Xie v R

Court of Criminal Appeal (NSW)|2022-07-11|Before: Bell CJ, Mitchelmore JA, Yehia J

B W Walker SC with P D Lange and M Kalyk (Appellant) M Millward with G Marsden (Respondent)

Murphy's Lawyers Inc. (Appellant) Office of the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2017/238793; 2018/290915 Publication restriction: N/A Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 27 March 2020 Before: Judge Letherbarrow SC File Number(s): 2017/238793; 2018/290915

[This headnote is not to be read as part of the judgment] The appellant, Raymond Xie, appealed against his conviction on 10 counts following a trial in the District Court at Parramatta before Judge Letherbarrow SC (the trial judge) and a jury. The appellant was acquitted in respect of two charges. He was sentenced to an aggregate term of imprisonment of 9 years commencing on 22 September 2018 and expiring on 21 September 2027, with a non-parole period of 5 years and 4 months expiring on 21 January 2024. The 12 counts were allegedly committed in the years 2017 and 2018 and related to three complainants: RK in respect of Counts 1-2, JG in respect of Count 3, and MO in respect of Counts 4-12. Each complainant claimed to have been assaulted or sexually assaulted by the appellant at an apartment in Russell Lea, which he maintained separately to his principal residence where he resided with his wife and two children. The alleged assaults of the various complainants were relied upon as tendency evidence in relation to the charges in respect of the other complainants. On the Crown case, Counts 1 and 2 were committed against RK in mid-2017 after the appellant happened upon RK lost in a park with a flat mobile phone battery and drove RK to his apartment to charge it. RK's evidence was that, when inside the apartment, the appellant offered him a drink from which he took two or three sips before passing out. Upon regaining consciousness, RK realised the appellant was masturbating RK's penis (Count 2). It was the Crown's case that the drink given to RK contained methylamphetamine and two sedatives, namely dexmedetomidine and hyoscine (Count 1), all three of which were subsequently detected in RK's urine. On the appellant's account, he and RK smoked ice after he gave RK the drink. The appellant then offered RK a sip of his "ice mate", a popular after-party drug designed to be sipped following the smoking of ice to moderate the impact of the methylamphetamine, and which RK declined. RK fell asleep, and when he awoke later that morning, he discovered that his pants were undone and that he had urinated and vomited on himself. The appellant's evidence was that he attempted to clean up RK with a towel, during which he may have unintentionally touched RK's penis. Counts 4-12 related to offences alleged to have been committed against MO in late 2018. On the Crown case, the appellant met MO on Tinder, the appellant having held himself out as a woman named 'Lily' who agreed to meet MO for a drink. 'Lily' arranged for MO to first attend an apartment to practice sports massage with her friend 'Pei' for her new sports therapy shop. MO was taken by Uber to the appellant's apartment where it was alleged that he caused MO to take methylamphetamine (Count 4). It was the Crown case that the appellant then indecently and sexually assaulted MO whilst his cognition was significantly impaired and during which the appellant ignored MO's pleas for him to stop (Counts 5-12). In relation to Counts 1 and 4, which charged that the appellant caused RK and MO to take certain intoxicating substances, the appellant gave evidence at trial that RK and MO each consumed drugs voluntarily and together with the appellant, and that both complainants subsequently and consensually engaged in sexual activity with the appellant, albeit while intoxicated. In the course of the trial, the Crown sought to lead evidence in relation to a statement made by the appellant to a detective the day after he had been charged in relation to RK's complaint. The statement included the appellant saying, among other things, "I am with my solicitor. We have looked at all the evidence. I am in big trouble. Please take it easy on me. I have two kids and a wife." The appellant objected to the admission of the material. The trial judge heard argument, delivered a separate judgment, and ultimately admitted a portion of the statement into evidence. The appellant also made an unsuccessful 'no case' application in relation to Count 1, it having been submitted that the Count should not go to the jury principally because, despite a police search of the appellant's apartment, no evidence was found of a can or drinking vessel containing traces of each of methylamphetamine, dexmedetomidine and hyoscine. Further, whilst there was a cup that contained dexmedetomidine and hyoscine, namely the 'ice mate', it contained no trace of methylamphetamine. The jury ultimately found the appellant guilty on Counts 1, 2 and 5-12 and acquitted him on Counts 3 and 4. On appeal, the appellant sought orders that the guilty verdicts on Counts 1, 2 and 5-12 be quashed, that a verdict of acquittal be entered in relation to Count 1, and that the matter be remitted for retrial on Counts 2 and 5-12. The appellant relied on three grounds of appeal. The first ground was that the trial judge erred in failing to find that there was no case to answer in relation to Count 1, such that the appellant's trial miscarried having regard to that Count being left to the jury, and that the verdict on Count 1 was unreasonable. The second ground was that the Crown prosecutor went too far in what he said in his final address to the jury about the appellant's propensity to lie and that this, together with other aspects of his address, resulted in a miscarriage of justice. The third ground was that the trial judge erred in allowing into evidence the portion of the statement made by the appellant to the detective or, in the alternative, that a miscarriage of justice arose due to its admission. The Court held (Bell CJ, Mitchelmore JA and Yehia J agreeing), granting leave to appeal to the extent necessary other than in respect of the second ground, setting aside and quashing the appellant's conviction in respect of Count 1 and directing a verdict of acquittal in relation to Count 1, ordering a new trial in relation to Count 2, otherwise dismissing the appeal in relation to Counts 5-12 and remitting the proceedings to the District Court for the resentencing of the appellant in light of his acquittal on Count 1. As to ground 1 1. Whether or not Count 1 should have been left to the jury or a verdict of acquittal directed, the verdict on Count 1 was unreasonable. It was not open to the jury to infer in the absence of key inculpatory evidence relating to how RK came to have methylamphetamine in his system that the appellant had slipped it into RK's drink. To have so found would have involved improper speculation or conjecture, rather than logical inference: [48]-[54] (Bell CJ); [117] (Mitchelmore JA); [118] (Yehia J). Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78; Ritchie (a pseudonym) v R [2019] VSCA 202; Seltsam Pty Ltd v McGuiness (2002) 49 NSWLR 262; [2000] NSWCA 29, referred to. 1. The independent assessment of the evidence must be undertaken by reference to the particular manner in which Count 1 was formulated, which in this case was that all three intoxicating substances, namely methylamphetamine, dexmedetomidine and hyoscine, were imbibed simultaneously by RK in a single drinking vessel: [49] (Bell CJ); [117] (Mitchelmore JA); [118] (Yehia J). 2. Given the inferential nature of the Crown's case, this is not a case where particular deference needed to be given to advantages enjoyed by the jury: [55] (Bell CJ); [117] (Mitchelmore JA); [118] (Yehia J). 3. A new trial should be ordered in respect of Count 2 in light of the fact that the wrongful conviction on Count 1 would inevitably have influenced the jury's consideration of the issue of consent in respect of Count 2: [57] (Bell CJ); [117] (Mitchelmore JA); [118] (Yehia J). 4. Wrongful conviction on Counts 1 and 2 did not necessitate a retrial in respect of Counts 5-12. The acquittal of the appellant in respect of Count 4 made it plain that the jury was able to differentiate between the charges raised in respect of MO from those involving RK, and reached its guilty verdict in relation to the assault and sexual assault charges in relation to MO on the basis that he had not first been drugged by the appellant: [58] (Bell CJ); [117] (Mitchelmore JA); [118] (Yehia J). As to ground 2 1. Leave to raise ground 2 pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) is refused. If leave is not required, the ground is dismissed. The Crown prosecutor's closing address did not exceed the proper boundaries of prosecutorial propriety and no miscarriage of justice occurred as a result of the manner and form of that address: [67]-[115] (Bell CJ); [117] (Mitchelmore JA); [118] (Yehia J). Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334; Ford (a pseudonym) v The Queen (2020) 63 VR 405; [2020] VSCA 162; Bugeja v The Queen (2010) 30 VR 493; [2010] VSCA 321; Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330; FX v R; GX v R (2020) 290 A Crim R 31; [2020] NSWCCA 189; Zurshig v R [2021] NSWCCA 309; Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30; Ritchie (a pseudonym) v R [2019] VSCA 202; Crockford v R [2022] NSWCCA 115; Lyndon v R [2014] NSWCCA 112; Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288; Medich v R [2021] NSWCCA 36; Roach v R [2019] NSWCCA 160; (2019) 344 FLR 429; Whitehorn v R (1983) 152 CLR 657; [1983] HCA 42; Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937, referred to. 1. References by the Crown prosecutor to lies told by the appellant were of themselves likely to be prejudicial, but any prejudice was not unfair prejudice in a context where the credibility of the appellant was squarely in issue and it was not suggested that the references were without foundation: [84], [86] (Bell CJ); [117] (Mitchelmore JA); [118] (Yehia J). 2. The appellate court, in forming its own impression, must bear in mind that experienced defence counsel made no objection to the fairness of the Crown prosecutor's address, nor did the experienced trial judge invite the Crown to modify its references: [87], [113] (Bell CJ); [117] (Mitchelmore JA); [118] (Yehia J). 3. The mere fact that a submission may not be accepted or is contradicted by other evidence does not translate it into a submission that was either not open or improperly advanced: [108] (Bell CJ); [117] (Mitchelmore JA); [118] (Yehia J). As to ground 3 1. This ground does not fall for determination in light of the appellant's success under ground 1. The evidence the subject of this ground did not and logically could not have related to the events giving rise to the charges in relation to MO given the statement was made by the appellant approximately 13 months prior to those events. In this context, the admission of the statement did not occasion a miscarriage of justice in relation to Counts 5-12 in respect of which the appellant was convicted so as to warrant the ordering of a retrial on those counts: [60]-[61] (Bell CJ); [117] (Mitchelmore JA); [118] (Yehia J). 2. There is no utility in otherwise dealing with the third ground. Insofar as there will be or may be a retrial in relation to Count 2, it will be for the trial judge to determine whether the pre-trial order should be revisited in accordance with s 130A of the Criminal Procedure Act 1986 (NSW). That exercise, which will involve considerations of probative value and prejudicial effect of the statement, must be undertaken in the light of the facts and other evidence adduced or likely to be adduced on any retrial: [62] (Bell CJ); [117] (Mitchelmore JA); [118] (Yehia J).

