PICKEN v REGINA; REGINA v PICKEN

Court of Criminal Appeal (NSW)|2007-10-22|Before: Mason P, Hidden J, Harrison J

CITATION: PICKEN v REGINA; REGINA v PICKEN [2007] NSWCCA 319

JUDGMENT OF: Mason P at 1; Hidden J at 150; Harrison J at 151

DECISION: Appeal against conviction dismissed; Crown appeal against sentence dismissed

Criminal Appeal Rules LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

Cunningham v R (1992) 61 A Crim R 412 Dinsdale v The Queen (2000) 202 CLR 321 Palmer v R (1992) 64 A Crim R 1 Papakosmas v The Queen (1999) 196 CLR 297 R v Hircock [1970] 1 QB 67 R v Markuleski (2001) 52 NSWLR 82 R v Meher [2004] NSWCCA 355 CASES CITED: R v MTP [2002] VSCA 81 R v Reeves (1992) 29 NSWLR 109 R v Senior [2001] QCA 346 R v Thompson [1966] QWN 47 R v Wilson (2005) 62 NSWLR 346 R v Zamagias [2002] NSWCCA 17 Taleb v R [2006] NSWCCA 119 Tripodina and Morabito v R (1988) 35 A Crim R 183 Tully v The Queen [2006] HCA 56; 231 ALR 712

PARTIES: Leighton Mark PICKEN REGINA

COUNSEL: Appellant: A Bellanto QC Crown: J Girdham

SOLICITORS: Appellant: Willis & Bowring Crown: S Kavanagh (Solicitor for Public Prosecutions)

IN THE COURT OF CRIMINAL APPEAL CCA 2007/2892 CCA 2007/3305

MASON P HIDDEN J HARRISON J

Leighton Mark PICKEN v REGINA REGINA v Leighton Mark PICKEN Judgment

1 MASON P: An appeal against conviction and a Crown appeal against sentence were heard concurrently. 2 On 17 November 2006 Mr Picken (hereafter referred to as the appellant) was found guilty of two counts of aggravated sexual intercourse without consent (Crimes Act 1900, s61J) and one count of aggravated indecent assault (Crimes Act, s61M). In each instance the circumstance of aggravation was that the complainant was under 16 years of age. 3 The appellant, aged 20 at the time of the offences, was a dance instructor at a studio owned by his mother and attended by the 13 year old complainant. Each offence arose from the events on the evening of 21 January 2006 during a party at the home of the complainant's uncle. After dinner the adults mostly stayed inside the airconditioned house while the children and the appellant went outside. They were in and out of a swimming pool and spa during the rest of the night. 4 At one point the only people left sitting in the spa were the appellant, the complainant, her cousin N (aged 13) and her friend J (aged 8). The water had bubbles and came to just above the complainant's waist. 5 The complainant's account that the jury accepted was that she was sitting next to the appellant in the spa. The appellant grabbed her hand, stroked her leg, lowered her bikini bottom, rubbed the region of her vagina and then digitally penetrated her (count 1). He then forced her hand on to the outside of his board shorts to press his erect penis (count 2). The complainant moved away but the appellant again put his hand down her swimmers and digitally penetrated her vagina (count 3). 6 These events occurred over a 20 to 30 minute interval after 11pm. There was evidence that the appellant had consumed about five bottles of beer earlier in the evening. 7 What may have happened beneath the surface of the water in the spa was not observed by the complainant's cousin or friend. 8 Following the third incident the complainant moved away from the appellant who got out of the spa and went into the laundry to get another beer. The complainant told her friend that she was scared because the appellant had been touching her and she had to get out. She left the spa with her friend and cousin and declined the complainant's request to accompany him into the laundry. She ran upstairs, had a shower and changed. She then went back downstairs and told her mother that the appellant had been touching her and that he had stuck his finger up her vagina. At this stage she was crying. She repeated the complaint to the appellant's mother and other adults. Her mother subsequently took her to the police where she repeated the allegations. 9 The complainant's cousin gave evidence of the complainant's distressed state after she got out of the spa. In an electronically recorded interview given to the police 10 days after the offence she said that the complainant was upset, telling her that "while she was in the spa [the appellant] was scaring her, and she didn't know what to do… like, he was massaging her bum". The complainant told N that "she should have told him to stop. But she said that she did tell him to stop but he kept on going." Later, when asked if she remembered anything else she had been told by the complainant, N said that the complainant told her: He was holding her hand really tightly and she couldn't make him let go, and he pushed her hand up his pants. 10 The complainant's friend J also gave the majority of her evidence in chief through the medium of electronically recorded interviews by the police. She saw the complainant talking to her cousin in the cousin's bedroom. Then she saw the complainant crying in the bathroom followed by the mothers of the complainant and the appellant conversing privately. She heard them discussing what the complainant had said had been done to her by the appellant. 11 The complainant's mother and other adults at the party also gave evidence that the complainant alleged that improper conduct had occurred. The complainant's mother said that her daughter told her: Leighton's touched me, he started touching my leg and put his hand in my bikini bottoms and put his finger inside me. I tried to move away but he just kept coming. 12 The complainant's mother also heard the complainant telling the appellant's mother "Leighton touched me, he put his fingers inside me". 13 The police officer to whom the complainant made her initial complaint at 2.15am on 22 January said that the complainant was very upset and was crying. 14 The appellant was interviewed by the police on 13 February 2006. He exercised his right to silence but provided the officer with a three page statement of his version of events. In the statement he did not dispute that he was in the spa with the complainant and the other girls. He said that adults came out on a number of occasions while they were there. He denied touching the complainant inappropriately. 15 He gave sworn evidence to similar effect. He denied touching the complainant, grabbing her hand, digitally penetrating her or putting her hand on his penis. He also denied ever having been sexually interested in the complainant or having a crush on her. 16 He said that after he got out of the spa the complainant was not crying and did not seem upset. He was asked by his mother when they got home whether anything had happened in the spa. His mother told him that the complainant had said that he had felt her up and put his finger in her vagina. He told his mother that this had not happened. 17 The appellant had never been charged or convicted of an offence. He relied on good character and the jury were given appropriate directions in this regard, 18 The appellant was represented in this Court by Mr A J Bellanto QC. He accepted that there was evidence entitling the jury to convict, but raised a number of grounds primarily relevant to the fairness of the trial. Most of the grounds invoked points that had not been taken at trial. The Crown relied upon rule 4 of the Criminal Appeal Rules.

