R v Button R v Griffen

Court of Criminal Appeal (NSW)|2002-04-05|Before: Heydon JA, Greg James J, Kirby J, James J

Background 2 The trial was a joint trial of five co-accused on a total of eleven counts. The general circumstances were described thus by the trial judge in his remarks on sentence. "On the evening of 31 December 1998 the complainant …was at Crescent Heads celebrating New Year's Eve. After the celebrations, in the early hours of New Year's Day, 1 January 1999, she sought a lift back to Kempsey with Robert Jarrett, who was driving a black Ford Falcon car, which was occupied by the other accused. She knew Jarrett and some of the other young men. The car left Crescent Head and Jarrett stopped it at a secluded location a few kilometres west, where Marr had sexual intercourse with the complainant on the back seat of the car while Jarrett held her arms above her head. Marr was found guilty of this offence as principal in the first degree. That was count one in the indictment. Jarrett was found guilty as a principal in the second degree, count two. After Marr finished, the accused Button then thrust his penis into the mouth of the complainant while she was still being held by Jarrett. Button was found guilty, count three, and Jarrett found guilty as principal in the second degree, count four. The party moved off and after one or two further stops, which are recounted in the evidence and the summing-up, they eventually arrived at a remote area known as [Dondingalong]. There Jarrett put the complainant on the boot of the car and licked her on the vagina, count five, and also inserted his fingers into her vagina, count six. Ricky Mark Dungah also put his fingers into her vagina, count seven, while she was on the boot of the car. Then Jarrett took her into bushland nearby where he got the complainant to suck his penis, count eight. After Jarrett ejaculated Button emerged from the creek and had sexual intercourse with the [complainant], count nine. When Button finished the accused Griffen took the complainant to a location some 50 metres away and had her suck his penis, count ten, and then had vaginal intercourse with her, count eleven. Subsequently the whole party returned to Kempsey about 7.45 am, where the complainant disembarked from the car and then went to the police station and complained that she had been raped by a number of men. It is clear that the jury accepted beyond reasonable doubt the version given by the complainant so far as the essential elements of the charges are concerned, and I must say there were abundant reasons for doing so. She was a young person, I think 19 at the time. She complained virtually immediately and to the police. She nominated four men, although there was some confusion about the identity of what I think she said was a fellow from South Kempsey. Despite that the woman was clearly distressed and injured, as the medical evidence showed. She was not gravely injured in a physical sense, but it is obvious from the jury's verdicts that this young, slightly built, woman was totally at the mercy of a group of young men through several terrifying hours of sexual abuse. I am conscious, of course, that apart from Jarrett at the quarry none of these prisoners is charged as a principal in the second degree with the offences that his co-accused committed. So in determining the sentence each man has to serve I am not ascribing to him any accessorial liability in regard to offences committed by his co-accused. In this trial each man has only been charged with and convicted of, the offence which he personally perpetrated, saving, of course, the part Jarrett played in holding [the complainant] down in the back of the car at the quarry while Marr and then Button committed their offences upon her at that location. Objectively this is a most serious example of individuals taking advantage of the vulnerability of a young woman early in the morning in remote locations and individually venting their lustful designs upon her. Clearly the jury thought so. Subjectively, I take into account that just about all of these young men were affected by alcohol. While that is not excuse it might indicate a departure from the usual restraints of human conduct. Another feature is that it was not a group of men setting out to find some female prey for their lustful desires. They were all coming back from celebrating the New Year's Eve at Hat Head, or some such place, and just happened upon [the complainant], who was looking for a lift home to Kempsey from Crescent Head. Thus, subjectively, the circumstances are not those of a sober mean spirited group of predators desirous of despoiling a female at whatever cost. Having said that though the conduct of all of these young men was despicable. [The complainant] is a slightly built person and clearly no match for any of them. They individually had their way with her in what can only be described as a callous abuse of a fellow citizen. The detail of the evidence of her experiences is sufficiently set out in the transcript and I need not repeat it."

Button: Ground 1 3 Ground 1 in Button's Notice of Appeal was: "The learned trial judge erred in his directions as to the manner in which the jury should consider the issue of lies told by the Appellant [to] investigating police officers." 4 Button's submissions were: "The prosecution case against the appellant included evidence of lies told to investigating police. When interviewed by police on 4 January 2000 the appellant denied having intercourse with the victim. His case at trial was he had consensual intercourse with her. He explained this lie by reference to his being 'bashed badly' the day before this interview [T 537]. This apparently was motivated by a belief on the part of his attackers that he had committed a rape. He also explained the lie by reference to his co-accused having been charged already and his wanting to avoid getting similarly charged [T 540]. The judge [at summing up 26-27] gave the jury a direction about the use to be made of the lie in the following terms: There is another direction I must give to you, members of the jury and it concerns the matter of lies. The Crown argued to you in his address that some of the accused had told lies in their interviews with the police. Well you will make up your own minds whether the accused, and I speak of them individually, you will make up your own minds whether the accused was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case. You will bear in mind, that according to the evidence there was a lot of alcohol consumed on this night and some of the accused smoked marijuana as well. … Button was interviewed on 4 January, after he had been bashed by some other people he said, on the 2nd. You will take all of that into account in regard to each accused. But I must give you this warning, do not follow a process of reasoning to the effect that, just because a person has told a lie about something, that is evidence of his guilt. There may be any one of a number of reasons for telling lies. For example, out of panic, to escape an unjust accusation, to protect some other person or to avoid some other consequence. If you accept the explanation given for the lie, for example Mr Griffen's explanation, you cannot use it as an admission of guilt of these offences by the accused. It is submitted that this direction is confusing and erroneous. It does not conform with the directions suggested in R v Edwards (1993) 178 CLR 193. (See also R v Zoneff (2000) 112 A Crim R 114). It suffers from the following defects: (a) It fails to make it clear to the jury that the onus of proof lay on the Crown to show that the reason for the lie was a realisation by the appellant of his guilt of the offence. It was incumbent on the Crown to exclude alternative reasonable explanations, such as panic or some extraneous fear. [See R v Heyde (1990) 20 NSWLR 234 at 244). (b) As a corollary of the above the direction, it is submitted, inverts the onus of proof and made it incumbent upon the accused to provide an explanation which the jury accepted. If he failed to do so the jury could use the lies as an 'admission'."

5 The Crown submitted: "The appellant lied to the police when he was interviewed and denied that he had sexual intercourse with the complainant. There was no issue at trial that what he told the police were lies. There was no dispute at the trial that those lies were deliberately told. There was no dispute at the trial that the lies were about a material issue, namely whether the appellant had sexual intercourse with the complainant. The appellant, at the time of telling the lies to police was, on his account, motivated by two (2) factors: i. firstly, as he had been earlier bashed by attackers who believed he had raped the complainant, and, ii. secondly, because he was aware that a 'co-accused' had already been charged with offences arising out of the events of 1st January 1999 with Miss Chatfield, and he wanted to avoid being charged as well. It is submitted that the essential elements of lies required by the principle in Regina v Edwards were all met by the evidence in the trial and conceded by the appellant. Those elements included that the appellant feared of telling the truth as he might be charged and was so motivated to lie. In the circumstances there was no need for the trial judge to take the jury through the laborious process of going through the check-list of elements of lies with the jury. The jury had to be made aware that before they could use lies as evidence of guilt they had to be satisfied that the appellant lied because he was guilty of the offence. It is submitted that the trial judge's directions as to lies made it clear that this was so. Summing up pp 1.7, 2.4, 2.6, 2.8, 3.8, 3.9, 4.1 and more importantly at 27.1. It is submitted that the alternate explanations for the telling of lies by the appellant were excluded by his explanation of the reasons for telling those lies, see paragraph 3 above. It was not necessary for the Crown to exclude other hypotheses in those circumstances, nor was it necessary for the trial judge to direct the jury to consider such hypotheses. It is submitted that all the jury had to consider was whether, when telling those lies for the reasons he gave in evidence it was because of his realisation of guilt of the offences. The directions did not mislead the jury in that task, rather, by telling the jury that if they accepted the explanation given the lies could not be relied upon by the jury, it was to the appellant's advantage."