Judgment

BELL CJ: The appellant, Raymond Xie, appeals from his conviction on 10 counts following a trial in the District Court at Parramatta before Judge Letherbarrow SC (the trial judge) and a jury. The appellant was acquitted in respect of two charges (Counts 3 and 4 set out at [4] below).
The appellant was sentenced to an aggregate term of imprisonment of 9 years commencing on 22 September 2018 and expiring on 21 September 2027, with a non-parole period of 5 years and 4 months expiring on 21 January 2024.
The appellant seeks an order that the guilty verdicts on Counts 1, 2 and 5-12 be quashed, that a verdict of acquittal be entered in relation to Count 1, and that the matter be remitted for retrial on Counts 2 and 5-12. No separate challenge is made to the sentence imposed, although if the Court were to decide that an acquittal should have been entered in respect of Count 1 but that the verdicts should not otherwise be disturbed (as it has), the appellant will need to be re-sentenced in light of that acquittal. It was accepted that this resentencing exercise should be undertaken by the District Court.

The Charges

By an indictment dated 2 March 2020, the appellant was charged with the following offences: "RAYMOND XIE 1 on 6 August 2017, at Russell Lea in the State of New South Wales, did cause to be taken by [RK] intoxicating substances, being methylamphetamine, dexmedetomidine and hyoscine, with intent to enable himself to commit an assault with an act of indecency. S 38(b) Crimes Act 1900 Law part code 65023 AND the Director of Public Prosecutions FURTHER CHARGES that RAYMOND XIE 2 on 6 August 2017, at Russell Lea in the State of New South Wales, did assault [RK] and at the time of such assault committed an act of indecency on [RK]. S 61L Crimes Act 1900 Law part code 285 AND the Director of Public Prosecutions FURTHER CHARGES that RAYMOND XIE 3 on 2 August 2018, at Russell Lea in the State of New South Wales, did have sexual intercourse with [JG] without the consent of [JG], knowing he was not consenting. S 61I Crimes Act 1900 Law part code 271 AND the Director of Public Prosecutions FURTHER CHARGES that RAYMOND XIE 4 between 22 September 2018 and 23 September 2018, at Russell Lea in the State of New South Wales, did cause to be taken by [MO] an intoxicating substance, being methylamphetamine, with the intention of enabling himself to commit sexual assault. S 38(b) Crimes Act 1900 Law part code 65023 AND the Director of Public Prosecutions FURTHER CHARGES that RAYMOND XIE 5 between 22 September 2018 and 23 September 2018, at Russell Lea in the State of New South Wales, did assault [MO] and at the time of such assault did commit an act of indecency on [MO]. S 61L Crimes Act 1900 Law part code 285 AND the Director of Public Prosecutions FURTHER CHARGES that RAYMOND XIE 6 between 22 September 2018 and 23 September 2018, at Russell Lea in the State of New South Wales, did assault [MO] and at the time of such assault did commit an act of indecency on [MO]. S 61L Crimes Act 1900 Law part code 285 AND the Director of Public Prosecutions FURTHER CHARGES that RAYMOND XIE 7 between 22 September 2018 and 23 September 2018, at Russell Lea in the State of New South Wales, did assault [MO] and at the time of such assault did commit an act of indecency on [MO]. S 61L Crimes Act 1900 Law part code 285 AND the Director of Public Prosecutions FURTHER CHARGES that RAYMOND XIE 8 between 22 September 2018 and 23 September 2018, at Russell Lea in the State of New South Wales, did have sexual intercourse with [MO] without the consent of [MO], knowing he was not consenting. S 61I Crimes Act 1900 Law part code 271 AND the Director of Public Prosecutions FURTHER CHARGES that RAYMOND XIE 9 between 22 September 2018 and 23 September 2018, at Russell Lea in the State of New South Wales, did assault [MO] and at the time of such assault did commit an act of indecency on [MO]. S 61L Crimes Act 1900 Law part code 285 AND the Director of Public Prosecutions FURTHER CHARGES that RAYMOND XIE 10 between 22 September 2018 and 23 September 2018, at Russell Lea in the State of New South Wales, did have sexual intercourse with [MO] without the consent of [MO], knowing he was not consenting. S 61I Crimes Act 1900 Law part code 271 AND the Director of Public Prosecutions FURTHER CHARGES that RAYMOND XIE 11 between 22 September 2018 and 23 September 2018, at Russell Lea in the State of New South Wales, did have sexual intercourse with [MO] without the consent of [MO], knowing he was not consenting. S 61I Crimes Act 1900 Law part code 271 AND the Director of Public Prosecutions FURTHER CHARGES that RAYMOND XIE 12 between 22 September 2018 and 23 September 2018, at Russell Lea in the State of New South Wales, did assault [MO]. S 61 Crimes Act 1900 Law part code 244"
As appears from the indictment, the 12 counts charged related to 3 complainants: RK in respect of Counts 1-2; JG in respect of Count 3; and MO in respect of Counts 4-12.
Each complainant claimed to have been assaulted or sexually assaulted by the appellant at an apartment in Russell Lea, which he maintained separately to his principal residence where he resided with his wife and two children. The alleged assaults of the various complainants were relied upon as tendency evidence in relation to the charges in respect of the other complainants.
Broadly speaking, the appellant (who gave evidence at the trial) asserted that the acts in Counts 1-4, 7, 9 and 11-12 did not happen, while the acts in Counts 5, 6, 8 and 10 did happen but were consensual.
In relation to Counts 1 and 4, which charged that the appellant caused RK and MO to take certain intoxicating substances (the drugging charges), the appellant gave evidence at trial that RK and MO each consumed drugs voluntarily and together with the appellant, and that both complainants subsequently and consensually engaged in sexual activity with the appellant, albeit while intoxicated.
The nature of all of the charges and the appellant's decision to go into evidence inevitably meant that issues of credibility as between the appellant and each of the complainants loomed large during the trial and final addresses. Amongst other matters, considerations of credibility relevantly bore upon whether, as the appellant contended, RK smoked ice with the appellant at the apartment (and that was the source of the methylamphetamine found in RK's urine), whether MO did the same, and whether various sexual acts the subject of the charges were engaged in voluntarily or without each of the complainant's consent.
Plainly enough, there was a relationship between the drugging charges in Counts 1 and 4 with Count 2 and Counts 5-11 respectively in that, if the jury were to accept beyond reasonable doubt that the appellant had caused RK and MO to take the intoxicating substances, that would bear significantly on any disputed issue of consent to the subsequent sexual assaults. In the event, the jury convicted the appellant in relation to the first drugging charge, Count 1, but acquitted the appellant in relation to Count 4.

