Judgment
1HOEBEN CJ at CL:
Offences and sentence
On 15 May 2012 TDP (the applicant) was convicted by a jury after a trial conducted by Toner DCJ of 11 charges of sexual assault committed against his stepdaughter over a 3 year period when she was aged 13 to 16 years.
2There were 9 counts of aggravated sexual intercourse without consent, contrary to s61J of the Crimes Act 1900 and 2 counts of aggravated indecent assault, contrary to s61M(1) of the Crimes Act 1900. For an offence contrary to s61J, the maximum penalty is imprisonment for 20 years with a standard non-parole period of 10 years. For an offence contrary to s61M(1), the maximum penalty is imprisonment for 7 years with a standard non-parole period of 5 years. With respect to counts 1 - 5, the circumstances of aggravation were that the complainant was under 16 and that she was under the authority of the applicant. For counts 6 - 11, the circumstance of aggravation was that the complainant was under the authority of the applicant.
3The applicant was sentenced as follows:
Count 1: Aggravated sexual intercourse without consent on 31 July 2007 - imprisonment with a non-parole period of 6 years to commence 15 May 2012 and to expire on 14 May 2018 with a balance of term of 4 years to expire on 14 May 2022.
Count 2: Aggravated indecent assault between 1 August 2007 and 3 May 2008 - imprisonment for a fixed term of 3 years to commence 15 May 2012 and to expire 14 May 2015.
Count 3: Aggravated sexual intercourse without consent on 21 February 2009 - imprisonment for a fixed term of 4 years to commence 15 May 2012 and to expire 14 May 2016.
Count 4: Aggravated sexual intercourse without consent on 17 April 2009 - imprisonment with a non-parole period of 6 years commencing 15 May 2012 and expiring 14 May 2018, with a balance of term of 4 years expiring 14 May 2022.
Count 5: Aggravated sexual intercourse without consent on 17 April 2009 - imprisonment for a fixed term of 4 years to commence 15 May 2012 and to expire 14 May 2016.
Count 6: Aggravated sexual intercourse without consent on 7 August 2010 - imprisonment with a non-parole period of 4 years to commence 15 November 2015 and to expire on 14 November 2019 with a balance of term of 3 years to expire 14 November 2022.
Count 7: Aggravated indecent assault on 31 October 2010 - imprisonment for a fixed term of 2 years and 6 months to date from 15 November 2015 and to expire on 14 May 2018.
Count 8: Aggravated sexual intercourse without consent between 31 October 2010 and 16 December 2010 - imprisonment with a non-parole period of 4 years to commence 15 November 2015 and to expire on 14 November 2019, with a balance of term of 3 years to expire on 14 November 2022.
Count 9: Aggravated sexual intercourse without consent on 16 December 2010 - imprisonment with a non-parole period of 4 years to commence 15 November 2015 and to expire 14 November 2019 with a balance of term of 3 years to expire 14 November 2022.
Count 10: Aggravated sexual intercourse without consent on 16 December 2010 - imprisonment with a non-parole period of 4 years to commence 15 November 2015 and to expire 14 November 2019 with a balance of term of 3 years to expire on 14 November 2022.
Count 11: Aggravated sexual intercourse without consent on 17 December 2010 - imprisonment with a non-parole period of 4 years to commence 15 November 2015 and to expire 14 November 2019 with a balance of term of 3 years to expire 14 November 2022.
4The total effective sentence was imprisonment with a non-parole period of 7½ years (15 May 2012 to 14 November 2019) with a balance of term of 3 years expiring 14 November 2022.
5The Crown lodged an appeal against the inadequacy of this sentence on 12 October 2012. The applicant has appealed against his conviction. The applicant had legal representation in relation to the Crown sentence appeal but was unrepresented in his conviction appeal.
The Crown case at trial
6The complainant "A" was born in 1994 and was aged 18 at the time of trial. She had an older brother "B", born in 1992 who was aged 20 at the time of trial. Her mother, "BP", commenced a relationship with the applicant in the late 1990's and thereafter he moved in with the family. The applicant and BP were married in March 2005 and had a daughter together, "T", born in 2006.
7The complainant gave evidence that the applicant had interfered with her sexually over a period of 3 years from when she was aged 13 through to 16. Her evidence in relation to each count brought against the applicant was as follows.
Count 1 - aggravated sexual intercourse without consent
8In July 2007 the applicant took the complainant, aged 13, to Sydney to attend a Gwen Stefani concert and they shared a room at the "Spanish Inn Motor Lodge" in Strathfield for two nights. After they returned from the concert the applicant turned the lights out and gave A some tablets to swallow without telling her what they were. He just said "trust me" and she did. After taking them, the complainant said "goodnight" to the applicant, gave him a hug and got into the single bed in the room.
9The complainant woke up to find she was in the double bed with the applicant on top of her. Her pants were off and he had no pants/underwear on. The applicant had his penis in the complainant's vagina and was having intercourse with her. She screamed, saying "stop it, stop it" and the applicant told her to "shush", that she would wake everyone up.
10The complainant was scared and in shock at what was happening. She squirmed around but could not do anything to stop what was happening. The complainant's next memory was the applicant getting off her. She went to the bathroom, closed the door and stayed in there for some time, trying to comprehend what had happened. She was shaking and in shock.
11While in the bathroom, the complainant noticed that she had a green stain on her fingers, apparently from the tablets the applicant had given her to take. The complainant returned to the room and said to the applicant, "Don't do that again". He said that he would not and she went to sleep in the single bed.
12The complainant did not tell anyone at that time. She was scared about what her mother might think and of what the applicant might do and just wanted to move on.
Count 2 - aggravated indecent assault
13The applicant operated a floor-sanding business at the time and also worked occasionally as a DJ at discos. He would take the complainant with him and from time to time they would stay overnight in his vehicle. Before the applicant disposed of his Toyota Hiace (3 May 2008) the complainant accompanied him in the vehicle to a disco in Lightning Ridge. She was aged 13 or 14 and they stayed overnight in a motel. They shared a room that had only one bed. When the complainant got out of the shower that night, she discovered that her pyjamas which she had left on the side of the sink were wet.
14The applicant said that her suitcase of clothes in the vehicle had gone missing and gave her one of his t-shirts to wear to bed. She did not have any underclothing. They shared the bed and the applicant rubbed his fingers around the complainant's vagina and bottom. Next morning the applicant claimed to have found her suitcase and the complainant was able to change clothing.
Count 3 - aggravated sexual intercourse without consent
15On Saturday, 21 February 2009 the applicant took the complainant to a property at Terry Hie Hie for BMcN's twenty first birthday party. B was there also, having travelled out the day before. The applicant decided to leave the party early and go home. He allowed B to stay but insisted on the complainant going with him. On the way back, the applicant pulled off the road somewhere out of Gravesend. He had a mattress in the back of his gold Ford ute and they stayed the night. The applicant had penile/vaginal intercourse with the complainant in a number of different positions while they were on the mattress.
16They drove back to Inverell early the next morning. The complainant did not tell anyone what was happening. She was scared and the applicant told her on occasions that he did not want the family to break up, that her mother would not want to talk to her, that B would not want anything to do with her and that T would be in DOCS care and the complainant would not see her again.
Counts 4 and 5 - aggravated sexual intercourse without consent
17The complainant (15) accompanied the applicant to Armidale on 17 April 2009 when he was a DJ at a fortieth birthday party at the Armidale Bowling Club. They travelled in the applicant's ute, towing a trailer, and on the way back the applicant pulled off the road. They slept on a mattress that was in the trailer.
18The applicant on this occasion had both penile/anal and penile/vaginal intercourse with the complainant. When they were on the mattress, the applicant told the complainant "we're going to try something different". He was lying behind her and put his penis into her bottom. She felt massive pain and told him "stop it, don't do it, it hurts". He said "just a bit longer, just a bit longer" but the complainant kept telling him to stop, saying that it hurt until he stopped. The applicant then had penile/vaginal intercourse with the complainant.
Count 6 - aggravated sexual intercourse without consent
19The complainant (16) went with the applicant when he was a DJ at a wedding at Glenn Innes on 7 August 2010. They booked into the Glenn Innes Motel and the complainant remained in the room while the applicant went to the reception centre. There was only one bed in the room and the complainant went to bed before the applicant got back. He arrived around midnight and had penile/vaginal intercourse with the complainant in the bed. They slept the rest of the night, returning home in the morning.
Count 7 - aggravated indecent assault
20On the night of Saturday 30 October 2010, the complainant (16) went to a party at her friend J-L's place in Inverell and was to sleep over. Another of the complainant's friends, a Brazilian girl called Stephanie, also went to the party. The applicant and the complainant's mother came to the house in the early hours of the morning. The complainant then drove the applicant to the hospital because he was not feeling well, while her mother stayed behind and looked after T.
21While they were in the car, the applicant wanted to know what had happened at the party with Stephanie and felt around the complainant's vagina to see if she was "wet".
Count 8 - aggravated sexual intercourse without consent
22Sometime after that, the complainant went with the applicant to Armidale to visit her "Pop", the applicant's stepfather. On the way, the applicant pulled off the road. It was daylight and he put towels on the windows of the ute so no-one could see in.
23The applicant got in the backseat and took his pants off. The complainant was in her school uniform. She got in the back, took her stockings, pants and skirt off and got on top of him with her legs around his. The applicant then had penile/vaginal intercourse with her. The applicant got a phone call from the complainant's mother and he told her they were just coming into Armidale. During the intercourse the applicant told the complainant to talk about what she had done with Stephanie and the complainant made something up for him about Stephanie touching her.
24Afterwards the complainant wiped herself with a towel, dressed and they continued to Armidale.
Counts 9, 10 and 11 - aggravated sexual intercourse without consent
25On Thursday 16 December 2010, the complainant (16) went with the applicant to Warialda on one of his sanding jobs and they stayed overnight at the "Sunflower Motel". They were the only guests at the motel and the applicant selected a room with just one bed in it. The applicant had penile/vaginal intercourse with the complainant in the bed as soon as they arrived (count 9). He brought food to the room for dinner and gave the complainant tablets to take, popping them in her mouth for her. Thereafter, he had penile/vaginal intercourse with the complainant again (count 10). He told her to think about Stephanie and tell him where she was touched. The complainant told him Stephanie had touched her "on the breasts, bum and vagina". Early next morning, the applicant wanted the complainant to give him oral sex. She initially said "no", but then relented after the applicant started sweating and shaking and told her he did not think he could drive home.
26The complainant performed fellatio for a short time and then told the applicant her mouth was sore, but he said "Oh, just a little bit more" and continued until he ejaculated in her mouth (count 11). That was the last time the applicant had sexual contact with the complainant.
27In addition to the conduct giving rise to the charges on the indictment, the complainant gave evidence that the applicant had engaged in sexual intercourse with her on many other occasions by the roadside on trips away, or more often in the complainant's bedroom, such intercourse including penile/vaginal, penile/anal and fellatio.
28The applicant began listening to the complainant's conversations using software he installed on her mobile phone and accused her of being a lesbian, of masturbating and even of having sex with her brother B. On 4 February 2011 the complainant's mother, BP, moved out of the home and took the complainant and T with her. They stayed with the complainant's maternal grandparents but BP maintained contact with the applicant and took T to the house for visits with her father.