First complaint: non-conformity with Edwards v R 6 In Edwards v R (1993) 178 CLR 193 at 210-211 Deane, Dawson and Gaudron JJ said: "A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in [the commission of] the offence, or, as was said in Reg v Lucas (Ruth) [1981] QB 720 at 724], because of 'a realization of guilt and a fear of the truth'. Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect." 7 The words "the commission of" have been inserted in square brackets because in Zoneff v R (2000) 200 CLR 234 at [16] Gleeson CJ, Gaudron, Gummow and Callinan JJ said that these words should be included for the sake of clarity. 8 Edwards v R appears to lay down six requirements. First, the alleged lie should be precisely identified. Secondly, the circumstances and events said to indicate that it constitutes an admission against interest should be identified. Thirdly, the jury should be told that they may take the alleged lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it. Fourthly, the jury should be told that they should take the alleged lie into account only if they are satisfied that it was told because the accused knew that the truth of the matters about which he lied would implicate him in the commission of the offence. Fifthly, the jury should be told that there may be reasons for the telling of a lie apart from a realisation of guilt, and that if such a reason is the explanation for the lie, it is not an admission. Sixthly, the lie must be deliberate. 9 The written arguments assumed that Edwards v R applied in New South Wales without any modification by the Evidence Act 1995. Though in the course of debate about the oral argument advanced on behalf of Griffen in relation to Ground 6 of his Notice of Appeal, which overlapped with Ground 1 of Button's Notice of Appeal, there was discussion about the effect of the Evidence Act, there was no suggestion that the position of either appellant would be improved by recourse to any argument based on the Act, and its possible impact can thus be left out of account in deciding these appeals. 10 Before considering the terms of the summing up, it is useful to examine the background to it. The evidence concluded on 11 December 2000. The Crown addressed for most of the afternoon of that day. Crown counsel referred to lies by Button, Griffen and Jarrett, and said that the trial judge would direct the jury as to how they could use those lies. At the end of the address by Crown counsel, counsel for Marr criticised the terms of the Crown's address in relation to lies. Counsel for Griffen asked for an indication to counsel as to what the trial judge proposed to say about lies. Counsel for Button (who is not the counsel who appeared for him in this appeal) asked the Crown to particularise the lies which the Crown wanted the trial judge to give a direction on. Crown counsel said he would do so. Thus the attention of counsel for four of the accused, and in particular counsel for Button, was closely focused on the significance of lies and the directions about them. On the following day, 12 December 2000, the Crown provided the list for which it had been asked and handed it up. The trial judge then responded to counsel for Griffen's invitation to indicate what he proposed to say by delivering what was described as a "judgment". After setting out the events just described, the trial judge said: "Before counsel resume any arguments or further discussion on this matter, I want to record these observations having looked at the decision in Zoneff . First of all, it seems to me that this is only marginally a 'lies case' such as to invoke the Edwards direction. The issues in this trial in regard to each accused are; one, lack of consent and two, knowledge of lack of consent. Each accused was interviewed by the police. As already indicated in these remarks, there are instances where an accused has denied an allegation of sexual conduct but later admitted sexual conduct claiming consent or belief in consent. This is a frequent scenario in sex trials. In those circumstances it is quite proper for the Crown to point to those responses and characterise them if he sees fit as lies told by the accused. That, in my view, is a legitimate avenue of advocacy. Indeed, in this case, as in many contested sexual assault trials, the complainant is cross-examined minutely about variations in her testimony and effectively alleged to have lied and defence counsel pursued these lines with the jury. Since the Crown has addressed first in trials in New South Wales, he has to anticipate and meet prophetically the likely submissions of their opponents. In this case, the Crown has anticipated that the defence will argue respectively and perhaps consecutively what they see as a consistent thread of attitude by the various accuseds: that the complainant was a willing and enthusiastic participant in sexual conduct with them. Thus, he is entitled and indeed obliged to point to perceived flaws in the individual cases of the accused, including inconsistent answers or changes of stories and characterise them as lies. The Crown is not permitted to put to the jury that they will accept the complainant's evidence as to the truth to the extent that any denial by the accused is a lie which demonstrates his consciousness of guilt. That concept has long since been laid to rest and is finally buried in Zoneff . I do not think the learned Crown Prosecutor has done that in this case. He has pointed to contradictory versions said by Griffen in his record of interview where he firstly denied any knowledge of anything, and then after a short break told a vastly different story. He referred to Button who denied in his record of interview any sexual connection but then gave evidence that he did have sexual intercourse but with consent. Then in cross-examination admitted putting his penis in the complainant's mouth earlier. Jarrett, in a convoluted discussion with police, in his record of interview denied touching the girl and later said he did so with her consent and so on. The Crown, in my view, is entitled to point to those matters. True, he once used the phrase 'consciousness of guilt' in regard to Griffen and that is frowned upon by the High Court. But this was an address that started at 2.15 and concluded at 3.50. Because there were five accused and a number of areas he had to cover, the Crown chose to divide his submissions into segments dealing with the contents of the 11 counts in the indictment, the specific evidence applying to each accused, the evidence available against all accused and the peripheral evidence from the witnesses Mr Cook, Mrs Cook, Mrs Stanley, Mr Blunden, the elements of alcohol and drugs involved and so on. In the context of such a necessary detailed submission, the matter of lies was but a portion. It is against that background that I have considered the comments of counsel and that is why I am delivering these remarks before I hear any further arguments on the matter. It seems to me at this stage that this question of lies told by the accused can best be met with a direction to the jury along the lines indicated by the majority in Zoneff ." 11 The direction which the trial judge indicated he would give was in substance what he told the jury, though he added at the end the words: "There may be any one of a number of reasons for telling lies. For example, out of panic, to escape an unjust accusation, to protect some other person or to avoid some other consequence. If you accept the explanation given for the lie, for example Mr Griffen's explanation, you cannot use it as an admission of guilt of these offences by the accused." 12 Following that indication by the trial judge, various counsel made submissions about lies and about other matters. On lies, the contribution of counsel for Button was made after counsel for Jarrett said (transcript 586 lines 21-29): "The other thing I wanted to raise was the particularization of the matters led by the Crown which amount to lies as far as Jarrett is concerned. In his address according to my note, in particular 205 to 206 which is he never touched her and 260 which is a question about kissing, motive but to others. The schedule that has been handed up deals with 234, 235, 249, 261, 263, 294. It makes it very difficult for me to address those when he in fact addressed different questions."

The trial judge responded (transcript 586 lines 30-40): "That's why I tended to suggest the direction I had in mind would be more effective. I thought if you start particularising particular questions in the circumstances of this case, you are highlighting the particular question more than once. The Crown has been asked to provide these matters and has done so and I have pre-empted that by what I said this morning. If people are happy with the sort of direction I have in mind then I will not make reference to it."

Counsel for Jarrett said: "I certainly am". Counsel for Button said (transcript 586 lines 42-47): "Yes, I am generally happy with that direction. As I commented yesterday my position was a bit different from the others because of the nature of the accused Button's evidence. Of course, I am a bit concerned but my friend might touch on consciousness of guilt, I understand."

The trial judge then said (transcript 586 lines 49-50): "Perhaps you can have a chat with him or something."

Counsel for Button then turned to other subjects. 13 In short, the direction now complained of is precisely the direction which counsel for Button said he was "generally happy" with, save that the written submissions additionally complain about the last three sentences. They were sentences which had been foreshadowed by reason of an application by counsel for Griffen, as will shortly be seen. 14 At the end of the summing up on 13 December 2000, the trial judge invited submissions on any further directions which counsel desired. After counsel for Marr put various submissions about matters other than lies, counsel for Dungah said he had nothing. Counsel for Button said: "I've nothing your Honour". Counsel for Jarrett put various submissions about matters other than lies, as did counsel for Griffen. 15 It follows that Button requires the leave of the court under r 4 of the Criminal Appeal Rules to advance this ground of appeal. 16 Further, the last three sentences of the summing up on lies were added after counsel for Griffen had asked that this be done immediately after the "judgment" of 12 December 2000: transcript 581 lines 31-36. Counsel for Button voiced no opposition to that course. 17 The first issue is whether the lie was precisely identified. The trial judge referred to the Crown argument that some of the accused told lies in their interviews with the police. After referring to a lie by Griffen, the trial judge then said: "Mr Button denied having sex with the complainant, but gave evidence here that it did occur at [Dondingalong], but she was consenting." By that the trial judge meant that Button denied vaginal intercourse to the police, but admitted vaginal intercourse in his address to the jury. Button, the only accused to give evidence, at the start of his examination in chief denied the charge that he put his penis in the complainant's mouth, but admitted consensual vaginal intercourse at Dondingalong (transcript 519 line 49-520 line 11). Button also admitted in evidence in chief that he had denied vaginal intercourse to the police on 4 January 1999 (transcript 537 lines 7-16). That was correct: record of interview questions 330-332, 411 and 435-449. The change of tack by Button would have come as no surprise to the jury, since this position had been foreshadowed in his counsel's opening address, at the start of the trial. In chief Button assented to the proposition that what he told the police about vaginal intercourse was a lie (transcript 539 lines 12-16). He repeated that language in two of his answers in chief (transcript 540 lines 8-17). Button had also denied oral intercourse in his record of interview (questions 260-261), but after maintaining that denial in chief and for some of his cross-examination, he admitted oral intercourse at the quarry, consistently with the complainant's evidence, later in his cross-examination (transcript 557 lines 50-54, 558 lines 6-21 and 35-52 and 559 lines 9-24). 18 Button's evidence was given on 11 December 2000. He was the last witness. Addresses took place on 11 and 12 December, and the summing up took place on 13 December. The lie which Button had told about penile intercourse, which was the only one identified in the summing up, would have been clearly in the minds of the jury in view of the references to it in the opening of Button's counsel, the evidence in chief, the cross-examination, and the Crown's closing address, as well as the summing up. Considerable attention was devoted to Button's explanations for the lie both in evidence in chief and in cross-examination. In short, the lie was precisely identified. 19 The second requirement of Edwards v R is that there be identification of the circumstances and events said to indicate that the lie constitutes an admission against interest. It must have been very plain to the jury that a deliberately untruthful attempt by Button to distance himself from any misconduct on the night in question in the course of his record of interview, despite his admitted presence at the scene of the alleged crimes, went to a material issue in circumstances where he knew that to tell the truth about having had penile intercourse - the actus reus of one of the crimes charged against him - would implicate him in the offence. 20 The third and fourth requirements can be taken together. The third requirement is that the jury be told that the lie should only be taken into account if it reveals a knowledge of the offence. The fourth requirement is that the jury be told that the lie should only be taken into account if satisfied that it was told because the accused knew that the truth about which he lied would implicate him in the commission of the offence. The jury was not told either of these things in terms, but it would have been obvious that the truth about which Button lied was that he had committed the actus reus of one of the crimes charged, and hence to that very considerable extent knew of the offence and was implicated in it. 21 The fifth requirement is that the jury be told that there may be reasons for the telling of the lie apart from a realisation of guilt, and that if there was such a reason, the lie was not an admission. The trial judge did tell the jury this, though counsel for Button at the trial did not see, or at least did not call attention to, any flaw in the original direction proposed by the trial judge, which did not contain that statement. The trial judge did not deal in terms with Button's particular explanations for having lied (the earlier bashing and the fear of being charged). But Edwards v R does not itself require this, Button does not complain about it, and anyway the explanations had been examined in detail both in examination in chief and cross-examination only two days earlier. 22 The sixth requirement is that the lie must be deliberate. The trial judge told the jury they had to make up their own mind about that. 23 In short, all six of the requirements of Edwards v R were either met in terms in the trial judge's summing up, or were so obviously met that it was not necessary to do so. Indeed, for the trial judge to have gone line by line through the relevant passage of Edwards v R in circumstances where it was so obvious that some of the requirements had been satisfied might well have been confusing to the jury rather than helpful, and inimical to Button's interests. Hence the first of Button's complaints about the direction should be rejected. 24 There is another answer to Button's complaint that Edwards v R was not complied with. Let it be assumed that there was an absence of full compliance. The genesis of the trial judge's lies direction was the concern of defence counsel at what the Crown said on that subject. This Court does not know what the Crown said on that subject, but the draft direction in the "judgment" of 12 December 2000 was intended to meet those concerns. Counsel, by their non-protest, or, in the specific case of counsel for Button, by his express concurrence, accepted that the draft direction met the defence concerns. In those circumstances, subject to any just criticism of the last three sentences of the actual direction, it was not necessary for the trial judge to do more than he did. He was unspecific as to how the lies could be used against the accused, though he was specific about how they could not be used. He said the mere fact of a lie was not evidence of guilt. He also said that if there was an explanation for the lie it could not be used as an admission. In drawing attention to the role of alcohol and marijuana on 1 January 1999 and in relation to Jarrett's interview that day, and in drawing attention to Button's bashing, the judge was neutralising the possible adverse significance of the lies. Had the lies been crucial to the case, a more detailed direction might have been called for. As it was, the only function of the direction was to negate some difficulty with the Crown submissions. The lies were relied on by the Crown in an unclear way; they were marginal in the light of the conflict between the detail of the complainant's evidence on the one hand and, on the other hand, Button's evidence and ERISP; the trial judge did not suggest that they could be used in any decisive or explicit way against the accused. In all the circumstances, even if the summing up did not comply with Edwards v R, the non-compliance did not give rise to a miscarriage of justice.