Rule 4: general considerations 19 Rule 4 provides that no direction, omission to direct, or decision as to the admission or rejection of evidence, given by the judge presiding at the trial shall, without the leave of the Court, be allowed as a ground for appeal unless objection was taken at the trial to the direction, omission or decision by the party appealing. 20 Leave to rely on an error to which no objection had been taken at the trial will be granted only where the appellant can demonstrate that the error led to a miscarriage of justice. There have been varying formulations of the test for identifying a miscarriage of justice in this context (see Tripodina and Morabito v R (1988) 35 A Crim R 183 at 195; Papakosmas v The Queen (1999) 196 CLR 297 at 319; R v Wilson (2005) 62 NSWLR 346 at 352[20]). 21 It appears to be generally accepted that the appellant must at least establish that he or she has lost a real chance (or a chance fairly open) of being acquitted. 22 The question of leave in accordance with rule 4 needs to be addressed in relation to the particular error identified by the appellant and its impact, in isolation and in conjunction with other errors, upon the justice of the conviction under challenge. 23 Senior counsel addressed the rule 4 issues globally, but without suggesting that the Court was relieved of the duty to consider the rule's application with reference to the several appeal points. 24 Mr Bellanto QC first re-iterated seven points taken from defence counsel's closing address (Tr 14/11/06, pp13-14). These were more in the nature of a check list of topics for the jury's consideration rather than a detailing of fundamental flaws in the Crown case. Nevertheless, they included matters such as the intermittent presence of adults near the spa; the unlikelihood of the appellant running the risk of doing anything improper in the circumstances; various inconsistencies in the details of the complaint evidence; the fact that complainant said nothing about the assaults to her uncle who handed her a towel when she first got out of the spa, but rather left the matter until she spoke to her mother some short time later; the absence of eye-witness corroboration; and the evidence of the appellant's good character. 25 In my opinion, these were very much matters for the jury to assess in the context of a fairly strong Crown case. They naturally form a backdrop to any question whether to grant leave under rule 4. But they do not cause me to approach the several grounds of appeal with a preliminary sense of disquiet about the verdicts. As indicated, the appellant accepts that the verdicts were open on the evidence. 26 Next, senior counsel pointed to a list of transcript references said to display a background of express or implied criticisms of defence counsel by the trial judge (Appellant's Submission on Conviction Appeal para 2.4, fn 8. Some additional references were provided at CCA Tr 22/10/07 p6.). 27 Some of these matters form the basis of Ground 2(c) of the Notice of Appeal discussed below. 28 I have considered all of the passages, both in isolation and globally. 29 Some of the passages go no further than showing that the trial judge was maintaining pressure on counsel to be brief. And he did not want to keep the jury waiting outside for longer than was necessary. Appropriate brevity is a virtue for all participants in a system of justice. Nevertheless, the appellant is entitled to have this Court consider whether or not it should relieve him from the application of rule 4 having regard to the pressures imposed upon his counsel by the particular judge in the particular trial. 30 Several of the matters complained of involved no more than the rejection of an improperly framed question accompanied with a brief reason and/or warning against repetition of the problem. I see no legitimate ground for complaint in this regard. 31 Other passages involved requests for assistance and/or explanation by the trial judge. There are the occasional hints of brusqueness, but none of them disclose overbearing conduct or circumstances that would have gone beyond what the jury would have appreciated to be the cut and thrust of a trial under the adversary system. I see nothing wrong with an intervention directed at keeping a cross-examiner focussed on the main issues, particularly where counsel had the opportunity to respond by explaining what he was about in the presence of the jury (eg Tr 08/11/06, pp62-3). See generally R v Hircock [1970] 1 QB 67 at 72. 32 Sometimes the trial judge (McGuire ADCJ) intervened to ensure that a witness was permitted to answer a question without interruption. This was quite legitimate. 33 There were occasions where the trial judge rejected a question in mildly sarcastic tones. For example, his Honour was clearly unimpressed with the relevance of the cross-examiner having elicited from a police officer that certain board shorts were not submitted for "presumptive sperm testing". I share the Judge's incredulity, without endorsing the judicial response as best practice. I do not think that the defence counsel or the jury would have been diverted from their task or that the trial miscarried in any way. 34 In the course of the summing up the Judge referred to one matter raised by counsel for the accused as having been "unfortunately put" (SU 7), and elsewhere to "a couple of unfortunate observations" (SU 19). Corrective directions were given to the jury with reference to the matters that had excited the judge's concern. Their terms were moderate and are not themselves subject of complaint in the appeal. 35 It was submitted that defence counsel was pressured by the trial judge to put his re-direct points in circumstances which did not permit calm reflection and consideration of the evidence and relevant legal principles. I address this matter in the context of Ground 2(e). Ground 1: Failure to give a Markuleski direction 36 The appellant submits that the trial miscarried because the Judge failed to direct the jury that a reasonable doubt on the complainant's evidence on any count ought to be taken into account in assessing her credibility generally. No such direction was sought at trial. 37 R v Markuleski (2001) 52 NSWLR 82 was a case in which the jury found verdicts of guilty on five counts and a verdict of not guilty on the remaining count. Unlike the present appeal, the verdicts of guilty in that case were challenged as unreasonable on the basis that they were inconsistent with the verdict of not guilty. 38 In the present case the jury convicted on all counts, having been directed to consider each count separately (SU 11). Furthermore, this case involved three incidents occurring within a short space of time. Nothing raised by way of cross-examination or addresses suggests that either party considered that differential verdicts were a practical likelihood. This explains why no direction was sought and reinforces the conclusion that no miscarriage ensued. 39 Rule 4 should be applied. There was no miscarriage. This ground should be rejected.

