Tomlinson v R - [2022] NSWCCA 16 - NSWCCA 2021 case summary — Zoe

NSWNSWCCA

Tomlinson v R

[2022] NSWCCA 16

Court of Criminal Appeal (NSW)|2021-06-07|Before: Brereton JA, Adams J, Cavanagh J

View original source

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2021-06-07

Before

Brereton JA, Adams J, Cavanagh J

Catchwords

(2009) 83 ALJR 579 Crofts v The Queen (1996) 186 CLR 427
[1996] HCA 22 Dickson v The Queen (2017) 94 NSWLR 476
[2017] NSWCCA 78 Daaboul v R [2019] NSWCCA 191 DL v The Queen (2018) 265 CLR 215
[2019] NSWCCA 219 Hillman v R [2021] NSWCCA 43 House v The King (1936) 55 CLR 499

Source

Original judgment source is linked above.

Catchwords

(2009) 83 ALJR 579 Crofts v The Queen (1996) 186 CLR 427[1996] HCA 22 Dickson v The Queen (2017) 94 NSWLR 476[2017] NSWCCA 78 Daaboul v R [2019] NSWCCA 191 DL v The Queen (2018) 265 CLR 215[2019] NSWCCA 219 Hillman v R [2021] NSWCCA 43 House v The King (1936) 55 CLR 499[2014] HCA 37 Libke v R (2007) 230 CLR 559[2007] HCA 30 LS v R [2020] NSWCCA 27 M v R (1994) 181 CLR 487[1994] HCA 63 Maric v The Queen (1978) 20 ALR 513 Martin v R [2013] NSWCCA 253 Mickelberg v The Queen (1989) 167 CLR 259[1989] HCA 35 Mraz v The Queen (1955) 93 CLR 493[1955] HCA 59 Muldrock v The Queen (2011) 244 CLR 120(2006) 80 ALJR 614 Orreal v The Queen (2021) 395 ALR 630[2021] HCA 44 Palmer v R [2018] NSWCCA 205 Patel v The Queen (2012) 247 CLR 531[2012] HCA 29 Pell v R (2020) 268 CLR 123[2020] HCA 12 R v Ball [1961] SR (NSW) 37(1960) 77 WN (NSW) 605 R v Sinanovic [2000] NSWCCA 397 RO v R [2019] NSWCCA 183 Ryan v R

Judgment (18 paragraphs)

[1]

The applicant's evidence

The applicant prepared a 30-page handwritten statement outlining the losses he had suffered since his arrest. This somewhat rambling document included descriptions of all that he had lost as a result of the charges interspersed with a list of all that he had achieved prior to entering custody. The items covered in the letter include: loss of family relationships; loss of career; developing a fire mapping system for the RFS; the WA Ultramarathon Rescue; clients' refusal to pay invoices leaving him in debt of over $280,000; defaults on loans meaning he will need to declare bankruptcy; loss of the relationship with his daughters and inability to support them; time on remand in the MRRC including being branded a paedophile and experiencing or witnessing assaults; the Waterfall Train Crash; the lack of resources in prison for treatment of PTSD; the Cronulla Riots; the East Coast Targa Rally Crash; being stripped of prestigious awards and accreditations; the fact that his Diazepam is not available in the prison system; the fact that after publicity of his charges, he did not receive his Emmy award certificate and he was ex-communicated by the industry; the fact that the helicopters over the MRRC remind him of the industry from which he has been ostracised; his once extensive travel for work is now likely to be subject to indefinite restrictions; and his memories of child sexual abuse when he was seven or eight years old are now part of his trauma experience in prison.
The applicant gave evidence on sentence. He discussed his career achievements in detail, including his fall from grace upon his arrest and his belief that he would never be able to obtain work in the same industry again. He stated that he was "hated instantly" and immediately started receiving messages from companies he had worked for saying that they had no interest in ever working with him again. The applicant described the loss of his career and personal freedom as "beyond devastating".
The applicant gave evidence about the impact of the convictions on his personal life, including that his two daughters no longer wanted any contact with him. The applicant also stated that he had lost contact with his brothers after his arrest. The applicant described the conditions he had experienced in custody while on remand, including that he had been in maximum security and on "limited association", that he had witnessed others being stood over in gaol, had been threatened with physical violence and on one occasion was physically assaulted.
The applicant stated that he had been sexually assaulted at the age of seven or eight and that this had made it difficult for him to trust people. He said that this had been impacting him more while in custody as he had more time to reflect on what happened. The applicant also discussed his diagnosis of PTSD as a result of the traumatic events he witnessed through his work.
In cross-examination, the applicant denied all the offences and disavowed any sexual interest in young teenagers. He stated that he would only undertake a treatment program in relation to an inappropriate sexual interest in children if it was required of him, and that he did not believe it was necessary for him. While he acknowledged that his own experience of child sexual abuse had had a lasting impact on him, he believed that the victims were "perfectly fine". He went on to state that he believed the court process had been detrimental to the victims and that he and "almost everybody else who's not being paid [to be in court]" were victims of the justice system.
The applicant stated that he believed his partner, TB, had suffered more than anyone, including the victims. When asked whether he took any responsibility for TB's distress, he stated that "[s]he knew that I was in a relationship with other … people … there was… an arrangement where at time, I would have relationships with other people." He went on to say that "[s]he was fully aware of what was going on" and that, "she wasn't distressed, and neither was I until I was arrested". He also stated that "the only reason [TB]'s been put through this is because they [the victims] lied… I'm not responsible for [TB]'s distress". He went on to say that he was "absolutely disgusted" that the victims had put themselves through the court process. When asked by the sentencing judge whether the effect of his evidence was that TB was fully aware of what was going on and that his conduct was not the source of any of her distress, he confirmed that that was the case.
The applicant gave evidence that he did not take any responsibility for his fall from grace. When asked if he thought it was the media's fault, he said, "[i]f you want me to sit here and blame people, that's going to take a very long time". He did not blame himself because he was a victim of the system. He stated that he, TB and the two victims were all victims of the "endless abuse that the system provides".
In re-examination the applicant was asked whether he would be more careful in future: "Q. Now, when you're released, have you at least learned this from your experience, of what you call the system; that engaging in sexual encounters with very young women who maybe around the age of 16, whether a little below or above, but young women, young teenage women; have you learned from your experience that if you ever encounter that situation, that you would have to show enormous caution. Have you learned that? A. Absolutely, yeah. Q. Well, tell us in your own words how you've learned that, in a real way. Have you learned that in a real way? A. Well, I think it's obvious now you have to go to extraordinary lengths to try and find out what someone's real age is. But I've really got no interest in any relationship with anybody at all when I get out. There's not going to be me being - anybody who types my name in Google finds out exactly what these charges are, and the chances of me..(fault in audio visual link)..anybody of any age, it is so remote, and it would be - it's almost scary to even want to have a relationship with anybody now, because even if you're truthful with people and say, this is the scenario, like the jury members, all they do is go well, you're accused, therefore you're guilty. So it's - I've got no interest in having a relationship with anybody at all, ever. Q. Well, I understand that that's how you feel at the moment, but what I'm asking you is, when you are released, have you learned that you must show extreme caution in developing a relationship with a young female who maybe around the age of 16 or 17? A. Yes; I've got no interest in anybody who's in that age bracket in anyway. I've got no interest whatsoever, and I would avoid them like the plague, and to be honest, to the detriment of society, if there was a car accident, and there was a young lady in there that needed help, I would probably run the other way, because I've got no interest in going near anybody who - I've tried to help a lot of people over the years. I've tried to save people that have been in pretty shitty and traumatic experiences, not once have I ever had to turn up and go, hang on a second, there's a chance they might throw some charges at me, I'm not going to help. Every single time I've tried to help anybody, no matter what it is. So I'm going to have more caution; absolutely."
The applicant concluded by stating that if anyone "pursued" him like the victim HS did, he would "ignore them" and "literally just run away".
In relation to the offences of producing and possessing child abuse material, the applicant denied knowing of any of the material except one folder containing photos of HS.