Second and third complaints: onus of proof 25 The second and third complaints, which are related, contend that the direction did not make it clear that the onus of proof lay on the Crown to show that the reason for the lie was a realisation by Button of his guilt, and suggested that the onus lay on Button to provide an explanation acceptable to the jury. The bulk of the oral argument on the appeal was directed to these complaints. 26 It is implicit in Edwards v R, and it has been held by this Court (R v Heyde (1990) 20 NSWLR 234 at 244), that the Crown bears the onus of establishing that the lie proceeds from a realisation of guilt. It is true that the trial judge did not, in that part of his summing up which dealt with lies, specifically direct the jury that the Crown had to prove that the lie proceeded from a realisation of guilt. But most of the first four pages of the summing up were devoted to an explanation of the onus and standard of proof. The trial judge did not there suggest that there was any exception to what he said in relation to any issue in the case. The question is thus whether the last three sentences of the summing up on lies, read in that context, are capable of suggesting a reversal of the onus at that point. In my opinion they cannot be read as suggesting a reversal of the onus. Were they to be capable of being so understood, that fact would have been likely to have attracted a protest from counsel for Button either after he heard counsel for Griffen's request for the addition of the last three sentences, or after the summing up. There was no protest at either point. It is, in fact, instructive to compare what the majority said in Edwards v R, what counsel for Griffen said in asking for the addition to the direction on 12 December 2000, and what the trial judge said. In Edwards v R the majority said: "the jury should be instructed that there may be reasons for the telling of a lie apart from the realisation of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission."

Counsel for Griffen said that he wanted a direction of the kind appearing: "in Edwards along the lines of there may be reasons for the telling of the lie, that is out of panic, to escape an unjust accusation, to protect some other person, or to avoid some other unrelated consequence, and if the jury accepts the explanation given for the lie they cannot accept it as an admission made by the accused." 27 The trial judge said: "There may be any one of a number of reasons for telling lies. For example, out of panic, to escape an unjust accusation, to protect some other person or to avoid some other consequence. If you accept the explanation given for the lie, for example Mr Griffen's explanation, you cannot use it as an admission of guilt of these offences by the accused." 28 In these circumstances it does not appear valid to contend that the trial judge erred in giving a direction in the same language as that used by the majority in Edwards v R and that used by counsel for Griffen in requesting the direction, particularly where counsel for Button had an opportunity to protest about or improve upon the direction requested but did not take it. The suggestion that the trial judge failed to explain the onus of proof properly encounters a very significant obstacle in view of the fact that the majority in Edwards v R did not say anything about the onus of proof at that point in their reasons for judgment: in each case the explanation is that there was no need to because it went without saying. It went without saying in the summing up because the point had already been made clear at the outset. 29 The submission by Button that it "was incumbent on the Crown to exclude alternative reasonable explanations, such as panic or some extraneous fear" might have force in a case where an accused does not testify or where there is no particular indication advanced on behalf of an accused as to what explanations there might be. It can have no force here, since Button did give evidence and advanced specific explanations, for it can be concluded that there were no others. 30 Even if there were any arguable merit in Button's arguments in relation to Ground 1, they cannot be acceded to unless leave is given pursuant to r 4. 31 Wood CJ at CL in R v Fuge [2001] NSWCCA 208 at [40] spoke of that appeal as being "a classic example of an 'armchair appeal', in which counsel not involved in the trial has gone through the record in minute detail looking for error, without reference to the manner in which the trial was conducted." These words may not necessarily apply to counsel appearing before this Court in this case. However, some of the passages in earlier cases to which Wood CJ at CL referred bear repetition. 32 In R v Abusafiah (1991) 24 NSWLR 531 at 536 Hunt CJ at CL said: "The requirements of r 4 of the Criminal Appeal Rules do not constitute some mere technicality which may simply be brushed aside. One purpose of the requirement that no misdirection or non direction may, without leave, be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury. If a summing-up contains some error which could easily have been cured once the judge's attention had been drawn to it, and if counsel for the accused to whose detriment the error operates fails to comply with his or her duty to draw the judge's attention to that error ( R v Knight , Court of Criminal Appeal, 18 December 1990, unreported at 46), any suggestion that such detriment automatically entitles the accused to a new trial does not strike a sympathetic chord in the hearts of those who see the right to a fair trial as operating in favour not only of the accused but also of the Crown, which prosecutes on behalf of the whole community. The Criminal Appeal Act 1912 does not exist to enable an accused who has been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial. There are, of course, cases in which the error made is of such a nature that, notwithstanding the failure of counsel for the accused to comply with that duty, leave will be granted to avoid a miscarriage of justice." 33 In R v Sanderson (CCA, 18 July 1994, unreported, pages 7-8) Gleeson CJ said: "This case provides a striking and clear illustration of the reason for the presence in the Criminal Appeal Rules of rule 4. If trial counsel had apprehended that there was any significant risk that the jury might have misunderstood the true nature of their function in relation to this matter of corroboration, then the point was available to be taken by trial counsel. If the point had been taken, and if there really had been a problem, it was a problem that was capable of simple correction. It would ordinarily be quite inappropriate to permit appellants, in such circumstances, to come to the Court of Criminal Appeal and complain that a miscarriage of justice has occurred." 34 In R v DH [2000] NSWCCA 360 at [115] Stein JA (Smart and Ireland AJJ concurring) referred with approval to what Mahoney JA said in R v Jeffrey (CCA, 16 December 1993). At pages 6-7, Mahoney JA said of the principle embodied in r 4: "In my opinion, this principle plays an important part in the criminal trial process. It is important that any objection to the summing-up or that any defect or omission at the trial which can be cured or mitigated by steps taken at the trial, be raised at the time of the trial. The judge should be asked to, and should have the opportunity to, correct any error or deficiency of this kind. … But it is important that, if a citizen is to be tried, he be tried once and for all. The evil both of objections 'held in reserve' and raised only on appeal and of second and subsequent trials is great. Errors will occur and r 4 provides for them. But unless there be a convincing reason why the matter was not raised at the trial and unless the possibility of real injustice appears, an accused should be held to what was done by or for him at trial level. Not infrequently this Court is asked to act under r 4 when the reason why the defect was not dealt with at the trial has not been established and where it is at least possible that there were tactical reasons why it was not. It is not easy for the court on appeal to satisfy itself that the reason why the matter was not raised was error rather than choice. In such circumstances, the court should be slow to act under r 4. In the end, the court must exercise the power given to it by r 4 according to the merits of the individual case. However, in my opinion, in exercising that power, the court should keep steadily in mind the function which r 4 performs in the criminal trial process." 35 Finally, in Papakosmas v R (1999) 196 CLR 297 at 319 McHugh J said: "There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant." 36 The following matters must be noted. If there is an error in the trial judge's summing up on lies, it was easily capable of simple correction by drawing it to his attention. Further, the search for an explanation for the failure to request a correction must be conducted bearing in mind the intense concentration of the parties and the judge on the issue of the lies direction on 11 and 12 December 2000. Any perceived problem cannot have been simply overlooked, in view of the following facts: the matter was examined in the afternoon of 11 December; counsel for Button then requested a list of the materials said to be lies; the Crown supplied it on 12 December 2000; the trial judge delivered his careful "judgment" including his proposed draft direction that morning; the matter was then debated for some time; and the trial judge gave counsel a lengthy opportunity to request redirections after his summing up concluded on 13 December 2000. No affidavit has been read explaining why no redirection was sought. The explanation must either be that it was not sought for tactical reasons (which might include a wholly reprehensible desire to preserve an appeal point - a tactical reason which r 4 was enacted to thwart), or that it was not sought because the actual directions given were seen to be sound, or because the actual directions given were seen not to be adverse to Button's interests while better directions might be adverse. There can be no suggestion in this case that trial counsel were seeking to preserve an appeal point reprehensibly. In those circumstances leave should not be granted unless it is arguable that the trial judge made an error of law or that there is some other miscarriage of justice. On McHugh J's approach there can be no error of law unless a ruling is sought, and none was. A different approach, more favourable to appellants, is that a misdirection on the burden of proof is an error of law even if no redirection is sought. But whether there was a misdirection in the burden of proof depends on what construction the jury would be likely to have understood the trial judge to be intending in the light of the summing up taken as a whole, and the impressions of those who heard him are much more likely to be reliable guides to what he was saying and what the jury would have understood him to have been saying than impressions to be gained by detailed syntactical analysis of a few words at one point of the summing up. Counsel for Button at the trial was experienced, having been called twelve years earlier. The other defence counsel concerned with the lies issue, not to mention Crown counsel, who was entitled and obliged to seek to correct plain errors in the summing up, collectively had vast experience. If one puts aside the unattractive possibility of any counsel seeking to hold a good appeal point in reserve without enlightening the trial judge, it follows that none of the six counsel thought that the trial judge had erred in relation to the burden of proof or indeed in any other way. That is a powerful indication of how the summing up should be construed. It is also a powerful indication that if the summing up should be construed so as to reveal error in relation to the burden of proof or if it contains any other error, it was not error of a kind which might produce a miscarriage of justice. 37 Accordingly leave to rely on Ground 1 is refused by reason of r 4. Even if leave were granted pursuant to r 4, Ground 1 would fail in any event.

All three grounds considered together 40 In oral address counsel for Button submitted, in effect, that even if neither Ground 1 nor Ground 2, nor Ground 3 by itself established a miscarriage of justice, taken in combination they did. The court has concluded that no error has been established in relation to any of these three grounds save for an erroneous direction in relation to intoxication, and it has concluded that the error did not give rise to a miscarriage of justice because of other remarks the trial judge made. Accordingly the issue of whether in combination any errors amounted to a miscarriage of justice does not arise.

