Shi v R

Handwriting and submissions thereon

1. The major aspect of the appeal turned on the manner in which the judge directed the jury as to the note, which is Exhibit A. The issue arose as to whether the jury were entitled to determine, for themselves, and in the absence of expert evidence, whether the handwriting on Exhibit A was the handwriting of the applicant, and, in doing so, take into account a comparison of the handwriting on Exhibit A and other handwriting, particularly of numerals. As earlier stated, the applicant relied upon certain immigration documents, which also raised handwriting issues.
2. The applicant, at trial, referred to the immigration documents and suggested that the complainant had provided or been a party to the provision of false information in her applications for a visa. Even if the complainant had not been aware of her parents' initial provision of false financial information, according to the applicant below, the later correspondence reflected that she became aware of it. Yet, the applicant argued, the complainant continued to maintain that she was not so aware.
3. In the address to the jury on behalf of the applicant, the foregoing impacted, it was said, not only upon her credibility generally, but also directly upon the truthfulness of her account of the sexual assault. In relation to the latter, specifically, it concerned the complainant's denial of the circumstance that she had developed a relationship with the applicant, motivated by financial and visa concerns on her part.
4. The complainant accepted, in her evidence, that her handwriting appeared on the first page of a Form 157P document, which was a student visa application lodged in March 2007. At that time, the complainant was already in Australia. However, the complainant made clear that she did not agree that she had completed another form, in evidence, being a Form 157A, her original visa application lodged from China.
5. According to the applicant, the Form 157A included a number of attachments, which contained assertions about her parents' employment and financial status that were found, by the Department of Home Affairs, to be untrue. The applicant's counsel addressed the jury on the basis that the jury could compare the handwriting on the two documents in order to assist them in being satisfied that the complainant, herself, had, in fact, also completed the Form 157A.
6. As to the confession, so called, being Exhibit A, the applicant tendered samples of his own handwriting in Exhibit 5, the signature on a drivers' licence; Exhibit 6, an application for a drivers' licence renewal in 2011; and Exhibit 7, an application for licence renewal in 2016. The applicant directed the jury's attention to his signature and the date written on documents shown to him in the course of the ERISP in 2017, which is Exhibit G.
7. During the cross-examination of Detective Counsell, the applicant's counsel pointed out features of the numerals on Exhibits G, 6 and 7. Notwithstanding the Detective's lack of expertise in handwriting comparison, the Detective gave evidence, to which no objection was taken, and agreed that the numerals "2" had a loop and the numeral "7" was written with a line through it. In re-examination, Detective Counsell agreed that in an application for registration of a vehicle by the applicant, dated 29 August 2009, it could be observed that the numeral "2" on the first page did not have a loop and, as a consequence, was written differently to that suggested to be the handwriting of the applicant.
8. During argument, counsel for the applicant informed the trial judge that he proposed to address the jury that the way the applicant wrote his numerals was distinctly different from the numerals on Exhibit A and the jury was entitled to make such a comparison in the absence of expert evidence. The applicant expressly disavowed a submission that the jury would be able to make any comparison of the Chinese characters in Exhibit A.
9. The Crown submitted that the jury could be permitted to perform the comparison of numerals, but that the trial judge should warn the jury about the limitations of the evidence. In the course of those submissions, the Crown referred to this Court's decision in R v Doney. [2] The Crown nominated the limitations as being: the limited sample of the handwriting; and the unfamiliarity of the jury with Chinese characters.
10. During the closing addresses, the Crown made no submission on the subject of handwriting comparison. In relation to the immigration documents, the Crown submitted that the complainant was aged about 16 when the first application was made and the jury might, accordingly, accept her evidence that she did not make the application. Further, the Crown submitted that the jury might consider that the immigration records have "very little to do about the real issue in this trial".
11. With respect to Exhibit A, the Crown made submissions about the surrounding circumstances of the meeting; the terms of the note itself being consistent with the complainant's concerns; and the position of the applicant's left index fingerprint on the paper. The Crown reminded the jury that the applicant had said in his record of interview that he did not remember much about the cafe meeting and it was only in his evidence at trial that the applicant said that he was handed the piece of paper and a demand made upon him by the complainant's husband.
12. Counsel for the applicant addressed the jury on the basis, as already indicated to the trial judge, that the jury could compare the writing on the two immigration forms to conclude that the earlier form lodged from China was also completed by the complainant, contrary to her denial. It was further stated that the jury could not compare the Chinese writing, because it would be impossible. Finally, counsel informed the jury that the applicant's Chinese handwriting could have been investigated further, by the police, but was not.