29On 16 February 2011 the applicant asked that T stay with him overnight and BP agreed. This prompted the complainant to disclose what had been happening to her. The complainant made a formal complaint to the police that evening.
30The applicant was arrested on 21 March 2011. He received legal advice and declined an offer to be interviewed in relation to the allegations. He was thereafter charged.
31The complainant's mother, BP, gave evidence at the trial. This corroborated much of the complainant's evidence as to the specific counts relied upon and the opportunity which the applicant had to commit the offences.
32Her evidence was that the applicant tended to stay up late and sleep during the day. He had sleep apnoea and was a bad snorer so that he would often take his sleep apnoea equipment into the complainant's room and sleep on a mattress on the floor so he would not disturb BP. In the mornings BP would close off that part of the house so that T would not wake him.
33In relation to the twenty first birthday party (count 3), BP said that the applicant rang her and told her that he would bring the complainant home. Later that night he rang again to say that he was tired and that they were going to stop at the Gravesend truck stop and have a sleep and then come home. The applicant and the complainant arrived home the next morning.
34B gave evidence, which like that of BP, corroborated the complainant's evidence in that it was consistent with opportunities available to the applicant to commit offences against the complainant. He gave evidence of accusations made by the applicant against him to the effect that he was having sexual intercourse with the complainant. Those accusations commenced towards the end of 2010.
35B said that the applicant slept in A's bedroom "all the time", which was clarified to mean two or three times a week. He said that they would go to bed before him, or he would wake up in the morning and the applicant was still in A's room sleeping. The applicant would always shut the door and would also shut B's bedroom door. Even when B left his bedroom door open in winter to let in heat from the rumpus room heater, in the morning his bedroom door was always shut.
36Detective Senior Constable Taber was the officer-in-charge of the investigation. She was aware that the complainant had attended the Inverell Police Station with her mother on 16 February 2011. At the time the complainant was observed to be upset, emotional and crying while her mother tried to console her.
37On 23 February 2011 Detective Taber and an Inverell Community Services worker conducted an electronically recorded interview with the complainant. This ERISP was lengthy, comprising 962 questions set out on 90 pages of transcript.
38Detective Taber gave evidence that on 16 May 2011 a forensic procedure was carried out on the complainant which involved a sample of her hair being cut from different locations on her head. The hair sample was sent for toxicology analysis to see if there were any traces of drugs. Detective Taber did not know what she was looking for and so did not ask for any particular drug to be tested for. The results came back negative.
39Exhibit G was the report of a Mr Hoskings, forensic toxicologist. Included in that report was:
"A request was made to analyse the hair sample for the presence of drugs. The hair sample submitted was approximately 27 centimetres long. Based on this, the 9 centimetres of hair closest to the scalp were analysed as 8 segments relating to about 9 months' growth.
The first segment analysed was 2 centimetres in length and would relate to the approximate timeframe mid March to mid May 2011 inclusive. The remaining 7 segments analysed were each 1 centimetre in length and in total would relate to 7 months' growth and cover the approximate period, mid August 2010 to mid March 2011.
The hair was analysed as requested by liquid chromatography, mass spectrometry for the following drugs, amphetamines, MDMA also known as Ecstasy, methylamphetamine, morphine, codeine, heroin, alprazolam, clonazepam, diazepam, oxazepam, temazepam and zopiclone.
Result and Interpretation:
None of the drugs listed above were detected in any of the hair segments analysed.
Comments:
Various drugs become incorporated from the blood into growing hair root, thereafter such drugs remain fixed in that part of the hair as it grows out from the scalp, therefore the hair keeps a history of when a particular drug was taken. If a drug is used infrequently or a single time there may not be enough of the drug incorporated into the hair to be detected."
40The applicant gave evidence and denied each of the charges put to him. He said that after he stopped doing his courier run in 2005, he started having trouble sleeping. He had suffered from sleep apnoea all his life. Because he did not want to disturb BP's sleep, they agreed that he would sleep in the complainant's room. This occurred most Saturday nights so he could sleep in.
41He denied that any sexual contact had occurred between the complainant and himself on the night of the Gwen Stefani concert on 30 July 2007. He denied giving the complainant any tablets in the motel room. He denied having access to any green tablets at that time. He said that he had access to green tablets from 2009 when he became a carer for his brother. He said that his brother was prescribed Hypnodorm which is a sleeping tablet.
42He said that a few days before 14 January 2011, he had asked B if there was "anything going on" between B and the complainant because he had noticed B looking at the complainant in a different way. The applicant said that he decided to "do a check" on the complainant and utilised his Spyphone software. He heard what he perceived as "sexual noises, someone having sex in the background". He became angry and rang B's phone and told him to get out of the house. This led to a confrontation between the applicant and B and the police were called to the house.
43The applicant said that he suggested that the complainant be examined by a doctor to show that she was a virgin and thus had not had sex with her brother. BP agreed and spoke to the complainant about it. The applicant said that the complainant rang him begging him not to let it happen. He said that the first he became aware that the complainant had made allegations against him was on 16 February 2011 after he was served with an AVO.
44The applicant said that on one occasion A had entered the bathroom when he was wearing only a shirt. He did not know how much A had seen because he was too embarrassed to ask (this would explain A's evidence that he was not circumcised and in November 2008 had undergone a vasectomy procedure).
The Appeal
45Over a period of time the applicant prepared and served on the Crown 13 Grounds of Appeal. Since Grounds 1, 3, 4 and 5 essentially raise the same issue, they can be dealt with together.
Ground 1 - An abuse of process resulted from the Crown's failure to produce known evidence that the accused did not drug the complainant as it was the same evidence that would have convicted the accused that the drug hair report was positive
Ground 3 - That a miscarriage of justice resulted from the Crown's failure to call certain experts with testimony and/or pharmacology documents to ascertain Hypnodorm as Crown introduced from their own witness.
Ground 4 - His Honour's summing up caused a miscarriage of justice in directing a jury on the use to be made of the drug hair report with clarity and the burden of proof and how to apply it to this crucial evidence.
Ground 5 - An abuse of process by the Crown in closing on the drug hair report, the Crown gave a false direction about evidence from the complainant in direct disparity to the complainant's testimony for had the Crown communicated the complainant's correct testimony, it would have placed the complainant's credibility in an irredeemable position.
46Under Ground 1 the applicant submitted that in her ERISP the complainant said that he had given her tablets on a regular basis, as often as every Saturday night when sexual intercourse occurred. The submission seems to be that had the complainant been cross-examined as to these answers in her ERISP, the answers would have been shown to be false because of the result of the toxicology tests on the complainant's hair.
47The applicant submitted that the Crown failed to fulfil its duty to place all relevant evidence before the jury by not placing before the Court a pharmacology report which set out the pharmacological details of the substance Hypnodorm (otherwise known as Rohypnol). The applicant's submission was that if such a report had been before the jury, it would have shown that the complainant was not telling the truth in her ERISP when she spoke about the many occasions on which she was given tablets by him. The applicant submitted that this would have destroyed the complainant's credit.
48The applicant submitted that by failing to place this information before the jury, the Crown was in effect holding back evidence and he relied on Grey v R [2001] HCA 65; 184 ALR 593 in support of that proposition. Fundamental to these submissions is the proposition that because the toxicology report on the complainant's hair produced a negative result, further testing and further scientific information about Hypnodorm would discredit the complainant.
49The applicant also relied upon evidence given in the voir dire. The applicant's submission was that because the complainant said that she had been given green tablets on multiple occasions and that the green tablets knocked her out, the green tablets must have been Hypnodorm and that if she were telling the truth, the presence of Hypnodorm in her hair would have shown up when her hair sample was tested. The applicant submitted that it was the duty of the Crown Prosecutor to place before the jury evidence which identified the active ingredients of Hypnodorm and to obtain a report which specifically addressed the question of whether the active ingredients of Hypnodorm were present in the hair samples which were tested.
50The applicant submitted that his Honour's summing up caused a miscarriage of justice because of the way in which he directed the jury about the use to be made of the toxicology report. Implicitly, the applicant submitted that his Honour should have given greater stress to the fact that the toxicology results from the testing of the hair were negative and that this substantially undermined the complainant's evidence.
51The applicant submitted that the Crown's address to the jury was misleading in relation to the effect of the toxicology report on the complainant's evidence about being given tablets by him. The applicant submitted that the Crown was at fault in not bringing to the jury's attention the discrepancy which he said existed between the complainant's answers in the ERISP and the evidence which she gave at trial.
52In order to properly evaluate these submissions it is necessary to set out part of the submissions at trial and to understand how the the trial proceeded.
53Before the trial commenced, the issue of the tablets was dealt with on a voir dire. The applicant's counsel had submitted that the evidence concerning the tablets was more prejudicial than probative and should be excluded. In the course of his judgment, his Honour said:
"HIS HONOUR: Application is made that I exclude evidence that the Crown proposes to elicit from a witness that the accused had access to what has been described as "green tablets". The relevance of this is that it is anticipated that the complainant will give evidence that on occasions before she was sexually abused by the accused, she had been given green tablets by him. The Crown anticipates that she will say that she took the tablets not knowing what they were and that after having taken the tablets, she either went to sleep or became unconscious and she was roused from that state by the accused performing these acts upon her.
The Crown wishes to lead the evidence that the accused had access to "green tablets" as some evidence supporting the proposition that the complainant says that she had been given "green tablets". It seems to me that the Crown is entitled to lead that evidence and nothing beyond it, namely, I do not propose to permit the Crown to lead evidence as to the effect that those tablets may have had upon other people after they had taken those tablets, nor do I propose to permit any opinion as to the nature of those tablets and the effect that those tablets had when taken but it seems to me that the Crown is entitled to lead evidence as to the fact that the accused had access to those tablets and I am of the opinion that the danger of unfair prejudice does not outweigh the probative value of that material."
54The evidence of the complainant at trial was that the applicant gave her some tablets to swallow without telling her what they were and just said "trust me" and she did. Although she went to bed in the single bed, she woke up in the double bed with the applicant on top of her engaging in penile/vaginal intercourse with her. It was after that event when she was in the bathroom that she observed a green stain on her fingers which she inferred came from the tablets which the applicant had given her to take.
55In chief the only other mention of tablets was in relation to count 10 on the occasion when the applicant brought food to the motel room in Warialda and gave her some tablets to take, popping them in her mouth for her before engaging in penile/vaginal intercourse with her. In chief she gave no other evidence of being given tablets in relation to the other offences.
56The complainant was cross-examined as to the events of the evening of the Gwen Stefani concert in July 2007 which gave rise to the offence in count 1 (T.52-55). In cross-examination she said that after she had showered and was coming out of the bathroom, the applicant was in the doorway of the bathroom, turned out the light and put the tablets in her mouth. She was not sure how many. He handed her a glass of water. She was scared and did not know what he was doing. She did not see a green tablet because it was dark but she saw stains on her fingers. She did not know how she got the stains on her fingers, but was sure it was from the tablets. She did not know how she got into his bed. The next thing she knew she was in it, she woke up and he was on top of her. She was in shock, screamed "stop" and then fell asleep or blanked out again. Her next memory was of getting up and going to the bathroom and that was when she saw the green stains on her fingers.