Griffen: Ground 2 42 Ground 2 was: "The accidental receipt by the jury of a version of the ERISP of the appellant that included questions about motive on the part of the complainant to lie constituted a miscarriage of justice." 43 Griffen's written submissions state: "It was agreed between defence counsel and the Crown Prosecutor that an edited version of the ERISP between police and the appellant would be tendered at trial. That was because the ERISP contained questions asked of the appellant to the effect of 'Why would the complainant lie?' However, by way of oversight, the unedited ERISP was played to the jury. All defence counsel then sought a discharge of the jury, on the basis that, having been alerted to an impermissible line of reasoning, the jury would inevitably be inclined to pursue it: trial transcript 356-361. The learned trial judge refused that application, and gave a judgment in support of doing so." 44 They also state: "Since the decision of the High Court in Palmer v The Queen (1998) 193 CLR 1, this question has been one of sensitivity. It is inevitable that the jury, having heard the offending question asked of the appellant by a police officer, and having heard the unsatisfactory answer of the appellant, would have been tempted to reason along the same lines. No direction could have removed that temptation." 45 The Crown submits: "The appellant's submission about the accidental receipt by the jury of material in the appellant's ERISP interview with the police about: i. 'reasons for the complainant to lie about him having sexual intercourse with her', and ii 'reasons for others to say that the appellant was present at relevant times'. It is submitted that, notwithstanding the accidental admission of those questions and answers contained in the ERISP, in the context of the trial there was no miscarriage of justice. The relevant 'offending' questions and answers ERISP Q&A 394, 395 and 402 were considered by the trial judge when dealing with applications to discharge the jury made by Counsel for Griffen and Counsel for Marr during the trial. See transcript of Judgment on application pp 1-7 of 6th December 2000 found after transcript page 364. The trial of the accused commenced on 27th November 2000 and concluded on 14th December 2000. During the trial interviews, by way of ERISP recordings, between police and the appellant, Griffen, as well as the accused Button, Jarrett, Marr, and Dungay were tendered. The interview of Griffen, which was played to the jury on 6th December 2000, contained 691 questions and answers. The playing of the tapes of the Appellant's interview took about 2 hours. The interviews of Button, Jarrett, Marr and Dungay were also played and they were each of similar length, for example the Button ERISP was of 502 questions and answers. It is not at issue that questions referred to should not have been played to the jury as it had been agreed between the parties that they would not be. It is submitted that the reason for such agreement is consistent with the principle that it is not for the accused to establish his innocence but for the Crown to prove its case and the reasoning that it is inappropriate to speculate about motive of the complainant (or others) to make allegations. It is submitted, however, that the playing of those questions in the interview did not cause a miscarriage of justice. The questions were not further referred to in evidence (the appellant did not give evidence) and were not canvassed in addresses before the jury. The contest between the Crown and the appellant was on two issues, the first, whether the complainant consented and the second, whether the appellant knew she was not consenting at the time of sexual intercourse. The 'offending' questions and answers related not to those issues but the issues of whether the appellant was one of the persons present at the relevant time and whether he had intercourse with the complainant. As the appellant later said in the ERISP that he was in fact present at the relevant time and he did in fact have intercourse with the complainant the line of reasoning that the appellant complains of did not arise. If the jury were to think anything about the 'offending' questions and answers they were answered, almost immediately by the appellant when he admitted his presence and having intercourse. It is submitted that the issue here does not fall within the difficulties found in Palmer , nor in those cases where the prosecutor has sought to cross examine the accused or make submissions about the absence of a motive in the complainant to lie. It is submitted that the present case is distinguishable from the cases referred to additionally because the questions and answers are in an indirect piece of evidence, namely, the playing of an ERISP interview, as opposed to the direct questioning of a witness where the witnesses reactions are being assessed by the jury, or, submissions in address directed to the members of the jury." 46 The ERISP contains the following material: "Q. Could you give any reason why firstly [the complainant] would say that you were one of the persons responsible? A. I wouldn't know, Sarge. Q. Could you give any reason why Robert Donovan, sorry, Robert Jarrett, Shannon Button and Ricky Dungay would say that you were present in the car whilst [the complainant] was in the car? A. Well, I was in the car, yeah, when --- Q. Right. A. 'Cause I'd have to be in the car if I was asleep --- Q. Right. A. --- and jumped off at South. Q. No. They're saying that you were in there whilst --- A. Oh --- Q. In, you were in the car while Julie was in there, do you understand that? So that's after they'd been to Crescent Head. You were in the car while Julie was in the car. A. Yeah, well I'd have to be in the car from, if they did go to Crescent Head, to come back to Kempsey. Q. All right. And can you give me any reason why they'd say that you were present in and out of the car when these allegations were made that she was mistreated? A. I wouldn't know, Sarge. Q. How well do you get along with Robert Jarrett? A. I talk to him whenever, whenever I see him. Q. Yeah, and what about Shannon Button? A. Just the same as all, whoever's name's there, that's --- Q. What about Ricky Dungah? A Yeah, whenever I see him I talk to him. Q. OK. So is there any reason why you'd think that they'd say, tell the police these things? A. I wouldn't know, Sarge." 47 The ERISP was Exhibit P. It was played on 6 December 2000 before lunch. The problem was drawn to the trial judge's attention just after the jury left and just before the luncheon adjournment. After argument, the trial judge delivered a judgment in which he said: "The Crown Prosecutor in this case has conceded the questions should have been deleted and they were only erroneously allowed to go to the jury for the reasons I have mentioned, but the Crown argues that this is not quite the situation that was condemned in those authorities I have referred to. The interview of this particular accused went on for some time. Those questions appeared at the stage I have mentioned and that part of the interview had been played to the jury up to 1 o'clock when we took the adjournment. The rest of the interview was resumed and the accused changes his version he had given thus far. His version up to that point being to the effect he had been asleep in the car all the time and didn't even know they went to Crescent Head and didn't know anything about events at any other location other than when he woke up, got out of the car in Kempsey and went off to his relatives after the rape mentioned. The interview indicates he wanted to tell the truth or something to that effect and goes on from question 452 to set out that he did, in fact, go with these others to various places and they went to Dondingalong where he said he had consensual sexual relations with the complainant. As I said, the Crown has conceded that the material should not have gone in. Defence counsel argue that the fact it is in is fatal, firstly so far as the trial of Mr Griffen is concerned, but counsel for the other accused say the impact also impinges upon their clients getting a fair trial because of the prejudice that might flow from the jury perhaps raising in its mind this question of the motive the complainant might have to falsely accuse people and thus bring about the problems that are referred to in the other authorities I have mentioned. Clearly, as I said, the material should not have been admitted, but upon a view of all of the circumstances of it and the trial it does not seem to me that it focuses on that particular issue. It is not something that has arisen in the course of evidence otherwise or in cross-examination in the trial. It is peripheral to this extent and so far as Mr Griffen is concerned the only outcome was he ultimately changed his story and told a version in which the issue was nothing to do with why the complainant would lie, but whether she consented to the activities he acknowledges occurred. As the Crown Prosecutor points out, in this trial the only issues so far as all accused are concerned appear to be whether the complainant consented or, alternatively, whether the Crown has proved beyond reasonable doubt that the accused knew she was not consenting. It seems to me that is the flavour of the trial thus far and thus the erroneous admission of that material before the jury, it seems to me, does not create the necessity for me to discharge the jury." 48 Counsel for Griffen then asked for an immediate direction to the jury to disregard the offending material. The trial judge does not appear to have given any direction of that kind, but no complaint about that is now made; indeed it is said that no direction would have had utility. It may be said that a sound reason for the trial judge's silence would have been that to give a direction would have merely made worse whatever problem already existed. Nor did counsel contend that it was wrong for the trial judge to refuse to discharge the jury. He simply contended that the events in question constituted a miscarriage of justice, because questions 394-404 would "inevitably" lead to the line of reasoning discussed in Palmer v R (1998) 193 CLR 1 "that reverses the onus". 49 The offending material is of miniscule volume when considered in the light of Griffen's record of interview, lasting two hours and with 671 questions; the similarly bulky records of interview of the other accused; and the overall length of the trial. The chance that the jury would have been attracted by the type of reasoning exposed in the offending questions is virtually nil, given that in the course of the long trial no other reference was made to it, and given that the addresses and summing up took place a week later. The offending material related to whether Griffen was present: by the time of the trial that had ceased to be an issue, as had the question whether the actus reus of the two crimes charged had taken place. The only issue was consent. Indeed Griffen later in the record of interview admitted presence and admitted the actus reus. That narrowed down even more the possibility of the jury engaging in the impermissible reasoning. The only topic on which any impermissible reasoning could have focused would be what reason the complainant had for lying about whether she was consenting or not. That was not what the offending questions were directed to. Accordingly no miscarriage of justice flowed from what happened in relation to questions 394-404.

Griffen: Ground 3 50 Ground 3 was: "The address of the Crown Prosecutor regarding the witness Jason Cook, in the light of the approach of the Crown Prosecutor to the witness in the trial, constituted a miscarriage of justice." 51 Griffen's written submissions state: "The complainant gave evidence that one Jason Cook was present on the morning and had remonstrated with some of the men when they were sexually assaulting the complainant. For doing so, according to the complainant, Cook was bashed. There was some evidence to support the proposition that Cook had indeed been bashed on the day in question. That evidence was relied upon by the prosecution as supporting the version of the complainant. At trial, Cook was called as a prosecution witness but gave evidence that he could not remember the events of the day in question. Although on a voir dire in the absence of the jury the Crown Prosecutor made an application under Section 38 of the Evidence Act 1995 to cross-examine Cook, there was no such application when Cook gave evidence before the jury. Furthermore it was never put or suggested to Cook in the trial by the Crown Prosecutor that Cook was not telling the truth. However, it appears from page 580.1 of the trial transcript that the Crown Prosecutor in his final address 'invited the jury to speculate that Cook was not telling the truth'. No transcript of that address is available." 52 The submissions also state: "It was erroneous for the Crown Prosecutor not to at least try to cross-examine the prosecution witness about matters affecting his credibility, but then to proceed to criticise that witness in a way that was adverse to the interests of the accused in the trial: see R v Kennedy (2000) 118 A Crim R 34 at [35] to [40] and R v MRW (1999) 113 A Crim R 308 at [20] to [51]. That was not just an infringement of the rule of fairness to the witness contained in Browne v Dunn (1894) 6 R 67 (HL). It was also unfair to the appellant, in that it asked the jury to draw an inference adverse to the appellant without having at least tried to establish the basis for the inference in the evidence." 53 The written submissions of the Crown state: "It is submitted that, in the context of the trial, the Crown Prosecutor's address, as to possible reasons why the witness said that he did not remember the events of that day did not offend the rule that the Crown had to present the case fairly for these reasons: i. the witness, Cook, was present in the car when the complainant was picked up near the roundabout, ii. the witness was present when the events complained of took place, iii. there was evidence that Cook had received a beating (having suffered injuries) consistent with the complainant's evidence, iv. there was evidence that the witness was visited and went with two of the accused shortly after the incident and before he was interviewed by police, v. the witness' statement to police was to the effect that he could not remember the events of the day in question, vi. the relevant parts of the witness' evidence was consistent with his statement (transcript page 454.12, 454.6), vii. the appellant in his ERISP conceded that Cook was bashed that night, viii. each of the other accused acknowledged, in their ERISP interviews, or in the case of Button, in evidence that Cook had in fact been present and had been bashed that night. (Button was the only accused who gave evidence at the trial). As Cook had said from the outset that he had little memory of the night, and no memory of the relevant events, there was little or no foundation to lay an application under Section 38 that the witness was unfavourable in the relevant senses therein. While it is conceded that the Crown Prosecutor should not have made the submission he made to the jury the matter was fairly resolved by the trail judge in his summing up at p. 23.7 to 26.3. The jury were told by the trial judge at p 25.3 'So you cannot speculate on what Mr Cook might have given evidence about if his memory was better'. It is submitted that the directions to the jury about Mr Cook were sufficient and appropriate and the jury were not invited to speculate about Cook's evidence in any way adverse to the appellant." 54 In his summing up the trial judge said: "Another area of evidence you would probably look at is this matter of Mr Jason Cook. The complainant said Mr Cook remonstrated with these men, firstly at the quarry when she was being held down by Jarrett, when Marr had sexual intercourse with her and she was saying, 'Stop it, stop it' and then when Button followed. She said Mr Cook said, if they did not stop he was going to put them all in when we got back to town, then everyone stopped what they were doing. Then Button threatened Mr Cook he was going to bash him and when they drove a bit further on and down a lane, Button and Jarrett did bash Mr Cook and he bled profusely. Later, at the Tourist Information Centre, Jarrett and Button again bashed Mr Cook and kicked him several times. He bled a lot more and someone wiped blood from his face and you have the photograph of the bloodstained towel found in the boot later that day. In their records of interview each of the accused acknowledged that Jason Cook was bashed although none of the accused conceded it was because he remonstrated with them for sexually assaulting [the complainant]. Marr said, when Shannon was getting a head job, Jason was yelling black cunts, but Mr Marr said Jason was just drunk and lost it. Jarrett said Jason had been nagging most of the night and Shannon busted him, but Mr Jarrett did not know why. Button said Jason was carrying on saying, 'You bunch of black bastards' and going on and calling us all this heap of shit, so Mr Button clouted him. Dungay said, Jason called Mr Button a 'black cunt' and Shannon smashed Cookie. Griffen said he saw Jason get punched, but didn't know what for and could not recall Jason saying anything. Well as we know, Mr Jason Cook was called to give evidence, but he said he simply could not remember much about that night at all. He was in the car, but had no recollection of where they went. He walked home, but he did not know where from. He was missing one of his shoes, he had a bleeding nose, but did not know he had been hit until the police told him and he did not see anyone hit him. He had had a fair bit to drink and had smoked a lot of marijuana that night. Well I think it is only fair to say, members of the jury, that Mr Cook's evidence does not help you much at all. It confirms that he was hit, at least in the face and he did leave the rest of the group at some stage. His mother, Mrs Carmel Cook confirmed he was injured when he got home and saw he had scratches all over his body, from the waist up and he had no shirt on. So you cannot speculate on what Mr Cook might have given evidence about if his memory was better. The fact of his injuries and the admission by, I think just about all of the accused, that Cook was abusing them, could be said to be support for the version given by the complainant, but you have to be careful in assessing that material, because we do not have from Mr Cook why he was abusing them. From the Crown's point of view it is consistent with the version given by [the complainant]. From the defence point of view it was an incident not associated with any of the sexual activities of those involved. However, the bashing of Jason Cook is an objective fact in the trial and clearly he was assaulted on more than one occasion and bled quite profusely. Firstly, not far from the events at the quarry and later at the Tourist Information Centre before the journey to Dondingalong. That fact is relied upon by the Crown in relation to the question of whether the complainant consented to the sexual acts relied upon and why she did not put up any resistance. She told you she was frightened what might happen to her if she tried to make a run for it, that, in effect, she realised that resistance was useless. The fact that Jason Cook was dealt with so savagely might assist you in assessing the atmosphere that prevailed in this black Ford car during these hours and the state of mind of the accused persons and the state of mind of the complainant. You have seen her and observed her, you would perhaps ask yourselves whether she impressed you as the sort of woman who would be seeking sexual favours from all these men, first at the quarry and later at Dondingalong in that atmosphere of violence shown towards Mr Cook, but that is a matter for you."

