Regina v Roger William MITTON

Court of Criminal Appeal (NSW)|2002-07-30|Before: Beazley JA, Bell J, Smart AJ

CITATION : Regina v Roger William MITTON [2002] NSWCCA 124 FILE NUMBER(S) : CCA 60344/00 HEARING DATE(S) : 26/2/02 JUDGMENT DATE : 30 July 2002

PARTIES : Roger William MITTON (Appellant) Regina JUDGMENT OF : Beazley JA at 1; Bell J at 2; Smart AJ at 52

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/3014 LOWER COURT JUDICIAL Goldring DCJ OFFICER :

LEGISLATION CITED : Crimes Act 1900 Criminal Appeal Act 1912 Domican v The Queen (1992) 173 CLR 555 Driscoll v The Queen (1977) 137 CLR 517 Festa v The Queen [2001] HCA 72 Glennon v The Queen (1993-1994) 179 CLR 1 Mraz v The Queen (1955) 93 CLR 493 R v Moussa [2001] NSWCCA 427 CASES CITED: Regina v Clarke (1995) 78 A Crim R 226 Regina v Hemsley (1988) 36 A Crim R 334 Regina v Kitchener (1993) 29 NSWLR 696 Regina v O'Meagher (1997) 101 A Crim R 196 Regina v Tolmie (1995) 37 NSWLR 660 Regina v Tripodina (1988) 35 A Crim R 183 Wilde v the Queen (1988) 164 CLR 365 DECISION : Appeal against conviction dismissed; Application for leave to appeal against the severity of the sentences imposed is dismissed

IN THE COURT OF CRIMINAL APPEAL 60344/00

BEAZLEY JA BELL J SMART AJ

Tuesday 30 July 2002 REGINA v Roger William MITTON Judgment 1 BEAZLEY JA: I agree with Bell J. 2 BELL J: The appellant was arraigned before Goldring DCJ on 14 February 2000 on an indictment that charged him in two counts with sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 ("the Act") and in one count with attempted sexual intercourse without consent contrary to s 344A & s 61I of the Act. Each offence is said to have occurred on or about 30 August 1998. All three counts related to the same complainant, RMM. The appellant entered pleas of not guilty to each count, a jury was empanelled and the appellant stood his trial. On 17 February 2000 he was convicted of counts one and two being the counts that charged sexual intercourse without consent. He was acquitted of count three which charged the attempted offence. 3 On 18 May 2000 the appellant was sentenced to concurrent terms of five years imprisonment to commence on 17 February 2000 and to expire on 16 February 2005. In each case a non-parole period of three years was specified. 4 By notice of appeal dated 2 June 2000 the appellant appeals against his conviction and also seeks leave to appeal against the severity of the sentences imposed upon him. 5 One ground of challenge was identified with respect to the conviction appeal. Mr Button, who appeared on behalf of the appellant, did not press any submissions with respect to the application for leave to appeal against sentence. Indeed, in written submissions Mr Button stated: "There is no appeal against the sentences imposed consequent upon those convictions." There is nothing further that needs to be said concerning the application for leave to appeal against the severity of the sentences.