57Later in cross-examination the complainant said that on another occasion she was going somewhere with the applicant, her mother had made a pizza, she got out of the car to close the gate and when she went back she saw that the applicant had sprinkled "the same green stuff" on her pizza (T.55-56). She said that the applicant had given her the green tablets "multiple times". She recalled being given a tablet when she was coming back from a floor sanding job with him. The next thing she remembered was waking up in the back of the van with the applicant assaulting her. She had the same symptoms (T.57).
58When cross-examined about the trip to Warialda, the complainant recalled going to the motel as soon as they arrived. She said it was late afternoon, still light, when the applicant commenced having penile/vaginal intercourse with her and continued until about 8.30 or 9.30pm. The complainant said that after he brought her something to eat and a Powerade, he had asked her to take tablets with the Powerade. She did not see them. She had asked him on numerous occasions what the tablets were and never got an answer but did not recall if she asked him on this occasion (T.99-100). She agreed that she had told the police that they were not green tablets because she was not knocked out and could remember what happened and so she thought they could not have been green tablets (T.102).
59The complainant denied that her evidence concerning the tablets was a fabrication. At no time did she ever mention the word "Hypnodorm", nor did she otherwise identify the tablets.
60RMcN gave evidence that in 2010 he saw the applicant in possession of some green tablets on a number of occasions. The tablets were one centimetre long and oblong in shape. He said that the applicant gave some to him to help him sleep. RMcN did not use the word "Hypnodorm", or otherwise identify the tablets.
61The report from the forensic toxicologist has already been set out at [39]. It was tendered without objection by the Crown.
62The first mention of the word "Hypnodorm" came in the applicant's evidence. He said that he first had access to green tablets in 2009. The applicant said:
"A. I became carer for my brother, DP, he is roughly three years older than me. He's diagnosed with bi-polar, he is under - he is on the medication Respiridol which he gets an injection once a fortnight and also he is on other tablets for like blood pressure and he also has Hypnodorm, which is a sleeping tablet ...
...
A. Just basically what I had been doing, just sort of keeping an eye on him making sure he is taking his medication, there was an order from a mental institution they call Banksia House in Tamworth, he was ordered to make sure he had his injection once a fortnight so I would either pick up the prescription for him sometimes I would take him to the doctor and sometimes I wouldn't.
Q. Were you assisting him in managing his Hypnodorm medication?
A. That's right, yes.
Q. What did you do with that, in regard to that?
A. Generally once a week I would give him a week's supply and on occasions I mightn't see him for two weeks so I would give him two weeks supply." (T.289.43 - 290.13)
63Although there was no direct evidence from any witness that the green tablets were Hypnodorm, it was a reasonable inference from the evidence that they were.
64In submissions the Crown said the following concerning the tablets.
"... The Crown doesn't bear the onus beyond reasonable doubt in relation to every piece of evidence that the Crown puts before you. For example, the Crown doesn't have to prove beyond reasonable doubt that the accused gave A tablets. The Crown doesn't have to prove beyond reasonable doubt that if he did give her tablets, that they were green or that they were Hypodorm, Hypnodorm whatever they would call it. It's only the essential elements and his Honour will give them to you of the charges that the Crown has to prove beyond reasonable doubt" (14.5.12, T.2.30).
65Later the Crown submitted:
"The green tablets provide support for her I'd suggest to you. She gives evidence that the green tablets were used on more than one occasion, the only time she can really detail and say they were green tablets is at Strathfield, the very first time she can remember anything happening down there for Gwen Stefani. She had the green on her fingers, she was given tablets, it was in the dark, she can't recall and initially she said that she had them in her hand but in cross-examination she said they were given straight to her, put in her mouth, she couldn't recall having them in her hand but at the end of the day she says she can't remember how but she does remember that at some stage she had contact with them with her fingers and there was green.
You know from the evidence that the accused not only had access to these Hypnodorm tablets, that are prescribed for his brother and he's had possession of them, he admits that in his evidence. You've got RMcN coming along saying he had them, they were in the possession of the accused. RMcN went one step further in the last question of cross-examination, not only did he have them he gave me some. Now the accused is careful to say that he only became carer for his brother in 2009 so he didn't have access to them in 2007 but he concedes that his brother's condition was diagnosed as early as 2005, his brother was in Inverell and again you apply your common sense, he has access to his brother because its his brother, it's not a big jump to then conclude he would have had access to the Hypnodorm tablets.
So she's got support there I'd suggest to you, she says he gave me green tablets, he had access to green tablets." (14.5.12 - T.4.47-5.21)
66Later the Crown Prosecutor said:
"We've got a report from toxicology. The hair sample was taken and I don't know whether this is going to cause you any concern or not, there's no drug shown up in it, perhaps they sent it to the wrong place, if they sent it to CSI Miami, CSI New York they would have been able to tell us that she had a Panadol on any given day.
But look at the report, you've got it there and the report says that if there's insufficient sample, there's not enough of the drug taken, if it's taken on an infrequent basis then there wouldn't be - expect to be a result. A doesn't say here that he's giving her tablets everyday or every second day or every week, she says she was given tablets on that initial occasion, she gives evidence of tablets on another occasion, once in the van, at the end at Warialda, you wouldn't be too much troubled by the lack of evidence relating to the hair sample. You have to really think about whether A is honest, accurate and reliable." (14.5.12 - T.6.7 - .21)
67Defence counsel submitted as follows:
"Now I sought to test her evidence, test her honesty, her reliability and her accuracy in cross-examination. In relation to the Gwen Stefani concert incident, she said she was not sure how many pills she was given, she said "All I remember is the green tablet". She said she was not sure if all the pills were put in her mouth at once. She was not sure how they were put in her mouth, whether they were put in by palm first or by the index finger and thumb. She couldn't recall if she had been given tablets before. She couldn't remember asking why she was being given tablets. She couldn't remember touching the tablets. She said "I can't remember how I got the stains on my fingers but it was from the tablet", and then you'll recall ladies and gentlemen that his Honour asked her some questions about that, she was asked "This is your evidence, you did not see the green tablet is that right?", answer "I didn't see the green tablet no", question "And you do not know, you can't now say whether you touched the tablet or not is that right?", answer "I touched it at some stage, I don't know when and I don't know how". Question "Do you remember doing that?" Answer "No, I don't remember touching the green tablet but I know I did". Question "Why is that because you had green substance on your fingers the next day?" Answer "Because the green tablet has been used multiple times not just once". Of course there's no other specific allegation of a green tablet being used, apart from when she said there was something green being sprinkled on a pizza at some stage." (14.5.12 - T.16.1 - 21)
68Later, defence counsel submitted:
"I want to suggest to you ladies and gentlemen that the evidence that you've heard regarding the tablets goes nowhere. The best the complainant can say in regard to the counts on the indictment is that she remembers seeing green stains on the fingers back in July 2007 when she was on the Gwen Stefani - or went to the Gwen Stefani concert. Yet there's no evidence that TDP was prescribed sleeping tablets, that TDP told you that he'd been prescribed anti-depressants, not sleeping tablets, and there's no evidence put before the Court by the Crown to the contrary. Now, of course, he did have access to his brother's medication from 2009 but so what, he had access. There's no evidence of the active ingredient or effect of Hypnodorm, whether its - well what its effect is or how long it takes to take effect or what the active ingredient of Hypnodorm is, and keep in mind that on the complainant's version there was no tablets alleged to be used at Lightning Ridge, on the way home from the McN 21st birthday party at Gravesend, on the way home from Armidale disco or at the motel at Glenn Innes after the wedding, there's no mention of tablets on those occasions. If tablets weren't required on those occasions by TDP to have sexual intercourse with A, why would he need or why would she need to be given tablets on other occasions, it just doesn't make sense, and of course she alleges more tablets were given at Warialda before the second lot of penile/vaginal sex but they had no effect." (14.5.12 - T.26.2-.23)
69The only mention of tablets by the trial judge in his summing up was:
"She can remember specific incidents and they reflect themselves in the indictment itself. He says to you, in the context of that scenario, is it unsurprising that she might not be able to remember every collateral particular of each of the incidents which give rise to the charges within the indictment. What she can remember the Crown says to you are the things that are startling about the incidents. She can remember for instance the first time, when she came down to Sydney to the concert of Gwen Stefani. She remembered that incident. He says to you, that is a startling thing that you might remember, first of all because it was a treat coming down for the concert and, secondly, it was the first time it had occurred and the Crown says to you perhaps she might remember greater particularity in relation to that incident. He says to you that one particular, just by way of example, is that she was given some pills. There is a dispute and there is a divergence in her evidence as to the circumstances, how she came to take the pills, whether they were forced into her mouth or placed in her mouth and the like, and how she came to touch the pills, but she said she took some pills and her evidence in relation to that particular instance was that she woke up with the accused on top of her having sexual intercourse with her." (SU 32.7 - 33.4)
70The applicant's submissions overlap to a large extent. Underlying Grounds 1, 3, 4 and 5 is the submission that the Crown should have placed before the jury an expert report setting out the pharmacological ingredients of Hypnodorm and also setting out its effects. His submission is that had this evidence been before the jury, it would have enabled defence counsel to substantially discredit the complainant. The applicant also wishes to place this evidence before the Court in the appeal. The basis for the tender is that this evidence should have been called by the Crown at trial and if it were placed before this Court, it would demonstrate the unreliability of the complainant.
71That submission fails on a number of bases. Defence counsel successfully objected to the Crown adducing any evidence as to the makeup and identity of any tablets given by the applicant to the complainant and as to their possible effect upon her. This was the result of the ruling made by the trial judge, following the voir dire on that issue. To accept the applicant's submission would be contrary to the stance adopted by the applicant at trial and should not be allowed.
72In any event, the premise on which the submission is based is not made out, i.e., that further scientific information would strengthen the position of the applicant and discredit the testimony of the complainant. The evidence before the jury was that Exhibit G, the toxicology report, showed that none of the specified drugs had been found in the hair of the complainant, which had been tested. However, the testing only covered the period March 2011 back to August 2010. So far as it went, that negative result favoured the applicant.
73Because of the limitations in the testing (the hair length tested), a result for the period before August 2010 could not be obtained. In other words, the toxicology test results said nothing about whether Hypnodorm had been given to the complainant between July 2007 (the incident giving rise to count 1) and August 2010. There was no evidence at trial of any green tablets/ Hypnodorm being given to the complainant between August 2010 and 16 December 2010 (being the last date on which there was any sexual contact between the complainant and the applicant). Accordingly, evidence of the type identified by the applicant, whether it was before the jury during the trial or before this Court, would not advance his case.
74No basis was established for the acceptance of such evidence by this Court. Putting the applicant's submission at its highest, such evidence would be "new" evidence. The principles in R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 would apply. In that case, Kirby J (with whom Mason P and Levine J agreed) identified seven principles which apply to the admission of new evidence (at [63]). The admission of the new evidence specified by the applicant does not get close to complying with those principles. To be admissible such new evidence would have to support a finding that a miscarriage of justice has occurred. This could only be found if the evidence was so cogent as to satisfy the Court as to the applicant's innocence or raise a reasonable doubt as to the applicant's guilt. The proposed evidence does not satisfy that test.
75Finally, the applicant's submission assumes in his favour that the toxicology report, Exhibit G, demonstrated the absence of any Hypnodorm in the complainant's hair. That is not necessarily so. Rohypnol is the generic brand name for Hypnodorm. The drug itself is called Flunitrazepam. That is not one of the drugs for which the complainant's hair was tested in the toxicology report. It is not known whether, if the complainant's hair had been tested for Flunitrazepam, it would have produced a positive result.
