THE APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
The sentencing judge (who had also been the trial judge) imposed an aggregate sentence of 8 years 6 months imprisonment to date from 4 August 2017 (the date of the jury's verdict), with a non-parole period of 5 years and 6 months. This sentence related to the offence of aggravated indecent assault to which the appellant pleaded guilty and to the two offences with which he was convicted after trial. His Honour indicated the following sentences in respect of the offences (using the Count numbers appearing in the indictment as it stood prior to the plea of guilty to Count 1):
Counts Offence Maximum Discount Sentence
(per ROS) penalty indicated
1 Aggravated indecent assault 7 years 10% 1 year 10
months
2 Assault occasioning actual bodily harm 5 years None 2 years
Aggravated sexual
3 intercourse without 20 years None 7 years 6 months
consent
[2]
As indicated by the table, the appellant received a discount of 10% in respect of the aggravated indecent assault offence by reason of his plea of guilty at the commencement of the trial. The non-parole period specified in respect of the aggregate sentence was 65% of the head sentence, reflecting a finding of special circumstances.
His Honour noted that the appellant was to be sentenced "in accordance with the policy of the legislature current at the time of offending and consistently with the approach adopted by sentencing courts at that time" (R v Moon [2000] NSWCCA 534; (2000) 117 A Crim R 497 at 511) and noted that "the sentences imposed at the time of the present offences were somewhat less than they are now".
At the sentencing hearing, the Crown tendered without objection a bundle of documents including a statement of "Facts on Sentence after Trial". The appellant tendered a psychological report by Ms Anne-Marie De Santa Brigida, counselling psychologist, and a psychiatric report by Dr Tanveer Ahmed, consultant psychologist. The appellant gave evidence on sentence, as did his ex-partner and his cousin.
[3]
Objective seriousness
Based on the Crown's summary of the evidence adduced at trial, the sentencing judge made the following factual findings that he considered were consistent with the jury's verdicts:
"The victim in this matter … was born in … February 1981. In 1994 she resided in England as a Ward of the State. She was sent to Australia in an attempt to reunite her with her natural mother, arriving in Australia on 3 October 1994. On 12 October 1994 she entered Temporary Care residing at a Salvation Army house in Earlwood.
On 20 November 1994 the victim left the group home and travelled to the city by train with a friend Diane. The victim stayed with Diane until Diane got on a bus, leaving the victim alone in the city. While the victim was in the city she was approached by the Offender John Thomas Priday. He asked the victim for directions, however after she informed him that she was unfamiliar with the city, he offered to show her around. The victim remembers the Offender: [a detailed description then appeared].
It is not known where the Offender took the victim, however they ended up at the front of a building with Japanese writing on it. Upon entering the building, the Offender took the victim up several flights of stairs causing her to feel tired and sit down. When seated, the Offender commenced kissing the victim. She told him to 'stop' and struggled to get away, however he did not stop. While the victim was struggling the Offender punched her to the mouth causing the skin on her upper lip to split and bleed. After punching the victim the Offender removed his trousers down to his knees. He then removed the victim's jeans, T-shirt and left shoe. The Offender then inserted his erect penis into the victim's vagina, had sexual intercourse, ejaculating inside her vagina. The positioning of the Offender's penis in her vagina caused her to feel considerable pain.
While the Offender had his penis inside her vagina, the victim was calling, yelling out, begging him to stop, telling him that what he was doing was wrong, however he did not stop. At the time the Offender was holding the victim down against the floor.
After sometime, between 15 to 30 minutes, the Offender ejaculated. He then got off the victim, got dressed and left her alone in the stairwell. The victim got up, put her clothes on and went back to the street. She walked around in an attempt to locate a train station, eventually locating Town Hall Station.
The victim caught the train back to the group home where she disclosed what had happened to a female named Jill Short. The victim was then taken to the Royal Alexandra Hospital for Children where she underwent a SAIK examination with swabs being taken from her vagina. She was examined by Dr Charlotte Hespe who confirmed the injuries were consistent with the history given to her by the complainant."