Ground 2: Absence of fair trial by reason of various errors by the trial judge 40 The appellant pressed eight matters. 41 The written and oral submissions condescended to no more particularity than identifying passages in the summing up and submitting that the errors identified in Ground 2 were "self-evident". 42 This Court is entitled to greater assistance. While brevity is to be encouraged, the slenderness of a submission may sometimes reflect the slenderness of the arguments advanced. The present is such a case.

(a) Inadequate and confusing directions on "uncharged" acts 43 The so-called "uncharged acts" were really part and parcel of the offences themselves. They were aspects of the manner in which the appellant asserted control over the complainant in the spa. Indeed, the direction that was given on the topic appears to have been provided by defence counsel (see SU 16-17). 44 The jury were told the accused's alleged conduct in massaging the complainant's buttocks, attempting to pull down her bikini pants and placing his hand over her thigh were not proof of the three charges but evidence relied upon to place the charged acts in context (SU 21). 45 Rule 4 should be applied. This ground should be rejected.

(b) Misdirection as to standard of proof 46 In the course of detailed directions as to how the jury should go about their fact-finding task the judge said (SU 2): So as I say you look at the witness overall and say now on balance, am I satisfied that that witness has given a reliable account…

47 There was a later conventional direction upon the standard of proof (SU 4). The jury were reminded that the burden of proof remained at all times on the Crown and that the degree or standard of proof was proof beyond reasonable doubt. 48 Neither of these directions elicited a request for re-direction. Indeed, defence counsel expressed himself satisfied with this portion of the summing up, with presently irrelevant exceptions (SU 12). 49 Rule 4 should be applied. This ground should be rejected.

(c) Criticism of defence counsel by the Judge in the presence of the jury infected the defence case as a whole 50 The appellant identified a number of passages (see para 26 above). 51 I would not dispute that some of the judicial exchanges were brusque. What is harder to determine is the extent, if any, to which they may have been justified by the conduct of trial counsel. In any event, for the reasons stated above, the submission that the trial became unfair is not established. 52 Most of the exchanges occurred in the exercise of the judge's authority to control the proceedings. None of the matters relied upon involved behaviour that obstructed counsel in the presentation of the defence (R v Hircock at 72); conveyed that the defence case was "hollow" (Cunningham v R (1992) 61 A Crim R 412 at 429); or gave the impression that the judge had formed an adverse view of the defence (R v Senior [2001] QCA 346). These three cases were brought to the Court's attention in the respondent's written submissions. It is not of course suggested that they exhaust the catalogue of potential miscarriages associated with the conduct of trial judges. 53 Rule 4 should be applied. This ground should also be rejected.