6 The appellant's sole ground of appeal against conviction is: The learned trial judge misdirected the jury about the requisite mental element in the offence of sexual intercourse without consent knowing that the complainant is not consenting. 7 Before turning to the directions, which are the subject of complaint, it is convenient to summarise the evidence given at the trial. 8 The complainant was aged sixteen years at the date of the incident. She was living with her parents in Cowra. Her friend, CH, was the appellant's goddaughter. The complainant had known the appellant for about two years and was on friendly terms with him. He was then aged forty-eight years. 9 The complainant and CH arranged to spend the weekend in Sydney, staying at the appellant's home in Fairfield. The appellant had been visiting the Cowra area and drove the two young women from Cowra to Fairfield on the evening of Friday 28 August 1998. They arrived at his home in the early hours of Saturday 29 August. 10 The appellant attended a wedding on the evening of 29 August 2000. He returned home at about 11:30 pm. The complainant and CH were watching television in the lounge room. The complainant gave evidence that the appellant smelt of alcohol and that his speech was slurred. She retired to the spare room where she changed into her pyjamas and got into bed. 11 It was the complainant's evidence that after a little time the appellant opened the door of the spare room and came in and sat on the bed, saying to her "I just want to talk" (T6). She replied, "I don't want to talk, I just want to sleep". The appellant commenced touching the complainant on the leg. She told him not to do so. He touched her on the stomach and breasts. She told him to stop. He did not. The complainant said that the appellant pulled her pyjama pants and underpants off and that she said to him, "If you don't stop I'll yell and CH will hear". She said she had been too frightened to call out. The appellant pinned her arms to her side, holding her by the wrists. He inserted his finger into her vagina. This was the act charged with respect to count 1 in the indictment. Thereafter an episode of penile/vaginal intercourse took place. This was the act charged in count 2 of the indictment. 12 The complainant said that she had endeavoured to push the appellant away during the course of the assault upon her. She said that the appellant asked her to perform oral sex on him. He took hold of the back of her head and pushed her towards his penis. She pushed back against his hand and did not engage in any act of oral sex. Shortly after this the appellant left the bedroom. 13 The appellant left home the next morning at about 8:45 am. The complainant showered and dressed. She telephoned her mother in Cowra and complained that the appellant had raped her (T15). The mother arranged for the police to attend in response to this complaint. 14 Dr Lagios, a medical practitioner attached to the Liverpool/Fairfield Sexual Assault Service, examined the complainant. She observed recent bruising on the complainant's inner right wrist, together with bruising and swelling in the genital area. In Dr Lagios's opinion the bruising of the genital area was consistent with the use of excessive force during sexual activity (T37). In Dr Lagios's opinion one would not expect to observe injuries of this description in the case of consensual intercourse. 15 The appellant gave evidence at the trial. He said that he returned home from the wedding at about 11:15 or 11:30 pm. He had consumed six to eight cans of beer and was slightly affected by alcohol. He observed the complainant retire to the spare bedroom. Some little time after doing so he noted that the light was on in her room. He knocked on the door to check if she was all right. He was not able to remember whether there was any response, he opened the door and entered the room. The complainant was sitting in the middle of the mattress on top of the covers, reading a magazine. He said something to the effect "you're reading one of those silly books" and the complainant replied "yes" and giggled (T84). He sat next to her and began touching her leg. He turned the light off and lay down next to the complainant on the mattress and they began to kiss. He asked the complainant what she wanted and she replied, "I want you" (T86). He said that the complainant had assisted him in removing her pyjama pants and underpants and that an act of digital penetration took place. The complainant said this hurt and he ceased that form of activity (T88). He asked the complainant to perform oral sex on him and she did so without any resistance (T89). Thereafter the complainant straddled him and an act of penile/vaginal intercourse took place (T90). The appellant said that the complainant asked him not to tell CH about what had happened and he agreed. He said there was then a further act of penile/vaginal intercourse, in which he lay on top of her. It was during this second act of intercourse that the complainant said she felt bad (T93). The appellant withdrew and said goodnight and left the room. He returned to his bed that was made up on the lounge. Not long after he heard the door of the spare room open and he saw the complainant come out of the room and put something on a table. He later found that she had left his glasses on the table. 16 The appellant denied that the complainant had struggled with him at any time. He denied that she had pushed him away. At the first indication that the complainant did not wish to continue sexual contact he desisted. Prior to this the complainant had not said anything to indicate that she was not consenting to the sexual intercourse that took place. 17 The act charged in count 3 of the indictment was the incident in which the complainant said the appellant had attempted to force her to perform oral sex on him. The appellant's evidence was that an episode of consensual oral sex occurred during the course of the sexual activity that night. There was some evidence to suggest that RMM had told both a doctor and a police officer that she had been forced by the appellant to perform oral sex on him. During the course of deliberations the jury asked this question: "In respect of the third count in the indictment if the evidence showed the act occurred is it still considered an attempt?" (SU28).