That part of the summing up is not the subject of complaint. 55 The first difficulty in relation to this ground is that though counsel for Marr complained, at the close of the address presented by Crown counsel, that "he has invited the jury to speculate that Cook was not telling the truth", he did not ask for a discharge of the jury or ask for any redirection. Nor did any other counsel, including counsel for Griffen, on that day or on the following day, 12 December 2000. Nor did any counsel ask for a redirection after the summing up. Accordingly leave is needed under r 4. The affidavit of counsel who appeared for Griffen at the trial deals with his failure to seek redirections in relation to the mental element of the offence of sexual intercourse without consent, intoxication and lies, but not with the failure to make any application in relation to the Crown address. 56 The second difficulty is that given that Cook said he could not remember the events in question, it might have been very difficult to make a successful application under s 38 of the Evidence Act 1995. 57 The third difficulty is that it was open to counsel for any accused to go further than the Crown could have done under s 38, since they each had a right of full cross-examination. Three defence counsel did cross-examine briefly, but not counsel for Griffen. It is true that at that stage the Crown had not specifically raised the issue of whether and why Cook was not telling the truth, but it was an available question. 58 The fourth difficulty is that the written submissions do not identify what inference adverse to Griffen it was which the Crown was asking the jury to draw. Indeed the failure of Griffith to have placed before this Court evidence of what the Crown actually said makes it difficult to deal with the argument. It seems that addresses were not recorded, but it would have been possible to file an affidavit of some lawyer who heard the address. 59 In oral argument it was suggested that the jury might speculate that the reason why Cook said he could not remember that he had been bashed was that the accused had done it, and that he had said he could not remember untruthfully, either because he was afraid of them or because he was an associate of theirs. If he was afraid of them, that reflected badly on them. If he was an associate of theirs, and was prepared to perjure himself, that too reflected badly on him. In my opinion the incident was too minor to create a possible miscarriage of justice. To reason as it was suggested the jury might reason would have been to speculate. The trial judge distinctly and explicitly forbad the jury to speculate about what Cook would have said if his memory had been better. There is no sufficient reason to suppose that there was any possibility that the jury would either attribute any significance to whatever it was that Crown counsel said, or failed to comply with the trial judge's direction. 60 Since it has not been shown that any miscarriage of justice has occurred by reason of the conduct of the trial by the trial judge after the Crown address, there is no reason why leave should be granted under r 4.

Griffen: Ground 6 63 Ground 6 was: "The learned trial judge misdirected the jury about the approach to lies relied upon by the prosecution." 64 Griffen submitted: "There was an implicit reversal of the correct onus in those directions with regard to alternative explanations for the telling of a lie at page 27 paragraph 1. It was for the prosecution to prove that the reason for the telling of a lie was consciousness of guilt; it was not for the jury to determine whether it accepted the explanation of the appellant. The effect of the erroneous passage is exacerbated by the explicit reference to the appellant. None of the other directions given by the learned trial judge about the onus being on the prosecution to prove the elements of the offence could have cured this error. The jury may well have understood that, in the general context of the prosecution bearing the onus of proving its case, it was up to the jury to determine whether, with regard to the particular question of lies, it accepted the explanation of the appellant." 65 This argument is similar to the second and third arguments advanced by Button in relation to Ground 1 of Button's Notice of Appeal. The other Button argument was not advanced. The argument should be rejected for the same reasons as the reasons given for rejecting the corresponding arguments of Button. As the Crown submitted, there is no reason to suppose that the jury would have misunderstood the directions in the manner for which Griffen now contends. 66 Further, r 4 should be applied to debar Griffen from relying on this ground. The affidavit of counsel who appeared for Griffen at the trial (who was not the counsel appearing before this Court) says that he did not seek a redirection on lies for any tactical reason and thought them to be correct. Indeed, not only did counsel for Griffen fail to seek a redirection, but the impugned part of the direction was actually urged upon the trial judge by counsel for Griffen. It is true that counsel for Griffen, unlike counsel for Button, has expressly excluded the possibility of tactical reasons existing for the failure to object. It is also true that counsel for Griffen at the trial was inexperienced. The fact remains that collectively the counsel appearing who were concerned with the lies direction were experienced and that none noticed any error in the summing up on lies. That points very strongly against any miscarriage of justice. No argument to the effect that any error of the type discussed in R v Birks (1990) 19 NSWLR 677 was advanced; indeed it was specifically disavowed. The leave needed under r 4 to rely on Ground 6 is refused. Even if it were granted, Ground 6 would fail.

Cumulative effect of errors 67 Griffen submitted that the cumulative effect of the second-sixth grounds in his Notice of Appeal should be taken into account by this Court in determining whether a miscarriage of justice has been established. In my opinion, even taken together, the grounds do not establish any miscarriage of justice.

Proviso 68 Even if Griffen had demonstrated any error, the case would be an appropriate one for the application of the proviso. The Crown case was extremely powerful. It was greatly assisted by Griffen's admission. The complainant was completely unshaken in her evidence. The probability of any one in her position consenting to the acts done to her in the circumstances in which they were done is extremely slight. An examination of her evidence reduces that probability to nil. Even if any or all of the errors alleged have been made out, they are of a marginal, peripheral and insignificant character compared to the force of the Crown case.

Orders 69 Despite the arguments advanced by each of the counsel for the appellants, and the conspicuous ability with which they were advanced, the appeals fail. I propose the following orders.

The appeal of Button against conviction be dismissed.

The appeal of Griffen against conviction be dismissed. 70 GREG JAMES, J: I agree with the orders proposed by Heydon, JA. and with the reasons given by him and by Kirby, J. I only wish to add some short further observations to what is said by Kirby, J. concerning the construction of the aggravating circumstance in s.61J(2)(c). 71 In my view, the degree of proximity to others which could amount to physical presence, as required by the case law, such as to satisfy that element in the requirement of being "in the company of another person or persons", is not fixed in absolute terms. 72 That same requirement of physical presence also exists as a relevant feature to discriminate between accessories before the fact and principals in the second degree. The distinction between the liability of, eg., a lookout and that of others more nearly present would seem to turn on the degree of physical separation from the scene of the crime and the nature of the involvement in the criminal conduct. 73 A lookout around the corner or at a location physically detached or remote from the scene of the principal's activities would not lend encouragement or reassurance to that principal by reason of being at the scene and able to influence the events occurring there. A similar distinction is drawn by Street, CJ. in Regina v. Johns [1978] 1 NSWLR 282 at 286D-286F and 289G-290D between accessories before the fact and principals in the second degree (formerly described as accessories at the fact). 74 The analogy one could propose of a robbery performed by one person physically taking property from the person of a victim who is directly threatened by an accomplice sniper armed with a rifle, a long distance away, is such that it would be difficult in logic and morality to conceive of any reason why the offence should not be that of robbery in company. The purpose is shared, the requirement of presence is satisfied by the influence of the sniper on the criminal conduct constituting the offence. There is a sufficient effective proximity. I do not consider that the law should so little reflect the considerations of logic and morality when it comes to construing either an element of such an offence as this or such an aggravating circumstance as artificially to limit the ambit of words which after all are common English expressions. 75 That analogy illustrates that the concept of presence includes a purposive element which is to be related to the influence or potential influence of the other person or person with whom an accused is alleged to be in company having retard to where that person is located. The purpose and the nature of the criminal acts may cause the relevant physical distance to be more or less, having regard to that influence to which I have referred. 76 The concept does not merely relate to physical distance. In any given case appropriate directions will need to be given ensuring the jury understands not only the geographical connection but also the connection in purpose. 77 KIRBY J:

BUTTON: Ground 1 78 I have had the advantage of reading the judgment of Heydon JA in draft. I agree with his Honour's conclusion in relation to this ground, and the reasons his Honour provides.