Counts 1 and 2

Counts 1 and 2 related to offences alleged to have been committed against RK on 6 August 2017. On the Crown case RK was unfamiliar with Sydney, having travelled from interstate for a work function. He happened upon the appellant having become lost on the way back to his hotel, late in the evening of 5 August 2017, after a heavy drinking session with his work colleagues. The appellant drove RK to his apartment on the pretence of allowing RK to charge his mobile phone.
RK's evidence was that, when inside the apartment, the appellant offered him a drink. RK sat on the couch as the appellant went to the kitchen to get the drink. The appellant had his back to RK for a couple of minutes before returning with a drink in a "stubby cooler". The appellant asserted that the drink he gave to RK was a Wild Turkey mixed alcoholic drink. RK's evidence was that it was a beer. When asked to describe the drink, RK said, "I don't - my brain was a bit foggy here. It was in a cooler so I can't say exactly what the drink was but I'm pretty sure it was in a can". RK's evidence was variously that he took two sips or "probably two or three" sips of the drink. After the first sip, he noticed that "it didn't taste right". RK gave evidence that he did not recall anything after those sips and believed he "blacked out" for a period. He was not able to recall or describe the length of time between consuming the drink and blacking out.
It was the Crown's case that the drink given to RK contained methylamphetamine and two sedatives, namely dexmedetomidine and hyoscine. Traces of all three substances were subsequently detected in RK's urine.
The appellant gave evidence that after he gave RK the drink, they smoked some ice. RK told the appellant that his ice tasted "shit" and that they then smoked RK's ice which was "very strong, good quality". After smoking RK's ice, the appellant had a sip of his "ice mate", which was in the kitchen. The appellant explained that 'ice mate' is a popular after-party drug from China that helps you "come down". He stated that ice mate has a very strong sour taste and that he offered some to RK, which RK declined. The appellant attempted to give RK a leg massage, which RK rejected. RK then fell asleep on the couch, on the appellant's account, and remained asleep until around 5:00am or 6:00am.
On RK's account, after having blacked out, he woke up and felt someone down the front of his pants. He could feel someone playing with his penis "as if they were trying to get it hard". RK both saw and felt the appellant playing with and masturbating his penis. This constituted Count 2 on the indictment. At the time, RK felt "so drugged [he] couldn't move" and "like [he] had absolutely no control over [his] body". He could not speak and believes he must have lost consciousness.
After a further period, RK woke again. He was lying on the floor. The appellant was yelling at him because he had "pissed and spewed" all over himself. RK noticed that his pants were undone, and his underpants had been pulled down, exposing his penis. RK said to the appellant, "[w]hat the fuck are you doing?". The appellant held RK down and said, "[i]t's okay. Your pants are undone." RK observed that he had vomit down his front and had urine extending down his pants and observed the appellant with a towel mopping it up.
RK tried to get up off the floor, but the appellant held him down by his chest. On his third or fourth attempt, RK managed to get up and the appellant stood in front of him to try to stop him from leaving. As RK was trying to leave, the appellant said to RK, "[y]our pants are undone and your phone's not charged". RK told the appellant to "[g]et the fuck out of [my] way" and said, "I can do my own fucking pants up". RK grabbed his mobile phone off the charger and saw that it was 94% charged.
By contrast, the appellant gave evidence that at around 5:00am or 6:00am, he realised that he had to go home because Sunday was his babysitting day as his wife started work early. He claimed to have woken RK up and said that RK was angry. He then offered RK a Coca-Cola, which RK drank before vomiting and urinating on himself. The appellant attempted to clean RK up with a towel and RK said, "[f]uck off you gay cunt. Don't touch my fucking cock". During his first interview with police, the appellant said that he did not touch RK's "private part" when doing so. However, the appellant later gave evidence that in attempting to take off RK's pants to rinse them in the bathroom, he may have accidentally touched RK's penis with or without the towel. He asked RK if he needed an ambulance, to which RK replied "no". He followed RK down the stairs and tried to help him zip up his pants. RK once again said, "[f]uck off you Asian cunt. Don't touch me".
RK rapidly left the appellant's apartment and ordered an Uber, at which time he said that he was "drooling, very weak, foaming from the mouth". After a period, the Uber arrived but the driver would not take him. RK then called his partner at the time, KU. KU talked him through the process of 'pin-dropping' his location to her as he did not know where he was. KU described RK as "hysterical" and "wailing and crying". KU called 000 and described RK's location and condition to the operator. A record of the phone contact between RK and KU showed that RK sent messages to KU which read "I need help" and "[p]lease answer" at 6:46am and 6:51am respectively, after which there were a number of calls. RK sat at a bus stop a short distance from the appellant's apartment and waited for police. He still felt "like [he] was very drugged". He reported drooling and felt like he could not close his mouth.
Police arrived at the scene a short time later and found RK at the bus stop. Senior Constable Paul was first to arrive at that location and described RK as "quite pale, he looked like he'd been crying, like, his eyes were puffy and red. He looked quite upset". RK gave an account of what had taken place the previous evening before being conveyed by ambulance to the Royal Prince Alfred Hospital where a Sexual Assault Investigation Kit (SAIK) examination was conducted by Dr Stewart.
At around 11:00am on Sunday, 6 August 2017, detectives arrested the appellant at his residential address in Russell Lea where he lived with his wife and two children. He was then taken to Burwood Police Station where he was interviewed. During the interview, the appellant confirmed various parts of RK's version of events.
In the course of the trial, the Crown sought to lead evidence in relation to a statement made by the appellant to Detective Senior Constable Makroglou on 7 August 2017, the day after he had been charged in relation to RK's complaint. The statement, as recorded by the Detective, was as follows: "On Monday 7 August 2017 whilst I was in office, I received a phone call from the accused. The accused told me the following which I recorded in my notebook. 'I am with my solicitor. We have looked at all the evidence. I am in big trouble. Please take it easy on me. I have two kids and a wife.' During further conversation, I asked the accused if there was anything on his mobile phone that would prove something towards this offence to which the accused replied: 'No. There is so much evidence against me, I will be honest with you. I have private things on there. Nothing illegal but private things.' I also noted this in my notebook. I then resumed my duties."
The admission of this material was objected to. The trial judge heard argument, delivered a separate judgment, and ultimately admitted into evidence the following portion of the appellant's statement, as recorded in Detective Senior Constable Makroglou's notebook: "I am in big trouble. Please take it easy on me. I have two kids and a wife."
An unsuccessful 'no case' application was made in relation to Count 1, it having been submitted that the Count should not go to the jury principally because, despite a police search of the appellant's apartment, no evidence was found of a can or drinking vessel containing traces of each of methylamphetamine, dexmedetomidine and hyoscine. For reasons best known to the Crown, it had cast its case on Count 1 very narrowly, binding itself to the case that all three substances were provided to RK by the appellant simultaneously in a drink, without RK's knowledge that the drink had been spiked with the three substances.

Count 3

The charge in relation to JG (Count 3) was different from those in relation to the other two complainants in that there was no allegation of 'drugging'. Further, the complainant did not give evidence that he had not consented to any sexual activity, but rather that he had explicitly limited his consent to the appellant masturbating him by hand and did not consent to the appellant fellating him.
The appellant gave evidence that he did not fellate JG and, as already noted, the appellant was acquitted in respect of Count 3. As will be explained, that acquittal, and the acquittal in respect of Count 4, has particular significance in relation to the appellant's second ground of appeal, which is to the effect that a miscarriage of justice occurred because of the prejudicial nature of the Crown prosecutor's closing address. The very fact of the two acquittals undermines that ground of appeal.