The trial judge directed that in the event the jury was satisfied that an act of oral intercourse occurred the appellant must be acquitted of count 3. 18 Mr Button advanced three criticisms of the trial judge's directions concerning the mental elements of the offence. 19 The first criticism was that the directions failed to clearly delineate between the state of mind of the complainant and that of the appellant and to direct that in each case the requisite standard was that of proof beyond reasonable doubt. In particular, Mr Button pointed to the passage at SU 14: "You might ask how the Crown can prove that RMM did not consent. The Crown is asking you to infer from other facts which it set out to prove that he did know and that he must have known. If you find beyond reasonable doubt that she struggled and tried to push him away, that she crossed her legs, as she said she did, then you would be entitled to conclude that this was such an obvious sign, in the absence of anything said, of the absence of consent, that he could not have helped but know it." 20 The complaint is that in this passage the trial judge commenced by taking up the question of how the Crown might prove absence of consent on the part of the complainant and then moved into a discussion of proof of the requisite knowledge on the part of the appellant (that the complainant was not consenting to the intercourse). In written submissions Mr Button contended: "The result of that is that the jury may have been led to believe that the actual state of mind of the complainant that needed to be proven could somehow be established by evidence of the belief of the appellant about it. That would, of course, have been adverse to the case for the appellant. In short, the appellant submits that the jury were not clearly directed about the separate mental elements of the complainant and the appellant that needed to be proven. That constitutes a serious error." 21 Mr Button submitted that it was necessary to look to the three criticisms which he made of the directions on the mental element of the offence in combination. He accepted that, viewed by itself, his first complaint might be thought to be not of great moment. 22 It is necessary to look at the whole of the directions given by the trial judge as to the mental element of the offences charged in order to assess Mr Button's challenge to them. His Honour gave conventional, clear directions concerning the onus and standard of proof, which are not the subject of complaint. He went on to give directions concerning the elements of each of the offences charged. At the commencement of the directions on that topic he said: "In order to find Mr Mitton guilty of these charges, not only do you have to find sexual intercourse, and I am going to say something about that in a minute, but you must also find that in the case of the digital and penile penetration, he did so without her consent and knowing that she did not consent" (SU11). 23 After directing the jury concerning the extended definition of "sexual intercourse" provided by s 61H(1) of the Act, his Honour went on to say: "Then you must consider the issue of consent, and the Crown must prove these elements, that RMM on no occasion consented and it must also prove that Mr Mitton knew that she did not consent. Now the accused does not dispute that sexual intercourse took place, but he alleges that RMM consented, that is that she gave him her permission. He does not have to prove that she consented, it is for the Crown to prove that she did not.

Consent does not have to be in words, and it may be communicated in other ways that also applies to the absence of consent. Consent obtained after persuasion is still consent. Seduction is not an offence, but the Crimes Act specifically provides that the mere fact that a person does not suffer physical resistance to sexual intercourse does not mean that she consented to it. Consent involves a conscious voluntary permission on the part of the complainant, in this case RMM. If you are satisfied beyond reasonable doubt that the accused had sexual intercourse with the complainant and also that she did not consent, then you are to go on to consider the third allegation in each case, namely whether the accused knew that she was not consenting. If you are not satisfied beyond reasonable doubt that RMM did not consent, in other words if you think there is a reasonable possibility that she did consent, then the accused is not guilty.

Mr Mitton says that even if RMM did not consent, he believed that she did consent. He does not have to prove that he held this belief. It is for the Crown to prove beyond reasonable doubt that he knew that she was not consenting. It would not be a defence if he said 'I thought she was not consenting but I did not actually know it'. His belief would be sufficient knowledge. The Crown alleges that Mr Mitton did certain acts and that RMM behaved in a certain way. Mr Mitton has said that she said certain things and her evidence is not in accordance with that.

You might ask how the Crown can prove that RMM did not consent. The Crown is asking you to infer from other facts which it set out to prove that he did know and that he must have known. If you find beyond reasonable doubt that she struggled and tried to push him away, that she crossed her legs, as she said she did, then you would be entitled to conclude that this was such an obvious sign, in the absence of anything said, of the absence of consent, that he could not have helped but know it.