(d) Error in directing the jury that: "Here you are seeing real live witnesses and real live people who have not learned their lines, who are not actors or actresses" . 54 This statement (at SU 3) was made in the context of appropriate directions warning the jury not to guess or speculate. His Honour said: You do not guess and you do not speculate. You restrict yourselves to the evidence. You are not here as detectives. This is not a Hollywood drama. This is not 'twelve angry men' or some show that you see on television, this is a real live drama. Here you are seeing real live witnesses and real live people who have not learned their lines who are not actors or actresses. As people of common sense you will, therefore, make allowances for the fact that most of the witnesses in this trial with regard to the important matters are young people.

55 No error is apparent in this passage. No redirection was sought. Rule 4 should be applied. This ground is rejected.

(e) Defence counsel was put under unnecessary pressure to provide points for redirection (SU 40- 43) 56 The Judge briefly summarised the factual material in the final portion of the summing up. He indicated that he was about to ask the jury formally to retire to consider their verdict. 57 In the absence of the jury, defence counsel raised a series of factual matters. At one stage there was the following exchange (SU 40, 41): HIGGINS: Your Honour said you'd spend more time on the Crown case, because the Crown had the job to do, that's certainly true. But when your Honour sums up to the jury and seeks to summarise the relevant facts, in my respectful submission your Honour you can't just confine it to the facts which support the Crown Case. Your Honour really has got to identify facts which go both ways, otherwise there's not much point to it. HIS HONOUR: What matters do you say I should have mentioned? HIGGINS: First part is under the heading of -- HIS HONOUR: Take me to the transcript, would you? HIGGINS: I am trying to identify pieces of evidence rather than take your Honour to parts of the transcript. HIS HONOUR: You're complaining that I haven't told the jury what the cross-examination was, tell me what part of the cross-examination you're referring to. HIGGINS: Let me identify the proposition, and then we can look for the evidence. HIS HONOUR: Mr Higgins, I really don't want to leave that jury sitting out there for an inordinate length of time. HIGGINS: Well, your Honour, I can't claim --- HIS HONOUR: Would you take me to the cross-examination you say I should have referred to. HIGGINS: I am trying to do that now your Honour, but your Honour has asked me to go to the page in the transcript, and I can't do that because really I have been on my feet for about a minute, and it's just not enough time to go through six days of transcript, your Honour. All I do is say to your Honour, you haven't raised this point, this point, this point. It's quite unfair in my submission for you to say to me, you've got to identify the page in the transcript first.

58 If matters had remained at that point, this exchange would represent evidence that counsel was being unduly pressured. I find it difficult to see what was wrong with identifying specific matters, at least in advance of searching for them in the transcript. After all, the judge might rule that the point was of no consequence, or had in fact been dealt with, or the point might have been conceded as appropriate to go to the jury. 59 Matters did not, however, rest at that point. Defence counsel proceeded to raise a series of matters, identified by subject matter, and the transcript pages were themselves identified. The judge made rulings, point by point (SU 42-47). Some matters were accepted and there were further directions. No complaint has been raised in this Court as regards the points that were not accepted. At the conclusion of the exchange, defence counsel announced that he had covered all of the matters which he sought to raise (SU 48). 60 This ground should be rejected.

(f) Unnecessary and prejudicial direction on "penalty" 61 At SU 37 his Honour stated: Sometimes jurors are troubled by the question as to whether they are to have any input into any possible penalty which might flow following a conviction. You are not concerned with such matters, I am paid a handsome salary to deal with that. Your task is simply to determine whether the accused is guilty or not guilty of the charges as contained in that indictment. 62 No error, let alone prejudice, is evident in this statement. Rule 4 should be applied. This ground fails.

(g) Error in failure to tell the jury that complaint evidence could never amount to corroboration 63 Once again the Court was provided with no assistance with reference to this ground. 64 It is to be remembered that this a case where complaint was indisputably made shortly after the alleged offences. The evidence was squarely within the ambit of s66 of the Evidence Act 1995. Accordingly, it stood as evidence of the fact subject only to the discretion of the Court to exclude it or limit its use pursuant to ss135 and 137. No such application was made. Indeed there was in the circumstances no basis for limiting the evidence. 65 The appellant's counsel had previously approved a direction that the complaints, if accepted, were some evidence that the assault had taken place (SU 29). 66 The appellant addressed the jury as to apparent discrepancies in the various accounts of the complaint evidence. 67 In the summing up, the Judge reminded the jury that none of the persons to whom complaint was made had themselves seen the events. The jury were instructed to treat their evidence with caution. But subject to this warning, they were told that if they accepted that the complaint or complaints were in fact made as the witnesses described, the jury could take the complaints as some evidence that the sexual assaults described by the complainant had actually taken place (SU 31-2). 68 The jury were also instructed that it was open to convict upon the uncorroborated account of the complainant provided that they found the complainant to be a truthful and reliable witness as to the essential features of her account. The jury were also told that there was no corroboration in the present case, but that it was not necessary for the Crown to produce such corroboration. 69 Neither direction demonstrates error. No redirection was sought. 70 Rule 4 should be applied. This ground fails.