Counts 4-12

Counts 4-12 related to offences alleged to have been committed against MO on 22 and 23 September 2018.
On the Crown case the appellant and MO met on the dating app Tinder on 22 September 2018, the appellant having held himself out as a 'Lily' who agreed to meet MO for a drink. (Greater detail in relation to this pretence is set out at [78]-[81] below). 'Lily' arranged for MO to first attend an apartment to "help us practice sports massage" for her new sports therapy shop. MO was taken by Uber to the appellant's apartment where it was alleged that he caused MO to take methylamphetamine which the appellant held out to be Asian tobacco. It was the Crown case that the appellant then indecently and sexually assaulted MO whilst his cognition was significantly impaired and during which the appellant ignored MO's pleas for him to stop.
MO managed to seek and ultimately obtained the assistance of his close friend and ex-girlfriend, LH, through the surreptitious use of his mobile phone whilst some of the offences were taking place.
This led to LH attending the appellant's apartment where, despite the appellant's attempts to conceal MO's presence, she found MO on the balcony of the adjacent apartment. Police who attended the scene shortly thereafter found MO in that location naked, breathing hard, sobbing and rocking back and forth. There was both DNA and medical evidence from a SAIK examination consistent with MO's complaint in relation to the appellant.
In the course of his cross-examination, the prosecutor was able to extract from the appellant a significant number of concessions that he had told lies on a series of occasions, including as to his identity, his sexual activity with men, having previously met MO, and MO putting drugs in the appellant's bag. It was not surprising, therefore, in light of the clashes in the evidence between the appellant and each of the complainants in various key respects and the concessions obtained under cross-examination from the appellant in relation to various lies he had made, that the prosecutor emphasised these features of the appellant's evidence in his address to the jury.
As already noted, although the appellant was acquitted on Count 4 which charged that he had drugged MO, he was convicted on Counts 5-12.
It is said, on appeal, that the prosecutor went too far in what he said in his final address to the jury about the appellant's propensity to lie and that this, together with a number of other aspects of his address, resulted in a miscarriage of justice. This claim forms the basis of the second ground of appeal.
The first ground of appeal was that: (a) the trial judge erred in failing to find that there was no case to answer in relation to Count 1; (b) the verdict on Count 1 was unreasonable or cannot be supported on the evidence; and (c) the appellant's trial miscarried having regard to Count 1 being left to the jury or the Crown case being left on the basis that it was open to find that the appellant provided the complainant with methylamphetamine, or both.
Senior counsel for the appellant accepted that there was a very substantial overlap between (a) and (c) in the first ground of appeal, acknowledging that they were "close to" two sides of the one coin. It was also submitted that Counts 1 and 2 were so closely related that, if the ground of appeal in relation to Count 1 was made out, there should be an acquittal on that count and a retrial on Count 2.
The third ground of appeal was to the effect that the trial judge erred in allowing the evidence referred to at [23] above and relating to the charges involving RK to be adduced or, in the alternative, that a miscarriage of justice arose due to its admission.

Ground 1

Section 38(b) of the Crimes Act 1900 (NSW), which established the offence to which Count 1 related, provides that a person who causes another person to take an intoxicating substance with intent to enable himself or herself, or to assist a third person, to commit an indictable offence is guilty of an offence.
As has been noted, Count 1 on the indictment alleged that the appellant caused RK to take intoxicating substances, "being methylamphetamine, dexmedetomidine and hyoscine". The Crown opened its case with respect to Counts 1 and 2 on the basis that the appellant gave RK these three drugs, simultaneously by way of a drink in a single vessel when the appellant and RK had returned to the appellant's apartment.
There was evidence that all three substances were present in urine samples taken from RK later in the day following the alleged early morning assaults, although that evidence did not explain when, how or in what doses the drugs entered his system. As noted above, RK's evidence was that the appellant gave him a drink (which he described as a beer) in a stubby holder from which he took two or three sips before passing out. No stubby holder was found by police, nor was any can or other drinking vessel which contained methylamphetamine, dexmedetomidine and hyoscine found in the apartment. A cup was found in the appellant's kitchen which contained the latter two substances in a clear liquid, this being described by the appellant as an "ice mate", designed to be sipped following the smoking of methylamphetamine to moderate the impact of the methylamphetamine. Two ice pipes were also found in the apartment together with a bag of methylamphetamine in the kitchen of the apartment where the 'ice mate' cup was also found.
On the ninth day of the trial, the following exchange occurred between the trial judge and the Crown prosecutor: "HIS HONOUR: […] One thing I wanted to ask you, Mr Crown was this, the way the indictment is drafted at the moment in relation to count 1, it would seem to be necessary for you to prove that the accused caused [RK] to take all three substances? CROWN PROSECUTOR: Yes. HIS HONOUR: Whereas the section in the Crimes Act refers to "A substance", in other words-- CROWN PROSECUTOR: Indeed, and, your Honour, I had turned my mind to that. HIS HONOUR: But I seem to remember something - I haven't got on top of the evidence yet - but I seem to remember that there may be some dispute over for example the methamphetamine? CROWN PROSECUTOR: Well, as I understand, the evidence as it stands is, Dr Fu, such as her evidence was, was that the methylamphetamine had a negligible effect. That doesn't mean that it wasn't administered, and ultimately what the section contemplates is the administration of a substance and irrespective of whether or not-- HIS HONOUR: 'Did cause to be taken'? CROWN PROSECUTOR: Yes. HIS HONOUR: That's what the indictment says but my concern's a little different because count 1 requires you to prove the way it reads, that the accused administered or did cause to be taken by the complainant three separate substances. CROWN PROSECUTOR: Yes. HIS HONOUR: Now, what happens if the jury are only satisfied that dexmed and hyoscine were administered, not methylamphetamine? CROWN PROSECUTOR: Indeed. HIS HONOUR: And if they were to reach that conclusion, the way the indictment is currently drafted, they'd most likely have to acquit, whereas all you have to prove is one of those three. CROWN PROSECUTOR: Indeed, and I will be at some point seeking leave to amend the indictment so that it is simply 'substances.' HIS HONOUR: It would probably - the easiest amendment would be "Did cause to be taken by [RK] an intoxicating substance being methylamphetamine and/or dexmed" - however you pronounce that - "and/or hyoscine" so that it's some way that the jury will not think to find the accused guilty of count 1 that they have to be satisfied beyond reasonable doubt that all three substances were administered. CROWN PROSECUTOR: Indeed. Indeed."
Contrary to the indication by the Crown prosecutor, no application was made to amend the indictment in the way contemplated. Rather, the Crown cross-examined the appellant and closed its case with respect to Counts 1 and 2 on the basis that the appellant gave RK the three drugs simultaneously by way of a drink in a single vessel when the appellant and RK had returned to the appellant's apartment.
On day 12 of the trial, Mr Bellanto QC, then appearing for the appellant, made an application for a verdict of acquittal in respect of Counts 1, 2, 3 and 4. This application was refused. The essence of the application in respect of Count 1 was that there was no evidence that any can or vessel found in the apartment contained methylamphetamine, dexmedetomidine and hyoscine. Further, whilst there was a cup that contained dexmedetomidine and hyoscine, namely the 'ice mate', it contained no trace of methylamphetamine which was found in RK's system together with the other two drugs. This demonstrated that the liquid in the cup could not have been the source of the methylamphetamine that was found in RK's system. Nor was there any DNA of RK on the cup, nor was there any dexmedetomidine and hyoscine detected in any can found on the premises.
As Mr Bellanto put it: "[…] there was nothing in the unit that has traces of dexmed or hyoscine, apart from the liquid in the cup. But the problem with that is, there's no methylamphetamine in that liquid, or in that cup. So, that therefore means that whatever was in [RK]'s system, couldn't [have] got there from the liquid that was in the cup, because the three were all together."
This left open the possibility that the methylamphetamine found in RK's system was introduced to his system other than orally in a drink mixed with the other two substances. Mr Bellanto stressed that there was no evidence which explained how the appellant caused RK to consume the methylamphetamine as alleged.
The trial judge expressed his "view there is evidence taken at its highest which would prove each element of the offence beyond reasonable doubt and the application is rejected." On appeal, the Crown emphasised that this ruling was made on the basis of the state of the evidence then adduced in the trial and that its circumstantial case permitted inferences to be drawn from the following matters: i. Evidence that methylamphetamine, dexmedetomidine and hyoscine were detected in a urine sample taken from RK during a SAIK examination on 6 August 2017. ii. Various evidence of forensic pharmacologists. iii. RK's evidence that he did not voluntarily take drugs in the applicant's unit. iv. RK's evidence that he had not consumed drugs prior to attending the applicant's unit. v. RK's evidence that the applicant went to the kitchen and had his back to him for "maybe a couple of minutes" as he obtained the drink. The fact that it took the applicant some time to prepare the drink is itself some support for the conclusion that he added other substances to it. vi. RK's evidence that the drink he was given by the applicant "didn't taste right". vii. Evidence that each of the three substances (methylamphetamine, dexmedetomidine and hyoscine) were found in the applicant's unit during a crime scene examination conducted sometime after 4:00pm on 6 August 2017. Dexmedetomidine and hyoscine were found in a clear plastic cup behind the sink in the kitchen. The substance in the cup was a clear liquid. Methylamphetamine in crystalline form was found in two small resealable bags. viii. Evidence that each of methylamphetamine, dexmedetomidine and hyoscine can be consumed orally. Evidence that dexmedetomidine has the appearance of a colourless liquid is consistent with the appearance of the liquid in the clear plastic cup behind the sink. Dr Fu gave evidence that methylamphetamine, in crystalline form, dissolves into liquid and could therefore be drunk.
Prior to final address, in the course of discussion of proposed jury directions, the following exchange occurred: "BELLANTO: Your Honour, I go back to a more fundamental problem. The Crown must prove the trifecta: they must prove that the accused caused [RK] to take the methylamphetamine, the dexmed and the hyoscine, because it's in the indictment it's alleged and it's in a cocktail allegedly that the accused gave [RK]. Now your Honour-- HIS HONOUR: Do you accept that Mr Crown? CROWN PROSECUTOR: Yes. BELLANTO: And that's how the Crown opened and that's what the Crown must prove. So it really gets back to my no case submission, that the Crown cannot prove it and in fact my position now is that I'm still entitled to a directed verdict on the basis that now that all the evidence is in, all the evidence is in, the Crown cannot prove that the cocktail of the three drugs was caused to be ingested-- HIS HONOUR: We've had this argument. BELLANTO: I know, but-- HIS HONOUR: You can run it again somewhere else if necessary."
That is what in effect is being done by way of grounds 1 (a) and (c) of this appeal.
In my view, whether or not Count 1 should have been left to the jury or a verdict of acquittal directed, ground 1 (b) is made good in any event and the verdict on Count 1 was unreasonable in the requisite sense as determined by the authorities summarised by Bathurst CJ in Dickson v R at [84]-[86] as follows: [1] "84 The principles on which a court will set aside a verdict as unreasonable are well established. In SKA v The Queen (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 The Queen (1994) 181 CLR 487; [1994] HCA 63 at 492-494; [1994] HCA 63, 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 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 The Queen (2002) 213 CLR 606; [2002] HCA 53 at [59]. 85 As was pointed out by Hayne J in Libke v The Queen (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]."
The independent assessment of the evidence required to be undertaken must be undertaken by reference to the particular manner in which the charge was formulated. As stressed by Mr Bellanto at first instance and by Mr Walker SC on appeal, for whatever reason, the Crown tied itself to a case which entailed all three intoxicating substances, methylamphetamine, dexmedetomidine and hyoscine, being imbibed simultaneously by RK in a single drinking vessel. The 'ice mate' cup cannot have been the relevant vessel as it only contained dexmedetomidine and hyoscine. No other vessel was found in the appellant's apartment containing traces of any of the three substances. Only one can of Wild Turkey was found, and it contained no liquid containing all three substances. No analysis for DNA or fingerprints was carried out on the two ice pipes found in the apartment.
The Crown appeared to suggest on appeal that it was possible that the vessel had been disposed of by the appellant prior to the police searching his apartment. Such a contention was never put to the appellant and it is in any event somewhat implausible as, although the appellant gave evidence that he tidied up the apartment before he returned to his family home after RK had left the apartment, that tidying up did not extend to disposing of methylamphetamine which was found in his kitchen, two ice pipes nor the cup of 'ice-mate' which contained the two sedative drugs. One would have expected that if the appellant had sought to dispose of incriminating evidence because he was fearful of a visit from the police, all of these items would have been disposed of as well.
A further matter much emphasised on appeal and contrary to the 'cocktail' case theory of the Crown and the requirement, to use Mr Bellanto's colourful phrase, of the need to establish the "trifecta", was the evidence that RK passed out almost immediately after having a sip or two of the drink given to him by the appellant. It was submitted that the characteristics of methylamphetamine were biphasic and that the initial impact was "excitatory" or stimulatory, such that passing out almost immediately after taking methylamphetamine was not consistent with the toxicological evidence. RK's evidence of passing out almost immediately was therefore only consistent with him having consumed methylamphetamine (whether orally or by smoking it) some time before he took the drink from the appellant, and whether at an early stage at the apartment or before accepting a lift from the appellant and travelling to the apartment.
The appellant's submission on appeal in this regard was as follows: "[RK] described passing out immediately after taking a few sips, but the evidence was in fact that this was not what methylamphetamine would have done. The evidence was that methylamphetamine was a recreational drug used as a 'stimulant' that, in small doses, provided a person with 'energy, activity [and] euphoria' and, in large doses, 'aggression', 'risk-taking activity' and hallucination: Fu XN, Day 6, T412.1-10. After some time, the drug creates a 'withdrawal phase' where a person feels tired and lethargic: Fu XN, Day 6, T412.10-25. Between the two phases is, dependent on the dose, around 1 to 2 days for an experienced user and 12 hours for an inexperienced user: Fu XN, Day 6, T437.31-37."
A particular and strong attack was made on the evidence of the pharmacologist, Dr Fu, which was to the effect that only a small amount of methylamphetamine was found in RK's urine, which it was said was suggestive of only a very small dose having been taken (and thus, at least impliedly, providing some explanation for the excitatory effect of the drug being overwhelmed by the sedative nature of the other two drugs). This was attacked on two bases: first, it did not take into account that a urine sample will be less reliable where the person has urinated a number of times prior to the sample being taken (as was the case with RK). Secondly, it was submitted that, had the appellant's intention in truth been to sedate RK, he would scarcely have added a stimulatory drug.
The Crown's only fallback, apart from impermissibly implying that the appellant had disposed of the relevant evidence in circumstances where the Crown prosecutor at trial had not put that to the appellant (see, for example, Ritchie (a pseudonym) v R at [66]-[67]), [2] was to contend that, notwithstanding the absence of key evidence relating to how RK came to have methylamphetamine in his system, it was open to the jury to infer that the appellant had slipped it into RK's drink. Given the state of the evidence and the absence of key inculpatory evidence such as a vessel containing traces of all three intoxicating substances coupled with the toxicological evidence, to have so found would have involved improper speculation or conjecture rather than logical inference. Chief Justice Spigelman in Seltsam Pty Ltd v McGuiness at [85] held that "[a] conjecture may be plausible but is of no legal value, for its essence is that it is a mere guess" as opposed to "a reasonable deduction [that] may have validity as legal proof". [3]
Given the inferential nature of the Crown's case, this is not a case where particular deference needs to be given to advantages enjoyed by the jury.
The conviction of the appellant on Count 1 should therefore be set aside, and an acquittal directed in respect of that Count.
A new trial should be ordered in respect of Count 2 because it is clear that the Crown and no doubt the jury placed heavy reliance upon the conclusion that RK had been drugged in the way particularised in relation to Count 1 in order to negative any issue of consent in respect of Count 2.
I do not, however, consider that wrongful conviction on Counts 1 and 2 necessitates a retrial in respect of Counts 5-12. This is for the reason that the jury acquitted the appellant in respect of Count 4 which concerned the allegation of drugging of MO. The jury was plainly able to differentiate between the charges raised in respect of MO from those involving RK and reached its guilty verdict in relation to the assault and sexual assault charges in relation to MO on the basis that he had not first been drugged by the appellant. The jury's acquittal of the appellant in this regard was perhaps not surprising given the fact that some of the evidence inconsistent with the appellant's denials of non-consensual fellatio, for example, was surreptitiously filmed by MO on his mobile phone whilst he was being assaulted, and medical evidence corroborated some of MO's account as to certain sexual assaults.
The acquittal of the appellant in respect of Count 3 relating to JG, albeit not a charge involving drugging, also illustrates the jury's ability to differentiate between charges including between charges relating to different complainants.
It is convenient, before turning to ground 2 which relates to the address of the Crown prosecutor, to deal with ground 3 which related to the admission of the appellant's statement "I am in big trouble. Please take it easy on me. I have two kids and a wife": see at [23] above. This statement was made on the day after the alleged assaults on RK and almost a year prior to the events giving rise to the charges in relation to JG, and approximately 13 months prior to the events giving rise to the charges in relation to MO.
The evidence the subject of the third ground of appeal did not and logically could not have related to those much later events and no suggestion was made that it did or that the jury could have been confused in this regard. Given the appellant's success under ground 1, it is not strictly necessary to rule on ground 3. In this context, I am satisfied that the admission of the statement did not occasion a miscarriage of justice in relation to Counts 5-12 in respect of which the appellant was convicted so as to warrant the ordering of a retrial on those counts.
Insofar as there will be or may be a retrial in relation to Count 2 unless the Director of Public Prosecutions elects not to proceed in relation to this charge, it will be for the trial judge hearing the fresh trial proceedings to determine whether the pre-trial order should be revisited in accordance with s 130A of the Criminal Procedure Act 1986 (NSW). That exercise, which will involve considerations of probative value and prejudicial effect of the statement, must be undertaken in the light of the facts and other evidence adduced or likely to be adduced on any retrial. For this reason, there is no utility in otherwise dealing with the third ground of appeal in these reasons.

Ground 2

The second ground of appeal which, if made good, would result in the need for a retrial of Counts 2 and 5-12, was that the trial miscarried by reason of the improper closing address by the Crown prosecutor.
The detail of this ground was set out in the appellant's written submissions in support of the appeal. Thus, it was contended that the closing address: "a. contained various submissions that were not based in evidence or were misleading as to the evidence; b. was replete with intemperate or inflammatory comments tending to arouse prejudice or emotion in the jury; c. contained comments which belittled or ridiculed parts of the [appellant]'s case; d. impugned the credit of the [appellant] in a way that was unfair; and e. in relation to what was known to be at the very least a serious gap in the Crown case on Count 1, obscured the issue rather than assisted the jury."
This was further elaborated as follows: "When read in totality, and as set out in turn, the Crown closing: a. opened its closing address by portraying the [appellant] without foundation as being 'shameless' in his actions […]; b. portrayed the [appellant] without foundation as a person who lied continually, effortlessly and seamlessly, including suggesting certain lies permitted consciousness of guilt reasoning; c. portrayed the [appellant] without foundation as a 'psychopath'; d. made submissions that suggested the complainants were not the only victims of the [appellant]; e. made submissions that were misleading or distracting in relation to the evidence adduced in relation to the [RK] counts; and f. made submissions that were misleading or distracting in relation to the [MO] counts."
It will be necessary to deal with each of these matters separately before assessing their collective or overall effect, or impact on the trial for the purposes of resolving the ultimate question raised by the second ground of appeal, namely whether, to the extent that the above complaints are individually or severally made good, the prosecutor's closing address occasioned a miscarriage of justice.
Before turning to a more granular analysis, the context for the submission and suggested framework for the analysis was the decision of this Court in Livermore v R at [31]-[32]: [4] "31 This brief review of the authorities relevant to the disposition of this appeal disclose a number of features of a Crown address that have, either alone or in combination, consistently been held to justify the censure of this Court. They are: (i) A submission to the jury based upon material which is not in evidence. (ii) Intemperate or inflammatory comments, tending to arouse prejudice or emotion in the jury. (iii) Comments which belittle or ridicule any part of an accused's case. (iv) Impugning the credit of a Crown witness, where the witness was not afforded the opportunity of responding to an attack upon credit. (v) Conveying to the jury the Crown Prosecutor's personal opinions. 32 In distilling these features, it is not suggested that a formulaic approach may be taken in assessing whether or not a Crown address exceeds the proper boundaries. On occasions, it may be that the overall tenor or impression made upon a jury by a Crown address which exhibits few, if any, of these features nonetheless gives rise to the prospect that an accused has not received a fair trial. However, where a number of these features are present in a Crown address, there is a very real risk that a ground of appeal based upon the unfairness occasioned to an accused by such an address will succeed."
The appellant also referred to the decision of the Victorian Court of Appeal in Ford (a pseudonym) v The Queen, [5] which held at [30] that there was "a particular danger of unfairness in a case such as the present, where intemperate language on the part of a prosecutor may be seen as amounting to an attack upon the accused", as well as to Bugeja v The Queen at [57], [6] where Weinberg JA had made a similar observation, adding that the prosecutor must not, in closing address, "invite the jury to proceed upon a theory which is known to be, at the least, highly dubious, and has the very real potential to mislead the jury". [7]
The Crown is neither "prohibited from forcefully and firmly putting the prosecution case to the jury", nor "firmly calling upon the jury to reject defence evidence or a defence case as inherently unbelievable". [8] In the same case, it was said that "speaking generally, every advocate in criminal or civil proceedings is entitled to mount a firm attack on the evidence and submissions (with regard to matters of both fact and law) placed before the court by his or her opponent". [9]
Where questions of language and tone are concerned, elements of degree and subjectivity may intrude. [10] As the Victorian Court of Appeal recently observed in Ritchie at [80], "there is, and should be, scope for a prosecutor to engage in the arts of advocacy in advancing the case on behalf of the Crown". That having been said, the Court went on to observe that "the prosecutor must not resort to language that is intemperate or emotive, so as to impermissibly distract the jury from its duty to rationally consider the evidence that has been put before it". [11]
Also to be noted is the recent observation of Basten AJA (with whom Price and N Adams J agreed) in Crockford v R at [79]: [12] "It is undoubtedly true that emotive language should be avoided wherever possible. However, in circumstances where the prosecution requires the jury to conclude that a defence fails to give rise to the level of a real possibility, it is inevitable that the prosecutor must rely upon stronger language than that of improbability or unlikelihood. In most cases, the impropriety of ridicule will be based upon a failure to ground the particular submission in the evidence. In the present case, the prosecutor was careful to link the statements complained of to specific aspects of the evidence."
It should also be borne in mind that, where 'intemperate language' or 'inflammatory comments' are made, experienced defence counsel might be expected to object and/or the trial judge might be expected to intervene, although such an expectation must not be used as a basis or excuse for a prosecutor overstepping the mark of prosecutorial propriety and compromising his or her duty to the court and the administration of justice. Defence counsel's final address or the trial judge's summing up may also be used to correct or neutralise any unfairness that has arisen as a result of an over-zealous prosecution address. One consequence of the fact that defence counsel could have raised an objection to intemperate or inflammatory language and sought a discharge of the jury but did not is that, on appeal, leave to appeal under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) is required. [13] The requirements of r 4.15 and its antecedent r 4 are not mere technicalities and there are sound reasons of policy underpinning the requirement of leave. [14]
Even where a prosecutor has departed from the peculiar and important constraints of his or her office and duty, appellate intervention will generally only be warranted where the prosecutor's conduct has so distracted the jury from its essential task of determining the guilt or innocence of the accused that, as a consequence, the accused has been denied his or her right to a fair trial. [15] The acquittal by a jury of an accused on some charges but not on others will often be consistent with or evidence of the fact that the jury has been able to discharge its proper duty notwithstanding prosecutorial overreach. [16] An appellate court must consider, and ordinarily need to be satisfied of, "a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial" in order to find a miscarriage of justice. [17]
With these principles in mind, I turn to the six 'particulars' of alleged prosecutorial misconduct or overstatement relied upon by the appellant.

Reference to appellant as "shameless"

The statement from the beginning of the Crown prosecutor's address upon which the appellant fixes are the words emboldened in the extract below: "Members of the jury, when Mr Bellanto QC opened to you on 3 March 2020 he said the following: "Our client is a married man with a couple of kids and he in a sense led a double life. The world of duplicity and double lives is not confined to James Bond movies of spies and espionage. It's far more serious than that, as this case clearly demonstrates. This case in a sense opens up the shame and the guilt of an outwardly married man, family man, and his secret life of a sexual attraction to young men. That's not a crime." Members of the jury, this case doesn't open up the shame of an outwardly married man. This trial opens up the accused's shamelessness in how he manipulated situations for his own sexual gratification in relation to Caucasian straight men."
When viewed in its full context, that is to say, immediately following the quotation from Mr Bellanto's opening address, the complaint made on appeal is a weak one. The Crown prosecutor was picking up a term employed by defence counsel and rhetorically turning it on its head by contrasting "shame" with "shamelessness", with a view to highlighting part of the Crown case as to the appellant's manipulation of situations for his own sexual gratification. The appellant complains that this remark "went not to matters of fact but of emotion and prejudice". I do not agree.
There was uncontradicted evidence in the case that the appellant was a manipulator of situations to that end. This is illustrated by various undisputed facts lying behind the charges upon which he was convicted in respect of MO. Thus, MO was a French National who had been in Australia since February 2018 on a working holiday visa. He had travelled to Australia with his then girlfriend, LH. They lived together for a period in Australia. They separated prior to the incident but remained close friends.
At around the time of the alleged offences, MO used the dating app, Tinder. He put on his profile that he was a heterosexual male looking to meet a woman. On 22 September 2018, he 'matched' with a person named 'Lily'. 'Lily' had two photographs on her profile. The first depicted a woman wearing school clothes or university clothes. The second depicted a woman having a drink at the bar at some kind of party.
The appellant stated in evidence that he had a female Tinder profile and used various names, including 'Lily'. He asserted that his "target market" was from age 20 to 28 years and "male, good looking, Caucasian, sporty". The appellant stated that he arranged to meet men for sex through Tinder. He stated that before they came into his apartment, he would reveal that he was male and would offer money in exchange for oral sex. He asserted that if the men rejected his offer, he would not use physical force and that he did not at any stage cause the men to take drugs without their knowledge.
A record of the messages exchanged between 'Lily' and MO showed that 'Lily' invited MO to her place to "help us practice sports massage". She arranged for an Uber to pick MO up, told MO that he would be met by a person called "Pei", and provided him with the address which was in Drummoyne. 'Lily' sent a message telling MO that she would meet up with him for a drink once he had finished the massage and said that she would bring a friend as well. MO then received a text message from 'Pei'. An Uber arrived and took MO to Russell Lea. During the journey, 'Lily' and MO kept messaging via Tinder. 'Lily' messaged MO stating, "Pei is professional, my ex-boyfriend likes it a lot."
Once MO arrived, 'Pei' messaged him with instructions as to how to get to the apartment. MO saw a man on the balcony of an apartment who identified himself as 'Pei'. MO was surprised as he thought 'Pei' was going to be female. It was not in dispute that the appellant pretended to be both 'Lily' and 'Pei'. This pretence was plainly designed to deceptively attract males to the appellant's apartment. The use of the word "shamelessness" in the Crown prosecutor's early remarks in closing address was robust and may have been a rhetorical indulgence, in linguistic counterpoint to the passage from Mr Bellanto's opening which the Crown prosecutor had quoted. It was not without a basis in the evidence, however, and the appellant could not avoid comment on his modus operandi in attracting heterosexual men to his apartment, especially in circumstances where his credibility was squarely in issue in the trial.
It was also submitted that the Crown's remarks were "even more prejudicial" because they highlighted the word 'Caucasian'. As already noted, however, the appellant gave evidence that his "target market" was from age 20 to 28 years and "male, good looking, Caucasian, sporty". In other words, the Crown prosecutor was using the language which the appellant himself had used in his evidence. The prosecutor cannot fairly be criticised for having done so.

Portrayal of appellant without foundation as a person who lied continually, effortlessly and seamlessly

The appellant argued that the Crown addressed the credibility of the appellant in a manner that went beyond a full and forceful submission as to the appellant's credibility, and treated the appellant's lies in a manner that was exaggerated, calculated to incite emotions, and which at least implicitly suggested that the lies went beyond a credibility purpose to consciousness of guilt reasoning.
It was not in dispute at trial that the appellant had lied extensively, not only to police in the recorded interviews but at other stages of the investigation. The Crown submitted that it was not an exaggeration to describe the interviews as "replete with lies" or to suggest that it was open to the jury to conclude, having watched the interviews, that the appellant lied "seamlessly". Both were matters which, if accepted, bore on a proper assessment of the appellant's credibility. The Crown prosecutor invited the jury to view the videos of the interviews themselves and to make an assessment of the appellant's demeanour when he uttered what the appellant later accepted (and what the evidence otherwise proved) were lies.
In oral address on appeal, Mr Walker accepted that it was open to the Crown to draw attention to lies which the appellant had told both to the complainants as well as to the police but submitted that the appellant's complaint in relation to the Crown prosecutor's address went to the "manner and extent" of the prosecutor's reference to the appellant's lies.
Reference to the fact that a person had told lies and especially lies which were designed to deceive unknown people into coming to the appellant's apartment, were of themselves likely to be prejudicial, but any prejudice was not unfair prejudice in a context where credibility was squarely in issue in relation to the circumstances in which RK and MO had come to be at the appellant's apartment. It was perfectly legitimate for the Crown prosecutor to put emphasis upon the appellant's lies, and it was not suggested that the reference to such lies was without foundation.
As Mr Walker accepted, questions of degree were necessarily involved and an appellate court, in forming its own impression, must bear in mind that experienced defence counsel made no objection to the fairness of the Crown prosecutor's address, nor did the experienced trial judge invite the Crown to modify the references to the extent of the appellant's lies.
There was also (and quite properly) no submission made by the appellant that the Crown explicitly linked the appellant's telling of lies to consciousness of guilt on the appellant's part. Nor, in circumstances where credibility was very much in issue, can it fairly be concluded that there was some deliberate albeit indirect attempt to advance such an argument by implication to the jury.
The Crown prosecutor made it clear that the lies told by the appellant were matters relevant to an assessment of his credibility and reminded the jury more than once that if they rejected the appellant's evidence, they should put it aside and consider the Crown case. There was one respect in which the Crown submitted that the jury could engage in consciousness of guilt reasoning. That related to Count 3 and concerned the payment by the appellant of $270 to JG so that he did not go to the police. In contradistinction to his treatment of lies, the Crown prosecutor specifically identified the payment of that money as giving rise to a consciousness of guilt on the part of the appellant. Even then, as has been noted, the appellant was acquitted on Count 3.
To the extent that it was submitted that there was no factual foundation for the proposition that the appellant was someone who lied with "facility", "great dexterity" and "ease", it was, in my view, open on the evidence and in light of the principles considered above, for the prosecutor to make this submission.
The Crown properly conceded that the submissions made by the Crown prosecutor in relation to lies were, in some respects, repetitious. That is so, but the degree of repetition was not such in my view as to make good a charge of prosecutorial impropriety, still less impropriety which resulted in the appellant being deprived of a fair trial. His acquittal in relation to Counts 3 and 4 is a powerful demonstration of the fact that the jury gave anxious consideration to each of the charges and was not overborne by any excessive advocacy on the part of the Crown prosecutor in the address to the jury.

Portrayal of appellant without foundation as a "psychopath"

In the course of his evidence, MO was asked why he did not confront the appellant (who he then knew as 'Pei') with the allegation that he was also 'Lily', the person with whom MO had been communicating via Tinder. MO replied, "[b]ecause I don't really know how a psychopath will react".
The Crown prosecutor quoted the question and answer in his closing address before observing that: "Now in his mind, in [MO] 's mind, he was in a situation that was unfamiliar ...". The point being made here was that MO refrained from confronting the appellant with his suspicion because he regarded him as unpredictable.
The next reference in the Crown prosecutor's closing address to MO's description of the appellant as a psychopath is in the following passage: "In [MO]'s mind, he didn't know who he was calling. He was concerned. As he said, 'I don't know what a psychopath will do.' And the notion of a psychopath - well, you saw the body worn camera and when [MO] turned up, he talked about the fact that his eyes were wired and he had energy. What do we see in the body worn camera? Something similar; his eyes are wired, that's what I say it's shambolic."
This is the extent of the references to the appellant as a psychopath in the Crown prosecutor's closing address. Those references in two of the three cases are direct references to MO's perception of the appellant in the context of explaining MO's interactions with the appellant and were taken directly from MO's evidence. The third reference, that of the Crown prosecutor, was designed to link the term "psychopath" with MO's perceptions of the appellant's presentation, namely his eyes being "wired" and the appellant being "full of energy". This was the Crown prosecutor's description of what could be seen on the camera referred to in the address.
It was legitimate for the Crown prosecutor to make reference to this part of MO's evidence. The Crown prosecutor did not portray the appellant as a psychopath by repeated references to that term which, as has been seen, derived directly from MO's evidence.
The appellant proceeded in his written submissions in this Court to reference a number of physical descriptions of RK and MO in the aftermath of their encounters with the appellant. These, too, were derived from the evidence that had been adduced in the case. It is difficult to discern how these references support an attack on the Crown prosecutor's reference to MO's description of the appellant as a psychopath. In any event, there was nothing improper, in my assessment, in the Crown prosecutor's reference to the demeanour and presentation of RK and MO in the immediate aftermath of the offences. Those references, supported by the evidence, were an important part of the contextual evidence in circumstances where the credibility of both witnesses was a critical fact in issue in the proceedings.
This did not involve the "portrayal" of the appellant as a psychopath, as was submitted on his behalf, nor does a review of the Crown prosecutor's address sustain the description proffered by Mr Walker, namely that there was a "deliberate choice [by the prosecutor] to dwell on this expression".

Submissions suggesting that complainants were not the appellant's only victims

The appellant submitted that "[t]he Crown made a number of submissions, including by reference to the tendency evidence adduced, that were inflammatory and suggested that the three complainants in the present case were not the only victims". Some six examples of this were given.
The first example was by reference to the following passage: "The accused intended on helping [RK] only because the opportunity presented itself. [RK] had a flat phone, needed help. The accused went into opportunity mode, and it, like all his other deception, he made use of it." The reference to "all his other deception" in this passage was not (or not obviously) a reference to other victims at all, but rather was a reference to the appellant's propensity for deceptive behaviour. There was a plain basis for a submission that the appellant engaged in significant deceptive behaviour, as has been explained above. But, for the purposes of this aspect of the argument, this passage from the Crown prosecutor's address did not imply that there were additional victims in respect of uncharged offences.
The Crown also submitted in relation to the passage complained and two of the other examples given by the appellant in this context, that "[i]t was an orthodox submission in circumstances where one of the tendencies alleged was a tendency to have a sexual interest in straight men and to act on it by deceiving men he believed to be straight into attending his premises under false pretences." The Crown pointed out that the appellant did not dispute that he had such a tendency but denied that he had engaged in deception in the case of RK. The Crown submitted on appeal that it was the Crown case at trial that the jury could and should use proof of the tendency in question to reason towards guilt in a manner consistent with the directions that were given. In this context, there was no complaint about those directions and the Crown prosecutor's argument was perfectly open and legitimate.
There was something of an artificial dichotomy sought to be drawn by Mr Walker, for the appellant on appeal, between the acts of the appellant in luring men to his apartment by false pretences and the acts of assault alleged, it being contended that the luring of men to the apartment were not part of the charges laid. In my view, although that was strictly correct, the circumstances in which various men came to find themselves in the appellant's apartment was a live issue in the proceedings, the subject of contest in the case of RK, and the use of the tendency evidence was perfectly legitimate.
The next example supplied, and the subject of complaint was that: "Then you have the Cellebrite downloads. It is the accused who offers drugs to people. Those Cellebrite downloads are replete with messages that show the accused to be a person who offers drugs in exchange for sex, and bear in mind you only have a representative number, you don't have the entire download."
It was not suggested that this was not an accurate statement, nor that it was irrelevant or improper to make reference to this aspect of the evidence that had been admitted in the trial. The criticism of this passage further dissipates when its context is properly appreciated. As the Crown pointed out on appeal, the passage formed part of a series of submissions which addressed why the jury should reject the appellant's version of what took place on 22 and 23 September 2018 involving MO and, in particular, the suggestion that MO was a drug dealer. The evidence went to why the jury should accept the evidence of MO that this was not the case.
A further instance given by the appellant in support of this aspect of his complaint was the Crown prosecutor's submission that "[h]e lied to a number of police officers. He has lied for years on social media, holding himself out to be a different person." This statement does not in terms nor, in my opinion, by implication, support the submission that the Crown prosecutor was suggesting that the complainants were not the appellant's only victims. Rather, it was reflecting an undisputed fact in a case where the appellant's credibility was squarely in issue.
The remaining examples relied upon by the appellant were, when viewed in their full context, plainly submissions which emphasised the strength of the tendency evidence, with the Crown prosecutor emphasising that none of the men whose evidence was relied upon for the purposes of the tendency notice knew each other. Even though there had been no suggestion of concoction, this was a legitimate point to make, and not unfairly prejudicial to the appellant.

Submissions that were misleading or distracting in relation to RK

On this leg of the argument, the appellant repeated many of the submissions that were made in relation to Count 1. It is unnecessary to traverse each of the submissions for a number of reasons. First, the appellant has succeeded in relation to Counts 1 and 2 but secondly and related to this matter, the jury was evidently not distracted from its task more generally by what had been submitted in relation to RK as evidenced by its acquittal in relation to Counts 3 and 4.
In any event, the submissions advanced by the appellant are in essence specific or pedantic criticisms made in respect of particular aspects of the evidence, rather than of improper prosecutorial conduct. The mere fact that a submission may not be accepted or is contradicted by other evidence does not translate it into a submission that was either not open or improperly advanced.
An example of a pedantic criticism advanced by the appellant in this regard was as follows: "The Crown submitted that FASS witness Glen Hansen said that he understood FASS had 'never detected dexmedetomidine and hyoscine before' (Crown Closing, Day 16, T1003. 7-9) and that they were 'very unusual substances' (Hansen XN, Day 5, T361.33-43). This evidence, however, was given in circumstances where those drugs were not picked up in the course of normal testing; it was only after a particular request was made to screen for those drugs that they were detected with more a more sensitive technique (Hansen XN, Day 5, T359.26-30, T361.3-25)."
An example of a tenuous (bordering on tendentious) criticism of the Crown prosecutor's closing address was as follows: "The Crown suggested to the jury that the reason he wanted [RK] out of the house was because the [appellant]'s wife had cafe duties (Crown Closing, Day 16, T1006.38-45), when in fact they were simply propositions accepted by the [appellant] in cross-examination (Accused XXN, Day 15, T899.31)."

Submissions that were misleading or distracting in relation to the MO counts

Under this heading, the appellant's attack was upon a reference to a piece of evidence during the closing address, which reference is said to have implied that the appellant had sought to destroy evidence in relation to MO.
It was not suggested that this was put explicitly and, most significantly, the destruction of any evidence, even if implied (which I do not think it was), would have related to Count 4 (the drugging charge in relation to MO) in respect of which the appellant was acquitted. This fact alone negatives any basis for a submission that this aspect of the closing address contributed to the denial of a fair trial.
It should also be pointed out that the passage of the closing address relied upon by the appellant occurred on the 23 March 2020. The prosecutor's closing continued the next morning but prior to its continuance, the trial judge sought clarification in relation to a number of matters arising out of that address to that point in time. The appellant's extremely experienced defence counsel did not raise any objection in relation to the matter now sought to be agitated as part of the attack on the Crown prosecutor's closing address.
A second feature of the appellant's submission in relation to MO related not to the Crown prosecutor's closing address at all but rather to questions that had been put to the appellant during his cross examination. Criticism of these questions cannot sustain an attack on the propriety or otherwise of the prosecutor's closing address. And in any event, the attack on those questions related to the suggested provision of drugs by the appellant to MO. As noted above, however, Count 4, which related to the alleged drugging of MO, was rejected by the jury.

Conclusion in relation to ground 2

I would refuse leave to raise ground 2 on the basis that leave is required under r 4.15. Even if such leave is not required, I would dismiss ground 2. The Crown prosecutor's closing address did not exceed the proper boundaries of prosecutorial propriety and no miscarriage of justice occurred as a result of the manner and form of that address. The jury's constitutional function was not compromised.

Conclusion and Orders

I would make the following orders: 1. To the extent necessary, grant leave to appeal other than in respect of the second ground of appeal. 2. Set aside and quash the appellant's conviction in respect of Count 1 and direct a verdict of acquittal in relation to Count 1. 3. Order a new trial in relation to Count 2. 4. Otherwise dismiss the appeal in relation to Counts 5-12. 5. Remit the proceedings to the District Court for the resentencing of the appellant in light of his acquittal on Count 1. 6. Matter to be listed in the District Court Arraignment List at 9.30am on Friday 9 September 2022.
MITCHELMORE JA: I agree with the Chief Justice.
YEHIA J: I also agree with the Chief Justice.

Endnotes

(2017) 94 NSWLR 476; [2017] NSWCCA 78.
[2019] VSCA 202 ("Ritchie").
(2002) 49 NSWLR 262; [2000] NSWCA 29 citing Jones v Great Western Railway Co (1930) 144 LT 194 at 202 (Lord Macmillan).
(2006) 67 NSWLR 659; [2006] NSWCCA 334.
(2020) 63 VR 405; [2020] VSCA 162.
(2010) 30 VR 493; [2010] VSCA 321.
Bugeja v The Queen at [63].
Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330 at [269].
Hughes v R at [274]. See also FX v R; GX v R (2020) 290 A Crim R 31; [2020] NSWCCA 189 at [344], [347]-[348]; Zurshig v R [2021] NSWCCA 309 at [121].
Cf Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [2], [37].
Ritchie at [80].
[2022] NSWCCA 115.
See Zurshig v R at [121]. See also Lyndon v R [2014] NSWCCA 112 at [28]-[29]; Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [121]; Medich v R [2021] NSWCCA 36 at [178]-[180].
Roach v R [2019] NSWCCA 160; (2019) 344 FLR 429 at [35]-[42].
Whitehorn v R (1983) 152 CLR 657; [1983] HCA 42 at 664.
Libke v The Queen at [83].
Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937 at [115]. 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. Decision last updated: 31 August 2022

Crimes Act 1900(NSW)s 38(b)

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