And to reach that conclusion you must be satisfied beyond reasonable doubt that RMM did close her eyes, cross her legs, attempt to push him away as she said in her evidence. If you accept that evidence then it is open to you to be satisfied beyond reasonable doubt that in the circumstance he knew that she was not consenting. There is another legal principle upon which the Crown relies. The Crimes Act to which I have referred before provides specifically and I will read it to you. 'A person who has sexual intercourse with another person without the consent of the other person and who is reckless as to whether the other person consents to the sexual intercourse is to be taken to know that the other person does not consent to the sexual intercourse.' So even if Mr Mitton did not actually know that she was not consenting the Crown alleges that that can only be because he did not care one way or the other whether she consented or not but was determined to have sex with her regardless of her consent. If you are satisfied that she did not in fact consent and that it must have been apparent that at least there was a risk she was not consenting, then you would be entitled to accept that argument by the Crown" (SU12-15).

24 I reject the submission that the directions failed to delineate between the state of mind of the complainant (the she was not consenting) and the state of mind of the appellant (knowledge that she was not consenting). The impugned passage in the summing-up which I set out at [18] above must be read in its context. Although it commences with the sentence "you might ask how the Crown can prove that RMM did not consent." It is apparent from the preceding paragraph and that which followed that his Honour was directing the jury's attention to the requirement that the Crown prove beyond reasonable doubt that the appellant knew that RMM was not consenting to the act of intercourse. 25 I consider that the summing-up served to make clear that the Crown must prove beyond reasonable doubt both that RMM did not consent to the act of intercourse charged in each case and that the appellant knew that she was not consenting thereto.

26 The second and third complaints advanced on behalf of the appellant to the directions set out above can be conveniently dealt with together. In his written submissions Mr Button contended: "Secondly, the directions did not adequately delineate the three separate states of mind of the appellant that needed to be proved by the prosecution beyond reasonable doubt. In particular, in the last paragraph of page fourteen (the last paragraph extracted in [22] above), the second and third states of mind become intertwined. The contents of that paragraph are misleading, in that they combine concepts of inadvertence with the idea that 'it must have been apparent that at least there was a risk that she was not consenting'. And those directions are adverse to the appellant, in that the jury may have understood that it could rely upon what 'must have been apparent' to establish inadvertence, as opposed to foresight of the possibility of absence of consent. Thirdly, at three parts of page fourteen, the learned trial judge used the phrases 'must have known', 'he could not have helped but know it', and 'it must have been apparent'. All of those phrases ran the severe risk of leading the jury to understand that there was some objective or hypothetical state of mind that was to be proven beyond reasonable doubt, rather than the actual states of mind (including, of course, inadvertence) held by the appellant." 27 Section 61R(1) of the Act provides: "For the purposes of sections 61I, 61J and 61JA, a person who has sexual intercourse with another person without the consent of the other person and who is reckless as to whether the other person consents to the sexual intercourse is to be taken to know that the other person does not consent to the sexual intercourse". 28 The term "reckless" for the purposes of s 61R(1) of the Act is not defined. The content of the concept was not in issue on the hearing of this appeal. Mr Button acknowledged that the law has been settled in this respect for some years. Recklessness for the purposes of s 61R(1) may be both advertent and non-advertent. In the former case it may be established by proof that the accused adverted to the possibility that the complainant was not consenting and with that awareness proceeded to have intercourse in any event; Regina v Hemsley (1988) 36 A Crim R 334. Recklessness may also be established in a case where the accused does not turn his mind to the question of consent at all in circumstances in which the risk that the complainant is not consenting is one which would have been obvious to a person of the accused's mental capacity had he turned his mind to it: Regina v Kitchener (1993) 29 NSWLR 696; Regina v Tolmie (1995) 37 NSWLR 660. 29 In Mr Button's submission the jury should have been directed that the Crown may prove the appellant's knowledge of RMM's non-consent by pointing to evidence from which an inference was to be drawn (i) that he knew RMM was not consenting, or (ii) that he adverted to the possibility that RMM may not be consenting and that with that awareness he determined to have sexual intercourse with her in any event, or (iii) that he did not turn his mind to the question of whether or not RMM was consenting in circumstances in which the risk of RMM's non-consent would have been obvious to a person of his mental capacity had he considered it. 30 I do not consider that in the circumstances of this case it was necessary or desirable for the trial judge to give directions on recklessness (either advertent or non-advertent) and thus I reject the proposition that it was necessary for the trial judge to "delineate the three separate states of mind of the appellant" (appellant's written submissions at [29]). 31 Judge Goldring correctly directed the jury that it fell to the Crown to prove beyond reasonable doubt that the appellant knew that RMM was not consenting. Certain of the passages relied on by Mr Button as wrongly importing the notion "that there was some objective or hypothetical state of mind that was to be proven beyond reasonable doubt" occur in the context of directions as to the evidence upon which the Crown invited the jury to draw the inference that the appellant knew that RMM was not consenting: "The Crown is asking you to infer from other facts which it set out to prove that he did know and that he must have known. If you find beyond reasonable doubt that she struggled and tried to push him away, that she crossed her legs, as she said she did, then you would be entitled to conclude that this was such an obvious sign, in the absence of anything said, of the absence of consent, that he could not have helped but know it." While it would have been preferable to avoid the use of the expressions "he must have known" and "that he could not have helped but know it" I do not accept that this passage when read in context amounts to a misdirection.

