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[2007] NSWCCA 355
Court of Criminal Appeal (NSW)
2007-09-28
Mason P, Adams J, Smart AJ, Mr P
Original judgment source is linked above.
CITATION: Timbery v Regina [2007] NSWCCA 355
JUDGMENT OF: Mason P at 1; Adams J at 2; Smart AJ at 3
CATCHWORDS: Multiple offences charged. Judge incorrectly effectively withdrawing issue as to sexual intercourse occurring in circumstances alleged and effectively limiting issue to one of consent. Faulty directions as to corroboration and supporting evidence. Directions as to desirability of reaching agreement exceed what is permissible. Murray directions incorrectly limited - impermissible conduct by Crown prosecutor not causing a miscarriage of justice. Alleged failure of appellant's counsel not established and no miscarriage.
Black v The Queen (1993) 179 CLR 44 Conway v R (2000) FCR 204 Conway v The Queen (2002) 209 CLR 203 Crampton v R (2000) 206 CLR 161 Donney v The Queen (1990) 171 CLR 207 Kaifoti v R [2006] NSWCCA 186 Libke v The Queen (2007) HCA 30 Longman v The Queen (1980) 168 CLR 79 MFA v The Queen (2002) 213 CLR 606 Mackenzie v The Queen (1996) 190 CLR 348 Palmer v The Queen (1998) 193 CLR 1 Pavitt v R [2007] NSWCCA 88 R v Baskerville [1916] 2 KB 658 CASES CITED: R v Booty unrep NSWCCA 19/12/94 R v Gilbert unrep NSWCCA 10/12/98 R v Jovanic (1997) 42 NSWLR 520 R v Leak [1969] SASR 172 R v Livermore [2006] NSWCCA 334 R v Markuleski [2001] 52 NSWLR 82 R v R(AJ) (1994) 94 CCC (3d) 168 R v Uhrig (unrep NSW CCA 24/10/96 Tully v The Queen (2007 ALJR 391) McKechnie v R [2006] NSWCCA 13 R v GPP (2001) 129 A Crim R 1 R v Zorad (1990) 19 NSWLR 91 R v Li (2003) 140 A Crim R 386 R v Murray (1987) 11 NSWLR 12 R v V (1998) 100 A Crim R 488
COUNSEL: (A) Mr H Dhanji (C) Mr P Miller
SOLICITORS: (A) Adamson Solicitors (C) Kavanagh
IN THE COURT OF CRIMINAL APPEAL 2006/4941 MASON P ADAMS J SMART AJ Tuesday, 18 December 2007
Joseph Anthony TIMBERY v REGINA JUDGMENT
(f) ground 10 applied only to Count 2 5. The appellant sought leave to appeal against the sentences imposed upon him. The total effective sentence was 33 years with a non-parole period of 24 years.
Counts 1 - 2 - Malicious wounding s 35(1)(a)(G) and sexual intercourse without consent (s 61I)(G). 9. This summary appears in the remarks on sentence: "5. Counts 1 and 2: On 16 April 2000 at … La Perouse, the offender was arguing with the victim. The offender then hit the victim on the forehead with an iron bar. After this incident the victim went to Prince of Wales Hospital in an ambulance and was seen by a doctor there. As a result of the assault, she received four stitches to her forehead. After treatment at the hospital she returned to … La Perouse.
Count 3 Aggravated sexual intercourse without consent on 12 May 2000 (NG); in the alternative, Count 4 - assault occasioning actual bodily harm on 12 May 2000 (G) and Count 5 sexual intercourse without consent on 12 May 2000 (NG). 13. LB said she was at Adina Avenue, La Perouse. She and the appellant "argued" and he hit her on the head with a beer bottle. An ambulance was called and she received attention but was not taken to hospital. She suffered cuts to her face. LB said that she and the appellant walked home, he kicked and punched her, that when they got to the house he pulled her into his bedroom, locked the door and turned the music up loud. She said that he continued to kick and punch her, told her to suck his penis and that if she did not do so he would "bash her" worse. She said that she did as she was asked (Count 3) and that then he ordered her on to the bed and to take her clothes off. When she protested he replied, "I can do whatever I want to you, you're my woman". He had penile/vaginal intercourse against her will.
Count 6 - Aggravated sexual intercourse without consent in May 2000 [G]
These scars were shown to the Court. 18. The appellant denied that he was responsible for the marks.. Counts 7 & 8 - Two counts of aggravated sexual intercourse without consent - 18 May 2000 [G of each] 19. This summary appears in the remarks on sentence: "12. Counts 7 and 8: On 18 May 2000, at … La Perouse the victim and the offender got into an argument. The offender hit the victim all over her body with a baseball bat. The victim tried to block these attacks with her right arm. The offender then took the victim into the front room. He then threw the victim on the bed, the offender then told the victim to take off her clothes. The victim took off her clothes as she feared she would be hit further.
The hospital records support that LB was treated at the hospital for scratches, abrasions, swelling and lacerations." 20. The appellant denied he committed the offences alleged.
Count 9 - Maliciously inflict grievous bodily harm - 25 June 2000 - [G] 21. This summary appears in the remarks on sentence: "15. Count 9. On the afternoon of 25 June 2000, the victim and the offender were at the house of the offender's sister … . The victim and the offender were arguing in the house. The victim decided to leave because there were children in the house. The victim ran out of the house and the offender chased the victim and tackled her onto the concrete in front of the house. He then grabbed the victim by the throat with his hands and was trying to strangle the victim. He then dragged the victim into the next set of building unit blocks. The offender was punching the victim around and in the face in the hallway of the units. The offender was kicking the victim and choking the victim with his fingernails to her throat. The victim was screaming.
Counts 10, 11 & 12 - 3 counts of aggravated sexual intercourse without consent on 21 August 2000 - [G of each]
Count 13 - Sexual intercourse without consent about 21 August 2000 [NG]
Count 14 - Aggravated sexual intercourse without consent on 29 September 2000 - [NG]
Count 15 - Malicious wounding on 29 September 2000 [G]
There is no supporting evidence. The appellant denied the allegations stating that he was not present at the hospital at the time. The alleged incident sounded improbable.