[2]

Remarks on sentence

The sentencing judge set out the facts taking her summary from the document provided on sentence by the Crown headed "Fact finding Proposed by the Crown Following Trial". The only part of that document not expressly adopted by her Honour in her narrative was the evidence of the victims as to what they told the applicant about their respective ages.
Her Honour then noted that there was a live issue as to whether the applicant was to be sentenced on the basis of an honest but unreasonable belief or on the basis of actual knowledge of the age of the victims. It was noted that the applicant's case at trial was that "in most instances" although he admitted to the sexual intercourse, he honestly and reasonably believed the victims were aged over 16. Her Honour noted that the Crown's position on sentence was that he should be sentenced based on his actual knowledge that the victims were aged less than 16 years but observed that both cases had been left to the jury.
In relation to DA, her Honour was not satisfied that the applicant saw the age on DA's Facebook profile or that their discussion about her being "underage" necessarily meant "under 16". Her Honour observed "a concern on DA's part about the age gap between them and a willingness to lie about it" including concealing the relationship from her mother. She noted that DA was able to travel to hotels with the applicant but had to be home "quite soon after school".
In relation to HS, the sentencing judge noted that HS "had been leading a relatively independent life" before meeting the applicant including drinking alcohol and smoking cannabis. It was noted that HS was "attempting to pass herself as older than she truly was" when she first met the applicant. In relation to her evidence that she first told the applicant she was 15, the sentencing judge noted HS' statement to police in which she had said 15 or 16 and considered that it was possible that HS first told the applicant she was 16. Her Honour noted that HS said that she told the applicant her true age just before her 14th birthday. It was also noted that HS was able to travel for overnight stays without parental supervision.
The sentencing judge concluded that the evidence established that the offender had a sexual interest in women aged around 16 or younger, that the victims looked much younger than the applicant but not "demonstrably under 16 years" and that the applicant did meet up with the victims when they were in school uniform but that in itself did not establish that they were under the age of 16. Her Honour found at [57]-[58] that: "I have no doubt that the offender knew that the victims were young schoolgirls in their teens. I am highly suspicious that the offender actually knew that both DA and HS were under the age of 16, particularly DA, and I find that indeed their respective young ages was part of the attraction for the offender. I find that his belief became increasingly unreasonable as the relationships progressed. However, given the above it is quite possible that the jury concluded that the offender honestly believed DA and HS both to be 16 but that belief was not reasonable. The Crown went to the jury on that basis and in those circumstances he will be given the benefit of the small but reasonable doubt, that he in fact knew that they were under the age of 16 given the way that the Crown put its case to the jury and he will be sentenced on that basis."

[3]

Applicant's submissions

Counsel for the applicant submitted that the indicative sentence on count 3 was disproportionate in comparison to the indicative sentences on the other counts. It was submitted that there were no aggravating features beyond the elements of the offence and that the offence had been assessed as falling below the mid-range of objective seriousness.
In relation to ground 3A it was submitted that the sentencing judge erred in attributing a SNPP of 9 years to count 3, the count of aggravated sexual intercourse without consent.

[4]

Crown submissions

The Crown noted that it is the aggregate sentence, not the indicative sentence, that is amenable to appeal (JM v R [2014] NSWCCA 297 at [40(11)]) and addressed the complaint under this ground in its submissions on manifest excess.
As stated above, the Crown conceded error in her Honour sentencing the applicant on the basis that count 3 attracted a SNPP.

[5]

Consideration: Grounds 3/3A

The table behind s 54D of the Sentencing Act now nominates an SNPP of 9 years imprisonment for an offence against s 66C(2) of the Crimes Act. But that SNPP was only introduced on 29 June 2015 by the Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW). Count 3 was committed between 1 November 2012 and 17 January 2013. Accordingly, no SNPP was applicable at the relevant time and the sentencing judge erred in relying upon it.
The indicative sentence imposed on count 3 was considerably higher than all of the other indicative sentences. Although it is to be accepted that the maximum penalty for count 3 was double that of the other sexual assaults (20 years imprisonment as compared with 10 years) it is also suggestive of her Honour using the SNPP as a guidepost.
At [74] of the remarks on sentence, her Honour found that the objective seriousness of the sexual assaults was "below the mid-range of seriousness of offending", but "not significantly so" and at [75] that this was a "particularly important finding" so far as count 3 was concerned "having regard to the standard non parole period that applies".
As Basten JA explained in Newman (a pseudonym) v R [2019] NSWCCA 157 at [11] (Hamill and Lonergan JJ agreeing), since Kentwell, an applicant does not need to establish that an error has had an actual effect on the sentence imposed; only that it had the "capacity to influence the sentence".
I am satisfied that the error had the capacity to influence the indicative sentence and the aggregate sentence. Accordingly, I am satisfied that the Crown concession was properly made, and this Court must intervene to re-sentence the applicant afresh.
It is to be noted that her Honour was led into this error as to the SNPP. The Crown Sentence Summary stated that an SNPP of 9 years applied and defence counsel at trial did not correct the error. As I recently observed in Haines v R [2021] NSWCCA 149 at [67], this is, regrettably, a surprisingly common occurrence. District Court judges dealing with large caseloads should be able to rely on counsel to assist in this regard.
Before turning to re-sentence the applicant I first will consider grounds 1 and 2 as they pertain to factual findings made by the judge. The correctness of those findings is relevant to the material upon which the applicant stands to be re-sentenced.