32 Central to Mr Button's challenge was the direction given on recklessness in the concluding passage set out at [22] above. Mr Button submitted that the direction was confused and carried with it the risk that the jury might have considered recklessness to be established upon satisfaction objectively that it was apparent that there was a risk the complainant was not consenting. 33 Mr Button placed reliance on the decision of this Court in Regina v O'Meagher (1997) 101 A Crim R 196. The direction complained of in that case was that given by the trial judge in answer to a written question from the jury seeking further clarification of the concept of recklessness. Her Honour gave the following direction: "On the question of recklessness there is a provision in the Crimes Act which specifically says that a person who has sexual intercourse with another person without the consent of the other person and who is reckless as to whether the other person consents to the sexual intercourse is to be taken to know that the other person does not consent to the sexual intercourse, so the Act specifically says if a person is reckless you may take it that that person knows that the complainant does not consent. As to what constitutes recklessness, you look at the question and if you are satisfied that the complainant did not in fact consent and that it must have been apparent that at least there was a risk that she was not consenting, then you would be entitled to accept that the accused was reckless as to whether or not there was consent. I hope that helps." 34 In O'Meagher Newman J (in a judgment with which Smart and Hidden JJ agreed) said at 199 - 201: "Objection had been taken by the counsel for the appellant at the end of the summing up to the directions given. He had requested the learned trial judge to direct the jury that recklessness means 'without caring whether or not she was a consenting party' and 'having intercourse willy-nilly, not caring whether the victim consents or not'. It was submitted on behalf of the appellant that her Honour's refusal to so direct could have left the jury with the impression that they could convict if the appellant either knew the complainant was not consenting or the circumstances were such that, objectively speaking, it was apparent that there was a risk she was not consenting. … Furthermore, it was submitted that even if the jury had interpreted her Honour's direction 'it must have been apparent' as 'it must have been apparent to him' it was submitted that the jury could still convict in circumstances where the appellant adverted to such a risk but disregarded it as being entirely negligible. In summary, it was the appellant's submission that her Honour erred in not making it clear to the jury that absent knowledge of non-consent the appellant could only be found guilty if he decided to have intercourse with the complainant not caring whether she consented at all. … In Newham (unreported, Court of Criminal Appeal, NSW, Clarke JA, No. 60149 of 1993, 26 November 1993), Clarke JA having quoted from this extract ( Hemsley ) observed: The importance of the passage I quoted is that it directs attention wholly and solely to the subjective state of mind of the accused person. The Court is not concerned with an objective test, but whether on the facts proved the accused person had the requisite knowledge or, alternatively, acted recklessly in the way there described. In Newham's case the trial judge had incorporated in his directions, the following: 'And as you have been told, "reckless" means there is more than a negligible risk that the person is not consenting. If it is more than a negligible risk that the person is not consenting, then you are acting recklessly.' As Clarke JA observed that statement could have created in the jury's mind a notion that the test was 'objective and not subjective.' In the instant case, the direction given by her Honour following the jury's request, suffers from the same problem as Clarke JA stated in Newham ." 35 The Court declined to apply the proviso to s 6 of the Criminal Appeal Act 1912 in O'Meagher. The conviction was quashed and a new trial ordered. It is to be observed that recklessness was a live issue in the light of the facts of O'Meagher. Indeed, the direction complained of was given in response to a question from the jury: "Could the judge clarify the definition of recklessness in respect of these charges?" 36 Smart J observed in that case at 196 - 197: "The Crown case was a strong one and it is with considerable reluctance that I join in the orders proposed. The circumstances were very unusual. The question of the jury indicated that they were troubled by the question of recklessness and that the initial directions had not been sufficient for them. It is not an easy concept. Thus the second direction as to recklessness was of considerable importance. That direction does not make clear that on the reckless limb the jury must be informed that the Crown must prove (depending on the facts) that the accused's state of mind was such that he realised the possibility that she was not consenting and without more proceeded to have intercourse notwithstanding or that the accused did not consider the question of consent and a risk that the complainant was not consenting to sexual intercourse would have been obvious to someone with the accused's mental capacity if he had turned his mind to it."