76It follows that the evidence at trial favoured the applicant. It was never suggested at trial that the toxicology report might not have been capable of detecting Hypnodorm. Further testing and further scientific evidence would not have assisted the applicant's case and may well have weakened it.
77Fundamental to these Grounds of Appeal is the proposition that further scientific evidence would have enabled the complainant's credibility to be successfully challenged if she had been cross-examined as to what she said about tablets in her ERISP. There were, however, significant dangers for the applicant arising from such cross-examination. In her ERISP the complainant had described regular sexual intercourse with the applicant, often several times per week over three years, which on many occasions was accompanied by the applicant giving her tablets. Cross-examination as to what the complainant said in her ERISP concerning tablets would have only emphasised to the jury the frequency of the applicant's offending. The prejudice for the applicant associated with such an approach far outweighed the possible gain.
78There was no obligation on the part of the Crown to adduce evidence concerning Hypnodorm. This was particularly so when the identity of that substance was introduced into the trial by the applicant. There is no basis for the submission that the Crown was holding back evidence, such as occurred in Grey v R. It was, of course, open to the defence to call such evidence. For the reasons set out above, however, there were very good reasons for the defence not doing so and for not wishing to draw the jury's attention to the tablet issue in any significant way.
79The emphasis given to the tablet issue by the applicant in these grounds of appeal ignores the fact that the tablets formed a very small part of the evidence at trial. This can be seen from the treatment of them by both the Crown and defence counsel in submissions. The importance for the Crown was that the giving of the tablets on the night of the Gwen Stefani concert enabled the complainant to identify with some precision the date upon which the offence in count 1 occurred. The evidence concerning the tablets was incidental to the Crown case and did not form an important part of it.
80There is no basis for the submission that his Honour's reference to the tablets caused a miscarriage of justice. His Honour's reference to the tablets in his summing up did no more than illustrate to the jury how it was that the complainant was able to remember details of particular offences.
81Similarly, as can be seen from the parts of the Crown address set out at [64], [65] and [66] there is no basis for the submission that the Crown misled the jury as to the effect of the toxicology report.
82These grounds of appeal have not been made out.
Ground 2 - His Honour's summing up caused a miscarriage of justice in relation to charge 8. "Nothing was put to you by Mr Carty to suggest to you that if that is what happened, it was not an indecent act". His Honour's direction was predicated and was a negation of Mr Carty's (defence) summing up. Mr Carty asserted twice "She couldn't remember any conversation" and Mr Carty stated "In my submission it sounds implausible" and "much of her evidence is vague, much of it just doesn't ring true". This clearly shows a clear misdirection by his Honour, prejudice to the accused. In comparison to the trial his Honour's direction was not an intelligible sequence or directed with clarity, it was prejudiced to the accused.
83Although the applicant has referred to charge 8, it is clear from the way in which he has expressed this Ground of Appeal that he is referring to the offence in count 7. Count 7 comprised a charge of aggravated indecent assault which occurred on the night of Saturday 30 October 2010, when the complainant was aged 16 and went to a party at a friend's place at Inverell.
84In the summing up the trial judge said in relation to count 7:
"You will recall, that the circumstances in which this act happened, was when she had been to the sleepover at a friend's place. The evidence was that the accused had a splitting headache at the time and wanted to go to the hospital; that the complainant was contacted and picked up and there were various discussions which led eventually to her driving him to the hospital. They remained in the car outside the hospital. There is evidence in relation to what happened in the car, and the allegation that the Crown makes is that at that time the accused put his hands into her pants and felt her vagina. That of course is denied by the accused, but again the fact finding exercise in relation to that is entirely for you. But those are the circumstances in which it occurred.
You might conclude that if you find that the accused did that, then you will have no trouble in determining that the act itself was an indecent act, and nothing was put to you by Mr Carty to suggest to you that if that is what happened, it was not an indecent act." (SU 23.5)
85The applicant submitted that his Honour did not make it sufficiently clear that this incident was controversial and denied by the applicant.
86The applicant submitted that the complainant's failure to remember whether she had a conversation with him "about accusations of you having sex with Stephanie or any sexual contact with Stephanie when you and TDP were in the car going or arriving at the hospital" meant that the Crown had failed to prove "an indispensable link" in the chain of reasoning towards the inference of guilt in relation to charge 7.
87There is no substance in this Ground of Appeal. The role of a judge in a criminal trial is to direct the jury about how the Crown seeks to make out its case and to put fairly the case which the accused makes. In AP v R [2013] NSWCCA 189 Leeming JA said:
"16 Counsel appearing for the accused was much better placed than this Court on appeal to assess whether a fair trial required the judge to say more than had already been said. On any view, this was a relatively straightforward trial, objectively speaking. The impression obtained from reading the record and in particular the closing addresses is that both counsel proceeded on the basis that the jury understood the fairly obvious issues for them to decide: did they have a reasonable doubt based on the denials of the accused and his sister? Were they persuaded to a very high standard of the truth of the evidence of a young girl? Was there sufficient doubt as to the DNA methodology and the possibility of indirect transfer? However, a transcript cannot fully convey the extent to which it was obvious to the judge and those present in the court that all members of the jury appeared either to understand or to fail to understand the significance of the evidence and the issues for their determination. That reflects part of the policy underlying r 4, as to which, as was said in R v Germakian [2007] NSWCCA 373; (2007) 70 NSWLR 467 by Giles JA, Hulme and Hislop JJ at [10]:
"The requirements of r 4 do not constitute some mere technicality which may simply be brushed aside".
17 Further, as the Court added at [13].
"[L]eave under r 4 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: R v Tripodina (at 195) or as Mahoney JA said in R v Jeffrey (Court of Criminal Appeal, 16 December 1993, unreported), at 7, followed in R v DH [2000] NSWCCA 360: '...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'."
18 Against this, Mr Taylor, who appeared for the applicant, candidly conceded that there was no explanation why counsel who appeared at the trial did not raise the matter, but pointed to what had occurred in Wong v R [2009] NSWCCA 101, where the same ground of appeal was taken. At that trial, the judge had asked at the conclusion of the summing up whether there was anything else counsel wanted him to say, and was told there was not (see at [126]), and yet Campbell JA, with the agreement of Grove and Howie JJ, after being taken to Germakian, concluded (at [145]) (emphasis in original):
"No explanation was provided, at the hearing of the appeal, as to why the objections were not taken at trial. Counsel for the appellant at the trial was an experienced criminal lawyer. Those two matters are ones that frequently count against leave being granted under Rule 4. Even so, the deficiency in the summing up in the present case is, in my view, one that is such a departure from the essential requirements of the law that it goes to the root of the proceedings. There are repeated statements of high authority that the defence case must be put to the jury, and the jury must be instructed about how the law applies to that case."
The statements of high authority included RPS v R [2000] HCA 3; (2000) 199 CLR 620 at [41], R v Meher [2004] NSWCCA 355 at [76] and [82]-[86] and Condon (1995) 83 A Crim R 335 at 347-348.
19 Campbell JA raised for consideration, but did not need to determine, whether there might be occasions where, despite the concurrence of counsel, the power in s 161 of the Criminal Procedure Act 1986 to dispense with a summary of the evidence, might not be available. The reason his Honour did not need to determine that point was because, as was said in [147] (emphasis added):
"While there are circumstances in which this court might decide that the failure of a trial judge to refer to certain items of evidence, or to relate certain items of evidence to the accused's case, was so serious that the judge could not have validly exercised his or her discretion under section 161, it is not necessary to decide whether the present case is such a case. That is because the failure to put the accused's case to the jury at all, and to apply the law to that case, is a sufficient reason why the conviction cannot stand."
20 There is, to my mind, a tension between the two lines of authority reflected in Germakian and Wong. On the one hand, it is said in Germakian that there must be a convincing reason for the point not being taken and the possibility of real injustice. On the other hand, and more recently, and after reference to Germakian but without squarely explaining why it was inapplicable, it has been said that failing to put the defence case to the jury by itself is appellable error.
21 So far as I can see, Wong has never been followed in any superior court in Australia. On the other hand, the principles in Germakian have repeatedly been endorsed and applied, including at the appellate level: see ARS v R [2011] NSWCCA 266 at [148] (Bathurst CJ, James and Johnson JJ agreeing) and FP v R [2012] NSWCCA 182 at [72] (RA Hulme J, McClellan CJ at CL and Schmidt J agreeing). Those later decisions have not addressed the potentially divergent approach in Wong.
22 However, in my opinion, it is not necessary, and therefore not appropriate, to resolve that tension in order to determine this application. This is not a case like Wong, where it was found that there was complete failure to put the defence case to the jury.
23 The ultimate question is whether the summing up as a whole fairly puts before the jury the case of the accused. In RPS v R Gaudron ACJ, Gummow, Kirby and Hayne JJ said at [41]:
"The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. ... It will require the judge to put fairly before the jury the case which the accused makes."
And the question of the fairness of the trial is a question of substance, rather than form. It is influenced by the nature of the issues, the nature of the case of the accused and the length of the trial."
88The applicant's counsel in his address to the jury specifically referred to the complainant's evidence in relation to counts 7 and 8 and pointed out the inconsistencies, both in relation to detail and in relation to timing (14.5.2012, T.18.5-.36). The thrust of defence counsel's attack was the implausibility of the evidence and its vagueness as to detail and timing. There could be no doubt that the nature of the applicant's challenge to the complainant's evidence in relation to counts 7 and 8 was fully put by his counsel to the jury.
89The applicant's accusation concerning Stephanie was not an indispensable link in the chain of reasoning towards guilt in relation to count 7. The indispensable evidence was that of the complainant as to what had occurred in the car. Its acceptance depended upon the jury's assessment of the honesty and reliability of the complainant.
90Ground of Appeal 2 has not been made out.
Ground 6 - An abuse of process by Crown asserting evidence in disparity to complainant. ERISP and trial testimony regarding charges 9 and 10. Ground asserts 31 October to 16 December 2010 to visit Pop in Armidale. From mother's testimony Pop stayed until at least 14 November 2010. The complainant's ERISP "definitely not near Christmas", and trial testimony "end of winter sort of?? (2010)".
Ground 9 - It was not open to the jury to convict on charges 9 and 10. The element 11 "that at the time and place" was not proven beyond reasonable doubt.
91These Grounds of Appeal raise the same issue and can be dealt with together. The applicant appears to have mistakenly referred to Counts 9 and 10 when the Grounds of Appeal are directed to Count 8.
92The applicant relies upon the contents of the complainant's ERISP in support of Ground 6. The ERISP was not before the jury. As already indicated, there were good reasons why most of the ERISP was not dealt with in cross-examination. The ERISP made it clear that the frequency and extent of the applicant's offending was considerably greater than that encompassed by the 11 counts with which he had been charged. The prejudicial effect for the applicant of the ERISP going before the jury far outweighed any cross-examination benefits which might have been gained.
93Count 8 identified the time of the offending as between 31 October and 16 December 2010. The particular occasion was identified as a visit to "Pop" in Armidale. The party which Stephanie also attended was on 30 October 2010. Even if, as the applicant submitted, Pop stayed until 14 November 2010 the offending still occurred within the timeframe specified in count 8.