[6]

Applicant's submissions

Counsel for the applicant submitted that the sentencing judge's comments about TB were "only remotely relevant" to the sentence proceedings, and "erroneously contributed to the adverse findings" made about the applicant.
Reliance was placed on Geagea v R [2020] NSWCCA 350, in which the primary judge held that the objective seriousness of failing to stop and assist after a vehicle impact causing death was "made substantially worse" by the offender's post-offence conduct in misleading police and concealing the offence. The Court of Criminal Appeal held that the primary judge erred in considering the post-offence conduct as a part of the offence and thereby elevating the objective seriousness. The Court did however observe that it would not have been erroneous to take the post-offence conduct into account in relation to matters such as the offender's character, remorse, or attitude towards the offending: at [24]. The Court went on to conclude at [39] that the post-offence conduct did reflect poorly on the offender's character.

[7]

Crown submissions

The Crown submitted that the sentencing judge did not find that the applicant's subterfuge in relation to TB made the offending "substantially worse", and no such finding appeared anywhere in the remarks on sentence. The Crown observed that the only references to TB in the assessment of objective seriousness were when the sentencing judge noted that TB was away when the applicant took HS to the apartment and that the applicant lied to TB over many months to maintain the relationship with HS.

[8]

Consideration: Ground 1

This ground was premised on a misconception. Although the alleged error is said to be the finding that "the offence [sic] was 'made substantially worse'" by the applicant's subterfuge in relation to his partner, there is no such finding anywhere in the remarks on sentence nor any reference to that phrase at all in the remarks on sentence. I shall proceed to determine this ground on the basis that the error contended for is that the sentencing judge had regard to the applicant's subterfuge in relation to his partner, TB, in a manner which was not open to her Honour.
I have set out some of the evidence on this topic above at [168]-[169] and referred to the relevant parts of the remarks on sentence where this issue is touched upon above at [182]-[183]. The issue arose because of the inconsistency between the questions put to TB in cross-examination at trial as compared with the evidence given by the applicant on sentence on the same subject matter.
At the time of the commission of the offences, the applicant was in a de facto relationship with a woman referred to as "TB". TB met the applicant when she was 15 years old and commenced a relationship with him shortly thereafter. She became aware of the applicant's relationship with HS and was called as a witness for the Crown at the trial.
At the proceedings on sentence the applicant gave evidence that his behaviour towards DA and HS had not caused any distress to TB and that she was "fully aware of what was going on". He also gave this evidence: "I tell you what I am not going to say today, I am not going to say that I'm guilty of a crime and if HS and DA were both telling the truth, and had told me that they were actually the age they said they were, then there would be no victim here, but they lied. Now, the only reason that TB has been put through this is because they lied. I'm not responsible for TB's distress. The system is completely responsible for TB's distress. It is caused this - and - I am absolutely disgusted that HS and DA put themselves through that"
After the applicant's evidence at his proceedings on sentence concluded, the sentencing judge indicated to the parties that she had reviewed the evidence from the trial over the luncheon adjournment, in particular TB's evidence about whether she was aware of the applicant's relationships with the victims. Her Honour provided counsel with transcript references of TB's evidence at trial.

[9]

Applicant's submissions

Counsel for the applicant submitted that her Honour's finding that the applicant had "almost no prospects of rehabilitation" (ROS at [131]) was contrary to the preponderance of the evidence and that none of the matters referred to by the sentencing judge could have informed such a finding. Counsel for the applicant contended that the applicant had been penalised for defending the charges and that her Honour made an "almost psychiatric diagnosis" on the basis that the applicant maintained his innocence. It was submitted that there was "no evidence" for her Honour's observations regarding the applicant's narcissistic personality traits.
It was submitted that there were many subjective matters which suggested positive prospects of rehabilitation including: that the applicant had no relevant criminal history; that he had been consistently employed, including while in custody; that he gave evidence that he intended to be extremely cautious in choosing a partner in future; that he had no drug or alcohol issues; that he had no mental health issues; and that the sentencing judge concluded that he was to be sentenced on the basis that he had an honest but not reasonable belief as to the victims' ages.
Counsel for the applicant noted the sentencing judge's observations of the applicant's narcissistic personality traits (extracted above at [186]) and submitted that there was no evidence to support this view and it was contrary to the evidence about the applicant's intelligence and accomplishments.
It was further submitted that the applicant's right to defend the charges should not have precluded a finding of positive prospects of rehabilitation and that her Honour's finding was contrary to the preponderance of the evidence.

[10]

Crown submissions

The Crown submitted that an offender's prospects of rehabilitation are a question of fact to be determined by the sentencing judge. It requires a weighing of the evidence before the sentencing judge. It was submitted that to succeed on this ground of appeal, the applicant would have to establish that the finding was not open to the sentencing judge.
The Crown noted the list of factors relied upon by the applicant in support of the contention that the finding was erroneous and addressed them individually. I have adopted some of those submissions in my consideration below.

[11]

Consideration: Ground 2

Her Honour spent some time addressing the submissions made on the applicant's behalf as to his good prospects of rehabilitation but was unable to accept them. As for the submission that his prospects of rehabilitation were good because he had no drug and alcohol issues, her Honour stated at [127]: "I regard that fact as irrelevant given that he committed these offences over a long period of time and at a time when he also had no drug or alcohol issues".
That was a finding well open to her Honour. Although the evidence at trial was that the applicant would buy alcohol for HS, there was no evidence at trial that he ever consumed alcohol with her. Although drugs or alcohol may be a risk factor for offending generally, the question her Honour was considering was the applicant's prospects of rehabilitation in relation to sexual offending against children, in respect of which alcohol or drugs never played any part.
Her Honour considered a further submission as to prospects of rehabilitation as follows at [129]: "His counsel submits that so far his prospects of rehabilitation are concerned, the fact that he is an intelligent and capable person is relevant and that it is likely that he is going to be older and wiser on release than he was when he committed these offences. However, in my view, his intelligence does not seem to be the kind of emotional intelligence that is required to obtain acceptance and insight into his offending. Acceptance of what he has done and insight into why he did it are always the first steps to rehabilitation. Despite being now aged nearly 40, despite having spent many months in custody after his finding of guilt by a jury, and despite his work with the Salvation Army chaplain together with the course that he has done over a number of weeks, he shows no signs of either."
Again, this finding was open to her Honour. The fact that the applicant is intelligent and capable, as shown by his professional success, is not a factor that necessarily supported good prospects of rehabilitation in light of the applicant's risk factors. On the contrary, as her Honour found, he was able to use his professional success as part of the grooming behaviour. Her Honour was entitled to find that the applicant's emotional intelligence was low given his somewhat bizarre evidence that he would not save a woman in a car crash in case she made a false complaint about him. As for the applicant's employment history, it plainly did not prevent him from engaging in the offences and, as observed by the sentencing judge at [144] he exploited his success to impress the victims.