(h) Failure to fully and properly identify inconsistencies in the complainant's evidence 71 Various inconsistencies had been the subject of a detailed address by defence counsel. The jury were then told by the judge in the summing up that they would be assisted by the arguments and submissions advanced by the parties, but that his Honour would not repeat those arguments or revisit the evidence in its totality. 72 At SU 23 his Honour emphasised: I will briefly touch upon the salient features of the accounts of some of the witnesses. Do not place any significance upon the fact that I do not refer to some matter of evidence which you consider to be important, for after all it is your view of the evidence which counts, not mine. As I say, if you want it, you can have the transcript so that you can see every word that was said or placed before you in this Court.

73 There were in fact directions, most of them requested by counsel for the accused, that drew attention to a number of the salient discrepancies, while also reminding the jury to remain focussed upon the central issues (eg SU 33, 50-53). 74 This was not a lengthy trial. Defence counsel addressed on the afternoon of 14 November 2006. The summing up commenced later that afternoon. The jury retired to consider their verdict at 12.28pm the next day. There were further directions and the Judge responded to a note from the jury seeking additional assistance. The verdicts were rendered at 11.23am on 17 November 2006.

75 The jury requested and were provided with a transcript of the entire evidence. 76 There is nothing in this ground of appeal, it should be rejected.

Ground 3: Error in failing to direct the jury not to use the "uncharged acts" in substitution for evidence on any of the counts

Ground 4: Error failing to warn the jury not to engage in tendency reasoning with regard to each count as against the other and the "uncharged acts" as against each count

Ground 6: Error in failing to warn the jury not to use the "uncharged acts" as evidence of bad character 77 It is convenient to deal with these grounds together. They were addressed globally at the hearing. 78 As pointed out in the respondent's submissions, these grounds exhibit an air of unreality. 79 The so-called "uncharged acts" were in the nature of accompanying or transactional acts. They were an inextricable part of the course of conduct covering the offences charged. They had not been tendered as evidence to explain any previous relationship between the appellant and the complainant. 80 What the appellant would characterise as "uncharged acts" were, in reality, acts that had "some actual direct probative value relative to the issues" (Tully v The Queen [2006] HCA 56; 231 ALR 712 at [140] (Callinan J)). These were not acts capable of giving rise to a risk that the jury might engage in tendency reasoning or reasoning inferring guilt on the matters charged by reference to unrelated "bad character". 81 Ground 3 is directly contradicted by the directions given about these matters at SU 20-21. 82 The jury were effectively instructed to distinguish between the preliminary overtures in the spa and the matters going to the respective charges. They were correctly informed that those aspects of the accused's alleged conduct was placed before them so that the conduct involved in the charges themselves was not viewed in a vacuum. The judge stated: The contextual evidence cannot be proof of the facts you find for the proof of any of the three counts in the indictment. ... The facts upon which you must be satisfied beyond reasonable doubt for the proof of any count are the facts the Crown relies upon for proof of each count as charged, not the facts that are contextual. 83 Rule 4 should be applied. These grounds should be rejected.

Ground 5: Error in failing to direct on the presumption of innocence 84 The appellant submits that it was incumbent on the Judge to remind the jury of this concept in clear and concise terms. 85 There must of course be strong and clear directions as to the onus and burden of proof. But such directions were given (SU 4) and repeated (SU 53; SU 16/11/06 p3). I do not accept the submission that there was undue brevity. 86 No authority was cited in support of the notion that a judge must use the expression "presumption of innocence". There is authority to the contrary (see Palmer v R (1992) 64 A Crim R 1 at 6-7. Cf R v Reeves (1992) 29 NSWLR 109 at 117). 87 No further directions were sought. Rule 4 should be applied. This ground is rejected.

Ground 7: The direction on character was rendered nugatory by reason of its brevity and emphasis on the fact that good character did not necessarily mean that the accused was not guilty 88 The Judge gave the following direction (SU 34): You have heard evidence that Leighton Picken has not been charged with a criminal offence and has no convictions. You have further heard of his activities in assisting the disadvantaged. He has given of his own time. He has not sought reward for giving lessons to disadvantaged people, and this is a real service to the community. It is open for you to conclude that he is a person of prior good character and if you accept this to be the position you are bound to consider this in two ways, one, as to whether that good character makes less likely than otherwise that he would engage in the criminal conduct such as is alleged here; two, that such good character makes it more likely that the sworn evidence he has given before you is the truth. The fact that he is of previous good character does not necessarily mean that he is not guilty. He may have prior good character, but as you will readily appreciate people commit crimes for the first time, and that such good character does not mean that he did not commit the offences charged.