94It follows that if Grounds of Appeal 6 and 9 refer to count 8 they have not been made out. If they refer to counts 9 and 10 they also fail because of the evidence of Mr Goodhew, who was the owner of the motel at Warialda. His evidence was that the applicant booked a double room in the motel for the evening of 16 December 2010.
Ground 7 - His Honour caused a miscarriage of justice by not addressing a material fact entered as contextual evidence that was predicated as a lead up to help the jury to believe the accused had motive and cause to commit an indecent act. In relation to charge 8.
95The applicant appears to have again confused count 8 with count 7. This ground of appeal appears to relate to count 7.
96Based on his analysis of the complainant's evidence in relation to count 7, the applicant submitted that "the complainant's credibility is irredeemable". He submitted that the complainant's inability to remember what happened at the party with Stephanie was implausible and that there was no explanation for why he would say "Did you do anything with Stephanie?". Allowing for the applicant's lack of legal training, the effect of the submission seems to be that the complainant's evidence was so inconsistent that a warning should have been given pursuant to s165(1)(c) of the Evidence Act 1995 generally. The applicant relied upon the case of R v Williams [1999] NSWCCA 9; 104 A Crim R 260.
97In particular the applicant relied upon the following statements of principle:
"Warning concerning evidence of complaint
(4) It is not customary to give a direction that the complainant's "evidence" must be proved beyond reasonable doubt. What must be proved beyond reasonable doubt are the elements of the offence charged. The judge gave an appropriate direction.
(5) A direction pursuant to s165 of the Evidence Act may be required (notwithstanding no request was made by counsel) where the judge assesses that the evidence may be "unreliable". The matters identified in s165(1) are not exhaustive. Here, a sufficient warning to assess the complainant's evidence with care was given. Vawdrey (CCA NSW 16 April 1998), Murray (1987) 11 NSWLR 12, considered.
(6) The trial judge should ensure the jury has sufficient guidance in taking relevant matters into account. However the extent of the guidance depends on the length and complexity of the trial. Here it was unnecessary for the trial judge to have undertaken a comprehensive analysis. RJC (CCA NSW 1 October 1998), Domican (1992) 173 CLR 561, Condon (1995) 83 ACR 335, considered."
98It should be noted that this is not in fact a statement from R v Williams but rather is taken from the head note to that decision. The propositions noted in these paragraphs of the head note can be found in the judgment of Wood CJ at CL (with whom Spigelman CJ and McInerney J agreed) at [33]-[34] and [38]-[39].
99This ground of appeal has not been made out. There was no occasion for any warning pursuant to s165 of the Evidence Act. The effect of the complainant's evidence as to the offences giving rise to the 11 counts with which the applicant was charged was sufficiently clear.
100In any event, the warning given by his Honour in relation to the complainant's evidence was strong and comprehensive. Part of that warning was:
"Whenever the Crown seeks to establish the guilt of an accused person with a case based largely or exclusively on a single witness, it is important that the jury are told that they should exercise caution. That is what I am going to tell you now. You must consider each case separately and this direction applies of course to each case separately. So you must apply this direction when considering the evidence of the complainant, when considering each count. The Crown concedes that its case depends upon the complainant. You must exercise caution before you convict the accused, because as I say, the Crown case largely depends on you accepting the reliability of the evidence of a single witness in each of the cases. This being so, unless you are satisfied beyond reasonable doubt that the complainant is an honest and accurate witness in the account you are given, you cannot find the accused guilty. Before you can convict the accused, you should examine the evidence of the complainant very carefully in order to satisfy yourselves that you can safely act upon that evidence to the high standard required in a criminal trial...." (SU 30.9 - 31.6)
That warning was repeated elsewhere in the summing up. Nothing further was required.
101The jury had an opportunity to observe both the complainant and the applicant give evidence over an extended period during the trial. Both the Crown Prosecutor and defence counsel addressed the jury as to discrepancies in the evidence of each of them. This was the sort of case where the observation of McHugh J in M v The Queen [1994] HCA 63; 181 CLR 487 at 534 has particular relevance:
"63 It is the everyday experience of the courts that honest
witnesses are frequently in error about the details of events. The
more accounts that they are asked to give the greater is the chance that there will be discrepancies about details and even
inconsistencies in the various accounts. Of course, it is legitimate
to test the honesty or accuracy of a witness's evidence by analysing the discrepancies and inconsistencies in his or her accounts of an incident. In a case where accuracy of recollection is vital - such as the account of a conversation in a fraud case or the description of a person where identity is the issue - discrepancies and inconsistencies in the witness's account may make it impossible to accept that person's evidence, no matter how honest he or she appears to be. But in other cases, discrepancies and inconsistencies may be of far less importance if the honesty of the witness, as opposed to the accuracy of the detail, is the crucial issue. If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness's general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning details are of little moment."
102This Ground of Appeal has not been made out.
Ground 8 - In relation to charge 8, an abuse of process by a Crown fabricating context evidence to fit in a time line "whilst in the car" that was not supported by complainant's ERISP and the ERISP is in disparity to the Crown's enactment of context evidence.
103The applicant in this ground has again confused count 8 with count 7.
104As indicated, in relation to other Grounds of Appeal there were very good reasons why the contents of the complainant's ERISP did not go into evidence. There were equally good reasons why the complainant was cross-examined as to only part of the responses given by her in the ERISP. This ground of appeal has not been made out.
Ground 10 - Corroboration. His Honour caused a manifest miscarriage of justice under s165(1)(c) and (2) not highlighting the suggested weakness in the prosecution case that the defence identified as the brother exaggerated his memory of what was occurring the house. Closing his Honour at T.34: Highlights the Crown, says complainant is corroborated by others, for instance her brother as being in her room frequently with the door shut, afternoons and evenings and consistent with complainant's rendition of events.
Evidence from complainant and mother all that is relevant, will be presented to prove the Crown misled and his Honour misled the jury.
105This Ground of Appeal is directed to the trial judge's directions as to corroboration. When summarising the Crown case in the summing up, his Honour said:
" ... and you might remember the particular incident, but you might not reasonably be asked to recall the surrounding circumstances. The same here, the Crown says to you here there are eleven instances plucked out of a relationship between the two of them where sexual conduct was not uncommon between the two of them and it would be difficult to really expect her to recall all this collateral detail, except for the matters you would expect her to remember, namely the nature of the sexual conduct of the accused towards the complainant. He says that she was unshaken in cross-examination on the core topics. True enough there are some diffuse renditions of matters both to the police and in her own evidence before you, or a comparison between what she told the police and what she told you, but not on the central topics of what happened to her.
He says that she is corroborated to some extent by others. For instance, her brother who the Crown says to you, you would find an impressive witness, Her brother gives evidence about the accused being in her room frequently with the door shut, both in the afternoons and in the evenings and that is consistent with the complainant's rendition of events. Similarly just before the complaint was made, he gives fairly stark evidence the Crown says to you, in terms of what was happening in the household at the time. He was being thrown out and allegations were being made about sexual conduct between him and his sister. The Crown says to you, bear all that in mind, not so much as direct evidence of what the Crown says the accused did to the complainant, but as evidence from which you might conclude, what was the accused really up to at this stage. Was he trying to cover his tracks and create a false explanation as to how it is that any medical examination for example, would reveal in fact that the complainant has been engaging in sexual intercourse, not at the hands of the accused but he sets up a reason: sexual intercourse with her brother.
Beyond that of course, and this is not particularly her brother's evidence, but her mother's evidence that for some time prior to the end of 2010, the accused the Crown says to you had been white anting the complainant, by saying to her mother "she's a liar, she tells untruths" and the like. The Crown says to you, you might conclude, that is part of a concerted scheme on the part of the accused, to set up what would be his explanation should things come undone, as far as he is concerned, as they have, and be able to point to someone else and say, well that is how it happened, not the way the Crown is now saying it did." (SU 33.5 - 34.9)
106His Honour did not repeat what the Crown said in relation to the evidence in support of each count on the indictment but gave a summary of the defence case in a similar manner:
"Mr Carty, again eloquently addressed you on behalf of the accused and again hopefully I will not trample over his oratory in my regurgitation of what he had to say to you. In essence as I have said to you, the accused's case is that it did not happen, I did not do it, true it is that I had a close relationship with my step-daughter; that I was very concerned about her welfare; there had been the incidents of course of the stalking episode, which is undoubted, where she was being stalked and somebody was arrested in relation to it. So it is put to you on the basis that it is not without foundation that there would be some concerns on the accused's part about the welfare of his step-daughter. True it is that he was in her room frequently, he was helping her with her homework from time to time and that is the reason he was doing it. Why was he going into her room? It is put to you that that is not disputed by the complainant, that he did assist with her homework and he was in the room with her in the afternoons and what is put to you is that there was a sound reason for him going to sleep in her room as well. His wife and the child were in the front room, the complainant's young sister was born. He was a ferocious snorer apparently, which is something that as I understand it, the complainant could tolerate and he slept in the room there, so as either not to disturb his wife and his daughter when she was born. It happened from time to time during the week and that is why he was there.
What is put to you by Mr Carty on his behalf is why should you reject that explanation? There is solid foundation for the fact, certainly a solid foundation for the proposition that he was a big snorer, everybody says so, his wife says so, the complainant says so, the complainant's brother says so and the reason why he was in the room sleeping is apparently that was a more convenient way of going about it.
Similarly what is put to you is that a lot of the things that are said about the conduct of the complainant, the collateral conduct of her is described by her brother and mother, in fact are matters which are simply typical of a teenager, namely long hours sleeping, looking tired all the time and slothing around the house is hardly unique to a teenager in this particular household.
He says importantly you will bear this in mind, that the girl's mother had no suspicions at all, and it came to her like a thunder clap she says, when the allegations were made by the complainant at the beginning of 2011 and is that not a fair barometer as to whether it was happening or not. If the girls' own mother did not suspect a thing and in full knowledge of where they were travelling and full knowledge of the fact that the accused was in the complainant's bedroom frequently and at night and slept there and that they would stay overnight at various places around the countryside, no matter how far or close they were to Inverell, gave no cause for concern to his wife in relation to her daughter's welfare. And she did not express any concern or any surprise that they might sleep over at a particular place, albeit that it was relatively close to Inverell.
Mr Carty says on behalf of the accused, again who knows him best, his wife, as to why he might sleep over. Apparently from her perspective, the complainant was expressing no particular concerns about going out on these jobs or the disco, whether it be the sanding jobs or the disco jobs from time to time and he says to you, without that express reluctance on her part, it seems rather inconsistent with somebody who is being almost constantly sexually abused by this man, if she goes largely without any protest of any sort, over all these years.
Mr Carty finally says to you that he is a man of good character. He has never been charged with a criminal offence before and he jumps in the witness box and says "I didn't do it." So you will assess him in terms of the fact of a man of good character, he denies having done it in the context of the entirety of the evidence." (SU35.8 - 37.9)
107In support of this Ground of Appeal, the applicant referred to pieces of evidence from witnesses in the Crown case in order to show contradictions. It would serve no useful purpose to set out each of those instances. There may well be contradictions established. The evidence to which the applicant referred, however, is evidence which goes to incidental matters, not to the matters which had to be proved by the Crown in order for the offences to be proved. There were, as both counsel submitted, discrepancies in the evidence of both the complainant and the applicant. It was a matter for the jury to assess the evidence of the witnesses and determine which evidence they accepted. The summing up by the trial judge did not favour either side. All appropriate warnings were given by the trial judge, particularly relating to delay in complaint and absence of corroboration. This Ground of Appeal has not been made out.
