Qoro v R

Crimes Act 1900 LEGISLATION CITED: Criminal Procedure Act 1986 Evidence Act 1995

Maric v The Queen (1978) 52 ALJR 631 Crofts v The Queen [1996] 186 CLR 427 Robinson v R (2006) 162 A Crim R 88 Smale v R [2007] NSWCCA 328 Sieders v R [2008] NSWCCA 187 R v Blick (2000) 111 A Crim R 326 R v Tugaga (1994) 74 A Crim R 190 R v Howard (2005) 152 A Crim R 7 CASES CITED : R v Sood [2007] NSWCCA 214 Papakosmas v The Queen (1999) 196 CLR 297 R v Shamouil (2006) 66 NSWLR 228 R v Engert (1995) 84 A Crim R 67 R v Israil [2002] NSWCCA 255 R v Hemsley [2004] NSWCCA 228 R v Hamid (2006) 164 A Crim R 179 House v The King (1936) 55 CLR 499 R v Khouzame [2000] NSWCCA 505 R v Merritt (2004) 59 NSWLR 557

PARTIES: Sela Ratu Qoro (Applicant) Regina (Respondent)

COUNSEL: Mr GA Brady (Applicant) Mr DC Frearson SC (Respondent)

SOLICITORS: Brenda Duchen (Applicant) Solicitor for Public Prosecutions (Respondent)

LOWER COURT JUDICIAL OFFICER: His Honour Judge Berman SC

IN THE COURT OF CRIMINAL APPEAL 2007/3071

GILES JA JOHNSON J HALL J

26 September 2008 SELA RATU QORO v REGINA Judgment 1 GILES JA: I agree with Johnson J. 2 JOHNSON J: The Appellant, Sela Ratu Qoro, appeals against conviction and seeks leave to appeal against sentence arising from his conviction and sentence in the Sydney District Court for an offence of aggravated sexual assault in company contrary to s.61JA(1) Crimes Act 1900. 3 The Appellant was convicted following a trial before his Honour Judge Berman SC and a jury which commenced on 28 August 2006 and concluded on 14 September 2006. The offence for which the Appellant was convicted carries a maximum penalty of imprisonment for life with a standard non-parole period of 15 years. On 24 April 2007, the Appellant was sentenced to a term of imprisonment of 14 years, comprising a non-parole period of 10 years to date from 4 January 2006 and to expire on 3 January 2016, with a balance of term of four years to date from 4 January 2016 and to expire on 3 January 2020.

Grounds of Appeal 4 The grounds of appeal against conviction contained in the Notice of Appeal filed on 23 January 2008 were as follows:

(a) Ground 1 - the trial miscarried as a result of the learned trial Judge's error in not discharging the jury.

(b) Ground 2 - the learned trial Judge erred in failing to withdraw from the jury the picture identification evidence. 5 At the hearing of the appeal, the Appellant was granted leave to add the following ground:

(a) Ground 3 - the Crown opened its case on a different basis than the basis left to the jury such that it caused unfair prejudice to the Appellant. 6 The grounds of appeal against sentence pressed at the hearing were as follows:

(a) Ground 4 - the learned sentencing Judge erred in finding that there was no connection between the Appellant's psychiatric condition and his moral culpability.

(b) Ground 5 - the learned sentencing Judge erred in that he failed to give adequate weight in the sentencing discretion to the Appellant's psychiatric condition. 7 At the hearing of the appeal, counsel for the Appellant abandoned a ground of appeal against sentence based upon suggested disparity between the sentence imposed on the Appellant and sentences imposed upon co-offenders, Everett Charles Weatherall and Raymond Noel King.

The s.61JA(1) Charge 8 The Appellant was charged on a joint indictment with Everett Charles Weatherall and each separately faced two counts, one contrary to s.61JA(1) Crimes Act 1900 with an alternative count of aggravated sexual assault contrary to s.61J(1) of that Act. As will be seen, on 6 September 2006, the jury were discharged in relation to the co-accused, Weatherall and the trial continued with respect to the Appellant only. 9 The Appellant was convicted of the s.61JA(1) charge which was in the following terms: "Between 23 and 26 November 2005 at Redfern in the State of New South Wales, whilst in the company of other male persons, [he] did have sexual intercourse with [the complainant] without her consent knowing that she was not consenting thereto, and did deprive her of her liberty for a period before the commission of the said offence."

Issues in the Trial 10 It was the Crown case that the Appellant was one of a group of men, of whom Weatherall was the leader, who prevented the complainant, a 20-year old woman, from leaving a terrace house in Redfern and, whilst she was so detained, a number of men (including the Appellant) had sexual intercourse with her without her consent. The case against the Appellant relied upon direct evidence, namely the complainant's identification of the Appellant, together with evidence that suggested that her identification was reliable - that her assailant's penis was unusual (as the complainant had related) and as evidenced by photographs taken by the police and the testimony of the Appellant's wife in the defence case. 11 The Appellant maintained that he was not in the house at the relevant time and adduced alibi evidence. It was submitted for the Appellant at trial that the combination of limited opportunity to inspect her assailant due to the nature of the activity she was forced to engage in (fellatio), bad light and other factors, including the nature of the horrific ordeal that she was subjected to, was such that her identification of the Appellant was mistaken.

