectual and did not advance the applicant’s case in any “meaningful” way.
The trial judge explained the rule in Browne v Dunn to the applicant was well as informing him that he could ask questions which would help his case and harm the Crown case. It is plain from the intermediary’s cross-examination of the complainant on behalf of the applicant that the applicant understood the rule in Browne v Dunn. The applicant used the complainant’s evidence that he wore earrings in support of his submission in his closing address that she lied about that matter and that she had also lied about the allegations of sexual touching. Where, as in the present case, any sexual contact is denied and identity is in issue, it may be difficult for even the most experienced cross-examiner to cross-examine a complainant, except if there is some available motive which could be put to the complainant. In the present case, the applicant asked the complainant, in effect, whether she had been put up to the allegations by her mother, which in context was a submission that she had a motive to lie. He referred in his closing to both of these matters.
I am not persuaded that any further step that the trial judge might have taken with respect to the applicant’s cross-examination of the complainant could realistically have affected the jury’s reasoning to verdict.
Mr Broadbent identified the following examples of hearsay evidence, about which he submitted the primary judge ought to have alerted the applicant:
evidence from the OIC about the use by the applicant of the green Toyota;
evidence regarding the conversation between the OIC and DM;
evidence from the OIC about information in the NSW Police Computerised Operational Policing System (COPS); and
evidence from the OIC about conversations with Ms Woul.
The trial judge did not specifically explain what hearsay evidence was or that objection could be taken on the basis that certain evidence was hearsay, although it was referred to in the context of the applicant adducing hearsay evidence from the OIC that Ms Woul had told the OIC that the applicant had driven her car, which was green.
Hearsay evidence about what Ms Woul had said about the applicant’s use (or lack of use) of a green Toyota was of little or no consequence in light of the complainant’s and DM’s direct evidence that the applicant came to DM’s house in a green Toyota.
The applicant’s submissions do not identify how the OIC’s consultation of the COPS system affected the trial. Although the OIC gave evidence that she spoke to DM to obtain the details of the applicant from him and that she searched the COPS system for others who had visited DM’s house, the significance of this evidence or the potential prejudice to the applicant was not elucidated. In my view, this evidence would have been understood by the jury as information about the police investigation and providing an explanation as to why “Dempsey”, “MD” and “Richard Johnson” were not called as witnesses in the Crown case. Further, in so far as the OIC’s statement could be understood as indicating that identification was not particularly in issue, this was plainly superseded by what occurred in the trial itself where the question whether “Smulla” was the applicant was consistently identified, including in the Crown closing and the summing up as one of two central issues for the jury’s determination.
I am not persuaded that the applicant’s lack of understanding of the nature of hearsay evidence and the evidentiary rules relating to it (which permit first-hand hearsay in certain circumstances) had any material effect on the trial, much less the jury’s reasoning towards verdict.
Because none of the grounds has been made out, this is not the occasion to make any general statements about the obligation of a trial judge, beyond the brief recitation of the authorities cited at the commencement of the consideration of the grounds. It is sufficient to say that the applicant has not persuaded me that the trial judge failed to do that which his Honour ought to have done or did anything which his Honour ought not to have done to ensure that the applicant had a fair trial. Indeed, as Mr Broadbent accepted, the trial judge and the prosecutor went to significant lengths to ensure that the applicant’s trial was fair, including by conducting pre-trial hearings over five days immediately prior to the commencement of the trial.
As referred to above, it is necessary in light of Brawn, for the applicant to show that any errors established could realistically have affected the jury’s reasoning to verdict. None has been shown.
The Crown did not oppose leave to appeal under r 3.5 of the Supreme Court (Criminal Appeal) Rules except on the basis that the appeal was without merit.
While I have concluded that the appeal is without merit, I am disposed to grant leave to appeal because of the importance of the issues raised. The question of what a trial judge needs to do in any particular case to ensure that an unrepresented accused has a fair trial is an important one. However, it is a question which must be addressed on a case-by-case basis by reference to the circumstances of the particular trial in question.
The need for leave by reason of the notice of appeal being filed out of time requires separate consideration. The solicitor for the applicant, Monica McKenzie, who is in private practice, deposed that a notice of intention to appeal was filed on 29 April 2024. Ms McKenzie obtained a grant of Legal Aid for this matter on 2 May 2024. On 16 August 2024, she submitted an online request to the Public Defenders, which was accepted on 24 August 2024. The notice of appeal and the applicant’s submissions were not filed until 17 December 2025 (although the notice of intention to appeal had expired on 28 April 2025). According to Ms McKenzie, the delay was occasioned by the other professional commitments of members of the Public Defenders Office, which included running criminal trials in country locations. A hearing date of 20 May 2026 was allocated by the Registrar of this Court on 29 January 2026.
The private bar is available to take those matters for which legal aid has been granted and for which the Public Defenders Office does not have the capacity because of its other commitments. It is neither in the interests of the administration of justice nor of an individual offender that the appellate process be delayed by barristers, whether at the Public Defenders Office, or at the private bar, retaining matters to which they are unable to attend in a timely manner. This appears to have been what occurred in the present case and is to be regretted. This Court will generally grant leave under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules where there is merit in the appeal or, as in the present case, where the issues raised are important and will not refuse leave where the reason for the delay is outside the control of an applicant. However, the profession ought not regard this Court’s approach as enabling, much less condoning, the significant delay such as occurred in the present case.
For the reasons given above, I propose the following orders:
Grant leave to appeal.
Dismiss the appeal.
ROBERTS J: I agree with Adamson JA.
R A HULME AJ: I agree with Adamson JA.
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Ombelli
R
[2016] VSCA 110
(2025) 99 ALJR 872
(1992) 177 CLR 292
(1992) 173 CLR 555
(1981) 147 CLR 512
(1990) 19 NSWLR 91
(2008) 70 NSWLR 696
(2012) 82 NSWLR 215