89 This direction brought out the dual function of good character in assessing the issue of guilt in a case where the accused gives sworn evidence. It did not contain any of the vices referred to in the remarks of Gibbs J in R v Thompson [1966] QWN 47 at 74 to which reference was made in the written submissions. 90 Contrary to the appellant's submission, this was not a case in which the character directions were accompanied with exaggeration or sarcasm. The directions were brief but clear. They were not dismissive. No redirection was sought. 91 Rule 4 should be applied. This ground fails.

Ground 9: Failure to separate the respective counts and separately identify the evidence in relation to each count 92 The appellant's written submission was: The Court is referred to SU 6.3, 11.3, 23.9-28 and 31 where the trial judge referred to the counts on the indictment however did not succinctly and precisely identify the evidence in respect thereof. 93 A reading of SU 5-6, 9-10 discloses that this ground is baseless. 94 In oral submissions senior counsel for the appellant said that this ground effectively repeated the first the ground of appeal. 95 On either basis, the Court's response to this ground of appeal should be the application of rule 4 and the rejection of the ground.

Ground 10: Miscarriage of justice because summing up lacked balance 96 It was submitted that the Judge summed up the case on the facts in such a way as to convey the inference that he favoured the prosecution case. There was relatively little meaningful attention given to the defence case. 97 This ground was linked with the other complaints addressed specifically in the other grounds. 98 The appellant's written submissions refer to the principles discussed in R v Meher [2004] NSWCCA 355 and Taleb v R [2006] NSWCCA 119. 99 The basic principles are not in dispute. A judge is entitled to comment on the factual issues, but is required to hold an even balance, ensuring that the respective cases are fairly presented to the jury. 100 In my view, there was no departure from these principles in the present case. 101 The Judge introduced his reference to the appellant's evidence by reminding the jury that the appellant maintained that he had been falsely accused and that he flatly denied any suggestion of sexual misconduct. A number of inconsistencies upon which the defence had addressed were expressly repeated (SU 36-7). Defence counsel then sought further directions. Additional factual matters were then addressed at SU 50-1 and 52. The jury were told that the Crown case stood or fell on the jury's assessment of the complainant. 102 The jury received a conventional direction about their exclusive role as judges of the facts. 103 In my view the summing up on the facts was balanced and fair. 104 There also was no application for the jury to be discharged on the basis of the present ground of appeal. 105 I would apply rule 4 and reject this ground of appeal.

Ground 12: Failure to give a proper direction on the dangers of convicting on the evidence of the complainant alone unless having scrutinised with great care and great caution the jury was satisfied of its truth and accuracy 106 In support of this ground the appellant referred in the written submissions to the remarks of Ormiston JA in R v MTP [2002] VSCA 81 at [10]. That paragraph approved a particular direction made by the judge at the trial leading to the conviction under appeal to the Victorian Court of Appeal. The Court did not stipulate that it represented a minimum or guideline direction in matters such as the present, or at all. 107 More than once the trial judge in the present case directed the jury that the Crown case stood or fell upon the evidence of the complainant. In one passage (SU 22) he said: Her account is fundamental to the Crown case. It is therefore essential that you carefully scrutinise her evidence, remember what it was that she said, and the manner in which she gave her evidence. It is for you, the jury, to say whether the complainant gave both an honest and reliable account with regard to the essential features of her evidence as to the sexual misconduct she described. There may be inconsistencies with regard to matters of no real importance, however carefully consider her account and ask yourselves was she both honest and reliable when she told you that the accused placed his finger within her vagina on two occasions, being the two charges in the indictment, and that he forced her hand onto his penis, outside his board shorts. If you find that she was honest and reliable as to the essential features of her account, then you may use this finding as a basis for a guilty verdict, or verdicts. If you do not conclude that she was both honest and reliable as to the essential features of her version of events, then it would not be open for you to find the accused's guilt proved beyond a reasonable doubt.

108 No redirection was sought. In my view rule 4 should be applied and this ground ought to be rejected. 109 Ground 13 invoked the other grounds in a portmanteau fashion. I have not overlooked the need to view the grounds globally as well as severally. Nevertheless, I detect no basis for overturning the conviction. 110 The appeal against conviction should therefore be dismissed.