The Case Against the Appellant 12 To place the appeal against conviction into context, it is useful to set out part of the remarks on sentence of his Honour Judge Berman SC concerning the Appellant's offence (ROS 1): "The evidence at the trial involving Mr Qoro established that on 24 November 2005, the complainant was sexually assaulted by a very large number of men in a bedroom on the first floor of a terrace house in Eveleigh Street, Redfern. It was impossible, when listening to the complainant give her evidence, not to be struck by the callousness with which she was treated by the men who were assaulting her. She was treated as an object for their sexual gratification and nothing more. She was not treated as a human being. Those assaulting her cared nothing about the distress she was undergoing and the damage they were causing.

The complainant identified Charles Weatherall as being the ring leader. She was forced to perform oral sex on him and he incited others to sexually assault her, at one time urging them to, 'be as rough as you like, she likes it'.

The complainant was held prisoner while various men abused her. She was subjected to anal and vaginal sexual assaults, as well as being forced to perform oral sex on many men who at this stage remain unidentified. These matters all took place in the first floor bedroom and there is no evidence to establish that this offender was one of the men who assaulted the complainant at that stage.

The evidence as to what the offender did to the complainant concerned what happened after she was moved to an adjacent room where there was a couch and minimal furniture. She was thrown on to that couch and seated next to a young man who had been in the bedroom earlier. She described in evidence what happened. She referred to the offender as the 'islander guy', so in view of the jury's verdict, when reading the complainant's account of what happened to her at the hands of the offender, I will use the words 'the offender' where the complainant has used the words 'the islander guy'. This is what the complainant said, 'I got taken in there and got pushed down onto a sofa and the young guy had come and sit on the left-hand side of me and there was the offender. And I can't remember who it was but someone had taken me in there and the offender came in and stood in front of me on the sofa and had pulled out his penis and grabbed the back of my hair and started making me give him oral sex. He was holding the back of my head and when the young guy came and sat on the left-hand side of me, he was trying to grab my head away from the offender and at first he was grabbing my hands, trying to make me rub his penis and then he was trying to pull my head away from the man standing in front of me to force it down on his penis.'

She described the offender this way, 'He had a really large stomach, he was fat and wearing beige shorts and a dark green t-shirt with a short sleeveless shirt over the top. And he had a white hat on backwards and you could see dreadlocks coming out of the side. I'd noticed while he was making me give him oral sex that he had three sort of black marks, sort of circles. They weren't like the lump that Charles had, they were black and they were scattered on the top of his penis.'

The complainant gave evidence that the offender ejaculated during that particular act of oral sex. After the complainant had been subjected to this dreadful assault, a man identified as Shaun Weatherall rescued her. She was led to safety by him. He gave her a drink and the opportunity to dress herself and some money to get home. She went to the nearby home of a female acquaintance and made immediate complainant [sic] of having been raped.

The evidence against the offender was remarkably strong. His case was one of mistaken identity but there was significant evidence in the trial to prove that the offender was the man who had forced the complainant to have sexual intercourse without consent in the second room. That evidence concerned three lumps which the complainant observed on the islander guy's penis which later turned out to match the three lumps that the offender has in his penis. Some of the strongest evidence to establish the accuracy of identification of the offender came, inadvertently no doubt, from the offender's wife. The complainant described the penis of the man who was assaulting her as very small with three marks along the top. She said, 'On the top of his penis there were - I don't know if they were black warts or whatever - but they were different sizes and they were on the top of his penis.'

The Crown case established that the offender does have three lumps of different sizes on his penis. Mrs Qoro gave evidence that her husband had three lumps on his penis. This was consistent with what a police officer noted when he made an examination of the offender's genitals.

In the trial there was some evidence called as to the practice of genital beading amongst some cultures. The offender gave evidence at trial that that was a practice that he had followed and that was how he got the lumps on his penis. As I told the jury, as a matter of logic, the more unusual the accused's penis is, then the greater the support for the Crown case that the complainant describes these unusual features.

The Crown case was that the complainant got right an impressive number of unusual details. Not only did she know about the lumps but on top of that she knew how many there were and that they weren't all the same size. I reminded the jury also that although the complainant said that the lumps were on top of the offender's penis, in fact they turned out to be in a different location. Nevertheless, as the jury verdict indicates, they were clearly satisfied beyond reasonable doubt that the offender was correctly identified as being the man who sexually assaulted the complainant in the second room.

It is important to remember that the charge for which the offender is to be sentenced contains within it an element concerning the offender's detention of the complainant, before he had sexual intercourse with her. The Crown allegation, which the jury accepted, was that the offender was part of a group of men who kept the complainant where she was so they could have sexual intercourse with her without her consent. Each of the men who had sex with the complainant, including the offender, were, according to the Crown, all part of a group of men who amongst other things kept the complainant a prisoner, that is they stopped her from leaving the house so they could all have their turn at assaulting her. Clearly the jury accepted that this offender was part of a joint criminal enterprise with others, who agreed that they would detain the complainant that evening.

The evidence and the nature of the charge thus established that the offender is not to be sentenced as though he did not know about what had happened to the complainant before he sexually assaulted her. I will sentence the offender on the basis that when he forced the complainant to perform oral sex on him, he well knew that she had already been subjected to degrading and repeated forced sexual intercourse at the hands of a number of other men.