[12]

Ground 4: manifest excess

Given that error has been established, it is not necessary to consider whether the aggregate sentence imposed was unreasonable. Error having been established in the sentencing process, the Court is required to discharge the obligation imposed by s 6(3) of the Criminal Appeal Act by an independent exercise of the sentencing discretion: Kentwell at [43]. The parties' submissions on ground 4 are nonetheless relevant to the question of re-sentence and I have considered them below from [298].

[13]

Factual findings

In re-sentencing the applicant the Crown submitted that I would adopt all of the findings made by the sentencing judge with one exception: it was submitted that this Court would be satisfied beyond reasonable doubt that the applicant knew that the victims were under the age of 16 years and would sentence him on that basis. It was submitted that that it would be open to this Court to accept the evidence of the victims and accordingly find that the applicant did not honestly believe the victims to be 16 years of age or older.
Counsel for the applicant, on the other hand, submitted that the sentencing judge was best placed to make this factual finding having observed all the witnesses during the trial. It was submitted that this placed her Honour in a better position to make the relevant assessment as she was able to judge the presentation of witnesses including the victims and their apparent age, noting however that the trial occurred some five years after the alleged offences.
It was not submitted on behalf of the applicant that this Court could not revisit the finding as to his relevant knowledge for the purpose of re-sentencing; only that in the exercise of this Court's re-sentencing discretion it would not.
Before turning to consider the evidence relevant to such a finding, it is pertinent to first address the relevant authorities on this question.

[14]

What is the relevant test?

In Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579 ("Carroll"), an appeal decided two years before Kentwell, the High Court considered an appeal brought by an offender whose sentence was increased in this Court on a Crown appeal. One of the particulars of error relied upon by the Crown in this Court in support of its contention of manifest inadequacy was that the sentencing judge "gave too much weight to the [present appellant's] subjective circumstances and failed to appreciate the objective seriousness of the offence" (at [9]). In upholding the Crown appeal this Court made a different finding of objective seriousness but in doing so ignored some of the factual findings made by the sentencing judge. In that context the Court (Gummow, Hayne, Crennan, Kiefel and Bell JJ) observed the following at [24]: "In deciding whether the sentence passed by the primary judge was manifestly inadequate it was open to the Court of Criminal Appeal to consider how the appellant's offending was properly to be characterised. In particular, it was open to the Court of Criminal Appeal to form a view different from the primary judge about where, on an objective scale of offending, the appellant's conduct stood. But in the absence of any challenge to the primary judge's findings of fact, it was not open to the Court of Criminal Appeal to evaluate the adequacy of the sentence by discarding reference to why the appellant had acted as he had, or by attributing to him the ability to foresee that his conduct could cause not just serious injury, but severe injury or the possibility of death. Both these steps being erroneous, the majority of the Court of Criminal Appeal erred in reasoning to the conclusion that the sentence passed was manifestly inadequate. The appeal to this Court must then be allowed."
Thus it was held that in the absence of any challenge to the primary judge's findings of fact, it was not open to an intermediate appellate court to discard factual findings made by the primary judge.
In Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 ("Betts"), the High Court considered the question of whether an offender should be permitted to put a different case on re-sentence to that put at first instance based on material that was available at the time of the initial sentence but not put before the sentencing court. In that context the Court, (French CJ, Kiefel, Bell, Gageler and Gordon JJ) observed the following at [14]: "Forensic choices are made in the conduct of the offender's case at the sentence hearing. These include the material that is to be relied upon in mitigation of penalty and whether any of the facts are to be contested. The circumstance that the sentencing judge's discretion is vitiated by House error does not, without more, provide a reason for not holding the offender to these forensic choices. Justice does not miscarry by reason of the refusal to allow an appellant to run a new and different case on the question of re-sentence. Exceptional cases apart, the question of whether some other sentence is warranted in law is answered by consideration of the material that was before the sentencing court and any relevant evidence of post-sentence conduct."

[15]

The evidence as to the applicant's knowledge

As stated above, the Crown case at trial was run on an alternate basis: its primary case was that the applicant knew that the two victims were not aged 16 years or over. This was based on the evidence of the victims as to what they told him about their respective ages. The Crown also put an alternative case, namely, that the applicant honestly but mistakenly believed the two victims to be aged 16 years or over and that such a belief was not reasonable in the circumstances. Her Honour was satisfied that the jury's verdict was consistent with either of the two cases.
Although Brereton JA has recounted the evidence in some detail above for the purpose of consideration of the ground that the verdicts were unreasonable, it is necessary for me to do so again here in order to assess the Crown contention that the applicant should be sentenced on a different factual basis to that found by the sentencing judge.
The evidence as to the applicant's knowledge of DA's age comprised the following: 1. DA's evidence was that she first met the applicant after he sent her a friend request on her Facebook account. DA's evidence was that her Facebook profile was public which meant that her date of birth was visible; 2. DA's evidence was that she told the applicant over Facebook chat, before they first met, that she was 14 years of age and in Year 8 at school; 3. In response the applicant lied about his age and told her that he was 22 (the same age as her brother) when he was in fact aged 30 or 31; 4. The first time DA met the applicant she was dressed in her school uniform after school and the applicant told her that she looked cute in her uniform. She was accompanied by a friend who was also wearing her school uniform; 5. After meeting in a park several times the applicant kissed DA on the lips and asked her if she would be his girlfriend. He then told her that they would have to wait until she turned 16 before they could tell anyone that they were together; 6. DA's evidence was that the first time he persuaded her to go to a hotel the applicant told her, "your mum won't find out".
The evidence as to the applicant's knowledge of HS' age comprised the following: 1. Unlike DA, HS could not recall whether she had her age on her Facebook profile. It was she who first contacted the applicant; 2. The first time she met the applicant she was with her friend. They got into his blue Hummer and drove around. Her evidence was that she initially lied to the applicant about her age, telling him that she was 15 years old. Her friend told him that she was 16 years old. In fact they were aged 13 and 15 respectively. In her police statement HS had initially told police that she said she was 15 "or 16" but her evidence at trial was that she initially told him she was 15; 3. Shortly after count 3 occurred and shortly before she turned 14, the victim told the applicant that her true age was 13. When she told him this he was upset that she had lied to him. She then asked his age and he said that he was 24. This was a lie; he was in fact 32 years old. On her evidence, after she disclosed that she was 13 and not 15 the two of them had sexual intercourse; 4. It was after the victim told the applicant that she was 13 years old that the applicant asked her to be his girlfriend.

[16]

Conclusion

Having regard to all of these matters I am satisfied beyond reasonable doubt in respect of counts 1-2 and 4-16 that both victims told the applicant their respective ages and he thus knew how old they were at the time of the commission of the offences. In arriving at that conclusion, I have deferred to the advantage enjoyed by the trial judge in seeing and hearing the relevant witnesses, in particular the two victims and the applicant. It is to be accepted that the credibility of these three witnesses was a significant factor at trial. It is also to be accepted, as Brereton JA has noted at that it was open to the jury to accept some and reject other parts of the victims' testimony. Despite this, and for the reasons I have set out above, I am satisfied beyond reasonable doubt that the applicant knew that the victims were under the age of 16 years. He stands to be re-sentenced on that basis.
I have come to a different conclusion for count 3. HS' evidence was that she told the applicant she was 15 years old prior to that count and it was only after count 3 that she told him the truth: she was only 13 years old. The jury's verdict on that count was consistent with them being satisfied beyond reasonable doubt that the applicant knew or should reasonably have known that HS was aged under 14 at the time of count 3. Unlike counts 1-2 and 4-16, however, there is no clear evidence indicating that the applicant had actual knowledge of HS' age at the time of count 3. Accordingly, in relation to count 3 only I would give the applicant the benefit of the doubt and re-sentence him on the same basis as the trial judge did.
Given my conclusion that in relation to all counts except count 3 the applicant is to be sentenced on the basis that he knew the victims were aged under 16 years, it follows that my assessment of the objective seriousness of the offences is higher than that found by the sentencing judge. The sentencing judge found that the offending in relation to counts 1 to 16 was "below the mid-range" of objective seriousness, although not significantly so. Given that no SNPPs applied at the time of the offending, there is no requirement to make any finding of where the objective seriousness lies on a continuum of offending. Despite this, in order to reflect the fact that I have assessed the objective seriousness to be higher than that of the sentencing judge, I indicate that I would assess the objective seriousness of each offence to be well along the range of offences that could be classed as mid-range for offences of this nature.

[17]

Subjective factors

No additional evidence was tendered on re-sentence. I have thus made the relevant findings based on the material before the sentencing judge.
I have already summarised the applicant's subjective case. The favourable factors included that he had no prior convictions and a positive employment history. His fall from grace was significant and there can be no doubt that he has suffered emotionally and financially following his apprehension. The fact that the custodial environment has triggered latent trauma symptoms means that the custodial environment is more onerous for him.
The applicant submitted that the offences involved consensual relationships, without violence or force and there was no position of authority or trust. Counsel for the applicant relied on the applicant's "favourable" subjective case and lack of criminal history. It was further contended that this Court would make more favourable findings about the applicant's subjective case and prospects of rehabilitation than the sentencing judge did.
Counsel for the applicant relied on his evidence in the proceedings on sentence (extracted above at [163]-[172]) in which he denied a sexual interest in girls aged 16 or under and stated that he would avoid them "like the plague" in case they "throw charges at [him]". It was submitted that this was merely an inarticulate way of stating that he would not put himself in a similar situation in future.
I have already found under ground 2 that no error is disclosed in her Honour's finding that the applicant has "almost no prospects" of rehabilitation. Despite this I would make a slightly more favourable finding. It seems to me that his opportunity to offend will be reduced once he is released given that he will not be able to use his successful career to groom potential victims and it will be more difficult for him to lie about his age as he will be significantly older by the time he is released.
The applicant's risk factors for offending remain unclear. They have never been identified or addressed. The applicant has shown no remorse or insight into his offending. I would find special circumstances, as her Honour did, on the basis of the applicant's PTSD.
The applicant is to be re-sentenced for 22 serious offences: 16 offences of sexual intercourse with a child and 6 offences involving the production or possession of child abuse material. The offences were not opportunistic; they involved planning, forethought and grooming behaviour. The criminal behaviour spanned several years and two separate victims over distinct periods of time.

[18]

Endnotes

T110.26-29.
T112.37.
T113.44 - 114.14.
T117.30.
T115.25.
T116.15.
T116.10.
T115.50.
T117.18.
T402.43-50.
T116.38.
T117.12-13.
T403.03.
T118.15-16.
T118.45-46.
T132.42-43.
T119.25-35.
T119.41-50.
T120.13-15.
T120.19-21.
T120.50.
T120.45.
T121.45.
T122.20.
T125.33
T125.50.
T125.35-36.
T126.10.
T126.25.
T126.20.
T127.17-34.
T505.32.
T506.14-15.
T508.29-34.
T564.30.
T511.25.
T510.11-40.
T571.38.
T518.39.
T516.22-24.
T519.16.
T163.01.
T164.39.
T166.26.
T167.01, T224.10-226.39.
T167.01-09.
T166.38.
T225.08.
T225.22-226.01.
T167.20.
T248.15.
T167.30.
T177.48-178.05.
T170.44 - 171.08.
T171.25.
T171.32.
T233.30.
T172.27.
T172.50 - 173.12.
T173.39.
T229.44.
T173.16 - 47.
T174.05, T231.03.
T174.12.
T175.33.
T176.09.
T177.18.
T176.31-177.21.
T177.26-35.
T178.50.
T180.50 - 181.01.
T189.42.

Parties

Applicant/Plaintiff:

Tomlinson

Respondent/Defendant:

Legislation Cited (4)

Crimes Legislation Amendment (Child Sex Offences) Act 2015(NSW)

Crimes (Sentencing Procedure) Act 1999(NSW)

Crimes Act 1900(NSW)

Criminal Appeal Act 1912(NSW)

Cases Cited (107)

181 CLR 487; [1994] HCA 63 Maric v The Queen (1978) 20 ALR 513 Martin v R [2013] NSWCCA 253 Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35 Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Mulholland v R [2019] NSWCCA 257 Newman (a pseudonym) v R [2019] NSWCCA 157 Ng v R [2019] NSWCCA 172 Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 Orreal v The Queen (2021) 395 ALR 630; [2021] HCA 44 Palmer v R [2018] NSWCCA 205 Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29 Pell v R (2020) 268 CLR 123; [2020] HCA 12 R v Ball [1961] SR (NSW) 37; (1960) 77 WN (NSW) 605 R v Sinanovic [2000] NSWCCA 397 RO v R [2019] NSWCCA 183 Ryan v R; Coulter v R [2013] NSWCCA 175 Scott v R [2017] NSWCCA 296 SKA v R (2011) 243 CLR 400; [2011] HCA 13 Stoeski v R [2014] NSWCCA 161 The Queen v Baden Clay (2016) 254 CLR 308; [2016] HCA 35 The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Trieu v R [2012] NSWCCA 169 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 Williams v R [2019] NSWCCA 53 Zhou v R [2021] NSWCCA 278 Category: Principal judgment Parties: Nathan Matthew Tomlinson (Applicant) The Crown (Respondent) Representation: Counsel: Ms S Kluss (Applicant) Ms B Baker with Ms A Ilic (Crown)

As to not discharging the jury

When an appeal is brought to this Court by a person who has been convicted following the refusal by a trial judge of an application to discharge the jury, the appeal is not against the failure to discharge the jury, but against the conviction. Ultimately the question for this Court is whether there has been a miscarriage of justice, of which a miscarriage of the trial judge's discretion to discharge the jury is an instance (at [51], [61]-[66]). Maric v The Queen (1978) 52 ALJR 631; (1978) 20 ALR 513; R v Ball [1961] SR (NSW) 37; (1960) 77 WN (NSW) 605; Scott v R [2017] NSWCCA 296.
In order for there to be a "miscarriage of justice" in the sense in which that term is first used in s 6 (1) of the Criminal Appeal Act 1912 (NSW), there must be a material irregularity, that is to say one which could have influenced the verdict of the jury. In judging whether there has been a miscarriage of justice, any direction given by the trial judge in respect of the inadmissible evidence, and its likely effectiveness, will be of significance (at [60]). Crofts v The Queen (1996) 186 CLR 427; Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81; Hofer v The Queen [2021] HCA 36; 95 ALJR 937; Howieson v Chief of Army [2021] ADFDAT 1; Zhou v R [2021] NSWCCA 278, considered.
Having regard to the circumstance that being in custody is an ordinary aspect of the criminal justice process, and the direction given by the trial judge, no miscarriage of justice is established (at [69]-[71]).

Sentence appeal Per N Adams J (Brereton JA and Cavanagh J agreeing): 6. The primary judge applied a standard non-parole period in respect of Count 3 which was not applicable to the offence at the time it was committed. This error had the capacity to influence the indicative sentence in respect of that count as well as the aggregate sentence. The Court must therefore intervene to re-sentence Mr Tomlinson afresh: N Adams J at [197]-[201]; Brereton JA at [106]. Kentwell v The Queen (2014) 252 CLR 601, applied. Newman (a pseudonym) v R [2019] NSWCCA 157, referred to. 7. The primary judge was entitled to take into account Mr Tomlinson's attitude to his partner as relevant to his insight into the offending, in terms of a lack of understanding or remorse.: N Adams J at [218]-[219]. 8. It was open to the primary judge to make an adverse finding as to the applicant's prospects of rehabilitation. Mr Tomlinson was not punished for defending the charges, nor did the primary judge "diagnose" him with a personality disorder: N Adams J at [237]-[238]. 9. When exercising the sentencing discretion afresh, this Court is permitted, "in exceptional cases," to make a different finding to that made by the primary judge so long as procedural fairness is extended to the parties: N Adams J at [251]; Brereton JA at [108]. Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579, considered. Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25, considered. DL v The Queen (2018) 265 CLR 215; [2018] HCA 32, considered. LS v R [2020] NSWCCA 27, considered. 10. The relevant test is whether this Court is satisfied beyond reasonable doubt that the applicant knew that the victims were under the age of 16 at the time of the offending. In re-visiting this question, this Court should defer to the advantage enjoyed by the trial judge in seeing and hearing the relevant witnesses: N Adams J at [256]; Brereton JA at [108]. The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54, applied. 11. In relation to all counts except Count 3 the applicant was to be re-sentenced on the basis that he knew the victims were aged under 16 years: N Adams J at [296]-[297]; Brereton JA contra at [113]. 12. The appeal against sentence should be dismissed on the basis that no other (lesser) sentence is warranted at law.

Ground 1: failure to discharge jury upon unresponsive disclosure that accused in custody.

On the second day of the trial, in the course of HS's evidence, she was asked: [112] "Q. Were you still having some sort of relationship with [the applicant] in February and March 2015? A. I was still having a relationship with [the applicant] right up until the point he went to gaol. So yes."
The morning adjournment was taken immediately after this exchange. In the absence of the jury and the witness, defence counsel applied for the discharge of the jury, on account of the prejudice said to arise from the jury having been informed, in an unresponsive answer, that the applicant was in custody and presumably had been so for some considerable time. [113] The judge declined to discharge the jury, indicating that she proposed to direct the jury that the fact that a person goes into gaol at any time is irrelevant, and is an ordinary part of what happens when people are arrested; that the applicant was not currently in gaol, and that in any event it was irrelevant to their deliberations. When the jury returned after the adjournment, her Honour directed them: "HER HONOUR: Ladies and gentlemen, before [HS] comes back into the witness box I need to give you a legal direction that you must follow in respect of this trial. You might have heard evidence from the complainant that she was in a relationship with the accused up until he went to gaol. In cases such as this, there is absolutely nothing to be taken from the fact that at one point a person is arrested or at one point a person goes into custody. There is no suggestion in the evidence that the offender remained in gaol or that he is currently in gaol. In any event, that fact is entirely irrelevant to your considerations and says nothing at all about the guilt or otherwise of the accused and I direct you as a matter of law to ignore it." [114]
Her Honour subsequently gave reasons for declining to discharge the jury, noting that not every potentially prejudicial event during a trial requires a discharge of the jury, and that while the appearance to the jury that a person is in custody could in some circumstances be "tantamount to evidence of bad character; that he cannot be trusted to be free in the community", nonetheless "one cannot assume that the jury or any member of it would infer guilt as a result of speculating, or even believing that [the applicant] is in custody". [115] Her Honour added that many accused persons are in custody at the time of their trial and the fact of such custody will often be obvious to the jury, and added: "The fact of being in custody at some stage would, in my view, be perceived to be a feature of the modern criminal justice system, and not a reflection of the accused's bad character".

Ground 2: unreasonable verdict

The principles applicable on an appeal which complains that a verdict is unreasonable were restated by this Court in Dickson v The Queen, [138] by Bathurst CJ, with whom Johnson and Fullerton JJ concurred, as follows: "[84] The principles on which a court will set aside a verdict as unreasonable are well established. In SKA v R (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14], the Court stated the approach to be adopted was that laid down in M v R (1994) 181 CLR 487; [1994] HCA 63 at 492-494, namely that the Court is required to make its own "independent assessment of the evidence". If after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen or heard the evidence, the Court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside. In M supra the Court also stated (at 494) that "[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced" and "[i]t is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt … that the court may conclude that no miscarriage of justice occurred": see also MFA v R (2002) 213 CLR 608; [2002] HCA 53 at [59]. [85] As was pointed out by Hayne J in Libke v R (2007) 230 CLR 559; [2007] HCA 30 at [113] (Gleeson CJ and Heydon J agreeing), for a verdict to be unreasonable it is not enough that a review of the evidence shows only that it was possible for a jury to reach a different conclusion. However, for a Court to conclude there was no miscarriage, it is not sufficient that there was evidence on which a jury could convict. If after giving full weight to the primacy of the jury, the Court is left in reasonable doubt as to the verdict, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving the doubt that the Court can conclude that there was no miscarriage of justice. [86] In considering the issue in a case such as the present where the Crown relies on circumstantial evidence, it is important to bear in mind that the task of the appellate court is to consider and weigh all the circumstances in considering and deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion: R v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35 at [46]-[48]."
In considering this ground, an appellate court "must not regard or discount either the consideration the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the benefit of having seen and heard the witnesses". [139] The assessment of the reliability and credibility of witnesses is quintessentially a matter for the jury. [140] These considerations are reinforced by the following observations of the High Court in The Queen v Baden Clay (footnotes omitted): [141] "65. It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact". Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal. 66. With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court "must always be whether the [appeal] 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.""

THE SENTENCE APPEAL

The applicant also seeks leave under Criminal Appeal Act, s 5(1)(c) to appeal against the sentence. The sentence imposed by the trial judge was an aggregate term of 13 years and 6 months imprisonment, commencing on 14 October 2016 and expiring on 13 April 2030, with a non-parole period of 8 years expiring on 13 October 2024. The indicative sentences for the various counts were as follows: 1. Count 1: 2 years imprisonment; 2. Count 2: 3 years imprisonment; 3. Count 3: 9 years imprisonment, NPP of 6 years imprisonment; 4. Counts 4-16: 3 years imprisonment for each; 5. Counts 17-22: 12 months imprisonment for each.
Totally accumulated, the indicative sentences totalled 59 years; the aggregate term of 13 years and 6 months thus incorporates a very substantial measure of concurrency.
I have had the considerable benefit of reading in draft the reasons prepared by N Adams J. I respectfully agree with her Honour's reasons for concluding that ground 1 (finding that the offence was 'made substantially worse' by the applicant's subterfuge in relation to his partner) and ground 2 (not accepting that the applicant's prospects of rehabilitation were good) fail. Further, I agree that, for the reasons explained by her Honour, the appeal must succeed on ground 3A, added by leave at the hearing, in that the sentencing judge erroneously took into account, in respect of count 3, a standard non-parole period which was not applicable at the time of the offence. This Court must therefore exercise afresh the sentencing discretion.
The trial judge sentenced the applicant on the basis that the applicant honestly believed DA and HS both to be 16, but that belief was not reasonable. Her Honour said: [163] "I have no doubt that the offender knew that the victims were young schoolgirls in their teens. I am highly suspicious that the offender actually knew that both DA and HS were under the age of 16, particularly DA, and I find that indeed their respective young ages was part of the attraction for the offender. I find that his belief became increasingly unreasonable as the relationships progressed. However, given the above it is quite possible that the jury concluded that the offender honestly believed DA and HS both to be 16 but that belief was not reasonable. The Crown went to the jury on that basis and in those circumstances he will be given the benefit of the small but reasonable doubt, that he in fact knew that they were under the age of 16 given the way that the Crown put its case to the jury and he will be sentenced on that basis."
N Adams J is of opinion that, save in respect of Count 3, the evidence established beyond reasonable doubt that the applicant knew that each complainant was under the relevant age. I agree with her Honour, [164] that in re-exercising the sentencing discretion, in circumstances where the applicant has been afforded an opportunity to address the issue, this Court is not bound by the finding made by the trial judge as to the applicant's state of knowledge. The relevant question is whether this Court is satisfied beyond reasonable doubt that the applicant actually knew that the victims were under the age of 16. However, in re-visiting this question, this Court should pay considerable deference to the advantage enjoyed by the trial judge who saw and heard the relevant witnesses. For the following reasons, I have come to a different conclusion.

Sentence Appeal

The applicant seeks leave to appeal under s 5(1)(c) of the Criminal Appeal Act against the aggregate sentence imposed on him by Judge Wass on 20 May 2020. On that day, he was sentenced to an aggregate term of 13 years and 6 months imprisonment commencing on 14 October 2016 and expiring on 13 April 2030, with a non-parole period of 8 years expiring on 13 October 2024. Brereton JA has set out the indicative sentences above at [104]. All of the offences carried a maximum penalty of 10 years imprisonment, except count 3 which carried a maximum penalty of 20 years imprisonment.
It is to be noted that shortly after he was sentenced by Judge Wass, on 17 July 2020, the applicant was sentenced by Judge O'Rourke SC for two further offences of possessing and disseminating child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW). He was sentenced in relation to these additional offences to an aggregate term of 2 years and 6 months imprisonment commencing on 14 January 2024 and expiring on 13 July 2026 with a non-parole period of 1 year and 9 months expiring on 13 October 2025. The indicative sentences were: 1. Count 1 (possess child abuse material): 2 years imprisonment; 2. Count 2 (disseminate child abuse material): 18 months imprisonment.
This appeal does not concern these subsequent convictions or aggregate sentence.
The applicant seeks leave to appeal against the aggregate sentence imposed on him by Judge Wass on the following grounds: "1. In considering the objective seriousness of the offending, her Honour erred in finding that the offence was 'made substantially worse' by the applicant's subterfuge in relation to his partner. 2. Her Honour erred in not accepting that the applicant's prospects of rehabilitation were good. 3. Her Honour erred in her consideration of the relative objective seriousness of the indicative sentence in relation to count 3 leading to error in the process of determining the aggregate sentence. 4. The aggregate sentence imposed was otherwise manifestly excessive."
In the Crown's written submissions filed on 26 May 2021, counsel for the Crown submitted that none of the four grounds in the sentence appeal relied upon had been established but noted an error in relation to the standard non-parole period ("SNPP") for count 3. The Crown conceded that this was an error such as to require this Court to exercise its sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 ("Kentwell"). For reasons provided below, I am satisfied that the concession was properly made and this Court is required to re-sentence the applicant.
The applicant subsequently sought and was granted leave to rely upon an additional ground 3A as follows: "Her Honour took into account a standard non-parole period which was not applicable at the time of sentence which cause error in the indicative sentence and the aggregate sentence imposed."