Counts 17-18 - 2 Counts of aggravated sexual intercourse without consent on 30 September [2 of NG]
LB said that after leaving the hospital they returned to the house at La Perouse. She was told by him to take the cast off her leg. She said that the appellant hit her with something causing her leg to start bleeding again. LB said that the appellant forced her to have penile/vaginal sex (Count 17) and then anal sex (Count 18).
There was no supporting evidence and the appellant denied the allegations stating that he did not see LB until two days after she left the hospital. He denied removing the bandage or having sex with her at this time.
Counts 19-20 - 2 Counts of aggravated sexual intercourse without consent between 30 September - 15 October 2000 [2 of NG]
LB said she was outside the Matraville RSL with the appellant at about 7pm when the appellant punched her in the face. She said that as they walked from there to La Perouse along Bunnerong Road the appellant continued to hit her all the time during that hour long walk. When they arrived home the appellant had penile/anal intercourse with her twice that night, she asserted.
There was no supporting evidence. The appellant denied punching LB outside the Matraville RSL or having ever walked home from the Matraville RSL. He said that there may have been occasions when he had sexual intercourse with her after being at the RSL but never without consent.
Counts 21-22 - 2 Counts of aggravated sexual intercourse without consent on 23 December 2000 [NG of each]
LB said she was at the "new mission" a part of the Aboriginal housing complex at La Perouse. She said that the appellant hit her and dragged her back to his house. He accused her of acting like a slut. He told her to get on the bed and had penile/anal intercourse with her (Count 21). She said that he then swung her around, threw her on her back and had penile/vaginal intercourse with her.
There was no supporting evidence. The appellant denied that he committed the offences.
Count 23 - aggravated sexual intercourse without consent on 25 December 2000 [G]
This summary appears in the remarks on sentence. "22. Count 23: On the afternoon of 25 December 2000, at 25 December 2000, at … La Perouse, the victim was out the front of the house. The offender all of a sudden walked out of the house with a hammer. The offender started hitting the victim with the hammer and then dragged the victim into his bedroom in the house. The victim was trying to get away from the offender, and ended up spraining her ankle in the corridor on the way to the bedroom.
The offender then hit the victim all over her body with a hammer, with a small wooden table, with a golf club and with a baseball bat. The victim was swearing at the offender and was hysterical. The offender took the victim's clothes off, he put an orange electrical extension cord around her throat. He pulled his pants down and had vaginal intercourse with her and at the same time he was pulling tightly on the cord. The offender had a hammer in his other hand and he was hitting the victim with it at the same time. The victim could hardly breath (sic) and fell in and out of consciousness." 44. On 26 December 2000 LB went to the Maroubra Police Station with her father. Eight photographs taken at the police station supported that she had been assaulted. She made a statement complaining about a physical assault on 15 December 2000 but did not sign it although asked to do so. She made no mention of any sexual assault. She was shaken and very upset. She was very scared of the appellant.
On 28 December 2000 LB was admitted to the William Booth Institute and examined upon entry by Dr Chung. He said that she provided a history to a nurse that she had been in a domestic violence situation for some time. LB told Dr Chung that she had experienced domestic violence on Christmas night.
LB spent some time at Saleh Farm, a Salvation Army residential unit on the Central Coast. Ms Gray visited her in late December 2000 or January 2001. LB told her she had been sexually abused, raped recently by her former partner, a Koori boy from La Perouse.
In cross-examination Ms Gray said that LB told her that she had been tied to a big wooden kitchen table and raped (T610). In cross-examination LB denied telling Ms Gray this. LB said that she told Ms Gray that a table was cracked over her (LB's) head.
On 13 March 2001 Const Hayes took a further statement from LB. It included complaints in relation to a number of physical assaults alleged to have been committed by the appellant but did not include any complaint of sexual assault. Const Hayes said that during the taking of the statement LB said that other things of a sexual nature happened to her but she did not want to talk about them. On 14 May 2002 Det Const Sims obtained a comprehensive statement from LB.
In his evidence he denied ever physically or sexually assaulting LB. He denied the allegations made against him. Every time they had sexual intercourse it was consensual. Throughout their relationship he and she were addicted to drugs and alcohol. The relationship started to go downhill and she started arguments with him. He said that in 2000 there were no chisels in the house at La Perouse. He denied owning or using a baseball bat. He did not touch his brother's golf clubs.
The appellant said that most of their arguments occurred when they were both drunk and on drugs. They started when she accused him of some misconduct. On occasions she attacked him and he tried to restrain her. On one occasion she obtained a piece of glass and sliced her leg.
The appellant's mother, sister Natalie and sister Joanne gave evidence tending to be exculpatory of the appellant. The sister Natalie gave evidence of having seen LB hit the appellant. The appellant's brother Glen said that while he had seen them arguing he (Glen) had never seen them physically fighting. Glen's partner L said that while she and Glen also lived during 2000 at Glen's father's house and she spent most of her time at home with her small children, she never saw the appellant bashing or hitting LB with objects. She never heard LB screaming or yelling out. She saw no signs of physical conflict between them.
Appeal Grounds 1 and 2 read that the judge erred in: 1. Summing up the case as one in which sexual intercourse was not in issue
Both LB and the appellant said that they had engaged in much sexual intercourse. LB maintained that on occasions (including those charged) it was not consensual. The appellant maintained that all the sexual intercourse in which they engaged was consensual.
Although the events alleged occurred in 2000 and the police investigation appears to have reached an advanced stage by May 2002 and the police spoke to the appellant in October 2002 he was not charged until 2005.
The appellant contended that the delay in charging him was such that he was not in a position to state whether he had had intercourse with LB on the occasions the subject of the charges. The only count where he was able to specifically deny that intercourse took place was Count 2. This was as a result of the nature of the intercourse alleged (the insertion of a VO5 mousse bottle). The appellant was able to state that he had never had intercourse of this type. In the other allegations the nature of the intercourse was consistent with intercourse which the appellant had engaged in consensually with LB and the appellant maintained that all intercourse he had with LB was consensual.
The Crown prosecutor in his closing speech told the jury on both 7 March 2006 (T9.13) and 8 March (T3.46 and T6.27) that there was no issue that any of the acts of sexual intercourse specified in the indictment took place and that the issue was whether the intercourse was with or without consent.