… The offender was in company with only one other man at the time he sexually assaulted the complainant, although there were a significant number of other men nearby. He was clearly involved in the joint criminal enterprise to deprive the complainant, that enterprise being an agreement between many others." 13 Given a further issue raised on the appeal, it is appropriate to refer to the following part of the evidence at trial. Soon after the complainant left the house in Eveleigh Street, she met an acquaintance, Natasha Tighe, who observed that the complainant was crying. The complainant said she had just been raped. Ms Tighe told her not to have a shower or change her clothes. The following morning, Ms Tighe took the complainant to the Aboriginal Medical Centre and thereafter, she was transported to Royal Prince Alfred Hospital where she was examined by Dr Patricia Brennan. She was spoken to by police who arranged to take a statement from her. 14 After the assault, the complainant saw the "Islander guy" in Eveleigh Street, Redfern and pointed him out to Ms Tighe. On 13 January 2006, the complainant was shown a photo array and immediately picked out the "Islander guy", selecting a photograph of the Appellant. 15 In cross-examination by counsel for the Appellant, Ms Tighe said that, after the first police interview, she and the complainant were walking in Eveleigh Street when they saw a group of men on the road. The complainant pointed out four men who had violated her, one of whom was the "Islander". In re-examination, Ms Tighe clarified that the "Islander" pointed out to her by the complainant was "Sela … him" being the Appellant who was in Court. Ms Tighe said that she had seen the Appellant three times in the few days after the attack. 16 The Appellant was arrested on 4 January 2006 (T154). The Appellant declined to participate in an ERISP, but agreed to a buccal swab and the taking of forensic photographs of his genitals (T155). Three lumps were visible on the Appellant's penis half-way between the scrotum and the tip of the penis on the right-hand side (T397-398).

Ground 1 - Refusal to Discharge the Jury 17 As mentioned earlier, the trial commenced on 28 August 2006 as a joint trial of the Appellant and Everett Charles Weatherall. On 6 September 2006, the trial Judge acceded to an application by Weatherall's defence counsel to discharge the jury in relation to his client. For present purposes, it is not necessary to recite in any detail the reason for this decision. It is sufficient to note that counsel for Weatherall had made application under s.293 Criminal Procedure Act 1986 to cross-examine the complainant with respect to the presence of Raymond Noel King at a time when an act of sexual intercourse was alleged by Weatherall to have occurred with the complainant some days before 24 November 2005. Counsel for Weatherall had informed the trial Judge that King was to be called as a witness in Weatherall's defence case. However, on 5 September 2006, following the receipt of DNA analysis, police determined to charge King with sexual assault offences arising out of the events which gave rise to the trial of the Appellant and Weatherall. The trial Judge was satisfied that it was in the interests of justice that the jury be discharged in relation to Weatherall given this recent development. 18 I note that Weatherall and King later stood trial before his Honour Judge Woods QC and a jury for sexual assault offences against the complainant. Both were convicted and, on 20 September 2007, sentenced to lengthy terms of imprisonment. It was these sentences which gave rise to the parity ground of appeal on sentence abandoned by the Appellant at the hearing of the present appeal. 19 Following the discharge of the jury on 6 September 2006 concerning Weatherall, the trial Judge informed the jury that they had been discharged with respect to the trial of Weatherall, but would continue with the trial of the Appellant. No objection was taken at that time by trial counsel for the Appellant (who did not appear on appeal) to the explanation provided to the jury by the trial Judge in this respect (T546-547). 20 On the morning of 7 September 2006, counsel for the Appellant made application for discharge of the jury on two bases - firstly, the discharge of the jury in relation to Weatherall and, secondly, the effect of the in-court identification of the Appellant by Ms Tighe (see [15] above). The trial Judge declined to discharge the jury (Judgment, 7 September 2006). In the course of giving reasons for this decision, his Honour stated that:

(a) he was satisfied that a direction could be given to the jury to overcome any problems which may have arisen from the discharge of the jury with respect to Weatherall (Judgment, page 2);

(b) a direction would be given to the jury that the new evidence leading to the discharge of the jury (concerning King) related to Weatherall only and not the Appellant (Judgment, page 2);

(c) the cases concerning Weatherall and the Appellant were linked because they were run as a joint trial but this did not mean that they were linked in the sense that now that Weatherall had disappeared from the scene, the Appellant could not get a fair trial (Judgment, page 2);

(d) the joint trial of the Appellant and Weatherall had proceeded without any suggestion that it was unfair to the Appellant for this to happen and that nothing that occurred after the Weatherall discharge caused it to be unfair to the Appellant (Judgment, page 4);

(e) with respect to the in-court identification of the Appellant by Ms Tighe, his Honour observed that she identified the "Islander" as Sela, that there could not have been an objection to that evidence and that the only part about which legitimate complaint could be made concerned Ms Tighe identifying which particular Sela she was referring to by reference to the man who was then in Court seated in the dock - the effect of the in-court identification was limited and, although it would have been better if it had not occurred, his Honour was satisfied that he would be able to direct the jury to ignore the in-court identification and that there would be no prejudice at all to the Appellant (Judgment, pages 5-7);

(f) neither of the two bases relied upon in support of the discharge application, either individually or together, meant that the Appellant could not have a fair trial and his Honour was satisfied it was in the interests of justice that the trial continue (Judgment, page 8). 21 I note that his Honour duly directed the jury in the summing up in the areas foreshadowed in his judgment of 7 September 2006. No complaint is made on appeal concerning his Honour's directions in those respects.