37 Mr Button pointed to the concluding portion of the directions set out at [22] above: There is another legal principle upon which the Crown relies. The Crimes Act to which I have referred before provides specifically and I will read it to you. 'A person who has sexual intercourse with another person without the consent of the other person and who is reckless as to whether the other person consents to the sexual intercourse is to be taken to know that the other person does not consent to the sexual intercourse.' So even if Mr Mitton did not actually know that she was not consenting the Crown alleges that that can only be because he did not care one way or the other whether she consented or not but was determined to have sex with her regardless of her consent. If you are satisfied that she did not in fact consent and that it must have been apparent that at least there was a risk she was not consenting, then you would be entitled to accept that argument by the Crown".

Mr Button submitted that the final sentence of these directions suffers from the same vice as the re-direction given by the trial judge in O'Meagher . 38 The passage complained of ("it must have been apparent that at least there was a risk she was not consenting") is qualified by the words, "then you would be entitled to accept that argument by the Crown". Viewed in this way the reference to what must have been apparent is linked to proof by the Crown that the appellant's state of mind was one of not caring one way or the other as to whether RMM was consenting (being determined to have sex with her in any event). In this respect the direction complained of is to be distinguished from the direction in O'Meagher. 39 In a case where, as here, the accused's case is that the complainant consented to the sexual activity which took place it will seldom be necessary to give a direction on recklessness. 40 In a case which does call for a direction on recklessness in the context of s 61R(1) of the Act it is necessary to make clear that the test is a subjective one. The trial judge should direct the jury that in order to establish that the accused was reckless as to whether the complainant consented to the act of sexual intercourse the Crown must prove beyond reasonable doubt that his or her state of mind was such that either (i) he or she realised the possibility that the complainant was not consenting and went ahead notwithstanding that realisation (Hemsley per Yeldham J) or (ii) he or she failed to consider whether or not the complainant was consenting and went ahead when the risk that the complainant was not consenting would have been obvious to someone with the accused's mental capacity if they had turned their mind to it (Tolmie per Kirby P).