Defence counsel, in his closing speech said: "If though you look at each particular assault … there's not one scintilla … of evidence that there's been a sexual assault on any of those votes [as transcribed - votes should probably read dates]. The Crown likes to skirt around it and say 'Oh that's not an issue.' It is an issue, it's a very big issue." 58. Counsel for the appellant repeated this submission on 8 March 2006 at T18.24-40. He added: "There's not one scintilla of suggested complaint, in law. There's not one scintilla of actual corroboration of sexual intercourse."
Counsel then strongly criticised the absence of forensic evidence as to whether intercourse had occurred on any of the dates charged. 59. In the context counsel was referring to evidence of sexual intercourse in connection with each particular assault. 60. Shortly afterwards the jury retired for the morning adjournment and the judge in their absence said to counsel: "… you never put to the complainant that sexual intercourse did not occur on the days of the indictment did you? …" 61. Counsel replied that he did not think that he did. The judge observed that sexual intercourse could not be in issue when he had not put that to the complainant. This is not necessarily correct. It depends upon the circumstances, Counsel endeavoured to point out to the judge that he had put to her that there had been no intercourse without consent.
Counsel replied: "Without consent".
"No you didn't … You said 'No evidence of sexual intercourse'. That is what you said to them." 63. Counsel had up to the adjournment addressed in broad and general terms. It was not a disciplined form of address. The judge directed counsel for the appellant to correct what he had said to the jury. When regard is had to the transcript, counsel was submitting that there was no evidence of a sexual assault on any of the dates charged, and that there was no corroboration of sexual intercourse on those occasions.
and "… I put to you before the adjournment about there not being any scintilla of evidence in relation to sexual assault, sexual intercourse in that assault as to each count in the indictment. What I was endeavouring to do, and to say, and for whatever reason I may not have said it as well as I ought to have, there is not one scintilla of evidence that would suggest there was any sexual intercourse without consent on any of the days that are referred to because there has never been any forensic examination of the complainant's privates, her vagina or her anal passage. And it is in that area that I was endeavouring to allow you to think about it forensically. …" 66. The appellant submitted that as a result of the Crown address, the judge's direction to defence counsel and defence counsel's response in his address, the issue of intercourse was effectively removed from each count involving sexual intercourse with the exception of Count 2, the VO5 bottle incident and the case was left to the jury as being simply about consent.
At SU 20 when summarising the Crown's arguments: "The Crown pointed out to you that the occurrence of sexual intercourse on each occasion was not denied by the appellant, but he said it was by consent and I have got to remind you again that there is one count where he denied that there was sexual intercourse, that is count two with the VO5 mousse bottle. The Crown said that you will reject the accused's claim that there was consent because in each case there were injuries to the complainant which are seen by others, either by police officers, by ambulance officers or hospital records."
At SU 23 when summarising the defence arguments: "He [defence counsel] said to you there was no evidence of sexual assault on any particular day and he said there was no evidence of sexual intercourse and he said the forensics were appalling. Now let me just remind you apart from the VO5 mousse bottle on 16 April, the accused has not denied that there was sexual intercourse. You still have to decide whether there was. The fact that he has not denied it does not mean it happened, you have still got to accept the complainant." 70. The appellant submitted that the qualification "you have still got to accept the complainant" did not redress the error of the jury being directed or told that the fact of intercourse was not in issue. The appellant's evidence in the main constituted a general denial except that there was a specific denial as to Count 2. As to Count 13 the appellant was "pretty sure" he had sexual intercourse with LB in the motel room but he was found not guilty of this count. The appellant submitted that other than on these two occasions there was no suggestion that the appellant was in a position to specifically rebut (or concede) the allegation of intercourse. The dispute was whether intercourse took place in the manner alleged. It was submitted that on the facts it was not possible to combine an episode of consensual sex with what was alleged.
The fact that the jury acquitted the appellant on Count 13 gives cause to pause and consider whether the jury did not after all, appreciate the appellant's point that there was consensual sexual intercourse on this occasion or perhaps, may not have been satisfied beyond reasonable doubt that the intercourse was non-consensual.
The Crown submitted that except in relation to Count 2 the appellant did not dispute that he had had sexual intercourse with LB on any of the occasions alleged by her. The Crown submitted that neither his evidence nor the way in which his case was presented was that he was not in a position to state whether he had intercourse with her on the other occasions because of the delay in charging him (agreed as on 19 May 2005). It was not in doubt that LB and the appellant had a busy and regular sex life actively pursued by both parties. His case, according to the Crown was that he never instituted any violence towards LB and caused none of her injuries. The Crown submitted that what was put to LB in cross-examination was not that sexual intercourse had not taken place on any of the nominated occasions but that forced or non-consensual intercourse had not taken place.
During cross-examination she stated that all of their sexual intercourse was not consensual. She denied the suggestion that she was mounting a vendetta. She said that she had to escape from him. She said "I never consented to anything he done to me."
The Crown pointed to T316 where it was stated that the issue was there was no sexual intercourse without consent. The Crown also pointed to T330-331 where counsel for the appellant was challenging the truthfulness of LB's evidence as to what happened on Christmas night. It was being suggested that it was not possible for the appellant and LB to be having intercourse when he was trying to strangle her with an electrical cord and hit her with a hammer. She rejected the suggestion that she agreed to each act of sexual intercourse that the appellant had with her.
The Crown submitted that a fair reading of the appellant's evidence showed that the issue was consent not intercourse. The Crown submitted that it was the appellant's case that intercourse occurred in many ways on a frequent basis but never in the circumstances alleged by LB in the trial.
An examination of the transcript reveals that counsel for the defence objected to the way the Crown put the issues to the jury, protested about the judge's direction and stated the way in which he wished to put the matter. What was in issue was the occurrence of intercourse in the circumstances alleged by the Crown.
This was not a case where the issues of intercourse and consent could sensibly be separated. He denied that sexual intercourse took place in the circumstances she alleged in the various counts.