His Honour made the following assessments of the objective seriousness of the offences:
● Count 1 (aggravated indecent assault): "below the mid-range for this type of offence but not towards the lower end", noting the complainant's age and the isolated location.
● Count 2 (assault occasioning actual bodily harm): "slightly above the mid-range for offences of this type", giving weight to the complainant's age.
● Count 3 (sexual intercourse with consent): "above the mid-range for offences of this type but not towards the highest end". It was noted that the applicant took the complainant to an isolated location and had assaulted her first. The act involved full penile penetration, the complainant called out to the applicant to stop, and the complainant's age was towards the upper end of the range but not at the highest end.
[4]
Subjective factors
As the appellant maintained his innocence in relation to Counts 2 and 3, there was no evidence of remorse or contrition.
At the time of the offences the appellant was subject to conditional liberty in the form of a good behaviour bond for five years for a stealing offence.
His Honour found the appellant to have reasonable prospects of rehabilitation, which would be greatly enhanced by access to appropriate counselling.
His Honour found that the appellant suffered chronic pain as a result of a motor vehicle accident some years earlier and had some mental health issues which would make his time in custody somewhat more onerous than for other inmates.
His Honour made a finding of special circumstances based on the appellant's age (52 at the date of sentence), rehabilitation (noting his lack of criminal history in recent years), his difficulties in custody and the need for an extended period of supervision.
[5]
Ground 1: The Judge erred in considering the question of totality and the extent of notional accumulation
As his Honour indicated that he proceeded upon the basis that the Count 1 offence should be served concurrently with the sentences applicable to the other two offences, it is possible to calculate, as 12 months, the extent of accumulation for which his Honour's indicative sentences provided as between Counts 2 and 3. The appellant contended that accumulation to this extent was excessive bearing in mind that his Honour took the assault occasioning actual bodily harm into account not only in assessing the extent of accumulation but as part of the surrounding circumstances of the s 61J offence.
It should be noted first that the Count 2 offence was serious because it involved the applicant punching the 13 year old complainant to her face, causing bleeding and deep purple bruising to her lip. The purpose of the punch was to overcome her resistance to the appellant's sexual advances.
In these circumstances it was in my view open to the sentencing judge to find that the indicative sentence for Count 2 would not be wholly comprehended and reflected within the sentence for Count 3 (and Count 1), and that partial accumulation was therefore appropriate. His Honour had a wide discretion to exercise in this respect and there is no basis for a conclusion that his Honour's discretion miscarried, particularly as his Honour's reasons made clear that he was astute to avoid double counting and that he moderated the degree of notional accumulation to reflect some factual overlay between the two offences.
This ground of appeal should accordingly be rejected.
[6]
Ground 2: The Judge erred in assessing the objective seriousness of the offence of assault occasioning actual bodily harm
The statement of "Facts on Sentence after Trial" tendered by the Crown, without objection by the appellant, referred to the appellant punching the complainant "to her mouth, causing the skin on her upper lip to split and to bleed". This was not significantly different from the evidence at the trial and was in any event a proper basis for his Honour to sentence the appellant in the absence of any suggestion to him by the appellant that there was any significant discrepancy.
On appeal the appellant submitted that the complainant's injury was "a minor injury to the lips" but it was by no means trivial as the bruising and grazing to her upper lip were clearly visible in the photographs which were taken on 20 November 1994 and which were in evidence at the trial. As well, there was evidence of bleeding as, in her statement to the police, the complainant said that she went to the toilets at the railway station to wash the blood from her lips and photographs in evidence showed blood on her denim jacket and T-shirt.