Crown appeal against sentence 111 I turn to the Crown appeal against sentence. In this part of my reasons I shall refer to the appellant as the offender and the complainant as the victim. 112 The guilty verdicts were delivered on 17 November 2006. Bail was continued and the sentencing proceedings fixed for on 14 December 2006. 113 The proceedings were further adjourned, at the request of the Crown, until 23 March 2007 when further evidence was led in the relation to the availability of medical services within the New South Wales prison system (Justice Health). 114 His Honour then proceeded to impose concurrent terms of imprisonment for two years. Pursuant to s12 of the Crimes (Sentencing Procedure) Act 1999 the sentence was wholly suspended on conditions that included entry into a good behaviour bond and the offender continuing to reside with his parents. 115 The Director of Public Prosecutions notified that he was considering an appeal by letter of 29 March 2007. The Crown appeal was filed on 17 April 2007 and listed for hearing before this Court on 11 July 2007. 116 On 11 July 2007 the Court granted the offender an adjournment on the basis that there was an outstanding conviction appeal to be agitated. This adjournment, until 10 August 2007, was on the basis that the offender would not seek to rely upon any matter of prejudice stemming from the further delay in determining the Crown's sentence appeal. 117 Unfortunately, on 9 August 2007 the two appeals were removed from the list of matters for hearing the following day because of the pressure of other matters fixed that day. The appeals were then fixed for hearing on 22 October 2007 when they were heard by this Court as presently constituted. Judgment on the conviction appeal and the Crown appeal against sentence was reserved. 118 It can therefore be seen that the offender has remained in a state of suspense with regard to his sentence for almost a year since the verdicts were pronounced and for over seven months since the suspended sentence was pronounced on 23 March 2007. 119 The Crown submits that the sentence is manifestly inadequate in both the determination of the length and concurrency of each sentence and in the conclusion that it was proper to suspend the sentence. 120 It is contended that the sentencing judge fell into error of law by undervaluing the degree of criminality displayed and by giving too much weight to the respondent's medical condition. 121 The extended hearing of the sentencing proceedings and the remarks on sentence by a most experienced judge disclosed that his Honour wrestled closely with a difficult sentencing decision. 122 A sentence to be served by way of periodic detention was not an available option (Crimes (Sentencing Procedure) Act 1999, s65B). 123 The Judge analysed the facts surrounding the offence in considerable detail. 124 His Honour included reference to the age difference between the victim and the offender and the offender's status as the victim's dance instructor. The Judge acknowledged that the conduct would have caused the victim distress and upset. On the other hand, there was no major force or coercion applied in that the offender's actions were not accompanied by threats or violence. There was an absence of evidence to indicate any particular psychological damage suffered by the victim. 125 The nature of the particular assaults (digital penetration and the forced touching of the offender's board shorts) were recognised. The fact that the offender had consumed alcohol provided no excuse but nevertheless presented as a likely explanation for his aberrant conduct. 126 Judge McGuire considered the three offences to be so close in point of time as to involve a single course of conduct. He described them as constituting isolated incidents of behaviour which were out of character. There is nothing to indicate that the offender engaged in any planning or held some long term intention to molest the victim. I regard his actions to have been impulsive. Elsewhere, his Honour described the offender's actions as "spontaneous and opportunistic. They were not the result of a premeditated or planned course of conduct." 127 The offending actions were found to fall below the middle range of objective seriousness for offences of their kind. In my view, this conclusion has not been shown to have been in error. Each case must be determined on its own facts (see Dinsdale v The Queen (2000) 202 CLR 321 at 328[18], 342[68]). 128 The need to impose a penalty that involved deterrence and protection to the community was clearly recognised. 129 The questions for this Court are whether appealable error is to be found in the exercise of a broad sentencing discretion and whether it is such as to require correction having regard to the principles restricting Crown appeals against sentence. The time that has elapsed since conviction through no fault of the offender is also relevant to the exercise of this Court's residual discretion in Crown sentencing appeals. 130 In deciding that an otherwise appropriate sentence should be wholly suspended subject to good behaviour, the Judge had regard to several broad considerations that together made a substantial subjective case. 131 First, the offender was a young man with no criminal record. There was also what the Judge described as "ample highly persuasive evidence of his previous good character and as to his contribution to the community". The offender is in steady employment as a machinist/forklift driver and he continues to assist as an instructor at his mother's dance academy. The circumstance of his offending would doubtless be generally known within his community. 132 There were impressive character references from the offender's employer as well as from witnesses who described his altruism and efforts in assisting handicapped and disadvantaged children to engage in dancing activities which would otherwise have been unavailable to them. 133 The offender is most fortunate in coming from a stable home. The requirement that he continue to reside there as a condition of the suspended sentence reflected the significance of this matter. It was also highly material to the effectiveness of the medical treatment issues I turn to address. 134 There was unchallenged medical evidence that the offender was a chronic asthmatic having been diagnosed as such in his childhood. The condition is treated with Pulmicort and Ventolin. 