BUTTON: Ground 2 79 Many of the accused, including Mr Button, were affected by drugs and alcohol. The directions on intoxication were therefore given in general terms. The complaint made by Mr Button in respect of those directions was also made by Mr Griffen. It is dealt with below in the context of the Griffen appeal. Error has been demonstrated. However, as in the case of Mr Griffen, no point was taken at the trial by counsel then appearing for Mr Button. Rule 4 therefore applies. The issue arises whether, in the context of Mr Button's trial, there may have been a miscarriage of justice. 80 Mr Button said that, in the course of the New Years celebrations, he had consumed a substantial quantity of alcohol, and smoked marijuana. He described himself as "pretty drunk, and stoned". He gave the following evidence: (T 547) "Q. Not knowing what is going on, out of it? A. I just, you know just like not right out of it probably just - I knew what I was doing. Q. You knew what you were doing so you were just a bit out of it were you? A. Yes." 81 It was a strong Crown case. The complainant had made an immediate complaint. She had sustained injuries consistent with her complaint. 82 Mr Button gave evidence at the trial. He provided a detailed recollection of the events of that day, and, indeed, some recollection of the evening before, New Years Eve, including his consumption of alcohol. He described the circumstances in which the complainant entered the car, including his conversation with her before she got in. Mr Button described the journey to the quarry and what happened thereafter. He described the way in which the accused, Marr, "jumped" into the back seat and had sexual intercourse with the complainant. 83 Mr Button then described the journey from the quarry to Kempsey, and the altercation with Mr Cook. He furnished a description of the journey from Kempsey to Dongdingalong. He went for a swim. He returned somewhat refreshed. Upon his return he noticed the accused, Jarrett, coming out of the bushes. He asked the complainant, "Are you going to see me?" She responded, according to his testimony, by saying, "Yes". They then went into the bushes and had sexual intercourse. The detail of his evidence coincided with that of the complainant, apart from his insistence that she had consented. 84 Mr Button said that, whilst he was alone with the complainant, he had the following conversation: (T 534) "I said, 'Why don't you come and live with me?' And she said, 'where?' I said 'Out to Billy Goat at my dad's, Billy Goat Hill.'" 85 His Honour dealt with the issue of intoxication, in the context of the arguments put by Mr McColm, counsel for Mr Button. He correctly identified the issue which the jury was obliged to consider. His summing up included the following: (S/U 44) "One other matter of considerable importance that Mr McColm addressed you about, is the condition of Mr Button. He had had a lot to drink that night and was clearly very much affected by liquor. So much so, that when they got to Dongdingalong, Button went for a swim to try to clear his head and to some extent it did, but it also confirms that the was not present at any of the other alleged activities there, on the boot of the car et cetera and when he emerged from the creek he simply asked the complainant for sex, 'Are you going to see me' and she did. This is where the question of his state of sobriety comes in. Was he so affected by liquor that he did not realise there was a possibility she was not consenting? In the result Mr McColm argues you could not be satisfied, beyond a reasonable doubt, of the guilt of the accused and you must find him not guilty." 86 I do not accept, therefore, that the error of the trial Judge, in his earlier directions on intoxication, may have given rise to a miscarriage of justice. I would refuse leave under Rule 4.

BUTTON: Ground 3 87 Complaint is made on behalf of the appellant Button concerning his Honour's directions as to the mens rea required to prove an offence under s61J of the Crimes Act 1900. The same complaint is made by Mr Griffen, and is considered in the context of that appeal. For the reasons there given, there was no error by his Honour. Ground 3 should be rejected.

GRIFFEN: Ground 1 88 Ground 1 of the Notice of Appeal was in these terms: 1. The learned trial Judge erred in failing to direct a verdict of Not Guilty with regard to the offences that featured the aggravating feature "in company". 89 Mr Griffen faced two counts of aggravated sexual assault (s61J of the Crimes Act 1900), the circumstance of aggravation being that he was in the company of another person, or persons (s61J(2)(c)). The first count was based upon an act of fellatio; the second upon vaginal intercourse, the accused suggesting in each case that the complainant had consented. It was common ground that both acts occurred fifty metres from other members of the group. Counsel for Mr Griffen argued that such geographical separation meant that the offence was not committed in company. His Honour, therefore, ought to have directed a verdict on the circumstance of aggravation, leaving it to the jury to determine whether the crime of sexual assault had been established in the circumstances identified by each count. 90 His Honour found that the evidence was capable of establishing that the offences were committed in company. The issue was left to the jury. Mr Griffen was found guilty of aggravated sexual assault on both counts. 91 Before going to the terms of his Honour's judgment, I should set out more fully the Crown case. The complainant entered the vehicle early on New Year's Day. The vehicle was driven to a quarry. The complainant was then held down by one of the five accused whilst other members had sexual intercourse. Mr Griffen was not the perpetrator of these crimes, although, on the Crown case, he was present throughout. The vehicle was then driven to another location, Dongdingalong, which was remote bushland. Certain group members took it in turns to sexually assault the complainant. According to the complainant, after the accused Button had sexual intercourse, she walked out of the bushes towards the car. As she approached the car, Mr Griffen said to her: "Come up this way." The other men were nearby. Mr Griffen started walking in the direction "that he wanted me to go". The complainant responded by saying to Mr Griffen these words: (T9) "A. I told him that I was in enough pain and did not want to do anything." 92 One of the group (Bobby) Jarrett, then said this: (T9) "A. Bobby told me to just do it or I would not be going home." 93 The complainant then walked fifty metres into the bush, following Mr Griffen. She provided her reasons for having done so in these words: (T10) "Q. Did you go with Mr Griffen? A. Yes. Q. Why did you go with him? A. Because I was scared. Q. Why were you scared? A. Because I was on my own and I had five blokes there pressuring me to do stuff that I didn't want to do and I felt threatened if I did not do it I would not make it home." 94 In his judgment concerning the application for a directed verdict, Viney DCJ carefully reviewed the authorities. In determining whether the sexual assault was committed in company the circumstances were relevant. It was a remote area. The complainant was alone with the five accused. On the Crown case, the offences committed by Mr Griffen followed other acts of non-consensual intercourse where he had been present. His Honour said this: (p 3) "In normal circumstances one might say fifty metres distance from other people is perhaps sufficient to take that accused away from the company of others. But when one looks at the situation it seems to me that the aggravating feature in this case is the coercive effect of a number of men congregated together, while individuals on occasions, perhaps more than one, perpetrated sexual acts on the complainant." 95 His Honour, having drawn attention to the threat said to have been made by Bobby Jarrett, then said this: (p 4) "It seems to me the fact that Griffen took her to a spot some fifty metres away does not, of itself, take his sexual acts out of the company of the others in the circumstances of this case. It seems to me it is a matter of fact for the jury. ..." 96 In challenging that ruling, the appellant, broadly, relied upon two arguments. The first was based upon the construction of the section creating the offence of aggravated assault (s61J Crimes Act 1900). The second was based upon the authorities, where the expression "in company" has been considered, whether robbery in company (s97(1) Crimes Act) or sexual assault in company (s61J). According to the appellant, the cases, whatever else they may say, insist upon the physical presence of a co-offender during the commission of the offence. 97 Dealing, first, with the construction argument, s61J is in these terms: " 61J Aggravated sexual assault (1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years. (2) In this section, circumstances of aggravation means circumstances in which: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender maliciously inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily arm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is under the age of 16 years, or (e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (f) the alleged victim has a serious physical disability, or (g) the alleged victim has a serious intellectual disability." 98 The offence of aggravated sexual assault, therefore, required the conjunction of two matters: · Sexual intercourse with another person without that person's consent, where the offender knows the person is not consenting, · in circumstances of aggravation. 99 Some of the circumstances of aggravation in s61J(2) are defined narrowly, and others expansively. Subsection (2)(c), according to the appellant, is defined narrowly, whereas (2)(a), (b) and (e) are all defined expansively. Subsection (2)(a) and 2(b), for instance, permit variation in the time at which the circumstances of aggravation may occur ("at the time of, or immediately before or after the commission of the offence ..."), as well as matters of geography (in the case of the secondary victim) ("present or nearby"). Subsection (2)(e) also permits variation on the question of authority. Subsection 2(c) relied upon by the Crown in this case, however, permits no such variation. 100 Hence the Crown must, according to the appellant, prove that sexual intercourse took place in company, that is the physical presence of another person or persons. Sexual intercourse is defined, relevantly, as penetration. According to the appellant, penetration must therefore take place in the physical presence of another person. 101 There is force in these arguments, although they choose to concentrate upon one aspect of the offence, namely the act of sexual intercourse, that is, penetration. That aspect is obviously fundamental. However, the offence involves other elements, namely, an absence of consent, and knowledge, on the part of the offender, that the victim is not consenting. How should the offence be defined for the purposes of determining whether it occurs "in company"? 102 It is not difficult to think of situations where defining the offence by reference to the act of penetration may seem unreasonable. Assume that a group of men bound and gagged a female at one location. Assume, somewhat incongruously, that out of concern for each other's privacy, they made an arrangement whereby each member of the group would, in rotation, have sexual intercourse with the victim, whilst other members waited their turn one hundred metres away in the bush. The victim, in that example, would be powerless because of the actions of the group. Yet penetration would, in each case, occur in the absence of other members of the group. Is it not aggravated sexual assault in company? If it is, is there a difference where, as here, instead of binding and gagging the victim, her will is broken by the group at one location, and penetration, for reasons of privacy, takes place at another? 103 Before fixing upon a construction of the section, it is convenient to consider the second argument, which depends upon the way in which the cases have defined the phrase "in company". Most of the cases are concerned with robbery in company, rather than sexual assault. You would expect the same meaning in the context of both offences, although there are obvious differences between the offence of robbery and the offence of sexual assault. The common purpose in robbery is the taking of property for division between participants. Sexual offences involve individual gratification. The common purpose is in achieving, or facilitating, that objective. 104 In The Queen v Joyce [1968] NZLR 1070, a service station owner was held up at gunpoint. Money was demanded. The accused was in the general vicinity, but not present at the time of the hold-up. The Court of Appeal held that the conviction of robbery in company could not stand. They said this: (at 1075) "In the case of a charge laid under that paragraph, in our opinion, the Crown must establish that at least two persons were physically present at the time the robbery was committed or the assault occurred. We reach this conclusion for the reason that we are of opinion that the Legislature, in enacting s235(b) carrying as it does a higher penalty, intended to provide for cases where the victim was confronted by two or more persons acting in concert." 105 In the context of a charge of robbery in company, Walters J made the following comment in R v Cooper (1978) 17 SASR 472: (at 477) "... I think the intendment of the section is to prevent the commission of bodily violence by persons coming together with an intent to rob and to assist one another in the commission and the assault." 106 His Honour added: (at 477/8) "Thus I think the participation by one party in the common unlawful purpose of an assault with intent to rob merely by his giving assistance or encouragement, such as is afforded by keeping watch to prevent the discovery of the other or others actually present together and committing their external or overt operations, or by his being near enough to give physical assistance if it be required, would not be enough to support a charge under s158(b) of the Act. In other words, I think that actual physical participation in the assault is essential." 107 The Court of Appeal in New Zealand again considered the phrase "in company" in R v Galey [1985] 1 NZLR 230. A Japanese sailor entered an hotel. Two men in the hotel concocted a plan to rob him. With the assistance of a woman (who ultimately gave evidence for the Crown), the sailor was lured from the hotel. The two men followed at a distance. They walked separately. One of them, Hooper, attacked the sailor and robbed him. The other, Galey, was not far behind. The sailor, in his description of the attack, only saw one man. He was not conscious of the presence of Galey. Galey was nonetheless charged with robbery in company. 108 The Crown presented the case against Galey upon the basis that he was an accomplice of Hooper, who was the principal offender. The Court (McMullin and Greigg JJ and Sir Clifford Richmond) said this: (at 232) "With the wisdom of hindsight it may well have been open to the jury, on the basis of the girl's evidence, to treat Galey as being physically present at the robbery, not just as a bystander giving encouragement to Hooper, but for the purpose of giving physical assistance to Hooper if required." 109 However, given the way in which the Crown put its case, the question was whether the presence at the scene of an accomplice, at the level of participation alleged against Galey, was capable of transforming the robbery committed by Hooper into one committed by Hooper and Galey, as alleged in the indictment. The New Zealand Act, in terms similar to the Crimes Act 1900 (NSW), identified a number of circumstances of aggravation in respect of robbery, including being "together with another person or persons". Commenting upon that section, the Court said this: (at 233/4) "It is clear enough in relation to (a) and (c) that the legislature has taken as aggravating circumstances matters directly related to the degree of violence, or threats of violence, employed by the offender. We believe that the expression 'being together with any other person or persons' should be construed as having a somewhat similar purpose, and therefore as intended to apply only in situations where the presence together is proved of two or more persons having the common intention to use their combined force, either in any event or as circumstances might require, directly in the perpetration of the crime." 110 The Court added, commenting upon the decision in The Queen v Joyce (supra): (at 234) "Nevertheless the judgment in Joyce strengthens our view that s235(1)(b) was intended to apply only to cases where the forces of two or more persons, acting in concert, are deployed against the victim in the actual commission of the offence. Joyce demonstrates how a lack of physical proximity may negative the statutory requirement of 'being together'." 111 In The Queen v Brougham (1986) 43 SASR 187, the Full Court of South Australia (King CJ, Mohr and von Doussa JJ) considered the offence of robbery in company. Two men hired a taxi. During the course of the journey one of them directed the taxi driver to stop. The driver then demanded the fare. One of the men, Brougham, then struck the taxi driver and demanded the money he was carrying. The other man assisted in various ways, but did not physically strike the driver. Brougham was convicted of robbery in company. He appealed, asserting that his conviction could not be sustained because both men must physically participate before the offence could be characterised as robbery in company. 112 The Court rejected that argument. King CJ (with whom other members of the Court agreed) said this: (at 191) "The true meaning of the provision emerges from the authorities just cited. A person commits a robbery, or an assault with intent, in company where that person participates in the robbery or assault together with another or others in the sense that the victim is confronted by the combined force or strength of two or more persons or that the forces of two or more persons are deployed against the victim. It is not necessary that more than one participant actually strike or rob the victim; it is sufficient that the accused and one or more other participants be physically present for the common purpose of robbing, or assaulting with intent, and of physically participating if required. 113 KIng CJ said this, commenting upon the judgment of Walters J in The Queen v Cooper (supra): (at 191) "His Honour was stressing in that passage that participation in the common purpose at a distance or by mere encouragement or keeping a lookout was not sufficient. I do not think that his Honour was suggesting that presence at the scene with the intention of physically participating if required was insufficient." 114 In R v Crozier (unreported, CCA, 8 March 1996), the appellant was convicted of the offence involved in this appeal, namely aggravated sexual assault in company (s61J). The Crown case was that the complainant was offered a lift in a vehicle in which there were two men. One of the men got into the back of the vehicle and had sexual intercourse with the complainant. The other man remained in the front of the vehicle. The issue on appeal was the adequacy of the trial Judge's direction to the jury as to the meaning of the circumstance of aggravation, being "in company". Grove J (with whom Cole JA and Ireland J agreed) said this: (at 10) "The matter was therefore left to the jury on the basis that the mere presence of Fitzgerald during the alleged offence by the Appellant amounted to 'company' so as to provide a circumstance of aggravation as defined. Mere presence of a person is not sufficient." 115 His Honour then referred to the passage in King CJ's judgement in R v Brougham, set out above. He continued: (at 11) "I would apply a similar approach to the allegation of the circumstance of aggravation in this case in assessing the requirements for proof that the alleged offence occurred 'in company'. The evidence does not show that Fitzgerald was other than entirely passive during the action of the Appellant when he returned from his stated intention of urinating and got into the back seat of the car with the complainant. There is no evidence that Fitzgerald was encouraging the Appellant by word or action, indeed the complainant said that she recalled that he may have had a can of drink." 116 The Court concluded that the evidence could not sustain the circumstance of aggravation. 117 Finally, in R v Leoni [1999] NSWCCA 14, the Court of Criminal Appeal again considered the offence of robbery in company. The prosecution arose out of what is termed a home invasion. A woman opened the door of her home, whereupon a number of individuals rushed into her home. One was disguised with a balaclava, and carried a weapon. Money was demanded. The robbers separated, searching the house. The appellant said that he only entered the foyer entrance of the home, although he spoke to others from that position in the presence of the victim. Adams J (with whom Abadee and Barr JJ agreed) made the following observation on the facts: (para 13) "It is clear on the appellant's case, that he was aware that Ms Walsh knew of his presence, at least at the front door, a position from which, of course, he was able to assist the other two offenders, if necessary. Furthermore, it is clear that the appellant at all times envisaged that Brincat and Crowther would enter the house, so that one would be in the position to assist the other in the robbery, if it became necessary." 118 His Honour referred to the judgment of King CJ in R v Brougham (at para 16) and then said this: (para 17) "It seems to me that the essence of this offence is not that the accused intended that the victim should be overborne by the presence of more than one robber or that he should intend to come to the assistance of the other if necessary. In my opinion, the only relevant intent is that the offender placed himself in the position in which he knew or expected that the victim would know of his presence and ability to assist in the robbery if called on to do so." 119 His Honour added: (para 20) "In my opinion, presence at the scene with the intention of physically participating, if required, is sufficient to satisfy the section, even if that presence is unknown to the victim. However, if the offender makes his presence known to the victim so that, to use the words of the Chief Justice in Brougham 'the victim is confronted by the combined force or strength of two or more persons' that will be sufficient to satisfy the section even if the offender did not, as it happened, intend to physically participate if required." 120 What emerges from these cases? A number of propositions can be stated: · First, the statutory definition (s61J(2)(c)) requires that the offender be "in the company of another person or persons". · Secondly, the accused and such person, or persons, must share a common purpose (either to rob, or as here, sexually assault). · Thirdly, the cases appear to assume that each participant is physically present. · Fourthly, participation in the common purpose without being physically present (for example, as a look-out or as an accessory before the fact) is not enough. · Fifthly, the perspective of the victim (being confronted by the combined force or strength or two or more persons) is relevant, although not determinative. If two or more persons are present, and share the same purpose, they will be "in company", even if the victim was unaware of the other person. 121 The physical presence of another is, therefore, required for the crime to be committed in company. However, two questions remain. First, what is meant by physical presence? Secondly, in respect of which aspect of the crime identified by s61J is physical presence required? That is the construction question identified earlier. Is it penetration, as the appellant asserts, or would it be enough that the events giving rise to the accused's knowledge of the absence of consent took place in company? 122 For the purposes of this appeal, I believe it is really only necessary to answer the first question, that is: what is meant by physical presence, and whether, in the context of this case, the separation of 50 metres was capable of satisfying that requirement? 123 Physical presence is an elastic concept. The concept is best explained by example. Assume the robbery of a large warehouse, with a number of persons involved. The robbers scatter in search of valuables. They may, at any point, be separated by 50 metres and yet, throughout, will remain "in company". Assume that one robber demanded the Bankcard of the owner, and his PIN number. He then separated from his companions, went to the bank one kilometre away, and used the card to withdraw cash, before returning to the warehouse. Is the theft of that money part of the crime committed in company? The Bankcard and the PIN number were, no doubt, obtained with the aid of the coercion exerted by the group. 124 Take another illustration, closer to the facts in this appeal. Assume a sexual assault in a large house, involving a number of individuals. If, for reasons of privacy, the victim were taken to an adjacent bedroom, and the door closed, the offence would plainly still be one committed in company. And the result, I suggest, would be no different if the bedroom were upstairs, so that some distance separated the offender at the time of penetration, and other members of the group. 125 However, there must be limits. The point must be reached where the separation between the offender and the group is such that the offence can no longer be characterised as being in the presence of a group. How are those limits determined? I believe the learned trial Judge accurately identified the test. The test is the coercive effect of the group. There must be such proximity as would enable the inference that the coercive effect of the group operated, either to embolden or reassure the offender in committing the crime, or to intimidate the victim into submission. 126 Here, the context was a remote area, and five persons who shared a common purpose to sexually assault the victim. In that context, applying that test, and assuming, for the purposes of argument that the offence is defined by reference to penetration (although I believe that remains an open question), the offence was capable of being regarded as having been committed in the presence of the group. His Honour was therefore right not to direct a verdict on the circumstance of aggravation. I would reject the first ground of appeal.