Whilst the nature of her injury was an important factor in assessing the objective gravity of the offence, it was not the only relevant consideration. As R v Burke [2001] NSWCCA 47 at [17] illustrates, an offence may be objectively serious due to the nature of the assault notwithstanding that the injuries are minor. In particular, the degree of violence and the intention with which the offender inflicts harm are also important considerations. In this case, the appellant was a 28 year old man who took a 13 year old stranger to a secluded place and punched her, clearly with some force, in order to facilitate his sexual assault of her. As it was not an element of the offence, her vulnerability due to her age was also relevant.
The sentencing judge's finding of objective seriousness was therefore in my view well open to him (see Mulato v R [2006] NSWCCA 282 at [37] and [46]-[47]).
[7]
Ground 3: The Judge failed to take into account the appellant's deprived upbringing in relation to his moral culpability, or at all
On appeal, the appellant submitted that the sentencing judge failed to take into account the following matters established by the reports of the psychologist and psychiatrist that he tendered.
"The reports, adopted as evidence by the appellant and unchallenged, told of a childhood characterised by the following:
a. An absent father;
b. Being raised by a single mother with three children in a two bedroom unit;
c. Learning difficulties at school resulting in him having to leave school and remaining illiterate for the rest of his life;
d. Being sexually abused at the age of 13 on a number of occasions by [a] much older associate of his older brother;
e. Significant success in sport until he ceased following the sexual abuse.
…
The reports further told of an early adulthood, leading up to the offences, characterised by:
a. Heroin addiction from the age of 20 or 21;
b. An inability to maintain employment;
c. An inability to maintain relationships.
The psychologist found that the appellant had a composite IQ of 74, which is in the 'lower extreme' range (report p7) and had a long history of neuro-developmental problems (p 14). The psychiatrist diagnosed the appellant with ADHD and opined that it was highly likely that he suffered a social anxiety disorder."
The appellant then made the following further submission:
"Despite the unchallenged evidence about the appellant's deprived childhood, the Judge made no mention of it in his judgment. The Judge's consideration of subjective factors was largely limited to some learning difficulties, past problems with heroin as an adult, current back problems and the various risk assessments. It is apparent that he did not take into account the appellant's deprived childhood. This was a matter of some significance on sentence, for the reasons explained by Simpson J (Bathurst CJ and Adamson J agreeing) in R v Millwood [2012] NSWCCA 2 at [69]".
As the Crown indicated on appeal, those submissions about the appellant's childhood were however not made by defence counsel at first instance. As a result, the following observations of Bellew J (with whom R A Hulme J and Davies J agreed) in Avery v R [2015] NSWCCA 50 at [72] are applicable to preclude the appellant relying upon this ground:
"It is not open for a party to come to this Court and assert error on the part of a sentencing judge based upon a failure to take a particular course which the judge was never asked to take. Generally speaking, a party is bound by the manner in which the case is conducted at first instance: Zreika v R [2012] NSWCCA 44 at [80] and [82] per Johnson J."
In any event, for the following reasons the appellant did not establish error on the part of the sentencing judge.
The sworn evidence given by the appellant at the sentencing hearing did not refer to his childhood. The only evidence as to that was contained in the tendered psychological, psychiatric and pre-sentence reports. In summarising those reports, his Honour referred to the appellant's account of having had some form of learning disability at school, being illiterate and to a 20 year history of opiate dependency, which was then in remission. While his Honour did not recite the entirety of these reports, his reliance on parts of them indicates that he gave them careful consideration.
Further, as the Crown submitted on appeal, whilst the appellant's upbringing was not in some respects an advantaged one, there was a significant degree of stability in his home environment deriving from his close relationships with his mother and siblings, the absence of any Children's Court entries on his criminal record and his early involvement with sport. Other than when he "experimented with cannabis at age 13 for one year" (with his use being described as "sporadic in nature"), it was not suggested in the reports that the appellant grew up in a home environment of alcohol, drug abuse or violence.
The psychologist's report recorded that the appellant stated that on approximately six occasions when he was about 13, he had been sexually molested by a male in his forties. The report did not however suggest that the appellant suffered from post-traumatic stress disorder as a result of this or any other circumstance.