Submissions 22 Mr Brady, counsel for the Appellant (who appeared for the Appellant in the District Court on sentence, but not at trial), acknowledged that the failure to discharge a jury is not a ground in itself and that it is necessary to demonstrate that a miscarriage of justice has occurred. He contended that a miscarriage had occurred in this case as a result of the refusal to discharge the jury on 7 September 2006. In written submissions, he contended that:

(a) inadmissible and prejudicial evidence was before the jury, being evidence which was only admissible against Weatherall;

(b) the Appellant was faced with "an entirely different trial dynamic" following the discharge of the jury with respect to Weatherall;

(c) there was a risk that the jury would speculate about the new evidence (concerning King) that led to the discharge of the jury and that the jury might form an unfavourable view of the Appellant in this respect;

(d) there was a real risk that the in-court identification by Ms Tighe would inappropriately strengthen the Crown case against the Appellant. 23 In addition to these matters, Mr Brady relied upon the following matters as being prejudicial to the Appellant:

(a) a passing reference by a Crown witness to the fact that the Appellant had been arrested in December 2005, being an arrest unrelated to the trial;

(b) a reference by the Appellant's wife to the Appellant having been in prison at one stage. 24 In oral submissions, Mr Brady developed an argument that the trial Judge and defence trial counsel had not understood until late in the trial (on 12 September 2006) that the Crown was to rely upon the doctrine of joint criminal enterprise against the Appellant with respect to the element of deprivation of liberty. Mr Brady submitted that, in some way, this development could be related back to the refusal of the trial Judge to discharge the jury on 7 September 2006. 25 It became increasingly apparent during Mr Brady's submissions that this issue provided no real assistance to him in support of Ground 1. The trial Judge had heard and determined the discharge application made on 7 September 2006 by reference to the arguments advanced in support of that application. Thereafter, the trial proceeded until 14 September 2006. No further application was made by defence counsel to discharge the jury. Faced with this difficulty, Mr Brady formulated a fresh ground of appeal which he advanced, without opposition from the Crown, at the hearing of the appeal, being Ground 3 to which I will shortly turn. 26 I propose to deal with Ground 1 by reference to the arguments advanced by Mr Brady in his written submissions. With respect to these issues, the Crown submitted that his Honour's refusal of the application to discharge the jury was a proper exercise of discretion, there was no error in principle and that the refusal to discharge the jury did not occasion any risk of a miscarriage of justice, much less a risk of a substantial miscarriage of justice. 27 The Crown submitted that the offence charged against the Appellant was significantly related to those alleged against Weatherall, their offences having occurred in the same house, during the same evening, in rooms next to each other and upon the same victim. It was never the case that only a small fraction of evidence led at trial was admissible against the Appellant. Furthermore, the Crown case against the Appellant included the allegation that he was a knowing participant in a criminal enterprise, of which Weatherall was the principal and which involved unidentified others, to detain the complainant in order for them to have sexual intercourse without her consent (SU39-43). 28 In the context of a trial in which the central issue was whether the Appellant was the "Islander guy" who perpetrated the offence in the second room, not that the events had not occurred, the Crown submitted that it could not be demonstrated that any prejudice was caused by the jury hearing evidence adduced prior to the discharge concerning Weatherall. The Crown submitted that directions given by the trial Judge that the jury should take into account cross-examination by Weatherall's counsel in favour of the Appellant (a direction sought by the Appellant's counsel) could not prejudice the Appellant. Further, directions given by the trial Judge to the jury concerning the new evidence (about King) and the in-court identification by Ms Tighe caused no prejudice to the Appellant. The references to the Appellant's arrest on an unrelated matter and his time in prison were not significant in the context of the trial and, in any event, were the subject of a direction by the trial Judge.

Determination 29 The failure to discharge a jury is not a ground of appeal in itself. The appeal is against conviction: Maric v The Queen (1978) 52 ALJR 631 at 634. The question on appeal is whether there was such a high degree of necessity for the jury's discharge on 7 September 2006 that the failure to order such a discharge has resulted in a mistrial. Much leeway must be allowed for the trial Judge to evaluate considerations relevant to the fairness of the trial, bearing in mind that the Judge will usually have a better appreciation of the significance of the events complained of, seen in context, than can be discerned from reading a transcript: Crofts v The Queen [1996] 186 CLR 427 at 440-441. Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. This Court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice: Crofts v The Queen at 441. 30 I have considered the arguments advanced to the trial Judge in support of the discharge application and his Honour's reasons for refusing that application. It has not been submitted that his Honour applied an incorrect principle in determining the discharge application. His Honour was alive to the issues in the trial and the consequences which may result from the discharge of the jury with respect to the co-accused, Weatherall. In my view, his Honour's decision to decline to discharge the jury was a proper exercise of discretion in the circumstances. The arguments advanced raised theoretical possibilities or, to the extent that areas of possible prejudice were more clearly identified, the issues were met by directions given to the jury by the trial Judge. No error has been demonstrated in his Honour's decision declining to discharge the jury. 31 Insofar as counsel in this Court seeks to rely upon other arguments and, indeed, events which occurred after 7 September 2006 (such as the passing reference to the Appellant's arrest on another matter and his having been in prison in the past), the short answer is that trial counsel made no further application to discharge the jury. Mr Brady did not contend that, in some way, it was incumbent on the trial Judge to discharge the jury of his own motion (T9.29, 27 May 2008). In any event, his Honour gave the jury appropriate directions concerning these matters in the summing up (SU30-32) about which no complaint is made on appeal. 32 It has not been demonstrated that the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In my view, the first ground of appeal against conviction ought be rejected.

Ground 3 - Suggested Change in Crown Case 33 It is convenient to next consider Ground 3 which was argued, by leave, at the hearing of the appeal.

Submissions 34 As mentioned above (at [24]-[25]), Mr Brady commenced to put this submission in support of Ground 1. It became apparent during the hearing that this argument could not advance materially the Appellant's case in support of that ground, given that no application was made for discharge of the jury on this basis either on 7 September 2006 or at any later time during the trial. Mr Brady's oral argument was that, in some way, the trial Judge had erred in not discharging the jury upon a basis which had never been advanced to him for discharge, and that a miscarriage of justice had resulted. When confronted with this difficulty by the Court during argument, Mr Brady sought leave to add a further ground of appeal in the form of Ground 3. The Crown did not oppose a grant of leave in this respect. 35 In essence, Mr Brady contends that a miscarriage of justice has occurred arising from the trial Judge leaving to the jury a possible basis for conviction which had not been opened by the Crown. He submits that the Crown did not open to the jury that the evidence of events in the first bedroom could be relied upon as evidence of a joint criminal enterprise (including the Appellant) to deprive the complainant of her liberty on the evening in question. He submitted that the Crown opening had not introduced this concept against the Appellant (T62-66). 36 Mr Brady submitted that, in the circumstances of the case, the late introduction of the concept of joint criminal enterprise with respect to the element of deprivation of liberty caused unfair prejudice to the Appellant so that a miscarriage of justice has resulted. He submitted that it was not until the end of the Crown closing address that it became apparent that the Crown was seeking to rely upon the events in the first room against the Appellant in support of the element of deprivation of liberty and, in this respect, was relying on joint criminal enterprise. He submitted that it was reasonable to assume that defence counsel had not realised that the Crown was putting its case in this way until this was made clear by the Crown Prosecutor to the trial Judge in response to a query from his Honour following the Crown closing address. 37 The Crown submitted on appeal that the evidence of events in the first room was admissible in the trial of the Appellant, and would have been admitted and relied upon by the Crown even if the trial had not commenced as a joint trial with Weatherall. It was submitted that no prejudice had been demonstrated by the Appellant in the way that events unfolded at the trial.

Approach During the Trial to The Elements of Deprivation of Liberty and Being In Company 38 The Crown Prosecutor had opened with respect to the allegations against both Weatherall and the Appellant, and concluded the Crown opening, by way of summary of the issues, saying (T66): "Firstly Weatherall, then Qoro, sexually assaulted her by inserting his penis into her mouth in circumstances where other males were present. That is the element of in company. And in circumstances where she was not allowed to leave. That is the deprivation of liberty." 39 Mr Brady pointed to defence counsel's understanding, at the time of the Weatherall jury discharge application, that the Appellant was said to be "in company" with the young man in the room and not other persons (T539). During the course of the Appellant's discharge application, there was discussion concerning the person or persons with whom the Appellant was said to be "in company". 40 The trial Judge expressed his understanding that the Appellant was said to be in company with the young man present in the second room when the Appellant was alleged to have assaulted the complainant (T2-3, 7 September 2006). After his Honour declined the Appellant's discharge application, there was further discussion, in the absence of the jury, concerning the elements of deprivation of liberty and being in company (T16-17, 7 September 2006). The trial Judge made clear that the element of being "in company" required the physical presence of a person or persons in the second room at the time when the Appellant allegedly assaulted the complainant (T16, 7 September 2006). The Crown made clear that, with respect to the element of deprivation of liberty, reliance was placed upon the circumstances in which the complainant came to be in the house, and events which occurred in the first bedroom (T16-17, 7 September 2006). All of this was said before the Defence case had opened. Defence counsel made no application for a verdict by direction by reference to either of the elements of deprivation of liberty or being in company. 41 The Crown closing address identified the young man said to have been present when the Appellant sexually assaulted the complainant as being the person relied upon in support of the element of being "in company" (T729). With respect to the element of deprivation of liberty, the Crown reminded the jury of the complainant's evidence about Weatherall taking her into the house leading to her being brought to the first bedroom where she was sexually assaulted by a number of men before being taken into the sitting room (the second room) against her will and being forced to have sex in there (T735-736). The Crown submitted that the "Islander" (the Appellant) (T736-737): "… who arrived in that sitting room, must have been in the house and must have been aware of what was going on. And was involved in the grotesque episode whereby he further deprived her of her liberty for his own sexual gratification. That is the only inference that can be drawn from her evidence as to how she came into this house and how she came to leave it, a man who had some sense of decency arrived and said, 'give her a break'. What does that tell you? Somebody in that house realised that this woman was being subjected to fierce and prolonged physical and undoubtedly sexual abuse and he led her to safety. Members of the jury if anyone had been in that house that night other than the saviour he must have been aware of the fact that she was being detained there against her will. From all the evidence the Crown submits that you would be in no doubt that she was deprived of her liberty before she was subjected to the offences which are the basis of count and which are incorporated into count one, the aggravated count." 42 At the conclusion of the Crown address and in the absence of the jury, discussion ensued between the trial Judge and the Crown Prosecutor concerning the manner of proof of the element of deprivation of liberty (T745-747). In response to a question from the trial Judge, the Crown agreed that it relied upon joint criminal enterprise in this respect (T746). Defence counsel made no submission on the issue. No objection was taken nor was any expression of surprise made in this respect. Shortly thereafter, defence counsel delivered her closing address to the jury (T749-760). 43 Defence counsel said to the jury that the Appellant's case was "very simple" and was that he did not have oral sex with the complainant, was not in the Eveleigh Street premises at the time, but was at home with his family (T751). Understandably, the defence closing address focused almost entirely on this issue, which was the central issue in the trial. Defence counsel told the jury that they ought be "very careful" in considering the evidence of deprivation of liberty against the Appellant (T751). 44 The trial Judge summed up to the jury on 13 September 2006, the morning after closing addresses of counsel. Before the summing up, and in the absence of the jury, defence counsel made submissions concerning the element of being "in company" (T2-3, 13 September 2006). Defence counsel made a short additional submission to the jury which did not touch on the element of deprivation of liberty or any factual matters concerning joint criminal enterprise. 45 In the course of his summing up, the trial Judge gave directions to the jury concerning the elements of being in company (SU37-38) and deprivation of liberty (SU38-43). In the course of the direction concerning deprivation of liberty, his Honour directed the jury concerning joint criminal enterprise (SU40-43). Before concluding the summing up, the trial Judge gave the jury a short additional direction concerning the element of deprivation of liberty at the request of the Crown (SU59-60). 46 At no point before, during or after the summing up did defence counsel object to the direction concerning joint criminal enterprise or ask for any further direction on this issue. No complaint was made concerning the reference to joint criminal enterprise. It was not said that the introduction of this concept at that time had caused any prejudice to the Appellant. No application was made for discharge of the jury on this or any other basis.

Determination 47 It is sometimes argued in this Court that a miscarriage of justice has occurred arising from the trial Judge leaving to the jury a possible basis of conviction which had not been relied upon by the Crown: Robinson v R (2006) 162 A Crim R 88 at 127-129 [137]-[149]; Smale v R [2007] NSWCCA 328 at [79]ff; Sieders v R [2008] NSWCCA 187 at [197]-[212]. The question to be considered by the Court of Criminal Appeal is whether there has been unfairness to the accused which gives rise to a miscarriage of justice by reason of the conduct of the trial and which requires the Court's intervention: Robinson v R at 129 [149]. In considering such a ground, it is appropriate to consider whether there has been any procedural or substantive unfairness to the Appellant. 48 With respect to procedural unfairness, it is appropriate to observe that no complaint was made by trial counsel concerning the introduction of the concept of joint criminal enterprise to the trial. Accordingly, the Appellant requires leave under Rule 4 of the Criminal Appeal Rules to rely upon Ground 3. 49 In this case, the trial Judge sought clarification from the Crown Prosecutor at the conclusion of the Crown closing address as to the evidence relied upon by the Crown with respect to the element of deprivation of liberty. The Crown submitted that reliance was placed upon the body of evidence concerning the taking of the complainant from the street and the commission of a series of sexual assaults by a number of men in the Eveleigh Street premises in the first room in support of its case against the Appellant on this element. Defence counsel did not object nor express surprise at this statement. Defence counsel had not, at that stage, embarked upon her closing address to the jury. Accordingly, defence counsel was aware of the factual and legal basis upon which the Crown put its case in this respect before she came to address the jury. Defence counsel touched upon this issue in her closing address relatively shortly. This was understandable. The Defence case was that the Appellant was not in the house at all and reliance was placed upon alibi evidence. As I have already mentioned, no objection was taken to the trial Judge directing the jury concerning the concept of joint criminal enterprise before, during or after the summing up, nor was any further direction sought by defence counsel on that issue. No complaint is made on the present appeal concerning the content of the direction given to the jury on joint criminal enterprise. 50 Although some question had been raised by defence counsel concerning the evidence relied upon by the Crown with respect to the element of being in company, this issue had been clarified prior to the commencement of closing addresses. 51 It was clear from the Crown closing address that the Crown relied upon evidence surrounding the taking of the complainant from the street, and her detention in the first room of the Eveleigh Street premises whilst sexual assaults were perpetrated upon her by several men, in support of the element of deprivation insofar as it applied to the Appellant. The evidence of events in the first room was admissible in the trial of the Appellant and, in my view, would have been admitted even if he was being tried alone. 52 The development in the trial about which the Appellant now complains was the introduction of the concept of joint criminal enterprise in directions to the jury. It is one of the functions of the trial Judge to ensure that appropriate directions of law are given to a jury with respect to the issues falling for determination at a particular trial. His Honour clarified the question with the Crown, in the absence of the jury and before the defence closing address, and proceeded to direct the jury accordingly without objection from defence counsel. 53 It has not been demonstrated that the trial Judge left a case to the jury which had not been relied upon by the Crown. In any event, simply because a trial Judge leaves to the jury a case or arguments not relied upon by the Crown (which is not this case), it does not follow that there has of necessity been a miscarriage of justice, nor is it such a defect in the trial that Rule 4 cannot apply. If, by putting an argument or a case to the jury that was not put by the Crown, some real unfairness has arisen to the accused, it is difficult to imagine that defence counsel would not object: Smale v R at [97]. 54 I would reject the submission that there has been a denial of procedural fairness in this case. 55 Likewise, I do not accept that any substantive unfairness to the Appellant resulted from the circumstances of this trial. The central defence in this trial was one of alibi, that is the Appellant was not in the Eveleigh Street premises and did not sexually assault the complainant at all. It has not been demonstrated that it was unfairly prejudicial to the Appellant, or otherwise erroneous, to have the evidence of events in the first room before the jury at the Appellant's trial. The direction of law with respect to joint criminal enterprise was one which arose from the evidence adduced in the trial. Defence counsel had notice of the Crown's case on this issue and did not object or otherwise complain to the trial Judge. It has not been demonstrated on appeal that the Appellant was unfairly prejudiced in any way so that this Court ought conclude that a miscarriage of justice has resulted. 56 I would decline the Appellant leave under Rule 4 to rely upon Ground 3 but, even if leave was granted, I would, in any event, reject that ground of appeal.