[2016] HCA 25

[2020] SASCFC 83

[2016] HCA 35

[2002] HCA 53

[2008] HCA 52

[2011] HCA 44

[2018] HCA 44

[2021] HCA 28

(2016) 258 CLR 420

(2009) 83 ALJR 579

(1996) 186 CLR 427

(2017) 94 NSWLR 476

(2018) 265 CLR 215

(2019) 101 NSWLR 455

(1936) 55 CLR 499

(2014) 252 CLR 601

(2007) 230 CLR 559

(1994) 181 CLR 487

(1978) 20 ALR 513

(1989) 167 CLR 259

(1955) 93 CLR 493

(2011) 244 CLR 120

(2006) 80 ALJR 614

(2021) 395 ALR 630

(2012) 247 CLR 531

(2020) 268 CLR 123

(2011) 243 CLR 400

(2016) 254 CLR 308

(1992) 173 CLR 592

(1999) 199 CLR 270

(1979) 142 CLR 531

(2005) 224 CLR 300

(1978) 52 ALJR 631

(1994) 179 CLR 1

(2002) 213 CLR 608

(2016) 90 ALJR 1013

(1997) 191 CLR 439

(2008) 236 CLR 358

(2009) 83 ALJR 671

(2010) 242 CLR 233

(2011) 245 CLR 257

(2016) 259 CLR 449

(2018) 264 CLR 202

(2018) 265 CLR 254

(2019) 264 CLR 307

(2020) 94 ALJR 981

(2020) 376 ALR 478

Cited By (13)

Ilievski v R; Nolan v R

JPM v R

Pandamooz v R

Profilio v R

When an appeal is brought to this Court by a person who has been convicted following the refusal by a trial judge of an application to discharge the jury, the appeal is not against the failure to discharge the jury, but against the conviction. [117] In Maric v The Queen, Gibbs ACJ said: "The first submission put on behalf of the Crown was that the learned trial judge had a discretion either to discharge the jury or to continue with the trial, and that the question which the Court of Criminal Appeal had to decide, and which it was submitted was rightly answered in the negative, was whether any error had been shown by the judge in exercising his discretion. In support of this submission counsel cited the decision of the Court of Appeal in R v Weaver [1968] 1 QB 353; [1967] 1 All ER 277. In that case the evidence against the two accused men was overwhelming (see QB at 356) but evidence prejudicial to them was inadvertently elicited by their counsel in the course of cross-examination. The judge refused to discharge the jury, the accused were convicted and an appeal was brought. The appeal failed. Sachs LJ said (QB at 359-60; All ER at 280):- Cases parallel to the present one have been brought before the Court of Criminal Appeal on a considerable number of occasions in the course of the last few years and the modern practice has become well defined. In each of those cases it has, of course, been natural for counsel for the appellant or applicant to cite a trio of cases which are mentioned in Archbold's Criminal Pleadings, Evidence and Practice, 35th ed (1962) para 936; R v Peckham (1935) 25 Cr App R 125; R v Palmer (1935) 25 Cr App R 97, and R v Firth (1938) 26 App R 148. Those cases cannot, however, be looked at in isolation. As already stated, the modern practice evolved in the light of these cases is that in essence, as has now often been said (see, for instance, a passage which appears in R v Parsons [1962] Crim LR 631 at 632), whether or not to discharge the jury is for the discretion of the trial judge on the particular facts and the court will not lightly interfere with the exercise of that discretion. It follows, as has been repeated time and again, that every case depends on its own facts. It also, as has been said time and again, it thus depends on the nature of what has been admitted into evidence, the circumstances in which it has been admitted and what, in the light of the circumstances of the case as a whole, is the correct course. It is very far from being the rule that in every case where something of this nature gets into evidence through inadvertence, the jury must be discharged. This decision was followed in R v Palin [1969] 1 WLR 1544; [1969] 3 All ER 689 , and R v Waring (No 2) [1972] Qd R 263 and somewhat similar views had earlier been expressed in R v Ball (1960) 77 WN (NSW) 605. It may now be accepted that the rule stated in the English authorities cited in R v Weaver, supra, which were followed in R v Hally [1962] Qd R 214 at 221, was too absolute: it is not an invariable rule that the jury must be discharged in such cases. However, in my opinion, it must be remembered that when a trial judge has refused an application to discharge a jury, and the accused has been convicted, the appeal then brought to the Court of Criminal Appeal is not against the failure to discharge the jury but against the conviction."

Thus the issue posed for this Court by s 6(1) is not whether the trial judge was wrong in refusing to discharge the jury, but whether there has been a miscarriage of justice. This was explained in Crofts v The Queen: [118] "The Court of Criminal Appeal rejected this submission. It acknowledged that the trial judge had a discretion; that the criterion for its exercise was the maintenance of the fairness of the trial; and that the test for discharge of the jury was one of necessity [R v Crofts (8 May 1995, unreported) at 8-9; R v Boland [1974] VR 849 at 866]: The question is whether in the circumstances … there was such a high degree of necessity for the jury's discharge that the failure to have ordered such a discharge has resulted in a mistrial. That is to say, was the discretion wrongly exercised in that the judge was bound to discharge the jury? … His Honour obviously thought that any prejudice to the applicant which the complainant's answer might have aroused could in the circumstances be overcome by the warnings which he in fact gave to the jury. We cannot say that he was wrong in so concluding. It may be accepted that the Court of Criminal Appeal approached the matter with the correct principles in mind. No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript. Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable? [Glennon v R (1994) 179 CLR 1 at 8-9; 119 ALR 706; Maric v R (1978) 20 ALR 513 at 521; 52 ALJR 631 at 635]."

Further light is cast on this by Patel v The Queen (footnotes omitted): [123] [67] If there was a miscarriage of justice, it was because the prosecution case changed at a very late point in the trial with the result that much of the evidence that had been admitted on the wide-ranging prosecution case no longer remained relevant to the more confined case that went to the jury. This is the matter which requires further consideration. The question is not, however, whether the trial judge was wrong in refusing to discharge the jury on this basis. As Sachs LJ observed in R v Weaver, there is no rule that, where inadmissible or prejudicial evidence is admitted through inadvertence, a jury must be discharged. This statement was referred to with approval by Gibbs ACJ in Maric v R . His Honour said that when an accused has been convicted, the appeal is not against the failure to discharge the jury, but against the conviction. His Honour's observation remains relevant to a case such as this, even if the test as to what constitutes a miscarriage of justice sufficient to warrant the quashing of a conviction referred to in Maric is affected by what was later said by this court in Weiss v R. … [118] A careful consideration by the prosecution of the expert evidence to be tendered to prove that the appellant was not competent in the conduct of the surgery and in the provision of post-operative care ought to have revealed that the evidence could not sustain a finding to that effect, let alone a finding of gross negligence to the requisite standard. The result was that very late in the trial the prosecution was forced to acknowledge that if, on the prosecution case, the appellant were criminally liable, he might only be so in respect of his judgments. Much of the prejudicial evidence which had been tendered was not relevant to this topic. Not only had the jury been exposed to this large body of evidence, it had been exposed to it repeatedly over a long period of time and in the context of a much wider prosecution case. There has been a miscarriage of justice.