For these reasons, this ground of appeal should also be rejected.
[8]
ORDERS
For the reasons I have given, I propose the following orders:
1. To the extent necessary, grant the appellant leave to appeal against his convictions of offences of assault occasioning actual bodily harm and aggravated sexual intercourse without consent.
2. Dismiss the appeal against those convictions.
3. Refuse the appellant leave to appeal against sentence.
JOHNSON J: I agree with Macfarlan JA.
LONERGAN J: I agree with Macfarlan JA.
[9]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 13 November 2019
In R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386, Mason P (with whom Hulme and Simpson JJ agreed) concluded that the correct approach to determining whether, for the purposes of s 65(2)(c), a representation was "made in circumstances that make it highly probable that the representation is reliable", is to (at [34]):
1. focus "upon the circumstances of the making of the previous representation to determine whether it is unlikely that the representation was a fabrication or highly probable that the representation was reliable"; and
2. exclude "evidence tending only to prove the asserted fact".
His Honour considered that (at [36]):
"[P]rior or later statements or conduct of the person making the previous representation are only to be considered to the extent that they touch the reliability of the circumstances of the making of that previous representation. If they do no more than tend to address the asserted fact or ultimate issue they have no bearing on the issues presented by s 65(2)."
Accordingly his Honour "would not exclude reference to events outside the time and place of the making of the previous representation itself from the range of 'circumstances' capable of reflecting on the unlikelihood of it being a fabrication when made or the high probability of it being reliable when made" (at [37]).
In Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32, the High Court held that evidence of a representation made by an accomplice of the accused should not have been admitted. The Court considered that it was not, by reference to the circumstances in which it was made, open to the trial judge to be satisfied that the representation was likely to be reliable, for the purposes of s 65(2)(d)(ii) of the Evidence Act.
The Court referred with approval to Mason P's statement in Ambrosoli at [29] that while that provision focuses attention upon the circumstances of the making of the representation to determine the likelihood of its reliability (at [69]):
"[E]vidence of events other than those of the making of the previous representations [can] throw light upon the circumstances of the making of that representation and its reliability as affected thereby."
The Court emphasised that attention is required to be given "not to the apparent truthfulness of the person making [the representation], but to the objective circumstances in which it was made" and whether they render the representation "likely to be reliable evidence of the fact asserted" (Sio at [70]). Their Honours contemplated that the circumstances in which the representation was made "may include other representations which form part of the context in which the relevant representation was made" (at [71]) but noted that the provision does not require "a general assessment of whether or not it is likely that the representor is a reliable witness" (at [72]).
In the present case, the trial judge admitted the hearsay evidence of Dr Hespe and Detective Sergeant Jackovou under s 65(2)(b) of the Evidence Act. This section has two elements. The first is that each representation was made "when or shortly after the asserted fact occurred". His Honour was satisfied that this was the case and that conclusion was not challenged on appeal. The second element is that each representation was made "in circumstances that make it unlikely that the representation is a fabrication". This is a less stringent test than that posed by s 65(2)(c), no doubt because compliance with the requirement under s 65(2)(b) that the representation be contemporaneous, or virtually so, with the asserted fact occurring of itself favours reliability of the representation (and therefore makes it less likely to be a fabrication). It is otherwise if the representation is made distantly in time from the asserted fact occurring.
Section 65(2)(d)(ii) imposes a test that is somewhere between these two in stringency ("make it likely that the representation is reliable"), no doubt because the additional requirement of s 65(d)(i) that the representation be against the interests of the person who made it is a factor in favour of reliability, although perhaps not as strong as the contemporaneity of the representation.
Although Sio and Ambrosoli were concerned with ss 65(2)(d) and (c) the observations in those cases are applicable to a consideration of s 65(2)(b) so long as the different language of the two provisions is borne in mind. In particular, the High Court's conclusion in Sio that, instead of a compendious approach, each material fact to be proved by a hearsay statement must be identified and the statute applied to it is of general application (at [61]).