Ground 2 - Failing to Withdraw from the Jury the Picture Identification Evidence 57 On 31 August 2006, the fourth day of the trial, the Crown adduced evidence from the complainant, without objection, concerning photo identification by the complainant of the Appellant (see [14] above). The photo array was tendered without objection (T201). Counsel for the Appellant cross-examined the complainant on 4 September 2006 concerning the photographic identification and the complainant agreed that the only person in the photographs with dreadlocks was the Appellant (T319-320). 58 On 11 September 2006, the eleventh day of the trial, defence counsel made application to the trial Judge to withdraw the photographic identification from the jury and to abort the trial (T569-570). The main thrust of the defence application was that the probative value of the photo identification was significantly outweighed by the dangers of unfair prejudice to the Appellant so that the evidence ought be rejected under s.137 Evidence Act 1995. The trial Judge refused the application (Judgment, 11 September 2006). 59 In his reasons for refusing the application, the learned trial Judge noted the defence argument concerning the displacement effect. It was argued that the complainant had given evidence that she was sexually assaulted by an Islander man in a poorly lit room where she was forced to perform oral sex on that man. Reliance was placed upon evidence that suggested that the complainant did not get a good look at the man's face at that time. When the complainant saw a man in the street a couple of days later, she recognised him as being one of the men who had earlier sexually assaulted her. This identification occurred in daylight. Defence counsel suggested that there was a possibility that when the complainant chose the photograph of the Appellant from those that were shown to her, what she was in fact doing was identifying the person she saw in the street, rather than the person who was sexually assaulting her. In the course of his reasons for refusing the application, the learned trial Judge stated his intention to direct the jury with respect to the displacement effect, and to give other directions to the jury concerning the need for special caution in considering the identification evidence. His Honour stated (Judgment, page 3): "Thus, although the displacement effect is a matter which does reduce the probative value of the evidence, it is not a matter which causes unfair prejudice to the extent that the evidence should be excluded. As I have attempted to suggest, the displacement effect can be easily explained to jurors who will then understand how it affects the probative value of the photographic identification." 60 His Honour foreshadowed giving the jury appropriate directions concerning the fact that the Appellant was the only person in the photograph array with dreadlocks and also concerning the "rogue's gallery effect" (T3-4, 11 September 2006). In circumstances where such directions were to be given to the jury, his Honour concluded that he was not satisfied that the probative value of the photographic identification evidence was outweighed by the danger of unfair prejudice to the Appellant.

Submissions 61 Mr Brady refers to R v Blick (2000) 111 A Crim R 326 at 334-335 [25]-[29] in support of the submission that the photographic identification evidence ought to have been excluded. The Crown submitted that the issue for the trial Judge was whether the asserted frailties in the photographic identification evidence could be overcome by appropriate directions, and that his Honour correctly resolved that there was no basis to withdraw the evidence and that appropriately crafted directions would ensure that the jury did not use the identification evidence in an impermissible way.

Determination 62 Although the application to withdraw the evidence was made belatedly, it remained open to the trial Judge to withdraw the evidence from the jury if a proper basis was demonstrated for such a course of action: R v Tugaga (1994) 74 A Crim R 190 at 193-194; R v Howard (2005) 152 A Crim R 7 at 15 [36]. 63 It has been observed that the mandatory terms of s.137 Evidence Act 1995 are more consistent with an evaluative judgment, dependant upon a connected series of findings of law and of fact, rather than the exercise of a judicial discretion: R v Sood [2007] NSWCCA 214 at [23]. The Appellant does not submit that his Honour applied an incorrect principle or principles in his determination of this issue. Rather, the challenge on appeal is to the decision made on the application. 64 Evidence is not unfairly prejudicial merely because it makes it more likely that an accused will be convicted: Papakosmas v The Queen (1999) 196 CLR 297 at 325 [91]-[92]. There must be a real risk that the evidence will be misused by the jury in some way and that that risk will exist notwithstanding the proper directions which it should be assumed the Court will give: R v Shamouil (2006) 66 NSWLR 228 at 239 [72]. 65 No error has been demonstrated in his Honour's decision not to withdraw the picture identification evidence from the jury. His Honour outlined directions which he proposed to give to the jury, and which were ultimately given to the jury. His Honour's conclusion that the probative value of the picture identification evidence was not outweighed by the danger of unfair prejudice to the Appellant was open to his Honour and no error has been demonstrated in his Honour's refusal to withdraw the evidence from the jury. 66 Ground 2 ought be rejected.

Ground 4 - Suggested Connection Between Appellant's Psychiatric Condition and his Moral Culpability

Ground 5 - Suggested Failure to Give Adequate Weight to Appellant's Psychiatric Condition 67 It is appropriate to consider the grounds of appeal concerning sentence together. These grounds relate to the manner in which the learned sentencing Judge approached psychiatric evidence concerning the Appellant in passing sentence.

Submissions 68 Tendered in the defence case on sentence were reports of Dr Thomas Clark, psychiatrist, dated 17 March 1995 and Associate Professor Susan Hayes, psychologist, dated 16 March 1995, both of which related to sentencing of the Appellant on an earlier occasion. In addition, a report of Dr Stephen Allnutt, psychiatrist, dated 25 October 2006 was tendered in the defence case on sentence. 69 In his report, Dr Clark stated that the Appellant was "performing at the level of someone who was mentally retarded, although his basic IQ was probably above that", that "he is disabled intellectually at present" and "also has a substance abuse disorder, namely alcoholism". Associate Professor Hayes reported that the Appellant's "testing indicates that in relation to cognitive skills he is functioning in the moderate range of intellectual disability". Dr Allnutt referred to the Appellant's account of "hearing voices" and expressed the opinion that the Appellant manifested symptoms consistent with depressive and psychotic symptoms and that his "functioning in my view is mildly to moderately impaired secondary to ongoing, active psychotic symptoms and mood disorder". 70 Mr Brady submitted to the learned sentencing Judge (and again on appeal) that the psychiatric and psychological evidence concerning the Appellant ought be taken into account in his favour on sentence, and that a finding ought be made that his psychosis or intellectual disability contributed to his committing the present offence, a finding which it was contended ought be reached by drawing what was said to be an appropriate inference. 71 The Crown submitted that no error had been demonstrated in the findings and conclusions of the sentencing Judge concerning the Appellant's psychiatric condition.