41 Counsel at the trial did not raise the point now taken and, accordingly, the appellant requires leave pursuant to r 4 of the Criminal Appeal Rules to rely upon it. Mr Button read the affidavit of trial counsel in support of the grant of leave. Relevantly counsel stated: "I did not seek any elaboration or further direction from his Honour in relation to the issue of recklessness on the part of the accused as to lack of consent on the part of the complainant. The reason I did not seek any further elaboration or direction was not because I saw a tactical advantage in the direction that had been given. I regarded the direction as an accurate summary of the law." 42 In R v Moussa [2001] NSWCCA 427 Howie J (in a judgment with which Giles JA and Carruthers AJ agreed) observed at [60] and [63]: "It may well be the case that, if the failure to seek a direction or warning was a result of a considered and competent decision made for tactical reasons, it would be virtually impossible for the appellant to obtain leave to rely upon the point because no miscarriage of justice could have occurred. But in my view it should not be taken to be the case that leave will automatically be granted simply because the proffered explanation is that counsel overlooked the point or was unaware of the law on the subject. Nor is it more likely that leave will be granted simply because counsel can no longer indicate why the point was not taken at the trial. … At the end of the day the question, with which this Court is concerned, is whether the conduct of the trial may have resulted in a miscarriage of justice and that question is not necessarily answered in favour of the appellant simply because of decisions, errors or oversights by counsel falling short of incompetence. Trial counsel has a duty both to the client and the Court to take objections or seek re-directions where appropriate: R v Roberts [2001] NSWCCA 163. Like other aspects of the conduct of defence counsel during the course of the trial, a failure to seek a direction or warning will not necessarily result in a miscarriage of justice, even if counsel was negligent: R v Birks (1990) 19 NSWLR 677 at 685. If leave is required under rule 4, then the appellant has to persuade this court that a miscarriage of justice may have occurred before leave is granted: Tripodina and Morabito (1988) 35 A Crim R 183 at 191; R v Williamson and Morrell (NSWCCA, 11 October 1991). On the other hand, if the point is taken at trial, the Crown will have the onus of persuading this Court that there had been no substantial miscarriage of justice: Clarke (1995) 78 A Crim R 226. 43 I respectfully agree with those observations. Trial counsel's frank acknowledgment that he sought no redirection on this topic, because he considered the directions given to be an accurate summary of the law, might be thought to underline that this was a case in which recklessness was not an issue. In the event that recklessness was an issue one might have expected counsel to have given consideration to the directions to be given on this topic and to have been astute to ensure they were adequate. 44 In Regina v Tripodina (1988) 35 A Crim R 183 Yeldham J (in a judgment with which Carruthers and McInerney JJ agreed) observed: "Furthermore, the fact that no objection was taken at the trial is in many cases cogent evidence of the fact that, having regard to the atmosphere at the trial and the manner in which it was conducted, the matter later complained of was not regarded as being of significance, or likely to give rise to any miscarriage of justice. The authorities to which I have referred emphasised that the leave required by r 4 is not to be lightly granted. Generally speaking such leave will only be granted where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings: see Wilde (1988) 164 CLR 365 at 369." 45 In Mr Button's submission the trial judge's direction on recklessness amounted to a material misdirection on the mental element of the offences charged. In his submission it could not be said that by reason of this direction that no substantial miscarriage of justice had occurred. One was not to know what use the jury made of the direction; it was possible that the jury reasoned that proof of a "lesser, objective, mental element" on the part of the appellant was sufficient. Mr Button conceded that the Crown case was a strong one bolstered by the medical evidence. However, he placed emphasis on the circumstance that the appellant was a man of unblemished character who had denied the allegations on oath. Since the physical elements of the offences charged in counts one and two were admitted by the appellant the central issue upon the trial had been proof by the Crown of the mental ingredients of the offence. 46 In this case RMM's evidence was that she did not consent to any of the sexual activity that took place and that she communicated that non-consent to the appellant both by words and by her conduct in pushing him away and crossing her legs. The appellant's case was that RMM consented to each of the acts of intercourse and that when on the second occasion of penile/vaginal intercourse she signified some discomfort he immediately withdrew. On the appellant's case RMM's consent was not a matter of inference. He lay down on the mattress next to her and asked what she wanted to which she replied, in terms, "I want you". 