13. With respect to Exhibit A, counsel for the applicant addressed the jury on the basis that the entire allegation that the applicant would write such a confession note was implausible in all the circumstances. Counsel addressed the jury on the basis that the jury should compare the numerals written on Exhibits 6, 7 and 8 and the numerals on Exhibit A to conclude that the applicant had not written Exhibit A. The jury were also advised to note that the applicant's name is written in Chinese characters on Exhibit A, but he had signed in English on the other documents.

Summing up

1. The kernel of the ground of appeal is a miscarriage of justice caused by the trial judge's summing up. As a consequence, some greater attention needs to be given to the terms of the summing up. In particular, the complaint is in relation to the directions given as to the handwriting comparison and whether it could be made, and if so, on what basis and whether a warning was appropriate. Further, some complaint is made as to the terms of the warning.
2. While I will deal in more detail with the terms of the summing up, it is necessary to give an overview of that which the trial judge directed the jury on the question of handwriting comparison. In summary, the trial judge said: 1. In relation to the comparison of Chinese characters, the jury should not perform any comparison at all, because it would not be fair to either party; [3] 2. In relation to English writing, the jury would have some general skills in comparing writing in ordinary life, [4] although it would not be as easy to compare the handwriting of strangers as the recognition of handwriting of a person known to them; [5] 3. The complainant did not accept that the handwriting on the sample documents, being a reference to Exhibits 6, 7 and 8, was her writing and the jury should be careful comparing writing from the immigration documents when there is a dispute about who wrote them; [6] 4. With respect to both the complainant and the accused, the jury had only a very small sample size to utilise for comparison purposes; [7] 5. Handwriting comparison is an area of expertise and involves methodology and specialised knowledge, which the jury did not possess; [8] 6. The jury is, nevertheless, entitled to look at the documents and make the comparisons that that they were invited to make, but should be careful about it; [9] 7. The jury must keep in mind that the onus is on the Crown. The applicant pointed out that the Crown could have potentially called a handwriting expert and it is for the Crown to prove that the applicant wrote Exhibit A. [10] The Crown sought to do this relying upon the evidence of the complainant and her husband, together with the existence of the fingerprint. It is for the Crown to exclude any reasonable hypothesis inconsistent with that proposition, including any aspect of the applicant's response, including "that it is not my writing", noting that the complainant and her husband were the persons with most motivation. [11] 8. Ultimately, the judge directed the jury that it was a matter for the jury as to whether they were satisfied that the handwriting in either case was that which was submitted they should find. The jury should "be careful about aspects of it because there are limitations to your individual skills as a juror", but they are entitled to compare it and to consider the applicant's submission about it. [12]
3. Immediately following the conclusion of the directions concerning the handwriting, the trial judge adjourned for a short mid-morning adjournment and, in the absence of the jury, enquired of the Crown and counsel for the applicant, whether there was any matter that either party wished to raise, to which both the Crown and counsel for the applicant replied that there was not. [13]

Applicant's submissions on appeal

1. In this Court the applicant submits that Exhibit A was clearly an important item in the case against the applicant at trial. The trial judge, it is submitted, recognised, in his summing up to the jury, the importance of the document and, on the submission of the applicant, the jury could have almost found the applicant guilty on the basis of Exhibit A alone, assuming, according to the applicant, that they found, beyond reasonable doubt, that he wrote the note. [14]
2. If, contrary to the foregoing, according to the applicant in this Court, the Crown had failed to prove that fact, the credibility of the complainant would have been seriously called into question. The applicant submits that the failure to prove the fact would have opened up the possibility that the note was manufactured by her.
3. The applicant concedes that the trial judge was not prevented from giving a warning or direction on the comparison of handwriting, but submits that a warning or direction was not mandatory. Such a warning was required only if the circumstances required it. [15] The applicant submits that the circumstances did not require a warning.
4. If, contrary to the applicant's submissions, the circumstances did require a warning, or the sentencing judge took the view that a warning was appropriate, the applicant submits that the warning that was given was extreme. The warning, according to the applicant, was to the effect that the jury was not equipped to undertake the comparison which it had been asked to perform. The effect of the warning was to place an excessive limitation on the ability of the jury to perform its role as the tribunal of fact, according to that submission.