Appeal Ground 3 - The … judge erred in directing the jury in relation to corroboration.
and "Where there is independent evidence of her injuries immediately or shortly after the acts of intercourse, then those injuries may be corroboration of sexual assault without consent. They do not go to the issue of sexual intercourse and whether that occurred but they go to the question of consent. They may be corroboration of that."
and "Now these corroborative circumstances arise only in the counts where the injuries were seen by someone shortly after the sexual intercourse." 83. The judge directed the attention of the jury to the events of 25 June 2000. While they did not have to accept the police evidence, it was corroborative of the violence. The police evidence was independent for the purposes of corroboration. They saw blood on the complainant, the accused (the appellant) and on the walls and floor of the entrance area of the unit block.
The judge pointed out that what was not corroboration was what LB said to the police but that material might still be used as evidence about whether the accused did this or not. The judge also pointed out that what the accused (appellant) said was not corroboration and could "not be used to decide his guilt or otherwise", but "you can use it to decide whether you believe him in this Court or not." The judge referred to Police Officer Killen asking "What's with all the blood over you" and also saying "Where did the blood come from?" The appellant allegedly said, "No blood there." The judge told the jury that they may reject the police officer's evidence but if they accepted his account of what happened, that the accused uttered the words alleged they could only use it for the purpose of his credibility.
The judge said that having tried to help with the events of 25 June 2000 and the three levels of evidence he returned to corroboration and the supporting ambulance or hospital records as to the events of 12 and 18 May 2000, 21 August 2000 and 29 September 2000 and the injuries seen on the injuries seen on 26 December 2000 (at Maroubra Police Station and the photos). (The judge excluded the events of 23 December 2000).
The appellant submitted that the evidence described as corroboration neither confirmed in a material particular that an offence of sexual intercourse without consent had been committed nor that it had been committed by the appellant.
In Conway v R (2000) 98 FCR 204 at 255 the Full Federal Court pointed out that Lord Reading's formulation has been cited with approval on countless occasions. At 257, after pointing out that as a result of s 164 of the Evidence Act the trial judge was not bound to identify for the jury those items of evidence capable of constituting corroboration the Full Federal Court held that having undertaken that task he was bound to perform it correctly.
On appeal in Conway v The Queen (2002) 209 CLR 203 on a number of grounds the High Court at [62] noted the misdirections of law as to what evidence could constitute corroboration and the concession made by the Crown before the Full Federal Court that some evidence said by the trial judge to be capable of constituting corroboration was not. The joint judgment of four justices continued at [62]: "There was therefore a misdirection of law. It is not to the point to say … that the provisions of ss 164 and 165 of the Evidence Act relieved the trial judge of any need to give directions in the form in which he did. The directions were given and they were wrong. Unless there was no substantial miscarriage of justice the appeal to the Full Court should have been allowed." 89. The appellant submitted that in the present case the trial judge erred in directing the jury that evidence which was not capable of constituting corroboration did amount to corroboration. It cannot be said that there was no substantial miscarriage of justice.
Appeal Ground 4 - The … judge erred in excluding some counts from a warning to the jury given In purported compliance with R v Murray (1987) 11 NSWLR 12.
As the Crown read the direction and the appellant's submissions it understood that the appellant was complaining that the judge erred in excluding from the warning the matters which did not involve an allegation of sexual intercourse without consent. These were counts 1, 4, 9, 15 and 16 and the appellant was convicted of all but count 16. No injury was alleged as to that count and there was no independent supporting evidence. Count 4 was an alternative to Count 3 and Count 15 occurred on the same date (29 September 2000) and at the same location as the alleged incident the subject of Count 14, of which the appellant was found not guilty.
The Crown agreed that in R v Murray Lee J did not in terms confine what he said to sexual offences but spoke of what was customary in cases of serious crime. However, the Crown submitted that when this direction is given it is usually in relation to sexual offences. The Crown relied upon the analysis of Heydon JA in R v GPP (2001) 129 A Crim R 1 illustrating that the direction arose out of the abolition of the earlier practice of requiring warnings, in respect of particular types of witnesses - accomplices, children, victims of sexual assault. The Crown pointed out that one of the traditional concerns in relation to sexual offences was that the allegations could be readily fabricated. Whatever the origins of the direction, as a matter of practice, as Lee J stated, the direction was usually given in cases of serious crime where there is no corroboration and no supporting evidence of consequence.
The Crown submitted that it was not mandatory for the judge to give a Murray direction and relied on Kaifoti v R [2006] NSWCCA 186 at [72] and McKechnie v R [2006] NSW CCA 13. The Crown further submitted that while its case depended on the acceptance of the evidence of the complainant there were otherwise no obvious reasons calling for the direction. The importance of her evidence would have been obvious. It is not to be doubted that the jury would have appreciated the importance of her evidence but there were serious problems with it including the incorrect and incomplete accounts she gave of events and the statutory declaration that she signed on 30 August 2000 that "the charges of assault are all false". It is realized that LB explained the pressure she was under to drop the charges against the appellant. This was a case where a warning along the lines of that referred to by Lee J in R v Murray was required and it should not have been limited to the sexual intercourse matters. The crimes of violence alleged were serious.
The Crown relied on counsel for the appellant at trial not seeking to have the direction altered or extended and submitted that r 4 applies.
Appeal Ground 5 - The … judge erred in failing to give a warning in relation to the effect of the delay which was appropriate to the circumstances of this case.
A Longman direction, Longman v The Queen (1980) 168 CLR 79, was sought on behalf of the appellant in the presence of the jury. The judge stated in the presence of the jury that he did not think that the delay which had occurred warranted a Longman direction but for more abundant caution he would give one. He then gave this direction: "Members of the jury, you have heard counsel raise with me what he says was delay in making the sexual complaint until May of 2002, a period of less than 18 months since the last sexual assault alleged. Now there is a legal warning that juries are given where there has been delay. It is a matter for you whether there has been delay. It is a matter for you whether you consider there has been a delay and you have to take into account also the fact that the complainant spoke about the matter with both Ms Gray and Constable Hayes. But this is the warning. You may convict where there is delay, but it would be unsafe or dangerous to convict on the uncorroborated evidence of the complainant alone. Here of course it is for you to decide if there is corroboration. It would be dangerous or unsafe to convict on the uncorroborated evidence of the complainant alone, unless you scrutinise the evidence with great care. Consider the circumstances relevant to the evaluation of the evidence, pay heed to the warning, and if you do all of those things and you are satisfied about the truth and accuracy, then you can convict. Of course that warning does not apply if you think there is corroboration and in some matters I have told you there is not. You have got to decide whether you are satisfied ultimately of the truth and accuracy of the complainant's evidence after you scrutinize the evidence with great care and pay heed to this warning. If you do that and you are satisfied of the truth and accuracy you can convict. If you are not satisfied with the truth and accuracy, then you must not convict of course, and it would be unsafe and dangerous to do so." 105. The appellant submitted that the following defects emerged:
(a) the judge told the jury that it would be unsafe or dangerous to convict on the uncorroborated evidence of the complainant alone and that they had to decide whether there was any corroboration. He did not accurately and adequately explain what amounted to corroboration
(b) the judge did not explain why the direction was being given
(c) the judge did not point out to the jury that the primary significance of the delay was that the appellant rather than being able to give specific evidence in relation to the events surrounding each count was, in the main, able only to make a general denial or at least that was the appellant's case. The inability of the appellant to contest the charges by giving specific evidence was used as a basis to bolster the Crown case by leaving the case to the jury as one where there was no issue as to intercourse. 106. The appellant complained that when his trial counsel submitted to the judge that the jury should be told of any difficulty caused by the delay to the defence: Crampton v R (2000) 206 CLR 161, the judge declined to do this because the appellant knew early in the piece about the violence.
Appeal Ground 6 - A miscarriage of justice was occasioned as a result of the trial judge's direction to the jury in response to the jury note indicating that they could not agree on a verdict in relation to 17 of the counts.
Do not be concerned about the amount of time it takes. Trials of this nature often take a number of days for a jury to reach a verdict but my direction to you is, please continue your deliberations and you ask what the next step is, ultimately to discharge you and have another trial on those matters, a matter which in a trial of four weeks would be just terrible. So I ask you to retire again and keep going." 115. The jury enquired whether they were able to have the transcripts and the judge replied "No". He offered to read to the jury any parts of the transcripts which they needed and to answer any questions. The jury retired to further consider its verdict at 12.25pm and continued until 4pm. They resumed on Tuesday 14 March 2006 at 10am and continued until about 2.30pm. Their verdicts were then taken. 116. The judge in his direction to the jury did not follow along the lines of that recommended in the joint judgment of four justices and agreed with by the fifth justice in Black v The Queen (1993) 179 CLR 44 at 51-52. The justices emphasised the importance of each member of the jury giving the issues that free deliberation to which both the accused and the Crown were entitled and not being subject to any risk of pressure. 117. The joint judgment said that the direction given to a jury if it appears that they are encountering difficulty in reaching a verdict "should state quite clearly that each juror has a duty to give a verdict according to the evidence." 118. Importantly, the recommended direction stated: "But if, after calmly considering the evidence and listening to the opinions of other jurors you cannot honestly agree with the conclusions of other jurors, you must give effect to your own view of the evidence." 119. Words along those lines do not appear in the directions given in the present case. The terms of the recommended direction do not include words to this effect: "I urge you, I suppose I can say I plead with you, please go out and keep trying." 120. The judge was urging the jury to try and reach unanimity. The recommended direction is more measured. Nor does the recommended direction contain words along these lines: "The next step is ultimately to discharge you and have another trial on those matters, a matter which in a trial of four weeks would be just terrible." 121. The Crown stated that it would have been better if the judge had not used expressions such as "urge" or "plead" or "would be just terrible" but it submitted that these were balanced by his directions that they should not be concerned about the amount of time it takes. The Crown pointed out that in trials of this nature juries often take a number of days to reach a verdict and that the judge made it clear that if ultimately they could not agree they would be discharged.
I do not agree that the words mentioned would have been balanced by his direction not to be concerned about the amount of time it took to reach a unanimous verdict. The words used were emotive and the direction, while seeking unanimity, did not state quite clearly that each juror has a duty to give a verdict according to the evidence. Too high a price can be paid for unanimity.
This ground of appeal must be upheld. Directions as to how a verdict is to be reached are of the essence of a fair trial. A miscarriage of justice has occurred. This alone warrants a new trial. While the necessity for this is greatly regretted and will probably cause distress to LB there is no alternative. There were serious questions raised as to her credibility. The jury had not agreed on 17 of the 23 counts charged prior to the impugned directions. Unfortunately, this Court does not know on which counts the jury were agreed and what their verdicts were. This means that there will have to be a new trial on the 12 counts on which the appellant was convicted.
Appeal Ground 7 - A miscarriage of justice was occasioned as a result of the Crown Prosecutor's conduct of the trial.
The appellant submitted that a miscarriage of justice arose as a result of the Crown Prosecutor's conduct of the trial.
On 1 March 2006 (at 783ff) counsel for the accused showed LB a series of photographs of the house at La Perouse and tendered them. The Crown Prosecutor who had not previously seen the photographs, in re-examination directed LB to a photograph of the room she and the appellant shared and elicited that a patch covered over a punch mark (ie, a hole created by a punch). As the prosecutor sought to develop that matter counsel for the defence objected and his objection was overruled. The Crown Prosecutor then elicited a number of responses to the effect that the appellant punched or kicked holes in the walls which had subsequently been patched. Ultimately, the Crown Prosecutor was stopped (T834). The trial judge pointed out to the Crown that the evidence went only to the appellant's violent disposition (T835.2) After speaking with the witness the prosecutor confirmed that the punching of the holes could not be linked to any of the offences charged. Counsel for the defence sought the discharge of the jury. The judge refused stating "part of the reason … was the length the trial has gone so far." At T840 the judge, in cogent terms, directed the jury to put out of their minds "any of the evidence that was asked by the Crown Prosecutor about those photographs and anything to do about anything the accused did in relation to those photographs."
It is probable that the prompt action by the judge effectively negatived the evidence in question. It is apparent that the prosecutor made a mistake in that he did not check the position before he asked the question.
During his cross-examination of the appellant about the events of 16 April 2000 the Crown Prosecutor asked, "You can't explain why she alleged that you assaulted her on that occasion; is that the position." An objection was recorded but in the meantime the appellant answered "No, I can't explain." The answer was recorded. The Crown accepted that the question should not have been asked. Palmer v The Queen (1998) 193 CLR 1. The Crown submitted that it cannot be known whether the answer was heard by the jury but, in my opinion, if the answer was recorded by the Court Reporter it was probably heard by the jury. The Crown submitted that if the answer was heard by the jury they would have understood that it was being treated as impermissible and would not have taken it into account. This may be so. The Crown relied on no further direction being sought from the judge, submitting that this suggests that it was believed no damage had been done. It might on the other hand, have been thought that it was best not to highlight the matter by seeking a direction. The Crown contended that as it was the appellant's case as put to the complainant that she had invented the allegations possibly as an act of revenge because he had rejected her, the jury would have understood that the appellant was saying everything she alleged was fabricated, for which he had no explanation other than possibly revenge. The Crown submitted that in those circumstances the prosecutor's question did not cause a miscarriage of justice. While some of the matters put related to an incident alleged to have happened about 28 September 2000 (T160.52) other challenges that she had made up the allegations of sexual assault were of a general nature (T160.57 - T161.3) and (T329.27 - 36).
In all the circumstances it is unlikely that the Crown Prosecutor's question caused a miscarriage of justice or the risk of a miscarriage.
At T901.45 the prosecutor cross-examined the appellant on the police record in relation to 12 May 2000 and the statement that "when the police vehicle arrived you [the appellant] ran from the house and jumped a back fence" (Count 3 [NG], 4 [G] and 5 [NG]. The question asked was "So you say if that's recorded by the police as having happened that's false, do you?" This followed on the denial by the appellant of the substantive allegation which had previously been put. This follow-up question was designed to suggest that the appellant was lying. The police record had been tendered by the appellant at trial. The tender was designed to highlight what she told the police and the different version she subsequently gave of the events. The Crown submitted that it was appropriate that the appellant be directly confronted with what was written in the police record. The appellant's answer was that there was "plenty of black people out there on that mission that run from the police, it could have been anybody." The Crown submitted that even if the question was inappropriate the appellant's case did not suffer because of it. The question was inappropriate. It had previously been put to the appellant that when the police vehicle arrived he ran from the house and jumped a back fence and he had said "That's not true". The follow up question earlier quoted was designed to reinforce the Crown's contention that the appellant was lying. A few questions later at T902 it was put to the appellant that he was lying when he denied her allegation in her evidence that he hit her over the head with a bottle in Adina Avenue. He denied her allegation in her evidence that he punched her and kicked her all the way back from Adina Avenue to his home at La Perouse.
The Crown submitted that the question was not objected to and that r 4 applied.
The appellant complained that in cross-examination (T902) he was repeatedly asked to comment on the complainant's evidence. I have earlier referred to the two aspects of her evidence on which he was asked to comment. The form of the questioning was incorrect but no objection was taken; the substantive allegation was put. In each instance it was met with a denial. This did not lead to a miscarriage of justice.
At T905.53 the prosecutor cross-examined the appellant thus: "Q. You heard her give evidence that she didn't come home with other men and that you would have killed her if she had and that's the position, isn't it, you would have killed her if she had? A. No. No.
Q. Literally? A. No." 133. The appellant submitted that it was pure speculation and not part of the Crown case that the appellant would have, in certain circumstances, killed the complainant.
Q. You say it's not you but you've got no idea who it was? A. I've got no idea. I've asked her, she wouldn't tell me." 136. The first question should not have been asked but there was no objection to it.
Q. Telling a lie? A. Probably is." 138. The appellant insisted that he was not telling lies. The appellant said that he could not recall the police officer asking him about the blood. The appellant said that a conversation with the police officer in which he asked about the blood probably took place. He did not know why the police officer was asking him about blood if there was no blood on his hands. The appellant thought it was probably because the officer had seen LB with blood on her.
Q. You had a relationship with her that can be fairly described as violent, didn't you? A. I never got violent towards her." 156. These questions should not have been asked, but again the appellant neutralised them. These questions were not the subject of an objection.
At T979.28 the prosecutor referred the appellant to the evidence of the complainant that every time the police came he (the appellant) would always run and stand behind the house or the side of the house or somewhere in sight for her to see and she knew what would happen, and asked him if that evidence was true. The appellant said that evidence was not true.
At T979.44 he was asked if he still denied the police record concerning 12 May and he replied "Yes".
There was no objection to either question. The form was objectionable but the appellant refuted what was being put.
The appellant submitted that the import of much of the cross-examination was either to explicitly or implicitly suggest other witnesses were lying and that this was improper (R v Booty, unrep. NSWCCA 19 December 1994; R v Gilbert, unrep NSWCCA 10 December 1998; R v Leak [1969] SASR 172). My understanding of the import of the cross-examination was to have the appellant say (either explicitly or implicitly) that other witnesses were lying in certain aspects of their evidence. I thought that the import was also to have the jury conclude that in those respects the appellant was incorrect, if not lying.
The appellant also complained that improper comments were made, questions which reversed the onus of proof were asked and that questions in relation to coincidence were asked despite the evidence not having been admitted for a coincidence.
In leading the evidence in chief of the appellant his counsel adopted the method of referring to segments of the complainant's evidence and the evidence of the witnesses as to various counts and inviting the appellant to comment upon them by giving his version of what did and did not occur. The appellant gave his version, stating where he disagreed with that of the complainant and the witnesses for the prosecution. The appellant's case was made plain despite the undesirable departures from proper practice.
The appellant also submitted that the Crown Prosecutor's final address contained impermissible segments which contributed to a miscarriage of justice. The appellant complained that the Crown Prosecutor commenced his address (7/3/06 T1.39) with the statement "Central to this trial is a search for truth and justice." The difficulty is that a trial is an adversarial process which falls to be determined on the evidence adduced by the parties. The Crown submitted that while the remark by the prosecutor may be a little colourful, it was not untrue. It distracted attention from the true issues. The reminder in the following sentence that the Crown bore the onus of proof does not cover the difficulty.
The appellant repeated his earlier submission that the Crown distorted the factual contest when it asserted that it did "not understand there to be any issue that any of the acts of sexual intercourse specified in the indictment took place."
The appellant complained about this portion of the Crown Prosecutor's final address (T16.39 of 7/3/06). "So you needn't reject the complainant's evidence out of hand because there was no recent complaint or no immediate complaint in the particular circumstances that she has told you about that she has offered as an explanation for the delay, and it is significant in a case where the actual sexual intercourse is not an issue, of where consent's the issue, that virtually every single count on the indictment of unlawful sexual intercourse is accompanied by provable violence, a frank assault of some sort or other causing frank injuries. Very significant indeed, and in circumstances where who else but the accused could have caused those injuries? And his Honour will give you a direction about the use that you may make of that evidence in relation to tendency and coincidence, because you will no doubt think what a coincidence and this indicates something significant. His Honour will direct you about that." 166. The appellant submitted that the statement "who else but the accused" reversed the onus of proof - see Palmer v The Queen, supra, R v Uhrig (unrep NSW CCA 24 October 1996); R v Jovanovic (1997) 42 NSWLR 520.
The prosecutor prefaced "who else but the accused" with "in the circumstances". The Crown submitted that the statement "who else but the accused" did not reverse the onus of proof. It invited attention to the close relationship of LB and the appellant at the time. It was submitted that it was the accused's case that the complainant was regularly intoxicated by alcohol and other drugs, was aggressive and regularly getting into fights or having incidents so that there were many ways she could have been injured other than at his hands.
It is probably an overstatement to suggest that the words used reversed the onus of proof but they did tend to suggest that unless that question could be answered affirmatively by pointing to another person or persons the accused should be convicted. T\the accused did not bear any such obligation. The appellant is seeking to argue by analogy from Palmer.
The appellant submitted that the statements about tendency and coincidence were made in circumstances where the evidence had not been admitted for a tendency or coincidence purpose. It was submitted that the statement "his Honour will give you a direction" would have conveyed to the jury that the argument was legitimate and that it was not to the point that no direction was given as the persuasive effect of the argument had already had its impact.
The Crown submitted that the reference to tendency and coincidence was unfortunate as the judge had not ruled on evidence of that sort and ultimately no direction was given. At the start of the proceedings on 9 March 2006 and before resuming his summing-up the judge stated that he was not going to give a tendency or coincidence direction. The Crown Prosecutor accepted that view of the judge as to coincidence evidence, but requested the judge to give further consideration to a tendency direction. The judge declined to give such a direction. The Crown Prosecutor raised the matter with the judge (SU 9/3/06, p 36), asking whether the judge should correct what he said in his address about coincidence. The judge expressed the view that it had well and truly gone out of the jury's minds, that what the prosecutor had said was very cautious and "I don't think in the light of my repeated emphasis to them it must be separate that I need to do that."
The difficulty is that the reference to "coincidence" in the address did not stand alone. The prosecutor had earlier asked the appellant at T943.29, "During this period of eight months that we're concerned with in this trial, she went to hospital six times, didn't she?" At T945.39 the prosecutor asked, "Well do you agree with me its an extraordinary coincidence that during April and May of the year 2000 she goes to hospital three times and complains three times of assaults while she was living with you?"
At SU p 2 of 8/3/06 ll 4-7 the judge told the jury that they had to consider each count and decide if the accused is guilty or not guilty of that charge. At SU p 8 of 8/3/06 the judge stated that there were effectively 22 trials and that each of the events, each count, must be examined separately and that there would be a be a separate verdict on each. He added, "and subject to anything else I say, you have to look at the evidence for each count in isolation." He also said, "Subject to anything else I say , you would have to, for example, put out of your minds all the evidence about the events of 25 June." The judge said: (SU 8-9 8/3/06 "in examining each count separately you isolate the evidence which applies to that count. So you would not take into account all the information from 25 June when you were dealing with 16 April or 25 December. I may give you some further directions on that. But the basic approach is that you look at the evidence for each count in isolation. And you cannot take into account evidence in one count for evidence in another." 176. The judge was at pains to tell the jury that they should consider the evidence on each count separately but the cross-examination as to coincidence extended across the period from April to December 2000 and especially as to April - May 2000.
(b) Some of the available objections went to matters of form which could readily have been met by reformulating the questions.
(c) The appellant was able to present his case effectively. He repulsed strongly the various adverse suggestions which were put to him in cross-examination. Evidence was led from family members to support his case.
(d) It was an essential part of the prosecutor's function to test the credibility of the account which the appellant gave. The lack of objection to the many questions now classed as objectionable is an important factor. The appellant, by his counsel, adopted the strategy of tackling many of the difficulties he faced in a "head-on" manner.
(e) The principal difficulty for the appellant lay in the injuries, many of them serious, inflicted on the victim on the occasions in question. Practically, it was desirable to provide an explanation for these.
(f) The summing-up referred to each incident and explained in relation to each alleged offence what the Crown had to prove beyond reasonable doubt. 187. As I have dealt with Grounds 1 and 2 I would exclude the matters the subject of these from Ground 7 and on that basis I would, on balance, reject Ground 7 although my mind has fluctuated on this point. Many of the transgressions cannot be excused.
Appeal Ground 8 - a miscarriage of justice was occasioned as a result of the appellant's counsel's conduct at the trial.
Q. Were you brought up with that sort of respect or not? A. Yes, I was." 189. The appellant submitted that the jury should have been told to disregard the second part of the first answer as it was non-responsive to the question. That, it was submitted, would have led to no real prejudice arising. Instead, the appellant's counsel asked a direct question raising character.
Nor do I think that the appellant's counsel had been incompetent in cross-examining the complainant to the effect that she had been violent to the appellant and in his calling the appellant. It was not being suggested that they had other than a robust relationship. The appellant's mother gave evidence of not seeing injuries on LB when she visited (the home) but of seeing LB with a black eye on two occasions at the mother's place of work which the appellant inflicted. On one of those occasions LB agreed that she had given the appellant a black eye. The appellant's mother gave evidence of what happened on Christmas Day 2000.
The third ground of alleged incompetence was that counsel failed to object to the transgressions of the Crown Prosecutor referred to in Ground 7 and failing to seek directions and re-directions, in relation to Grounds 1, 3 and 4.