Determination 72 His Honour referred to the psychiatric and psychological evidence at a number of points in his remarks on sentence (ROS 8-12): "The offender is a person who has a number of difficulties as far as his mental abilities are concerned. He is unable to read and write and has difficulties communicating. A psychologist's report prepared in 1995 suggests that the offender functions in the moderate range of intellectual disability. On top of that, the offender has been hearing voices for some time and is now treated whilst in custody with antipsychotic medication. These two factors suggest that when assessing the appropriate sentence to impose on the offender less emphasis should be placed on general deterrence than would otherwise be the case. They also suggest that the offender's time in custody will be harder than if he were psychiatrically well and did not have any intellectual disability. Further, the offender has previously been assaulted whilst in gaol. The fact that the offender's time in custody will be harder than usual is a very important factor which suggests the imposition of a non-parole period less than the standard. There are, of course, other factors in this case suggesting the imposition of a non-parole period less than the standard. Those other reasons are to be found elsewhere in these remarks on sentence. … One of the issues raised during the hearing of the sentencing proceedings concern the relationship, if any, between the offender's psychiatric condition and his offence. Nothing in the material presented to me suggested any connection at all. For example, there is no suggestion that the voices told him to abuse the complainant in the way he did, nor was there any evidence that because of his psychiatric condition he was less able to make appropriate decisions about his conduct that night. There seems to be no connection between the offender's psychiatric illness and his moral culpability at all. … It is a fundamental rule of sentencing that the sentence needs to reflect the objective gravity of an offender's conduct. The standard non-parole period in a case where there was not a plea of guilty can only be departed from when a judge has given specific reasons for such a departure. As I said, I am satisfied that the offence is objectively in the middle of the range of objective seriousness, but I will not impose a non-parole period as long as the standard. Primarily that is because of the offender's mental difficulties, but the other reasons I have mentioned also in my remarks on sentence. I will make a small adjustment to the relationship between the non-parole period and the head sentence to make a finding of special circumstances in the offender's favour. That small adjustment is related to the offender's intellectual disability and problems with psychosis. But I have to recognise that I have already taken those factors into account in setting the non-parole period in the head sentence, and so to give significant weight in finding special circumstances would be to double count. I have to also - and this is perhaps the most important constraint on the non-parole period - to recognise that the non-parole period itself has to reflect the objective gravity of an offender's conduct." 73 In approaching the use of psychiatric and psychological evidence on sentence, it is necessary to bear in mind the observations of Gleeson CJ in R v Engert (1995) 84 A Crim R 67 at 68 that it would be erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances.

74 The existence of a mental illness or other psychiatric condition, where causally related to the offence committed, can be relevant to the assessment of the offender's moral culpability. Where mental illness contributes to the commission of an offence in a material way, the offender's moral culpability may be reduced and there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: R v Israil [2002] NSWCCA 255 at [23]; R v Hemsley [2004] NSWCCA 228 at [33]; R v Hamid (2006) 164 A Crim R 179 at 197 [94]. 75 The challenge contained in Ground 4 involves a challenge to a finding of fact made by the learned sentencing Judge. His Honour had regard to the psychiatric and psychological evidence and was not satisfied, in the circumstances of the present case, that any connection had been established between the Appellant's psychiatric condition and his commission of this offence. 76 This Court is bound by the findings of fact of the sentencing Judge unless they were not open on the evidence or unless error is shown in accordance with the principles in House v The King (1936) 55 CLR 499 at 504-505: R v Khouzame [2000] NSWCCA 505 at [33]-[41]; R v Merritt (2004) 59 NSWLR 557 at 573 [61]. There was, of course, a practical difficulty facing the Appellant given his denial of the commission of the offence in advancing a submission that his mental state had, in some way, contributed to the commission of the offence. Nevertheless, his Honour considered the submission on its merits and rejected it. There was no direct evidence before the sentencing Judge as to whether any condition from which the Appellant suffered was causally related to the commission of the offence. Nor was his Honour required to draw an inference favourable to the Appellant on this issue. 77 No error has been demonstrated in his Honour's finding that no connection had been demonstrated between the Appellant's psychiatric condition and his commission of this offence and thus his moral culpability for the offence. I would reject Ground 4. 78 With respect to Ground 5, it is apparent that his Honour gave careful consideration to the psychiatric and psychological evidence for the purpose of determining sentence. His Honour had regard to that evidence, in the Appellant's favour, both in fixing the non-parole period and in finding special circumstances. 79 In my view, it has not been demonstrated that his Honour erred in failing to give adequate weight on sentence to the Appellant's psychiatric condition. To the contrary, his Honour took these matters into account in the exercise of sentencing discretion for a most serious crime for which the Appellant was to be sentenced. I would reject Ground 5. 80 I propose the following orders:

(b) grant leave to appeal against sentence, but appeal dismissed. 81 HALL J: I agree with Johnson J. **********

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.