5. The warning was given in circumstances where the prosecution had not called any evidence from a handwriting expert. The failure of the prosecution to call a handwriting expert does not require the applicant to call such an expert to disprove the handwriting in Exhibit A, according to the applicant in his submissions to this Court.
6. Further, the applicant submits that there was no evidence for the propositions about which the trial judge warned the jury and which he articulated in that warning. Specifically, according to the applicant, there was no evidence that the sample size was small. Further, there was no evidence that the comparison of handwriting required a context. Next, there was no evidence of the methodology employed by the handwriting experts and, lastly, there was no evidence as to the "different aspects that go into why people write as they do".
7. According to the applicant, a warning was only required to be given to cure any unfairness to the prosecution [16] and, according to the submission, there was no unfairness where the prosecution was on notice that the applicant denied authorship of the note and where the applicant had given notice, well before the end of the trial, that he would be asking the jury to undertake a comparison of handwriting when it retired to deliberate.
8. According to the applicant's submission, there was a real possibility that the trial judge answered the question which was placed before the jury. The warning, according to the applicant, had the effect of denying the applicant a chance, which was fairly open, of being acquitted. The warning was not one which related to a peripheral matter and, in accordance with the submission, it caused a substantial miscarriage of justice.
9. Further again, the applicant submits that r 4 of the Criminal Appeal Rules (NSW) is not engaged in this appeal. This is because submissions were made, at trial, that it was not dangerous to allow the jury to undertake a comparison of handwriting without any assistance from a handwriting expert and there were sufficient materials available to the jury to undertake the comparison for itself. [17]

Consideration

1. Thus far, the submissions of the applicant have been summarised and, in turn, the directions of the trial judge have been summarised. Given the nature of the ground of appeal, it is necessary to examine more closely the trial judge's summing up and the directions provided to the jury. Before doing so, it is necessary to deal with the issue of the application of r 4 of the Criminal Appeal Rules. The provisions of r 4 of the Criminal Appeal Rules are in the following terms: "4 Exclusion of certain matters as grounds for appeal etc No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal."
2. First, the reference by the applicant in its submissions to the handwriting comparison not being "dangerous" is a reference, not only to the numbers in Exhibit A, but also the comparison of handwriting on the government documents that were used for the complainant's handwriting. Further, there is no submission before the trial judge as to a comparison of the Chinese characters. Further again, the submission that was there being dealt with was, amongst other things, the admissibility of the licence applications said to have been completed by the complainant (and not whether the jury were entitled to perform a handwriting comparison).
3. In short, there was an issue as to whether the documents were business records and a submission that, pursuant to s 135 of the Evidence Act 1995 (NSW), the evidence was "dangerous" and unfairly prejudicial to the prosecution and ought not to be admitted. It seems, although not put precisely in these terms, that the Crown submitted that Exhibit Voir Dire 7 (one of the Department of Immigration forms) ought to be excluded from evidence on the basis of the exercise of the discretion pursuant to s 135. Thus, the reference to the evidence not being "dangerous" is a reference to its admissibility.
4. The issue before the Court in this appeal is not the admissibility of Exhibit A. The issue before the Court, on appeal, is the warning that was given by the trial judge in relation to Exhibit A (and the other documents).
5. As pointed out earlier, the judge gave a warning in terms which will shortly be recited more fully, at the conclusion of which the judge heard counsel in the absence of the jury and sought, proactively, any submission on the terms of the warning that had been given or any correction that ought to be made. This was a highly commendable course, often adopted be experienced trial judges.
6. The applicant, at trial, made no comment on the terms of the warning or its appropriateness. As a consequence, r 4 applies, not to the admission of Exhibit A, which is not an issue in this appeal, but to the directions given by the trial judge as to how the jury should deal with the comparison of handwriting.
7. Notwithstanding the view that r 4 of the Criminal Appeal Rules applies, given the nature of the ground of appeal and the issues raised in the appeal, it is appropriate to grant leave under r 4 and I propose that leave be granted.
8. To deal with the substance of the ground of appeal, it is necessary to look more closely at the precise terms of the summing up in directions to the jury. The learned sentencing judge, in his summing up, recounted that the accused's response to the fingerprint on the document and the handwritten document, Exhibit A, was that this was "part of the manufactured case against him … is false, but that [the complainant] was involved in getting that document from the restaurant".
9. His Honour then gave further details of the case presented by the applicant in relation to the "manufactured case" against him. He reminded the jury that it is for the Crown to exclude, beyond reasonable doubt, the possibility that the case against the accused has been manufactured by the complainant and/or her husband (or anyone else).
10. In terms of the note itself, the trial judge directed the jury that the Crown must prove beyond reasonable doubt that the applicant wrote it. [18] His Honour then went on to deal with the note, in the following terms: "That leads to this aspect in relation to handwriting. So, in this trial, you have some handwriting done by the accused when he drew a map. So you have exhibit 11, which was what he drew and has some Chinese writing in it. You might remember that the English handwriting is not his. In relation to [the complainant], what you have on her depends on really what evidence you have accepted, because Mr Santisi says if you compare the Immigration form 157P to 157A, you would decide that she had written both of those. Ironically, that is going to involve even more, in theory, handwriting examination by the 11 of you, none of whom are in any way remotely handwriting experts. Also, you are asked to look at some of the Department of Main Roads or the RTA forms, which the accused was involved in filling out and looking at the numbers and, in particular, Mr Santisi says if you look at how the accused does his 2s, 4s and 7s that you would be satisfied that that is not how he does his 2s when you compare it with exhibit A. So let me give you a few warnings about this. In relation to Chinese characters, you should not do any handwriting comparisons at all, because none of you are familiar with aspects of Chinese writing, and it would be really dangerous for you for either case, either as a positive way to assist the Crown proving its case beyond reasonable doubt, or in the negative way against the Crown and find the case not guilty based on you doing examination of Chinese handwriting. None of you have any skills whatsoever in handwriting experts, particularly in Chinese characters. When you think about it, it would be really unfair to either party. So for an accused, it would be really unfair to try and compare his Chinese handwriting and convict him on that basis. Equally, it would really be unfair to the Crown for you to be doing that because you have no skills and it is completely unfair and no party has asked you to do that. It is different to some extent with English writing. In relation to the numbers, because you would all be familiar with English writing. In normal life, there would be times that you would have some general skills in comparing writing in your normal life. There was a time, for the younger members of the jury it may have never impacted on your life, when the only time you could ever use your credit card was when people compared your signatures, people in supermarkets, petrol stations, shops, there was no PIN code, you just signed your credit card and they compared it and, in theory, none of those people have ever had expertise in handwriting in order to do it, but perhaps it was never the greatest method of identification and it is little wonder that banks now do not allow that to happen and you have PIN codes and all other kind of things of security protection today. But, also, in normal life, if you got a card from your mother, your father, from your son, from a friend, you might recognise the handwriting on it. At work, sometimes, you might recognise the handwriting of a colleague that you have been working with for a long time. So to some extent in your normal life, you might have some experience in comparing handwriting. However, that is not going to be as easy here. Firstly, none of you know [the complainant], and you have not been familiar with her handwriting for years like friends, family and work colleagues. Also, in this trial, you cannot always be sure what she actually wrote on some of those documents, although she accepts she filled in 157P, she does not accept that she filled in 157A. So you are not even sure what you are even using as a comparison of sample. Likewise, with the accused, you have got a very small sample size. The other thing is you have got no context to it. An expert in handwriting analysis spends their career looking at aspects of this. There is a real methodology to what they do, and there is an understanding by them of the importance of different aspects about things that people do. Here, you do not know, necessarily, from your skills as a juror whether someone, for example, writes a 2 the same way every single time, or different aspects that go into why people write as they do, do people write the same way every single time that they write it. That is not to say that you are not entitled to look at the documents and do some aspects of comparison, in particular, the numerical aspect and also what Mr Santisi asked you to do in relation to the Department of Immigration forms of [the complainant]. What I ask you to do about it is to be careful about it. Also keep this aspect in mind. It is for the Crown to prove its case beyond reasonable doubt. There is no doubt, as Mr Santisi said on behalf of the accused, that the Crown could have, if they had so been able to, potentially, try and find whether a handwriting expert could have been called. In response to that, they did not really have any handwriting sample from the accused and although Mr Santisi was critical of them not trying to get one during the interview, the reality is they did not. So, whether they were capable of getting a handwriting expert or not, or what material they would have got is debatable, but just keep in mind always in a criminal trial, consistent with exhibit A and analysing it, it is for the Crown to prove beyond reasonable doubt that the accused wrote it. The primary way that the Crown says he wrote it is the whole of the circumstances. They say you would accept [the complainant] and her husband and also accept the circumstance of the fingerprint, being consistent with that, and also the document itself being consistent with what she says occurred at the cafe meeting, and that is what it is. It is not for the accused, as I said, to prove any aspect of his response to it. So it is for the Crown to exclude beyond reasonable doubt the aspect of the accused's response to say that is not my writing and, by inference, the most likely people it could potentially be are [the complainant] or her husband. They were the other two there, and they were the other two, potentially, with the most motivation to write it if this case was being fabricated against the accused. Also, with the number, be careful in some of the documents, again from the Department of Immigration, of comparing numbers in those documents to when there is even a dispute about who wrote them. Ultimately, as I said, it is a matter for you. You are entitled to go through this process, but I warn you to be careful about aspects of it because there are limitations to your own individual skills as a juror, but to deny you the ability to compare would also be unfair to both parties and, in particular, for the accused who wishes for you to look at it and, in his submission, to see aspects which he says supports his response to it that he did not write it."
11. While the foregoing extract is lengthy, it is necessary to understand the whole of the summing up on this issue. No complaint is made of the trial judge's direction to the jury that they should not seek to compare the Chinese characters. Depending upon the view they took of the comparison, such a comparison would be grossly and manifestly unfairly prejudicial either to the Crown or to the applicant. Assuming for present purposes that not everyone on the jury could read Chinese, the proposition that any person could compare or try to compare handwriting in circumstances where it is not understood what is being written (that is the nature of the character or letter) is fanciful.
12. Even if a juror or all of the jurors understood and could read Chinese, unless Chinese was the language of the proceedings, and each of the parties, their counsel and the Judge were in the same position as the jury, such a comparison would be the application of expert evidence that would be unfairly prejudicial to one or other or both parties and deny them the capacity to put submissions on it or to test it. The concession, by the applicant, that the Chinese characters should not be compared by the jury was appropriate at trial and appropriate on appeal.
13. From that, one can come to the conclusion that the only comparison that was being made, in terms of Exhibit A, was a comparison of the numerals only.
14. There are a number of aspects of the foregoing warning and direction that need emphasis and upon which counsel, in this appeal, relied. First, the trial judge reminded the jury of the nature of the exhibits relating to the handwriting of the complainant. Then, he referred to their function "in theory" being an "examination by the 11 of you, none of whom are in any way remotely handwriting experts". While there was some muted criticism of the use of the word "in theory", nothing in that description is other than that which would be obvious to anyone in the courtroom.
15. I suppose it is remotely possible that one of the jurors was a handwriting expert. But, leaving aside that remote possibility, the statement is a statement of fact about which no one can reasonably complain.
16. Then the sentencing judge deals with the Chinese characters. As already indicated, the jury could not possibly have compared handwriting by comparing the Chinese characters, in circumstances where it is, on any ordinary basis, unclear that they would be sufficiently familiar with Chinese that they would know there was an attempt to write the same character.
17. Moreover, if any one of the jurors were sufficiently familiar with Chinese to be able to compare characters, it would be a process that would deny one or other of the parties' natural justice and probably both of them. That is an analysis that his Honour explains to the jury and does so, with respect, extremely well.
18. The next aspect with which the judge deals is that he reminds the members of the jury that in ordinary life they would recognise handwriting by someone with whom they were familiar. While understandably exempting some younger members of the jury (the ages of which are unknown to the Court of Criminal Appeal), his Honour referred to comparisons of handwriting in signatures on credit cards as they once were and still are in some areas. Leaving aside that it has become rare for members of the community to receive hand written communication, such is a matter of common sense and common knowledge. Frankly it is unassailable.
19. This trial judge then differentiates the position of comparing handwriting from people with whom you are familiar with the situation that is before the Court and with which the jury had been tasked. The sentencing judge reminds the jury, in relation to those documents upon which the accused was relying, of the evidence that it is not certain that the handwriting on the documents is actually the handwriting of the complainant. Thus, there are steps that would need to be taken prior to any comparison of samples being made. He makes the same comment in relation to the accused. He refers to the "sample size" as being small.
20. On its face, a comparison of numerals from one document to another or even another two could be reasonably described as a "small sample size" or a "very small sample size". It is difficult to imagine it being described, in relation to that aspect, differently.
21. The judge then reminds the jury that there are experts in handwriting who spend their careers looking at aspects of handwriting and, which is also a matter of common sense, that the handwriting of people may differ depending upon that which is being written.
22. Thus, to take an obvious example, the handwriting on notes during a lesson may be very different from the handwriting of the same person when completing a loan application. These are matters of common sense, of which the trial judge was entitled to remind the members of the jury. On one view, he was required to remind the jury of that aspect. That requirement will be the matter of comment later in these reasons.
23. Nevertheless, it is within the common experience of jurors that, for example, were they to sign a Christmas card or birthday card, the signature is likely to be very different from that which is on an application for loan or, more relevantly, an application for a visa.
24. Notwithstanding the reminder of the trial judge to the jury of these factors, the trial judge emphasised, on a number of occasions, that it is for the jury to look at the documents and that they are entitled to look at them and perform aspects (sometimes "some aspects") of comparison, with particular reference to the comparison of the numerals.
25. The trial judge informed the jury that, when performing that task, they should be "careful about it". Further, they had to keep in mind that it is for the Crown to prove its case beyond reasonable doubt and the Crown could have, if they had chosen, called an expert in handwriting. They did not.
26. The trial judge ended his directions as to the handwriting by reiterating that ultimately "it is a matter for the jury". It is a matter for them to go through the process, bearing in mind the warning that they should be careful about aspects of it because there are limitations in their own individual skills as jurors.
27. The trial judge was correct in admitting the material over the objection of the Crown, initially. Further, in my view, the trial judge was correct in providing a warning about the results of any such comparison that they undertook. He made it clear that to deny the jury the ability to make the comparison would be unfair to the accused, but they should be careful about the results of any comparison because they are not experts and they are not, independently, familiar with the handwriting of the persons who are alleged to have been the authors of the documents.
28. The provisions of s 165 of the Evidence Act, and in particular the provisions of s 165(2) of the Evidence Act, require a judge, where there is a jury trial, to warn a jury that certain evidence may be unreliable. The warning provided by the trial judge, as a general issue, was required to be given because the result of any comparison that the jury made "may be unreliable". Further, by operation of the provisions of ss 165(2)(b) and (c), the trial judge was required to inform the jury of why it was that the result of any comparison may be unreliable or may cause the comparison to be unreliable and to caution the jury to be careful in determining whether to accept the evidence and the weight to be given to it.
29. It is trite that a jury is entitled to determine questions of fact, including a determination by comparison of handwriting as to the authorship of a document. Nevertheless, in the absence of expert evidence, the results of the comparison by a jury may be unreliable. This is exacerbated in circumstances where there is a very small sample, which, in this case, there was.
30. The effect of the direction by the trial judge, importantly, was: 1. That a comparison of the handwriting, including numerals, was a matter for the jury; 2. That comparison was a task which the jury had been invited to undertake and which they could or should undertake; 3. In doing so, they had not been provided expert evidence upon which they could base a comparison of the handwriting (including numerals); 4. In the absence of expert evidence, they should be careful as to the weight they give such a comparison, bearing in mind that it is for the Crown to prove, beyond reasonable doubt, that the applicant was the author of the admission document (Exhibit A); 5. The reliability of that evidence was also to be considered in light of the fact that there was a very small sample of handwriting, they were not familiar with the handwriting of the authors and there was some controversy, on the evidence, as to who wrote the sample documents, in some cases.
31. As earlier stated, with one possible exception, the direction was unassailable. The trial judge directed appropriately and properly. The one exception, to which I have just referred, is that it may not have been necessary for the Crown to prove the authorship of Exhibit A, beyond reasonable doubt, in circumstances where the authorship of the document was part of the matrix of evidence which the Crown was adducing for the purpose of proving the elements of the offence beyond reasonable doubt.
32. The direction would have been necessary only if it were necessary for the jury to have reached the conclusion as an indispensable intermediate step in the reasoning process towards the inference of guilt. [19] Nevertheless, that aspect of the direction was for the benefit of the applicant and could not be a ground for complaint.
33. In my view, there was abundant evidence to establish the guilt of the applicant apart from the terms of Exhibit A. The circumstantial evidence upon which the Crown relied was the scientific evidence of the occurrence of sex; the eventual admission by the applicant that sex had occurred; the evidence of the flatmate of the semiconscious state of the complainant; and the inconsistencies between the ERISP and the eventual evidence of the applicant. The authorship of the document, being Exhibit A, is a minor and not particularly compelling aspect of the Crown case.