Counsel was entitled to take the view that many of the objections could have been met and that it was best not to interrupt the cross-examination and to thereby highlight matters. He would have had regard to the way in which he led the evidence in chief. The appellant was handling the cross-examination adequately. It was a case, where having regard to the injuries suffered by the complainant, the jury was likely to be interested in the substantive defences.
The judge had already ruled in relation to Ground 1. It would not have been advantageous to the appellant to have the judge further direct the jury as to "corroboration, independent supporting evidence and credibility."
The direction as to reaching agreement (Ground 6) was essentially a matter for the judge. It is hard to see how what the judge said and did could be overcome and it was a matter for judgment whether the accused would benefit from a direction along the lines suggested in Ground 9.
Appeal Ground 9 - A miscarriage of justice was occasioned as a result of the trial judge's failure to properly direct the jury as to the significance of any reasonable doubt it may have in relation to the complainant's evidence on one count with respect to the complainant's evidence on the other counts.
and what Grove J said (at [280]): "It is self evident that a trial judge must make a decision whether to give such an indication before it is known whether the jury will discriminate in its verdicts upon separate counts. Whilst I consider that it would be prudent to give such a direction in some cases I am apprehensive that language incorporating the concept of cruciality will be interpreted as mandatory. For my part I would refrain from expression in any terms which might be so interpreted. There may be cases in which it could be necessary to assist a jury by way of an instruction such as is under discussion but in some way it may not. In my view it would suffice to commend the matter for consideration of trial judges." 202. Simpson J did not discuss the point at any length but in par [325] she appears to be taking the same view as the Chief Justice. Carruthers AJ expressed his complete agreement with the reasons of the Chief Justice. 203. I doubt if there is much difference between the various expressions of opinion. They all recognised the need for flexibility and that the direction given had to be moulded to the circumstances. As a general rule the jury would be told that they should consider any doubt they may form as to one aspect of the complainant's evidence when addressing the complainant's evidence as to the other counts. There may be strong independent supporting evidence of other counts and overall the evidence may be of a different quality. The circumstances can vary considerably. Of course, the jury may not wish to rely on any doubt they may form as to one aspect of the complainant's evidence on one count when assessing the complainant's evidence as to other counts and for good reason. 204. The direction given in the circumstances of the present case was not erroneous. Appeal Ground 9 should be rejected.
Amended Appeal Ground 10 - The verdict of the jury in relation to Count 2 was unreasonable and cannot be supported having regard to the evidence. 205. Counsel for the appellant relied on the test formulated in MFA v The Queen (2002) 213 CLR 606 namely, "whether [the court) thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty". See also Pavitt v R [2007 NSWCCA 88 (at [133] ff). 206. As to inconsistent verdicts reliance was placed on the judgment of Gaudron, Gummow and Kirby JJ in Mackenzie v The Queen (1996) 190 CLR 348 (with which Dawson and Toohey JJ agreed on this aspect of the appeal). The joint judgment stated at 366-367 (citations omitted): "3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test: 'He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.' 4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt." 207. The appellant pointed out that apart from Count 2, on all the counts on which the appellant was convicted there was supporting evidence independent of the complainant and that on all the counts on which he was found not guilty there was no supporting evidence. Count 2 alleged sexual intercourse without consent. The intercourse allegedly occurred after she returned from the hospital, having been previously hit on the forehead with an iron bar. This was the incident and the only incident in which it was alleged that the offender placed a VO5 Mousse bottle in LB's vagina.
As to Counts 1, 2, 6, 7, 8, 10, 11, 12 and 23 these offences were committed on days when there was both intercourse without consent and violence. In the case of Counts 1 and 2 the malicious wounding was committed earlier in the day of 16 April 2000 and the events the subject of Count 2 sexual intercourse without consent after LB returned from hospital. The injuries on 16 April 2000 were supported by the hospital records. The violence the subject of Counts 4 (12 May), 9 (25 June) and 15 (29 September) was evidenced by injuries supported by the hospital records.
The events of 16 April 2000 were memorable. LB claims that she was hit with an iron bar on the forehead, taken to hospital and treated there (as the records established) and after she returned to the home the appellant inserted a VO5 Mousse bottle in her vagina. The verdict on Count 2 was sufficiently supported by LB's evidence and could not be described as an inconsistent verdict nor could it be said that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on that count.
The Crown submitted that in respect of the counts on which the appellant was convicted there was a strong prosecution case. This applied with even greater force to the counts of violence, namely, Counts 1, 4, 9 and 15. The independent supporting evidence of the hospital records and as to Count 9 that of the police had not been answered or explained. There was the problem of lack of timely complaint and there were cases where the appellant was not present at the hospital.
After deliberating from 11.35am on 9 March 2006, on 10 March 2006 and on the morning of 13 March 2006 there was only agreement on 6 of the 23 counts. It is not known on which counts agreement was reached nor whether they were verdicts of guilty or not guilty. Ultimately, after deliberating from 12.25pm to 4pm on 13 March 2006 and until lunch time on 14 March 2006 the jury agreed on their verdicts on all counts. They appear to have been much influenced by the independent supporting evidence and this is understandable.
There were substantial factual disputes on all counts and there were major issues as to the complainant's credibility. It is not an appropriate case in which to apply the proviso.
Because of the conclusions reached on Grounds 1, 2, 3, 4 and 6 there has to be a new trial. This is much to be regretted as it will be an ordeal for LB. As there has to be a new trial it would be wrong to consider the application for leave to appeal against sentence.
I propose the following orders: 1. Appeals against conviction allowed on each of Counts 1, 2, 4, 6, 7, 8, 9, 10, 11, 12, 15 and 23. Convictions quashed.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Timbery
Regina
(1993) 179 CLR 44
(2002) 209 CLR 203
(2000) 206 CLR 161
(1990) 171 CLR 207
(1980) 168 CLR 79
(2002) 213 CLR 606
(1996) 190 CLR 348
(1998) 193 CLR 1
(1997) 42 NSWLR 520
(1990) 19 NSWLR 91
(1987) 11 NSWLR 12
(2000) 98 FCR 204