In the present case, as submitted on appeal by the Crown, the material representations were the complainant's accounts of being punched by the appellant and of the non-consensual sexual intercourse that followed. The trial judge was conscious that this was so as the appellant pleaded not guilty to the charge in Count 1 of assault occasioning actual bodily harm, to which the punching evidence related, and, referring to the charge of aggravated sexual intercourse without consent in Count 2, his Honour described the "real issue" in the trial as one of consent. His reasoning and observations in his ruling on admissibility of the hearsay evidence must therefore be understood as directed to the representations as to those two matters. In those circumstances I do not consider that, as the appellant contended, his Honour erred by considering the evidence in an impermissibly compendious fashion (see [37] above).
On appeal, the appellant also submitted that the trial judge erroneously failed to take into account a number of identified circumstances. Most of these, although referred to in the evidence on the voir dire, were not relied on in the appellant's trial counsel's submissions to his Honour.
The first matter that was relied upon before his Honour was the asserted existence of some six inconsistencies between the complainant's statements to Dr Hespe and Detective Sergeant Jackovou. As his Honour pointed out, it is hardly surprising that there were some inconsistencies between the brief history given by the complainant to the doctor and the more formal statement, given in question and answer form, to the police officer, particularly considering the distressed state in which the complainant was that night.
Secondly, defence counsel submitted that the complainant had lied about where she was going on 20 November 1994. It is not clear that this was the effect of the evidence but even if it was, it did not bear to any significant extent on the likelihood of the critical representations to the police being fabricated. Moreover, his Honour did not overlook the evidence as he specifically referred to it. In any event, the evidence was not in my view fairly to be described as evidence of the circumstances in which the material representations were made as distinct from evidence which was relevant in a general sense to the credibility of the complainant.
Thirdly, trial counsel referred to evidence of the complainant's "reluctance to cooperate" and being, on one view, "emotionally distant from the event". These are not matters that point clearly in favour of, or against, fabrication. They were in my view neutral items of evidence.
The appellant referred to other matters on appeal but in my view none of them bore on the circumstances of the making of the representations, as distinct from being matters that were arguably relevant in a general sense to the complainant's credibility.
The most relevant circumstances in relation to both the representations to Dr Hespe and those to Detective Sergeant Jackovou were that the complainant made the representations very soon after the alleged events, to persons in authority when she was clearly in a distressed state and when she exhibited injuries consistent with the representations. As well, the police statement was attended with formality, it concluding with a formal acknowledgement by the complainant of its correctness and her signature on it.
In my view, it was well open to the trial judge to be satisfied that the circumstances in which the representations were made rendered them unlikely to be fabrications.
Leeming JA in the Court of Criminal Appeal in Sio v The Queen (2015) 249 A Crim R 533; [2015] NSWCCA 42 concluded that the Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 principles applied to appellate review of a trial judge's conclusion under s 65(2)(d). Leeming JA considered that the "question is binary: either the circumstances make it likely that the representation is reliable, or they do not" (at [30]). The High Court did not comment on this. If it is for this Court to form its own view about admissibility under s 65(2), I am also so satisfied.
The appellant also contended that the trial judge erred in failing to exercise his power under s 137 of the Evidence Act to refuse to admit the hearsay evidence of representations by the complainant on the basis that the probative value of them was "outweighed by the danger of unfair prejudice" to the appellant.
In this regard he first submitted on appeal that the trial judge failed to take into account "the procedural prejudice which derived from the accused's inability properly to investigate the complainant's credibility through cross-examination of the available witnesses".
In rejecting the application under s 137, the trial judge referred to submissions made on behalf of the appellant as follows:
"The accused has submitted that he has lost the chance to explore certain avenues of inquiry noting no statements were taken from those persons who worked at the residence at the time, and police failed to identify exactly where the incident took place. Moreover, the accused is unable to test the evidence of the complainant herself on what is the primary issue in this trial, that being consent."