34. The applicant, in submissions, referred to the proposition that the warning was not "required". Whether or not it was "required" or "necessary", it was appropriate. Whether or not the direction was necessary, for the foregoing reasons, I do not consider that the direction given occasioned a miscarriage of justice. I would propose that the Court make the following orders: 1. Leave be granted under r 4 of the Criminal Appeal Rules (NSW) to allow the arguing of this ground of appeal; 2. Leave to appeal be granted; 3. Appeal be dismissed.
35. N ADAMS J: I have had the advantage of reading the judgment of Rothman J in draft. I agree with the orders proposed by his Honour for the reasons provided with one exception: I would not grant leave under rule 4 of the Criminal Appeal Rules (NSW).
36. As Rothman J has observed at [51], after his Honour gave the now impugned direction he asked both counsel, in the absence of the jury, whether there was anything either of them wished to raise at that time. Neither of them did. Further, given the strength of the Crown case, the authorship of Exhibit A was not a central issue at the trial below. The detection of the applicant's fingerprint on that document in the face of the applicant's rather unconvincing explanation for its presence was no doubt a factor which lessened the significance of how the "2" was written on it.
37. The applicant submitted that leave should be granted to him in reliance upon the principles summarised in Roos v R [2019] NSWCCA 67 at [71]-[74] as follows: "Rule 4 of the Criminal Appeal Rules (NSW) provides that no direction, omission to direct, or decision as to the admission or rejection of evidence, given by the judge presiding at the trial shall, without the leave of the Court, be allowed as a ground for appeal unless objection was taken at the trial to the direction, omission or decision by the party appealing. Leave to rely on an error to which no objection had been taken at the trial will be granted only where the appellant can demonstrate that the error led to a miscarriage of justice. The criterion for the exercise of r 4 has been the subject of discussion in this Court. In Picken v R [2007] NSWCCA 319, Mason P (Hidden and Harrison JJ agreeing) noted at [20] that there have been varying formulations of the test for identifying a miscarriage of justice in this context, referring to Tripodina and Morabito v R (1988) 35 A Crim R 183 at 195; Papakosmas v The Queen (1999) 196 CLR 297 at 319; and R v Wilson (2005) 62 NSWLR 346 at 352 [20]. The test proposed by McHugh J in Papakosmas v The Queen, which is a negative constraint, was doubted in Greenhalgh v R [2017] NSWCCA 94 at [8] (Basten JA, Button J agreeing), where the view was expressed at [16] that this Court should be cautious in laying down principles to be applied when exercising a broad discretionary power under r 4. Nonetheless, it is generally accepted that the appellant must at least establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R at [20] - [21]; ARS v R [2011] NSWCCA 266 at [147] (Bathurst CJ, James and Johnson JJ agreeing); Greenhalgh v R at [47]-[48] (N Adams J) cf [7]-[21] (Basten JA, Button J agreeing). It is also to be kept in mind, as Mason P said in Picken v R at [22], that: 'The question of leave in accordance with rule 4 needs to be addressed in relation to the particular error identified by the appellant and its impact, in isolation and in conjunction with other errors, upon the justice of the conviction under challenge'."
38. I am not satisfied that the applicant has established that he lost a chance (or a chance fairly open) of being acquitted by virtue of the impugned direction. For that reason, I would prefer to refuse leave under rule 4 and leave to appeal, but, given my agreement otherwise with the reasons of Rothman J, in the circumstances, I join in the orders proposed.

Endnotes

1. The letters "A", "B" and "C" in the translation refer to characters which the interpreter could not translate due to illegibility.
2. R v Doney (2001) 126 A Crim R 271; [2001] NSWCCA 463.
3. Summing Up, at p.53.
4. Summing Up, at pp.53-54.
5. Summing Up, at p.54.
6. Summing Up, at pp.54 and 56.
7. Summing Up, at p.54.
8. Summing Up, at p.54.
9. Summing Up, at p.55.
10. Summing Up, at p.55.
11. Summing Up, at p.55.
12. Summing Up, at p.56.
13. Summing Up, at p.56.
14. Summing Up, at p.50.4.
15. Doney v R, supra.
16. Collins v R [2006] NSWCCA 162 at [61]-[62].
17. Tcpt, 31 January 2019, p 607(49) - p 608(17).
18. Summing Up, at p.55.
19. Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56.

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