GRIFFEN: Ground 4 129 Ground 4 was in these terms: "4. The learned trial judge misdirected the jury regarding the mental element of the offender in the crime of sexual intercourse without consent." 130 The Crown had to prove that Mr Griffen knew the complainant was not consenting to sexual intercourse. It is a subjective test. What is important is Mr Griffen's state of mind, not that of a hypothetical person. 131 Here his Honour, according to the appellant, impermissibly suggested an objective test. Attention was drawn to the following words used by his Honour: (S/U 7) "The Crown asks you to infer, from other facts which it has set out to prove, that he did indeed know, that he must have known." 132 Attention was also drawn to the following: (S/U 7) "... you would be entitled to conclude that this was such an obvious sign of the absence of consent, that the accused could not have helped but know it." 133 It was acknowledged that in proving intention, in the absence of an admission, the Crown must inevitably rely upon inference. It was also conceded that it was permissible to rely upon what was termed "an objective mode of reasoning", that is, pointing to certain objective facts and what they revealed, in order to infer the accused's subjective state of mind. However, where an objective mode of reasoning is used to arrive at a subjective state of mind, care must be exercised lest the jury gain the impression that an objective state of mind will suffice. Here, according to the appellant, the directions inappropriately suggested an objective test. 134 Our attention was drawn to R v O'Meagher (1997) 101 A Crim R 196, where Smart J said this: (at 197) "There is a real danger in the present case that having regard to the direction given, the jury may not have focused on the state of mind of the accused but on the objective test of whether it must have been apparent or it appeared that the complainant was not consenting." 135 The Crown submitted that, in context, his Honour's directions made it clear that the focus was upon the state of mind of each accused. No complaint was made by counsel for Mr Griffen (nor, indeed, by any counsel). Rule 4 applies. 136 The summing up, taken as a whole, does I believe, make it clear that the jury was concerned with the state of mind of the accused. His Honour said this: (S/U 6) "The next element that has to be proved, beyond a reasonable doubt, is that the accused knew she was not consenting. The position taken by all of the accused is that she did consent, or they believed she was consenting to what happened at these various places. But the accused does not have to prove she consented or even that he believed she was consenting. The Crown has to prove, beyond a reasonable doubt, the accused knew (the complainant) was not consenting to the act of sexual intercourse, with which he is charged." 137 There followed directions, which included the passages about which complaint is made. The directions were as follows: (S/U 6/7) "You might ask, how, in the absence of an admission by the accused, the Crown can prove that he was aware she did not consent. The Crown asks you to infer, from other facts which it has set out to prove, that he did indeed know, that he must have known. For instance, at the quarry, if you accept beyond a reasonable doubt, the evidence of (the complainant), that she asked Mark Marr a number of times not to let anything happen to her, that she was held down on the back seat there by Jarrett while Marr had sexual intercourse with her and that she was crying and telling them to stop. If you accept that evidence, beyond a reasonable doubt, then the Crown says, you would be entitled to conclude that this was such an obvious sign of the absence of consent, that the accused could not have helped but know it." 138 I believe, in context, his Honour's words, "he must have known", and the concluding paragraph, simply mean that you, the Jury, would inevitably infer knowledge on the part of the accused if the evidence identified were accepted. 139 I would reject this ground.

GRIFFEN: Ground 5 140 Ground 5 was in these terms: "5. The learned trial judge misdirected the jury regarding the interplay between the mental element of the offender in the crime of sexual intercourse without consent and intoxication." 141 Mr Griffen, like many of the accused, had consumed a substantial quantity of both alcohol and marijuana on New Years Eve and in the course of New Years Day. 142 It was important in these circumstances, according to the appellant, that careful directions should be given concerning intoxication. Intoxication was relevant to the Crown's obligation to prove the appellant knew that the complainant was not consenting. However, his Honour, according to the appellant, by his direction, posed the wrong question. He directed attention to the capacity of each accused to form the requisite intent. He should, rather, have directed attention to whether the accused did, in each case, form that intent. 143 The summing up, on this issue, was introduced by these words: (S/U 8) "There is material, in the evidence of the complainant and in the records of interview of the accused, that apart from Ricky Dungay, these men were somewhat intoxicated. Either from alcohol or a combination of alcohol and marijuana. Normally that has no bearing on the criminal responsibility of an individual for his acts. I mean you cannot say, in cases such as this, 'I was drunk and I didn't know what I was doing.' That might be a reasonable explanation if you were staggering down the street drunk and fell through a shopkeepers plate glass window, but what is alleged here, in regard to each accused, are deliberate acts of sexual assault. If a man tries to sexually molest a woman he cannot say, 'I didn't know what I was doing because I was drunk', that is no defence." 144 His Honour then said this: (S/U 8/9) "But in this case there is room for the following argument. This was a group of men coming back from the New Year's celebrations, many of them were heavily affected by alcohol and or drugs. The point is, did the effect of those substances so affect the individual accused that he was unable to determine rationally and sensibly, whether (the complainant) was or was not consenting to have sexual intercourse with him. I am bound to give you this direction, members of the jury, because of the circumstances of this case." 145 There followed the words about which complaint is made: (S/U 9) "If the given accused was so intoxicated that he could not put his mind to the question, 'Is she consenting', then you might think he was not reckless as to her consent, as I defined it earlier, and that element would not be proved beyond a reasonable doubt." 146 His Honour then made a comment, which is said to be unjustified: (S/U 9) "Of course you would also bear in mind, that if a man was so intoxicated by alcohol or drugs, that he was in that condition, then he probably would not be able to perform sexually in any way at all, at least to his own satisfaction, but that is a matter for you." 147 His Honour concluded his directions on the elements, including the mental element, with the following summary of the issues which the jury should address: (S/U 9) "Well if you have a reasonable doubt as to any of the first three matters, members of the jury, that is, that there was, in regard to each accused, an act of sexual intercourse, secondly that (the complainant) did not consent and thirdly that the accused knew she did not consent. If you have a reasonable doubt about any one of those three elements then you would find the accused not guilty of that charge." 148 The appellant drew attention to The Queen v O'Connor (1979 -1980) 146 CLR 64 (and especially Barwick CJ at 87/88), as well as R v Coleman (1990) 47 A Crim R 306. In the latter case, Hunt J (with whom Finlay and Allen JJ agreed) dealt with precisely the same issue. His Honour summarised the appellant's argument in these words: (at 317) "The correct question in relation to each of the issues of voluntariness, basic intent, intention to injure, recklessness and specific intent, the appellant argues, is not one of ability or capacity to form the relevant state of mind; rather it is a question of whether the Crown has established that the appellant did in fact form the relevant state of mind." 149 His Honour then said this: (at 323) "There can be no doubt therefore that the correct question for the jury upon the issue of intoxication is whether the Crown has established that the accused had in fact formed the state of mind which is relevant to the offence charged. If an issue of intoxication is sufficiently raised in the evidence, the Crown must remove any reasonable doubt as to that question which may have been raised by that evidence, whether or not the intoxication was self-induced and whether or not it has incapacitated the accused from forming the relevant state of mind. Those directions are applicable whether the relevant state of mind be the voluntary nature of the act done, basic intent, malice (intention to injure or recklessness) or specific intent." 150 I accept that the issue was not the capacity of the accused to form the intent, but rather whether the accused did form that intent. I therefore accept that the appellant has established error. 151 No complaint was made at the trial concerning the direction now impugned. Rule 4 therefore applies. Leave is required. Can it be said, in the context of the trial, that the error may have led to a miscarriage of justice? 152 Mr Griffen did not give evidence. He was, however, interviewed by the police on 4 January 1999, that is, a matter of days after the incident. At first he denied knowledge of any of the events described by the complainant, asserting that he was asleep. The police then asked for a blood sample. Mr Griffen thereafter said that he wished to tell the truth. He described in detail what had happened that day. His account, in its detail and the sequence he described, was similar to that given by the complainant, except that he asserted that she had consented. 153 In the course of the summing up, having given the general directions to which I have referred (in respect of which there was error), his Honour then dealt with each accused individually. In respect of Mr Griffen, his Honour dealt with the arguments of Mr Formosa of counsel, then appearing for Mr Griffen, on the issue of intoxication, correctly posing the issue which the jury was obliged to consider. The summing up was in these terms: (S/U 50) "Mr Formosa argues further, that on this night Griffen had had a considerable amount to drink and had used marijuana and was, as he put it, full of dope. Thus his perceptions and recognition of any reluctance on the part of the complainant, if there was any, was considerably diminished. Thus counsel submitted, you could not be convinced, beyond a reasonable doubt, that Griffen knew or realised she was not consenting. Putting it another way, counsel argued that so far as Griffen was concerned the complainant was consenting and he had no reason to believe otherwise. And when you look at the objective evidence of her and him strolling along some fifty metres away from all the others and simply engaging in sexual acts, you must have a reasonable doubt that (a) she did not consent, and (b) he knew she was not consenting. Well members of the jury, that is a matter for you to determine in light of all the evidence admissible against Mr Griffen and the directions I have given to you." 154 I do not accept, in these circumstances, that the error by his Honour may have led to a miscarriage of justice. I would refuse leave under Rule 4.

Order 155 I agree with the order proposed by Heydon JA that the appeal in each case be dismissed.

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CITATION : R v Button R v Griffen [2002] NSWCCA 159 FILE NUMBER(S) : CCA 60078/01; 60096/01 HEARING DATE(S) : 5 April 2002 JUDGMENT DATE : 9 May 2002

A P Cook (Button) COUNSEL : R J Button (Griffen) P E Barrett (Crown) Sydney Regional Aboriginal Corporation Legal Service (Button) SOLICITORS : D J Humphreys (Griffen) S E O'Connor (Crown) CATCHWORDS : Criminal law - aggravated sexual assault - Crimes Act 1900 s 61J - aggravation consisting in commission of offences in company - meaning of "in company" - whether trial judge erred in interpretation of phrase - whether misdirection of jury resulted LEGISLATION CITED : Crimes Act 1900 Evidence Act 1995 R v Abusafiah (1991) 24 NSWLR 531 R v Birks (1990) 19 NSWLR 677 R v Brougham (1986) 43 SASR 187 R v Cooper (1978) 17 SASR 472 R v Crozier (unreported, CCA, 8 March 1996) R v DH [2000] NSWCCA 360 Edwards v R (1993) 178 CLR 193 R v Fuge [2001] NSWCCA 208 R v Galey [1985] 1 NZLR 230 CASES CITED: R v Jones (1978) 1 NSWLR 282 R v Joyce [1968] NZLR 1070 R v Heyde (1990) 20 NSWLR 234 R v Jeffrey (unreported, CCA, 16 December 1993) R v Leoni [1999] NSWCCA 14 R v O'Meagher (1997) 101 A Crim R 196 Palmer v R (1998) 196 CLR 1 Papakosmas v R (1999) 196 CLR 297 R v Sanderson (unreported, CCA, 18 July 1994) Zoneff v R (2000) 200 CLR 234 DECISION : Appeals dismissed

Held (Kirby J, Heydon JA and Greg James J agreeing), dismissing the appeal:

The physical presence of another was required for an alleged crime to be committed "in company" within the meaning of s 61I(2)(c): [121].
The correct test for physical presence is whether there is such proximity between co-defendants to enable the inference that the coercive effect of the group operated, either to embolden or reassure the offender in committing the crime, or to intimidate the victim into submission: [125]. R v Joyce [1968] NZLR 1070; R v Cooper (1978) 17 SASR 472; R v Galey [1985] 1 NZLR 230; R v Brougham (1986) 43 SASR 187; R v Crozier (unreported, NSWCCA, 8 March 1996); R v Leoni [1999] NSWCA 14 considered.
The trial judge correctly identified and applied the test. The area where the offences occurred was remote and the perpetrators shared a common purpose to sexually assault the victim: [126].

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