These submissions were close to, although not identical with, the contention made on appeal. In my view, the trial judge's reasoning indicates that he had in mind the two significant discretionary factors. First, that the appellant was unable to cross-examine the complainant. Secondly, due to the passage of time, persons who might have been able to give material evidence were unable to be located. As a result, the appellant has not in my view demonstrated that the trial judge failed to take into account material considerations in exercising his discretion.
Secondly, the appellant noted that the trial judge's reasoning included the statement that "there can be little doubt that unfair prejudice does arise where the complainant is unable to give sworn evidence". I do not consider that this statement should be considered as a finding that there would be unfairness to the accused in admitting evidence of the representations. As I read it, his Honour was saying that there would inevitably be prejudice flowing from the inability of the appellant to cross-examine the complainant. At that point in his reasoning he was not however intending to express a view about whether that prejudice would or would not be unfair. To so construe the statement otherwise would be inconsistent with his Honour's ultimate finding that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the appellant.
For these reasons, I reject Ground 2.
GROUND 8: WHETHER THE TRIAL JUDGE'S MISSTATEMENT TO THE JURY OF THE MENTAL ELEMENT REQUIRED TO BE ESTABLISHED BY THE CROWN IN RELATION TO COUNT 2 RESULTED IN ANY SUBSTANTIAL MISCARRIAGE OF JUSTICE
On appeal, the Crown conceded that the trial judge (without objection from either party at trial) gave the jury an erroneous direction as to the elements of the aggravated sexual intercourse without consent offence charged in Count 2. His Honour directed the jury in accordance with the legislative provision in force at the time of the trial (s 61HA of the Crimes Act), not that which was in force at the time of the alleged offence in 1994 (s 61R). The error occurred in both the written and oral directions.
Section 61HA, as in force at the time of trial, relevantly stated:
61HA Consent in relation to sexual assault offences
…
(3) Knowledge about consent
A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if:
(a) the person knows that the other person does not consent to the sexual intercourse, or
(b) the person is reckless as to whether the other person consents to the sexual intercourse, or
(c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.
For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case:
(d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but
(e) not including any self-induced intoxication of the person.
Having referred to the possibility that the jury might be satisfied beyond reasonable doubt that the appellant knew that the complainant did not consent to the sexual intercourse, the trial judge, consistently with this section, continued:
"On the other hand, you may decide on the basis of the evidence led in the trial that he might have believed the complainant was consenting to sexual intercourse with him. Whether that belief amounts to a guilty state of mind depends upon whether the accused honestly held it and, if so, he had reasonable grounds for that belief. Therefore if you are not satisfied that the accused knew the complainant was not consenting, the Crown must prove one of two facts before you can find the accused guilty, either:
a) that the accused did not honestly believe that the complainant was consenting, or
b) that, if he did have an honest belief in consent, that he had no reasonable grounds for that belief."
The statutory provision that was in fact applicable was s 61R as in force in 1994. It relevantly provided:
61R Consent
(1) For the purposes of sections 61I and 61J, a person who has sexual intercourse with another person without the consent of the other person and who is reckless as to whether the other person consents to the sexual intercourse is to be taken to know that the other person does not consent to the sexual intercourse.
GROUND 10: WHETHER THE TRIAL MISCARRIED BECAUSE OF THE APPELLANT'S TRIAL COUNSEL'S INCOMPETENCE
The general principles relevant to this ground were stated by Gleeson CJ (with whom McInerney J agreed) in R v Birks (1990) 19 NSWLR 677 at 685 as follows:
"2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention."
In Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [25], Gummow and Hayne JJ emphasised as follows that it is insufficient for an appellant to demonstrate that his or her counsel was incompetent without demonstrating that a miscarriage of justice occurred:
"Pointing to the fact that trial counsel did not take proper instructions from the accused, did not properly understand the statutory provisions under which the accused was charged, or had not read the cases that construed those statutory provisions, would reveal that counsel was incompetent. Showing all three of these errors would reveal very serious incompetence. But an appeal against conviction must ultimately focus upon the trial and conviction of the accused person not the professional standards of the accused's counsel. Was what happened, or did not happen, at trial a miscarriage of justice?"
To the same effect were the following observations of Price J (with whom Hoeben CJ at CL and Schmidt J concurred) in Davis v R [2017] NSWCCA 257 at [59]:
"In order to establish a miscarriage of justice, the applicant must do more than 'simply point to some failing, even a gross failing, of the legal representative who appeared…': John Wayne Tsiakas v R [2015] NSWCCA 187 at [44]; Younan v R [2016] NSWCCA 248 at [96]. The applicant must demonstrate that there is a significant possibility that the acts of which she complains affected the outcome of the trial: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 ("TKWJ"); Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614."
These observations were cited with approval by this Court in Roach v R [2019] NSWCCA 160 at [155].
Whilst it is for an appellant to establish that there has been a miscarriage of justice, the nature of the conduct at trial of counsel for the accused may be such as to indicate that the accused has not received a fair trial and that a miscarriage of justice has therefore occurred. In TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [76], McHugh J instanced counsel's failure to cross-examine material witnesses or address the jury. In less extreme cases, such as the present, it will remain for the appellant to establish that an irregularity may have affected the outcome of the trial and has therefore resulted in a miscarriage of justice (TKWJ at [76]-[79]).
a. Failing to understand all of the elements of the sexual offences with which the accused was charged, namely whether or not a "defence" of honest and reasonable mistake about the complainant's age was available;
It is apparent from the transcript that defence counsel laboured under the misapprehension that the appellant had a defence to the s 61J offence charged in Count 2 if he had an honest and reasonable belief that the complainant was over 16 years of age (cf Proudman v Dayman (1941) 67 CLR 536; [1941] HCA 28). Whilst counsel's mistake in this respect is to be deprecated, there is no basis for concluding that the mistake affected the outcome of the trial, or may have done so.
This section thus provided that recklessness was taken to be knowledge of a lack of consent. It did not provide for proof of mens rea by proof of the absence of reasonable grounds for believing that a complainant was consenting. Nor did it provide that the jury must take into account, when determining whether the mental element was proved, any steps taken by the accused to ascertain whether the complainant was consenting.
As the Crown properly conceded on appeal, the trial judge's misdirection to the jury constituted a significant departure from the legal requirements for the conduct of the trial. The appeal in relation to Count 2 must therefore be allowed unless this Court concluded in accordance with the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) that "no substantial miscarriage of justice has actually occurred".
The recent High Court decision in Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 is authority for the proposition that the proviso to s 6 of the Criminal Appeal Act is capable of applying even where a misdirection to a jury concerns an element of the offence charged. In that case, the majority reasoned that the matter the subject of the misdirection was not significant in light of the way in which the trial was run.
In Kalbasi, the appellant was convicted of attempting to possess a commercial quantity of methamphetamine with the intent to sell or supply it to another. Pursuant to s 11 of the Misuse of Drugs Act 1981 (WA), it is rebuttably presumed that a person in possession of a specified quantity of a prohibited drug has it in possession with the intent to sell or supply it to another. This section was incorrectly presumed to apply "on the prosecution of a charge of attempted possession of a prohibited drug" (Kalbasi at [1], referring to Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43). The trial judge consequently misdirected the jury that "in the event it was satisfied that the appellant was in possession of the 'drugs', his intention to sell or supply them to another was proved beyond reasonable doubt" (at [2]).