Ground 11 - A miscarriage of justice by Crown in closing. This ground has encompassed in it, an abuse of process. The Crown to fabricate the unfolding of events around "control", "become" and "A says". Also revealed credibility of complainant falling away and gives support for the accused, around these events from mother and brother. The jury were perverted away from the natural course of evidence from the trial around this ground's events. "Grounds for reasonable doubt does exist".
108The submissions of the applicant supporting this ground repeated the submissions already made as to discrepancies and inconsistencies which the applicant said existed in the evidence, not only of the complainant but also of her brother and mother. What the applicant does not do is identify anywhere in the Crown's address to the jury an assertion of fact which was not supported by evidence.
109This Ground of Appeal has not been made out.
Ground 12 - Under s319 intent and s312 pervert. Subsumed from Grounds 1, 2, 5, 6, 8, 9, 10 and Ground 11. And ERISPs and trial testimonies. The Crown did with intent and during the course of justice and prior to the enactment of charges, did pervert the course of justice.
110In support of this Ground of Appeal, the applicant asserted but did not substantiate that submissions made by the Crown were not supported by evidence. This Ground of Appeal has not been made out.
Ground 13 - Incompetent counsel requiring appellate intervention.
111The applicant submitted that he was incompetently represented by defence counsel because defence counsel did not obtain information about Hypnodorm, failed to object to leading questions, failed to object to repetitive questions by both the Crown Prosecutor and trial judge, failed to correct the Crown's closing address and failed to ask for redirections regarding corroboration.
112The relevant principles are set out in Salmon v R [2012] NSWCCA 119 at [127] - [128]:
"127 In Monteiro v R [2011] NSWCCA 113 Simpson J, with whom Hoeben and Price JJ agreed, said -
"[155] The principles applicable to the determination of a ground of appeal raising alleged incompetence of counsel were settled in R v Birks (1990) 19 NSWLR 677. Those principles include:
"2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention." (p 685, per Gleeson CJ.)
[156] Earlier, Gleeson CJ had said:
"As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case." (p 683)
[157] The Chief Justice cited, and plainly accepted, a passage from Halsbury's Laws of England, 4th ed, Vol 3(1), par 518 at 420 which is in the following terms:
"... a barrister is ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted. Unless and until his instructions are withdrawn, counsel has, with regard to all matters that properly relate to the conduct of the case, unlimited authority to do whatever he considers best for the interests of his client. This authority extends to all matters relating to the action, including the calling and cross-examination of witnesses, challenging a juror, deciding what points to take, choosing which of two inconsistent defences to put forward, and even to agreeing to a compromise of the action, or to a verdict, order or judgment." (p 684)
[158] The decision in Birks was essentially endorsed by the High Court in TKWJ v R [2002] HCA 46; 212 CLR 124. There, Gleeson CJ said:
"16 It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks.'"
128 Hunt CJ at CL made observations to similar effect in Ignjatic v R (1993) 68 A Crim R 333 at 336:
"Counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to which witnesses should or should not be called, what questions should or should not be asked, which lines of argument should be pursued, which points should be abandoned and which of two or more inconsistent defences should be raised are all matters within the discretion of counsel, and they frequently involve difficult problems of judgment, including judgment as to the best tactics to be adopted. Neither disobedience of instructions or even incompetence is sufficient of itself to attract appellate intervention. It is only when the error made was of such a nature in the circumstance of the case as to have led to a miscarriage of justice that this court will interfere.""
113I have already indicated why there was no miscarriage of justice in failing to adduce more evidence concerning Hypnodorm. There was simply no basis from which it can be argued that such additional evidence would have helped the applicant and good reason to think that it would not.
114Apart from an assertion by the applicant of a failure to object to leading questions and repetitive questions by the Crown and the trial judge, no examples of this have been identified by the applicant. On my reading of the transcript, the questions by the Crown and by the trial judge could not be characterised as repetitive, let alone oppressive. The Crown was allowed to lead evidence by leading questions on issues which were uncontroversial. That is usual in any well conducted trial. On issues which were disputed, however, objection was taken and the evidence was adduced in the correct form.
115There is no substance in the applicant's criticism of defence counsel in failing to seek directions concerning the Crown's closing address and in relation to his Honour's summing up as to corroboration. Just because the applicant disagreed with evidence given against him did not make it improper for the Crown to refer to and rely upon that evidence in his closing address. In relation to corroboration, it was not necessary for the trial judge to sum up otherwise than he did, i.e. to state the principle and its importance and to give examples from the evidence of where corroboration existed.
116This ground of appeal has not been made out.
117There are two additional matters which I should deal with. The first relates to rule 4 of the Criminal Appeal Rules. That rule provides:
"4 No direction, omission to direct, or a 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."
118Most of the Grounds of Appeal relied upon by the applicant required leave under rule 4. Because the applicant was not legally represented in the conviction appeal, I have dealt with each Ground of Appeal on its merits in more detail than would usually be required. It should be noted, however, that in relation to most of the Grounds of Appeal, leave would not have been granted under rule 4 because the point was not taken at trial (often for a good reason) and no "arguable case" has been made out that the Judge made an error of law, or that the applicant's conviction involved a miscarriage of justice (Papakosmas v R [1999] HCA 37; 196 CLR 297 per McHugh J at [72]).
119Because none of the Grounds of Appeal have been made out, the second matter does not, strictly speaking, arise. Given the nature of the issue, however, it is appropriate that I say something about it.
120The background is that following his conviction, the applicant made admissions to Ms Hopkins, a psychologist who saw him for the purpose of being able to prepare a report for use in the sentence proceedings. The admissions made by the applicant appear to be voluntary. The report recorded:
"Mr P was advised that the purpose of the assessment was to provide a report to the Court and that what he disclosed at interview would not remain confidential. He accordingly provided written consent for the information given to be used in the report."
121The relevant admissions in the report were:
"Mr P informed me that he has had approximately five sexual partners throughout his life, three of whom were in the context of intimate relationships, one being the victim in the current offences and the last being a prostitute he had intercourse with on one occasion in his early twenties.
...
I questioned him regarding this discrepancy and he indicated that it was not that he was attracted to younger people, but that he was specifically attracted to his stepdaughter.
...
He informed me that he believed his stepdaughter was a willing participant in the sexual contact and it was his perception that she wanted to engage in this behaviour with him given that she "never said no". I informed Mr P that consent also referred to the fact that even if a child appears to consent by not saying no to sexual behaviour this is arbitrary, given that children are not cognitively sophisticated enough to make adult-like decisions about engaging in sexual behaviour. He said "I was aware of that but I didn't think about it".
...
Mr P reported that he was found guilty of the offences. He indicated that the offending behaviour "was not planned". He noted that at the time of the offences, he was experiencing emotional problems, including anxiety and low moods. Mr P advised that he had developed what he perceived to be an intimate bond with his stepdaughter and felt that he could always talk to her and had a good relationship with her. He noted that this led to sexual behaviour which continued for three years and which he apparently believed she was a willing participant in. Indeed Mr P indicated that he perceived his relationship with the victim as that of a friend rather than a father and he reported to me that he did not perceive her as his daughter. He indicated that he felt "love" for the victim and that the offences were engaged in out of a sense of intimacy rather than in order to achieve sexual gratification. He said that the offending behaviour included oral, vaginal and anal sexual intercourse and it seems that he used the relationship with his stepdaughter in order to groom her into different sexual acts, by removing her from her mother and taking her to hotels or remote areas, alone where she could not seek help. Mr P advised me that he felt that the lack of emotional reciprocation that he received from his father may have impacted the offending behaviour, given that he had a "confusion about being close to others" and how to display love."
122In due course the report of Ms Hopkins was tendered by the applicant's counsel in the sentence proceedings.
123The Crown submitted that this Court should have regard to the apparent admissions by the applicant in the event that he succeeded in one of his grounds of appeal with the evidence being relevant to one or other of the following:
(a) The application of the proviso under s6(1) Criminal Appeal Act 1912 with the Court concluding that, taking into account the apparent admissions, no substantial miscarriage of justice had actually occurred so that the appeal ought to be dismissed or
(b) In determining to order a new trial under s8 Criminal Appeal Act 1912, rather than direct the acquittal of the applicant under s6(2) of that Act.
124The Court was taken to a number of decisions where it was said that, after conviction by a jury, an appellant had confessed his guilt (in one way or another) before the hearing of an appeal against conviction: R v De-Cressac [1985] 1 NSWLR 381; R v Reid (NSWCCA 13 September 1993, unreported); R v McCarthy and Ryan (1993) 71 A Crim R 395; R v Gudgeon (1995) 83 A Crim R 228; R v Bikic [2001] NSWCCA 537 and Cesan v The Queen; Mas Rivadavia v The Queen [2008] HCA 52; 236 CLR 358.
125Had the applicant succeeded in any of his Grounds of Appeal, it may have been necessary to determine whether post conviction admissions made before the appeal could be taken into account by this Court in the ways submitted by the Crown. A preliminary difficulty would be determining whether in fact an admission had been made and if the admissions in fact covered all 11 counts. Moreover, the wording of the s6(1) proviso directs attention to the evidence that was before the jury at trial (Cesan at [123] - [129]).
126The following observation in Cesan by Hayne, Crennan and Kiefel JJ (Heydon J agreeing) at [131] would stand in the way of the Crown submission concerning the proviso:
"131 Finally, some weight was given[89] by the majority in the Court of Criminal Appeal to a letter written by Mr Cesan to the trial judge after the jury had returned a guilty verdict and before sentence was passed. The majority in the Court of Criminal Appeal considered that, in the letter, he admitted his guilt of the offence charged. The letter was written for the evident purpose of mitigating the sentence that was then to be passed upon Mr Cesan. To do other than accept the jury's verdict would have aggravated the sentence. No weight can be attached to what was said in the letter in deciding whether there was no substantial miscarriage of justice."
127This issue was referred to in dicta by Johnson J in Raumakita v R [2011] NSWCCA 126 at [47] - [64]; 210 A Crim R 326 There his Honour said in relation to a retrial:
"58 If this Court considers that a miscarriage of justice has occurred following conviction on indictment and the conviction is to be quashed, the Court may order a new trial where, having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial. Section 6(2); s8(1) Criminal Appeal Act 1912.
59 Section 8(1) provides for the Court to have regard to "all the circumstances", a phrase of considerable breadth. In the Queen v Taufahema [2007] HCA 11; 228 CLR 232 at 254 [49, Gummow Hayne and Crennan JJ observed that one of the key "circumstances" referred to in s8(1) and one of the key factors in assessing whether a new trial is an adequate remedy, is the public interest in the due prosecution and conviction of offenders. Their Honours, at 255 [51], found in the context of that case that an order for acquittal conflicted with the desirability of having the guilt or innocence of the accused person finally determined by a jury.
60 However, a little later their Honours referred, at 256 [52], to the undesirability of the prosecution having an opportunity to present a new case at a retrial where the evidence had been insufficient at the first trial."
128I have considerable doubts as to whether an "admission" such as occurred in this case could influence the application of the proviso in s6(1) Criminal Appeal Act 1912. It may, however, have become significant if there were a real issue as to whether the appropriate order was one for acquittal or for a retrial. That issue, however, does not arise for decision in this case.
129In relation to the conviction appeal the order which I propose is that leave to appeal be granted but that the appeal be dismissed.
Sentence Appeal
130The Crown appeals against the sentence imposed on the applicant on 3 August 2012. The individual sentences are set out at [3] hereof. The total effective sentence was imprisonment with a non-parole period of 7½ years (15 May 2012 to 14 November 2019) with a balance of term of 3 years expiring 14 November 2022. For ease of reference I have continued to refer to TDP as the applicant.
131The Grounds of Appeal upon which the Crown relies are as follows:
Ground 1 - His Honour breached s45(1) of the Crimes (Sentencing Procedure) Act 1999 in not imposing a non-parole period with respect to counts 2, 3, 5 and 7.
Ground 2 - His Honour erred in taking into account the respondent's mental health in the manner that he did.
Ground 3 - His Honour erred by failing to adequately accumulate the sentences consistent with the totality principle leading to a manifestly inadequate total sentence and a manifestly inadequate non-parole period.
Ground 4 - The sentence pronounced was manifestly inadequate.
132The factual background to the offending is set out at [8] - [30] hereof.
Sentence proceedings
133His Honour held that counts 1 and 4 constituted the worst offences and were "serious examples of offences of their kind" (ROS 14.9). In relation to count 4 his Honour said:
"Count 4 particularly involved penile/anal intercourse over a prolonged period of time. There can have been no doubt in the offender's mind that A was not consenting to what was being done to her. She persistently objected, insisting that he stop. What he was doing was excruciatingly painful for her. It was not only humiliating but was over an extended period of time. Thus, I am of the view that this particular offence is a serious example of crimes of its type." (ROS 14.9 - 15.2)
His Honour held that each of the remaining offences was "towards the middle of the range".
134The applicant was in his late thirties at the time of the offending and is now aged 41. He had no prior convictions and was of previous good character.
135His Honour had regard to the report of a psychologist, Ms Hopkins, dated 16 July 2012. Although the applicant had defended the proceedings on the basis that the offences did not occur, he made admissions to Ms Hopkins to the effect that he had engaged in sexual activity with the complainant.
136The psychologist made the following findings and observations. She thought that the applicant's remorse appeared genuine. She noted that after his arrest he was diagnosed with depression and a psychotic illness by a psychiatrist at the Clarke Centre and that he reported a delusional belief that the complainant was sexually involved with her brother, B. Ms Hopkins thought that he met the criteria for a diagnosis of generalised anxiety disorder and seemed to have symptoms of schizotypal personality disorder, although this could not be diagnosed given the brief nature of the assessment. She assessed there to be a low to moderate risk of the applicant re-offending.
137The conclusion arrived at by his Honour in relation to the applicant's psychiatric condition was:
"I am prepared to accept that he suffers from some psychiatric condition, the precise nature of which is uncertain, given the passage that I have just quoted. I do propose to take that condition into account in his favour in determining the proper sentence to be imposed upon him consistent with the principles identified by the High Court in Muldrock [2011] HCA 39; 244 CLR 120 (ROS 14.1)
138His Honour was critical of the change of position on the part of the applicant in that he was prepared to admit to the offending in the sentence proceedings, whereas at trial he had put forward a positive case that the offences had not occurred. His Honour said:
"In effect he actively called the victim a liar and obliged her to endure what must have been the excruciating process of giving the evidence of the appalling conduct perpetrated upon her by the accused. This was conduct over about three and a half years and the various counts in the indictment only disclosed part of his predatory sexual assaults on her during that time. I accept the Crown's submission that this act, in now confessing to these crimes, really demonstrates that TDP is prepared to say or do anything to his own advantage. Firstly he pleaded not guilty and denied the charges and accused his victim of being a liar. On his conviction he then announces to the psychologist that he in fact committed these crimes and I am invited to see those admissions as some evidence of his prospects of rehabilitation and as a demonstration of his remorse and contrition for these crimes. ... Nonetheless, the outrageous hypocrisy that his change of story now represents does not stand well for him in the sentencing process." (ROS 12.2 - .9)
Ground 1 - His Honour breached s45(1) of the Crimes (Sentencing Procedure) Act 1999 in not imposing a non-parole period with respect to counts 2, 3, 5 and 7.
139The Crown submitted that each of the offences in counts 2, 3, 5 and 7 carried a standard non-parole period of 10 years but his Honour imposed fixed terms for those counts. The Crown submitted that this was contrary to ss 44 and 45 of the Crimes (Sentencing Procedure) Act 1999, which obliged him to fix a non-parole period for offences which specified a standard non-parole period. The Crown submitted that there was no discretion in complying with this requirement (SGJ v R [2008] NSWCCA 258 at [76] - [78]).
140The Crown submitted that error having occurred in that way, s6(3) of the Criminal Appeal Act 1912 should apply and that in the circumstances a greater sentence was warranted in law than that which was imposed by his Honour.
141The applicant accepted that his Honour failed to comply with ss 44 and 45 of the Crimes (Sentencing Procedure) Act 1999 and that the applicant would have to be re-sentenced in relation to those counts. He submitted that however the correction was made, the addition of a parole period should maintain the statutory proportion between the non-parole period and the balance of term in relation to the total effective sentence to which he was subject.
142The applicant did not accept that s6(3) of the Criminal Appeal Act applied to an appeal under s5D of the Act. He submitted that the question was not "whether some greater sentence is warranted in law and should have been passed" but whether the total effective sentence was manifestly inadequate.
143The applicant's submission should be accepted. Section 6(3) of the Criminal Appeal Act does not apply to an appeal by the Crown under s5D. His Honour undoubtedly made an error in failing to set non-parole periods for the offences in counts 2, 3, 5 and 7. In the context of this appeal, these are technical errors and are not determinative of the outcome of the appeal.
Ground 2 - His Honour erred in taking into account the respondent's mental health in the manner that he did.
144In support of that ground, the Crown relied upon his Honour's conclusion in relation to the psychological evidence as set out at [136] hereof and also on the following observation of his Honour:
"It was put to me that the psychologist's report demonstrates that he suffers from some mental illness. True it is that during the trial there was some evidence that indicated that towards the end of the events, which gave rise to these charges, he was admitted to a psychiatric institution suffering apparently from some form of breakdown. It was suggested that at that time there were paranoid and delusional aspects to his psychological makeup and that may be true. I am not prepared to conclude, one way or the other, as to whether at the time he committed the last of these various crimes he was in fact suffering from a mental illness." (ROS 13.1)
145On the basis of that material, the Crown submitted that it was unclear what his Honour meant when he said that he was taking the applicant's mental illness into account, consistent with the principles identified in Muldrock. This was particularly so when his Honour declined to find a causal link between his mental illness and the offending. The Crown noted that there was no express finding that the applicant's time in custody would be more onerous because of his mental illness. The Crown submitted that error had been established because of his Honour's lack of precision on this issue.
146The applicant submitted that the Crown's submissions needlessly complicated what was a straight forward observation by the sentencing judge, i.e., that having found mental illness, he would take that condition into account in accordance with established principle.
147In a sense both the Crown and the applicant are correct in their submissions. I agree with the Crown that his Honour's rolled up reference to taking into account the applicant's mental illness in a way consistent with the principles set out in Muldrock is too Delphic to elucidate how his Honour proposed to take that factor into account. On the other hand, there is no indication, either by reference to the sentences imposed or otherwise, that his Honour failed to properly take that factor into account.
148It is accepted that even if an offender's mental illness has no causal relationship to the offending, it can still be relevant to the extent to which general deterrence and specific deterrence are taken into account. In this case, it is clear from his Honour's finding that the applicant's mental illness would not reduce his moral culpability. It also seems from the specific facts of this case and from the very general nature of the symptoms exhibited by the applicant, that his mental illness would have little effect upon general deterrence and specific deterrence. On the other hand, his mental illness may well mean that his sentence will weigh more heavily upon him than it would on a person of normal health and that the imprisonment may have an adverse effect on his mental health.
149Clearly, the applicant's mental health was a factor which could and should have been taken into account by his Honour and apart from the rather opaque reference by his Honour as to how he proposed to take it into account, I am not persuaded that his Honour otherwise erred in dealing with the applicant's mental health. This ground of appeal has not been made out.
Ground 3 - His Honour erred by failing to adequately accumulate the sentences consistent with the totality principle leading to a manifestly inadequate total sentence and a manifestly inadequate non-parole period.
Ground 4 - The sentence pronounced was manifestly inadequate.
150The Crown did not challenge the individual sentences. What the Crown challenged was the extent of concurrency and what it said was the inadequate accumulation of the sentences. In that regard, the Crown noted that the sentences in respect of counts 1 - 5 were fully concurrent, as were those in respect of counts 6 - 11. That was so despite the fact that the offending in counts 1 - 5 covered a period of almost 2 years and those in counts 6 - 11 occurred over a period of 5 months between August and December 2010, approximately 15 months after the offences in counts 1 - 5. The Crown noted that the offences in counts 1 - 11 occurred against a background of offending extending over 3½ years.
151The particular challenges made by the Crown were in respect of counts 1 and 4, which were fully concurrent even though his Honour identified them as the two most serious offences. The Crown was also critical of the modest accumulation of 18 months between counts 1 - 5 and 6 - 11. The Crown submitted that nowhere in his remarks on sentence did his Honour take into account the aggravating feature that during the whole period the complainant was under the applicant's authority. The Crown submitted that in relation to each offence, the breach of trust was extreme. This was not only because the respondent was in loco parentis, but because the offences generally occurred when the complainant was isolated from any source of assistance. The Crown noted that the complainant's silence was achieved by threats.
152The Crown's general submission was that his Honour failed to observe the fundamental principle when sentencing for multiple offences which was to ensure that the overall sentence reflected the totality of the criminality evidenced by the offences. The Crown submitted that in order to meet that requirement, it was necessary for there to be some accumulation between the offences in count 1 and count 4 and a more substantial accumulation between the two groups of offences, i.e., counts 1 - 5 and counts 6 - 11. This was particularly so when the offending took place over a long period of time.
153The Crown relied upon Regina v XX [2009] NSWCCA 115; 195 A Crim R 38 where Hall J (with whom Tobias JA and Kirby J agreed) set out a number of propositions from Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 and Nguyen v R [2007] NSWCCA 14 which needed to be observed when sentencing for multiple offences:
"52 There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively: see Cahyadi v Regina (2007) 168 A Crim R 41 per Howie J at 47. However, a number of propositions relevant to the consideration of that issue may be derived from the case law. They include the following:-
(1) It is well established that questions of accumulation are, subject to the application of established principle, discretionary. What is important is that, firstly, an appropriate sentence is imposed in respect of each offence; and, secondly, that the total sentence imposed properly reflects the totality of the criminality: Regina v Wilson [2005] NSWCCA 219 at [38] per Simpson J, Barr and Latham JJ agreeing.
(2) In Regina v Weldon; Regina v Carberry (2002) 136 A Crim R 55, Ipp JA at [48] stated that it is "not infrequent that, where the offences arise out of one criminal enterprise, concurrent sentences will be imposed" but his Honour observed that "this is not an inflexible rule" and "[t]he practice should not be followed where wholly concurrent sentences would fail to take account of differences in conduct".
(3) The question as to whether sentences in respect of two or more offences committed in the course of a single episode or a criminal enterprise or on a particular day should be concurrent or at least partly accumulated is to be determined by the principle of totality and the relevant factors to be taken into account in the application of that principle. See observations in this respect of Howie J in Nguyen v Regina [2007] NSWCCA 14 at [12].
(4) In applying the principle of totality, the question to be posed is whether the sentence for one offence can comprehend and reflect the criminality of the other offence. See generally Regina v MMK [2006] NSWCCA 272 at [11] and [13], Cahyadi (supra) at [12] and [27] and Vaovasa v Regina [2007] NSWCCA 253.
(5) If the sentence for one offence can comprehend and reflect the criminality of the other, then the sentences ought to be concurrent, otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the totality of the two offences: Cayhadi (supra) per Howie J at [27].
(6) If not, the sentence should be at least partially cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality: Cayhadi (supra) per Howie J at [27].
(7) Whether the sentence for one offence can comprehend and reflect the criminality of the other calls for the identification and an evaluation of relevant factors pertaining to the offences. These will include the nature and seriousness of each offence.
(8) In cases involving assault with violence where the offences involve two or more attacks of considerable violence and are distinct and separate (eg, see Regina v Dunn [2004] NSWCCA 41 at [50]) or in cases where there are separate victims of the attacks as in Wilson (supra), the closeness in time and proximity of the two offences will often not be determinative factors. See also Regina v KM [2004] NSWCCA 65. In Wilson (supra), having regard to the purposes of sentencing set out in s3A of the Crimes (Sentencing Procedure) Act, Simpson J observed at [38] that "... to fail to accumulate, at least partially, may well be seen as a failure to acknowledge the harm done to those individual victims ..."
...
(9) Where two offences committed during the course of a single episode are of a completely different nature and each individually involved significant or extreme gravity, it is likely that some accumulation will be necessary to address the criminality of the two: Nguyen (supra) per Howie J at [13].
(10) Possession of two different kinds of drugs may not be regarded as one episode of criminality in a case of "deemed" supply: Luu v Regina [2008] NSWCCA 285 at [32].
(11) The fact that the evidence of two offences (eg, documentary evidence or the presence of drugs) are located by police at or in the one place is not a relevant factor in favour of concurrent sentences:-
"... The fact that the evidence of a number of discrete offences is located in the one place is completely irrelevant to any question of how the sentences for those offences should be imposed." (Cahaydi (supra) at [26])."
154The Crown submitted that by reference to those considerations, it was clear that his Honour erred in failing to accumulate the sentences imposed for the offences in counts 1 and 4 and by not providing for greater accumulation between the two groups of offences in counts 1 - 5 and 6 - 11.
155The applicant relied upon the oft stated principle in Dinsdale v The Queen [2000] HCA 54; 202 CLR 231 at 329 [22] where Gaudron and Gummow JJ said:
"22 In the circumstances of the present case, the question for the Court of Criminal Appeal was whether the result reached by the trial judge had been "upon the facts ... unreasonable or plainly unjust [so that] the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance". Was the sentence "manifestly wrong"?"
156The applicant also relied upon the reaffirmation by the majority in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 (French CJ, Crennan and Kiefel JJ) of the restraint to be observed by courts in Crown appeals. The majority said:
"1 The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions ("Crown appeals") under s 5D of the Criminal Appeal Act 1912 (NSW) ("the Criminal Appeal Act") is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons." That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases. The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under s5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. That discretion is sometimes called the "residual discretion".
...
24 Section 5D was enacted in its original form in 1924. Crown appeals under s 5D and like provisions in other States and Territories have long been regarded by this Court as exceptional. That exceptional character, reflected in the primary purpose of such appeals, informs the exercise of the Court's "residual discretion" embedded in the words "may in its discretion" in s 5D(1). That "residual discretion" is a discretion to dismiss a Crown appeal notwithstanding that the sentence appealed against is shown to be erroneously lenient. ...
25 ... The characterisation of Crown appeals as "exceptional" has rested in part upon long-standing judicial concern about exposing sentenced persons to double jeopardy, that is, the risk of being re-sentenced. In New South Wales that concern must now yield to the operation of s 68A of the Crimes (Appeal and Review) Act 2001. ...
26 Section 68A provides that an appeal court must not dismiss a prosecution appeal against sentence because of any element of double jeopardy involved in the respondent being sentenced again. It applies to appeals commenced, but not fully determined, before it was inserted in the Act. ... It is not necessary for this Court to review the correctness of the construction of s 68A in JW. On any view of its operation it does not extinguish the residual discretion. ..."
157The applicant submitted that even if this Court were of the opinion that there was some error in the sentences imposed, particularly in relation to accumulation, it should have regard to those principles and not intervene to increase the sentence.
158Even having regard to the observations of the majority in Green v The Queen; Quinn v The Queen, absent other considerations, I am of the opinion that his Honour did err in failing to allow some accumulation between the sentence imposed for the offence in count 1 and that imposed for the offence in count 4. To make those sentences fully concurrent, as his Honour did, does not adequately reflect the criminality of those two offences.
159Although the level of accumulation between the offences in counts 1 - 5 and those in counts 6 - 11 is modest, it is not erroneously so, such as to require the intervention of this Court in a Crown appeal.
160There are, however, other considerations which need to be taken into account. There was a delay of approximately 10 weeks between the sentences being passed on the applicant and the Crown providing notification of its intention to appeal. That delay remains unexplained.
161There is another more significant consideration. Although there was some dispute as to the meaning to be given to certain exchanges between the Crown and his Honour in the sentence proceedings, it is clear that the Crown submitted that his Honour should structure the sentences in the way in which he did, i.e., that the offences in counts 1 - 5 should be grouped together, as should those in counts 6 - 11 and that there should be an accumulation between the two groups. It was implicit in that submission that there should not be accumulation between offences within those groups.
162In Everett v The Queen [1994] HCA 49; 181 CLR 295 at 302 Brennan, Deane, Dawson and Gaudron JJ said:
"9 In these circumstances, the following comments of King CJ (with whom Mitchell and Williams JJ agreed) in Regina v Wilton (1981) 28 SASR at 367-368 which have been cited with approval in this and other courts were applicable to the application for, and weighed heavily against the grant of, leave to appeal to the Crown in the present cases:
" It is necessary to consider whether the prosecution
should be allowed to raise on the appeal the contention that the sentence ought not to have been suspended when that contention was not put in the Court below. ... In my opinion, this Court should allow the prosecution to put to it, on an appeal against sentence, contentions which were not put to the sentencing Judge, only in exceptional circumstances which appear to justify that course. I endorse with respect what was said in Tait and Bartley as to the duty of prosecuting counsel before the sentencing judge. In particular where a submission is made by counsel for a convicted person that a sentence should be suspended or a possible suspension is mentioned by the judge, and this course is regarded by the prosecution as beyond the proper scope of the judge's discretion, a submission to that effect should be made. Generally speaking, if the submission is not made to the sentencing judge the prosecution should not be able to advance that contention successfully on an appeal by the Attorney-General.""
163It follows in the particular circumstances of this case that the Crown should not be allowed to challenge the approach which the sentencing judge followed in relation to accumulation when that approach was specifically recommended and endorsed by the Crown in the sentence proceedings.
164It is necessary to adjust the sentences for counts 2, 3, 5 and 7 because of the error identified in Ground 1. Otherwise I would dismiss the Crown appeal.
165The orders which I propose are as follows:
(1) In respect of the appeal against conviction, I would grant leave to appeal but dismiss the appeal.
(2) With respect to the Crown appeal against sentence, the orders which I propose are:
(a) The sentences in respect of counts 2, 3, 5 and 7 are quashed and in lieu thereof, the applicant is sentenced as follows:
Count 2 - A term of imprisonment with a non-parole period of 3 years commencing 15 May 2012 and expiring 14 May 2015, with a balance of term of 18 months expiring 14 November 2016.
Count 3 - A term of imprisonment with a non-parole period of 4 years commencing 15 May 2012 and expiring 14 May 2016, with a balance of term of 2 years expiring 14 May 2018.
Count 5 - A term of imprisonment with a non-parole period of 4 years commencing 15 May 2012 and expiring 14 May 2016, with a balance of term of 2 years expiring 14 May 2018.
Count 7 - A term of imprisonment with a non-parole period of 2 years and 6 months to date from 15 November 2015 and to expire on 14 May 2018, with a balance of term of 1 year and 6 months expiring 14 November 2019.
(b) The Crown appeal against sentence is otherwise dismissed.
166BLANCH J: I agree with Hoeben CJ at CL.
167R A HULME J: I agree with the reasons and conclusions of Hoeben CJ at CL in respect of the appeal against conviction.
168I have considerable disquiet about whether a total effective sentence of 10 years 6 months is adequate to reflect the gross level of offending by the applicant against his step-daughter over a prolonged period of time. In my view, there should have been further accumulation of at least some of the individual sentences so as to achieve a total term which better reflected the totality of the applicant's criminality.
169But as Hoeben CJ at CL has pointed out, the learned sentencing judge applied the principle of totality by accumulating the sentences in precisely the manner suggested by the Crown. The degree of accumulation, namely 3 years, of one group of sentences upon the other group is not insignificant. I agree that the challenge now made by the Crown to his Honour's approach should be rejected. I also agree that, subject to the problem identified under Ground 1, the Crown appeal should be dismissed.
170In sentencing for counts 2, 3, 5 and 7, the judge purported to exercise the discretion to "decline to set a non-parole period" provided in s 45(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). He failed to heed the requirement in s 45(2) to provide reasons for doing so. And, of course, he failed to note that the discretion provided in s 45(1) is not available in respect of offences for which there is prescribed a standard non-parole period.
171I have observed elsewhere that a failure to provide reasons for imposing a fixed term sentence leaves this Court to speculate as to whether the judge intended the fixed term to represent the overall term of the sentence or only the non-parole component the judge had in mind: Collier v R [2012] NSWCCA 213 at [55]. I also observed (at [58]) that there appears to be a real question as to whether s 45 provides a discretion for a judge to reduce a sentence from what would otherwise have been imposed; the section read literally provides a discretion to decline to set a non-parole period, not to imposed only a non-parole period.
172This Court has not adopted a uniform approach when remedying this type of error. Sometimes it has increased the sentence by adding a parole period while on other occasions it has left the sentence intact but set a non-parole within it: examples were cited in Collier at [59]-[61]. Further examples of the Court taking the latter approach can be found in the subsequent cases of Reeves v R; R v Reeves [2013] NSWCCA 34 at [278] per Hall J and Lipchin v R [2013] NSWCCA 77 at [20] per Hidden J.
173The orders proposed by Hoeben CJ at CL adopt the former approach of increasing the sentences by adding a parole period. What is proposed has no effect upon the overall sentence and the minimum custodial component of it. In my view, giving effect to the intention of the sentencing judge is a paramount consideration. By comparing the level of seriousness of the offences as his Honour assessed them, and then comparing the periods of the fixed term sentences imposed, it seems more likely that he set those terms at what would otherwise have been the non-parole periods.
174I agree with the orders proposed by Hoeben CJ at CL.