47 Recklessness was not an issue in the way this trial proceeded. The trial judge's reference to the terms of s 61R(1) was unnecessary. The direction that followed is an incomplete statement of the mental element that must be proved to establish recklessness within the meaning of s 61R(1). To this extent the direction is open to the criticism that it may have failed to make clear that the jury were not to approach the matter upon a consideration of what, objectively, might have been apparent. However, it remains to consider whether in the circumstances of this case that error caused the trial to miscarry. 48 In Regina v Clarke (1995) 78 A Crim R 226 Hunt CJ at CL (in a judgment with which McInerney J agreed) observed: "The requirements of r 4 of the Criminal Appeal Rules that leave be granted before a misdirection will be allowed as a ground of appeal where objection was not taken at the trial are not some mere technicality which may simply be brushed aside. One purpose of the rule 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 (Knight (unreported) NSWCCA, 18 December 1990). Where a wrong direction is given 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 may have operated fails to comply with that duty, simply standing by and allowing the error to occur, 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 (cf McKinney (1991) 171 CLR 468 at 488; Cleland (1982) 151 CLR 1 at 10). It was submitted that the errors made by the judge were of a fundamental nature which went to the root of the proceedings so that the trial could not fairly be said to have been a trial at all ( Glennon (1994) 179 CLR 1 at 8). However, whether a misdirection is of such a nature must depend upon the circumstances of the particular case, and it is appropriate in determining that question to have regard to the strengths and weaknesses of both the prosecution and the defence cases in order to assess the gravity and significance of the error ( Wilde at 373-374; Glennon at 8). Such an assessment in the present case reveals a very strong Crown case and a very weak defence case. The errors made were manifestly not fundamental in the way suggested. I would grant leave to add the fourth and fifth grounds of appeal, but I have serious doubts as to whether it is appropriate that further leave be granted in relation to them in accordance with r 4. That is because, even if the appellant was able to show a miscarriage as a result of these misdirections in order to obtain such leave ( Tripodina at 191-195; Abusafiah at 536) the Crown must in my view succeed in the application of the proviso to s 6 of the Criminal Appeal Act to have the appeal dismissed, upon the basis that there has been no substantial miscarriage of justice and notwithstanding the different onus's of proof involved. The distinction between a miscarriage and a substantial miscarriage has been maintained ( Dietrich (1992) 177 CLR 292 at 337; Asquith (1994) 72 A Crim R 250 at 260." 49 In determining whether there has been a substantial miscarriage of justice the court looks to whether an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings; Wilde v the Queen (1988) 164 CLR 365 at pp 372 - 373. In Glennon v The Queen (1993-1994) 179 CLR 1 at 8 Mason CJ, Brennan and Toohey JJ observed of the test in Wilde: "But the majority stressed that there is no mechanical formula or rigid test to be applied to determine whether an irregularity is of this nature; each case will depend on its own circumstances ( Wilde at 373) and, in determining the question, it will be appropriate to have regard to the strengths and weaknesses of the prosecution and defence cases in order to assess the gravity and significance of the error" ( Wilde at 374). 50 In the event that the error is not one of such a fundamental nature as to go to the root of the trial, before this Court could conclude that no substantial miscarriage of justice had occurred it must be satisfied that if the misdirection had not been given the jury would have inevitably reached the same verdict; Mraz v The Queen (1955) 93 CLR 493; Driscoll v The Queen (1977) 137 CLR 517; and Festa v The Queen [2001] HCA 72. As the joint judgment in Glennon noted this is so even if the case against the accused is otherwise a strong one; at p9 citing Domican v The Queen (1992) 173 CLR 555 at pp 565 - 566; Wilde at 371 - 372.

51 In the light of the evidence and the way in which this case was conducted, I am satisfied that the error identified by the appellant is not one which gave rise to a substantial miscarriage of justice. It was not of such a nature as to go to the root of the trial nor did it cause the appellant to lose a chance fairly open to him of being acquitted. I am thus of the view that were leave granted pursuant to r 4 of the Criminal Appeal Act the Crown would succeed in an application that the appeal be dismissed pursuant to the proviso of s 6 of the Criminal Appeal Act, there being no substantial miscarriage of justice. For these reasons I would refuse leave pursuant to r 4 of the Criminal Appeal Rules to rely on the sole ground taken in support of the conviction appeal.

The Orders that I propose are: (i) The appeal against conviction be dismissed;

(ii) The application for leave to appeal against the severity of the sentences imposed be dismissed. 52 SMART AJ: I agree with Bell J. **********

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