135 The offender's emotional immaturity was also attested to by his mother and various experts. In 1999, when aged about 13, he was assessed as having comprehension skills three years below his chronological age as well as other learning deficits. He left school after obtaining the School Certificate. He was just 20 at the time of the offences. One of the offender's treating doctors described him as requiring a lot of support in his day to day organisational and time management skills. The Judge's assessment that the offender was immature and unsophisticated was based upon unchallenged evidence as well as his Honour's opportunity to have observed the young man throughout the trial. 136 A diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) made when the offender was 12 had led to him being described Ritalin. This is taken four times per day. On occasions when there have been lapses in the medication regime the offender has demonstrated marked signs of impulsive and erratic behaviour. There were grounds for concern as to a risk of self-harming. 137 The offender's mother continues to have an active daily role in monitoring the medication regime especially as regards getting him to take the early morning prescribed dose. It was often difficult to get him out of bed in the morning without first providing the medication. 138 Evidence was led on both sides relevant to the capacity of the correctional system to provide an appropriate, let alone comparable, system. Any offender will undoubtedly have his or her condition assessed upon admission into custody. Medical services are available and appropriate medication will be prescribed. Nevertheless, it was well open to his Honour to conclude, as he did, that there would be significant risks that a combination of events beyond the reasonable control of the prison authorities could have a serious impact on the particular offender, including his safety while in custody. The clinical director of psychiatric services at Justice Health, who gave evidence in the sentencing proceedings, noted that, while missing a dose of Ritalin would not be fatal, it might be disadvantageous, as it could change an inmate's behaviour and make him vulnerable (Tr 23/3/07, p5). 139 Sometimes the nature of the particular crime and the offender's bad criminal record mean that these matter carry little or no weight. But this was a case in which there was no appealable error in such matters being taken into consideration as relevant to the decision whether to impose a custodial sentence that would place an immature and vulnerable young man into the prison system for the first time. 140 The Crown accepted before us that the state of an offender's health, and the risks associated with it, are proper matters to be taken into account. It also accepted that the "realities of the prisoner's life should not be overlooked in the sentencing configuration" (CCA Tr 22/10/07, p13). These were proper concessions, in my opinion. 141 McGuire ADCJ referred to the offender's medical condition as "a matter of extreme concern". It is a feature of the ADHD condition that the person will forget to take the appropriate medication when it is necessary; that the failure to take it leads to erratic, distractable and aggressive behaviour; and that this in turn can provoke retaliation from persons in close proximity who resent the behaviour. There was also in the present case medical concern that an increase in stress as well as passive smoking would exacerbate the offender's chronic asthma. 142 McGuire ADCJ said: I am deeply troubled by the likely consequences of this slightly built, immature, young man in custody without the necessary and regular provision of his medication. Having observed him during the course of the trial and the subsequent sentencing exercise and his demeanour in the witness box I formed the opinion that he was an immature and unsophisticated young man. The excitable state into which he falls without taking the Ritalin every four hours or thereabouts would render him highly vulnerable to mistreatment and assault within the prison system. Any peculiar or erratic behaviour towards his fellow inmates would attract unwelcome attention and resentment. I consider that it is probable that he would be the subject of assault and violence should he behave in the manner he has demonstrated without resort to his medication. 143 His Honour found that there was a substantial risk that Ritalin would not always be available for a variety of reasons none of which would stem from want of reasonable care on the part of prison authorities (see ROS 23/3/07, pp13-15). His Honour was persuaded that the prospects of the offender receiving his medication as required were low and that the danger of serious consequences by way of bashing or other violence to the offender if incarcerated were high. 144 I detect no error in this approach. It strikes me as both sensitive and realistic. It in no way treats a medical condition as a "rogues charter". Immediately after making the detailed findings on this matter, his Honour reminded himself that obviously "such problems would not automatically preclude a sentence of immediate fulltime custody. Since, however, the objective seriousness of the offender's conduct was seen to be of a low order a suspended sentence represented the appropriate conclusion." 145 I do not accept the Crown submission that this approach contravened R v Zamagias [2002] NSWCCA 17 at [26]-[27] by failing first to determine the appropriate term of a sentence before deciding whether to suspend it in whole or part. 146 There was debate before us as to whether the Judge's conclusion involved some element of mercy. I think it did, even though the matter is not adverted to in express terms. The Crown did not suggest that mercy is an irrelevant consideration in sentencing, although its appropriateness in the particular case was contested. 147 This was a case in which a decision to impose a custodial sentence would have survived appellate challenge. This was a lenient sentence and the offender can expect no similar leniency if there is any recurrence of similar behaviour. However, in my view, the decision to suspend the sentence did not involve any appealable error. It is, accordingly, unnecessary to consider the offender's submission that the Court should, in its discretion, decline to interfere. 148 Against the possibility that my colleagues may hold a different view as to appealable error I should indicate that I would in any event decline to interfere with the sentence having regard to the totality of the matters referred to, including in this regard, the length of time that has unfortunately elapsed between the announcement of the guilty verdicts and the determination of this appeal. 149 I would dismiss the Crown appeal. 150 HIDDEN J: I agree with Mason P. 151 HARRISON J: I agree with Mason P. **********

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Judgment (40 paragraphs)

Cases Cited (11)