The majority held that where there has been a misdirection, the resolution of whether there has been a substantial miscarriage of justice "depends on the particular misdirection and the context in which it occurred" (at [57]). The majority explained that the "sole issue in the way the trial was run was proof that the appellant was in possession of … the substitute 'drugs' in the cardboard box" (at [60]). The majority agreed with the Court of Appeal that "proof beyond reasonable doubt that the appellant attempted to possess nearly 5 kg of 84% pure methylamphetamine compelled the conclusion that it was his intention to sell or supply it to another" (at [60]). The majority held that "[t]here was no basis in the evidence or in the way the appellant's case was advanced which left open that he may have been in possession of some lesser part of the substitute 'drugs' with a view to purchase for his own use" (at [60]).
In the present case, the "particular misdirection and the context in which it occurred" lead me to conclude that no substantial miscarriage of justice occurred. As the Crown argued, the erroneous direction could not have affected the jury's verdict in this case. The Crown case was that the appellant punched the complainant when she resisted his advances and that he then had sexual intercourse with her whilst he was holding her on the floor and she was telling him to stop. On the other hand, the appellant's case was that they started kissing each other, the complainant then undid the appellant's trousers, and they then had sexual intercourse and later went to the movies.
The jury was instructed that if it accepted the appellant's evidence, or was unable to reject it as a reasonably possible version of the facts, it must acquit him. As the jury unanimously found the appellant guilty of the assault occasioning actual bodily harm charged in Count 1, that immediately preceded the intercourse, it could not have convicted him of the aggravated sexual assault charged under Count 2 on the basis that he had an honest but unreasonable belief that the complainant consented to the intercourse. The jury cannot therefore have taken the course that was, although sanctioned by the trial judge, impermissible, of convicting the appellant in reliance on the alternative that was contained in the statutory provision applicable at trial but not in that applicable in 1994. In other words, the jury's verdict on Count 1 indicated that it accepted the complainant's version of the facts and did not consider that there was a reasonable possibility that the appellant's version, entirely inconsistent with him having punched the complainant, was correct. It therefore convicted him on the basis, inevitably flowing from the complainant's version of the facts, that the appellant knew that she did not consent to the sexual intercourse.
My conclusion is no different when the dissenting judgments of Gageler and Nettle JJ in Kalbasi are considered. Gageler J departed from the majority by concluding that the Court of Appeal was not entitled to "reason from the jury's satisfaction that Mr Kalbasi was in possession of that obviously commercial quantity of what he believed to be methylamphetamine to the conclusion that the jury acting reasonably on the evidence that had been adduced … would inevitably also have been satisfied that Mr Kalbasi intended to sell or supply it to some other person" (at [75]). Gageler J's conclusion was reached on the "content of the instructions which the jury had been given", which (at [76]):
"left the jury with a pathway of reasoning in relation to one element of the offence which allowed the jury to be satisfied that Mr Kalbasi was in possession of the obviously commercial quantity of what he believed to be methylamphetamine, which pathway of reasoning was inconsistent with the inevitability of the jury, if properly instructed in relation to the omitted element of the offence, also being satisfied that Mr Kalbasi intended to sell or supply it".
Nettle J reasoned that "[i]t is not open to an appellate court to be satisfied that an accused was proved guilty beyond reasonable doubt if it was open to the jury to reach the contrary conclusion" when properly directed (at [144]). His Honour held that, in the circumstances, it would have been open to the jury to reach a contrary conclusion had it been properly directed (at [144]).
Whilst Gageler and Nettle JJ were each able to identify a pathway of reasoning inconsistent with the inevitability of the jury being satisfied of guilt beyond reasonable doubt, no such reasoning is available on the present facts.
I add that the reasoning at [82] above is dependent upon the ability of this Court to rely upon the jury verdict on Count 1 as a verdict delivered at a properly conducted trial. If I had taken the view that any of the appellant's other grounds of appeal should succeed, with the effect of impugning the jury verdict on Count 1, this would not have been the case. As I have not done so, the verdict may be relied upon and Ground 8 should be rejected for the reasons that I have given.
The particulars that the appellant gave concerning Ground 10 and my conclusions concerning them are as follows: