Yu v R

Court of Criminal Appeal (NSW)|2018-08-17|Before: Hoeben CJ, White JA, Fagan J, Studdert JJ

Solicitors: Uther, Webster & Evans Solicitors (Applicant) Director of Public Prosecutions (Crown) File Number(s): 2015/188578 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: n/a Date of Decision: 21 September 2017 Before: Wass SC DCJ0 File Number(s): 2015/188578

Judgment

HOEBEN CJ at CL: I agree with White JA. Because the issue was not fully argued before us, and because leave should be given under rule 4 if valid, I prefer not to express any opinion as to its validity.
WHITE JA: On 17 August 2018 the Court made the following orders: "1. To the extent necessary give leave to the applicant pursuant to r 4 of the Criminal Appeal Rules to appeal on the grounds contained in the draft notice of appeal. 2. Order that the appeal be allowed and that the appellant's convictions on counts 2, 3 and 4 on the indictment be quashed. 3. Quash the sentence imposed on the appellant on 21 September 2017."

The charges

The complainant and the applicant met at the beginning of May 2015 and started to see each other regularly in the context of an intimate relationship. On 31 May 2015 they were together at the applicant's house. The applicant agreed that he assaulted the complainant. On any version of events he suddenly became angry and hit the complainant causing injury to her face and to her knee as a result of her falling after being hit. This was the subject of count 1 that charged the applicant with the offence of assault occasioning actual bodily harm. He was convicted of that offence.
The events that led to counts 2 to 9 on the indictment took place over the evening of 25 into the morning of 26 June 2015. On the evening of 25 June 2015 the applicant and the complainant saw a film together. They returned to the applicant's house. They were alone. During the night sexual intercourse took place. The applicant contended that all of the sexual intercourse was consensual.
It was the Crown's case that the complainant went to sleep in the bedroom wearing her singlet and underpants and was awoken by the applicant who asked her to take her top off which she refused to do. It was the Crown's case that the applicant removed the complainant's clothes she was wearing by force and indecently assaulted her. The applicant's evidence was that the complainant took off her top and assisted the applicant to remove her underpants, before consensual foreplay. This was the subject of count 2.
The applicant was convicted on count 2. He appealed or sought leave to appeal from that conviction.
It was an essential ingredient of the Crown's case on count 2 that the Crown establish beyond reasonable doubt that the complainant did not consent to the acts said to constitute the assault and that the applicant knew that she had not consented, or was recklessly indifferent to whether or not she had consented.
The primary judge directed the jury that the elements of the offence were set out in the indictment. Her Honour said: "The first one is in count 2 and that requires you to determine whether or not the Crown has proved beyond reasonable doubt two things; (1) whether or not the accused assaulted the complainant, that is, whether or not the applicant assaulted Ms Yang, and (2) at the time of that assault committed an act of indecency upon her. ... but can I deal with the second element perhaps first. The second element means that you must be satisfied beyond reasonable doubt that the assault was indecent. This comes to the next direction that I give you as a matter of law and it is a direction that you must follow. Something is indecent if it is contrary to the ordinary standards of respectable people in the community. It is for you to determine the standards prevailing in our community when deciding whether or not the Crown has satisfied you beyond reasonable doubt that the particular act alleged in that count was indecent. There was no suggestion from Mr Bellanto [senior counsel for the applicant] that if you accept the Crown case and accept the complainant beyond reasonable doubt that it was not an indecent assault, if that is what occurred, but as I say that matter is, of course, a matter for you but I direct you in these terms. For an assault to be indecent, it must have a sexual connotation or overtone. If it was done in a way that clearly gives rise to a sexual connotation, then that is sufficient to establish that the assault was indecent, irrespective of whether or not there was consent or not in that respect. If you are not satisfied that it had a sexual overtone or connotation then you would not find this element made out but, as I say, I did not hear from Mr Bellanto there to be an issue, if you otherwise accept from the complainant beyond reasonable doubt what occurred. And there did not seem to be any disagreement that if you find beyond reasonable doubt that the event occurred in the way that the complainant describes, then it is an indecent assault. That is, a sexual touching that could not be considered, for example, to be something that is accidental or inadvertent or non-sexual." (Underlining added.)
The applicant correctly submitted that at no point did the primary judge direct the jury on count 2 that it was required to be satisfied beyond reasonable doubt that the complainant did not consent to the conduct alleged by count 2, and that he knew that she did not consent or was reckless as to her not consenting.
The Crown accepted that the trial judge's directions to the jury on count 2 were erroneous. In particular, the Crown accepted that the judge's statement that "if [the assault] was done in a way that clearly gives rise to a sexual connotation, then that is sufficient to establish that the assault was indecent, irrespective of whether or not there was consent or not in that respect" was a direction that the Crown did not have to prove the absence of consent in respect of count 2.
Neither the Crown Prosecutor nor the applicant's counsel at trial sought a redirection or a further direction. On appeal the Crown accepted that there was a misdirection as to an essential element of the offence. It did not oppose the grant of leave pursuant to r 4 of the Criminal Appeal Rules to raise the complaint in respect of ground 2. It did not contend that the "proviso" in s 6 of the Criminal Appeal Act 1912 (NSW) should apply. It was common ground that there should be a new trial on count 2.
Counts 3 and 4 charged the applicant with having had sexual intercourse with the complainant without her consent, knowing that she did not consent to the sexual intercourse, in contravention of s 61I of the Crimes Act 1900 (NSW). Count 3 concerned an alleged act of fellatio and count 4 concerned an alleged act of penile/vaginal sexual intercourse. The Crown's case was these acts took place before the applicant and the complainant went downstairs to the kitchen. The complainant's evidence was that she was scared and did what she was told. The applicant's evidence was that the complainant voluntarily fondled him to obtain an erection, but other sexual intercourse did not take place before he and the complainant went to the kitchen. He said that all sexual intercourse was consensual. He denied knowing that the complainant was not consenting to having sex with him.
The applicant was found guilty on counts 3 and 4.
Count 5 charged an offence under s 61K(a) of the Crimes Act that the applicant intentionally inflicted actual bodily harm on the complainant with intent to have sexual intercourse with her. This count was based upon the complainant's evidence that after intercourse the applicant was angry, threatened violence and subsequently hit her in the face and head. She said that at one point she managed to get on top of the applicant and was pushing both his hands onto the bed, but at the same time he was raising his crotch area against her vagina. The applicant denied this. This was the subject of count 5. He was found not guilty of this count.
Counts 6 and 7 charged offences against s 61J(1) of the Crimes Act that the applicant had sexual intercourse with the complainant without her consent, knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, namely, that immediately before the commission of the offence, the applicant threatened to inflict actual bodily harm on the complainant by means of an offensive weapon. At one point in the night the applicant and the complainant went to the kitchen to get a drink. According to the complainant she had been forced to perform fellatio after the applicant threatened her with death involving knives in the kitchen. The applicant's evidence was that the two had gone to the kitchen for a glass of water before returning to the bedroom where the complainant voluntarily gave him fellatio.
Count 7 charged the same offence with respect to the same course of conduct. As summarised by the Crown, the oral sex that was the subject of count 6 stopped while the applicant changed position. The Crown alleged that further fellatio took place. This was the subject of count 7. The applicant said that the acts of fellatio that constituted counts 6 and 7 were consensual. The applicant was found not guilty of counts 6 and 7.
Count 8 concerned an act of penile/vaginal intercourse. The applicant did not dispute that sexual intercourse took place. He said it was consensual. The complainant said she was compliant because she was scared and wanted to keep the applicant calm.
The applicant was found not guilty of count 8.
Count 9 was a charge that the applicant assaulted the complainant occasioning actual bodily harm, being an offence against s 59 of the Crimes Act. The Crown's allegation was that the applicant became angry and hit the complainant when she told him about having engaged in a threesome with a stranger and friend. The complainant fled the applicant's house naked and in distress and ran to the house of a neighbour. The applicant was convicted of count 9.
Counts 3 to 8 alleged two acts of penile/vaginal intercourse and three acts of fellatio, all without consent. The applicant's case was that there was one act of fellatio which the complainant initiated and one act of penile/vaginal intercourse to which the complainant consented.

The directions

In the opening statement by counsel for the defence, Mr Bellanto QC said "... we deny any forceful sexual interaction involving the accused and the complainant. There's no denying that she sucked his penis, no denying that he had intercourse, but whatever went on in terms of sexual interaction, it is the defence case that it was all consensual." Counsel was distinguishing counts 2 to 8 from counts 1 and 9. In the course of opening Mr Bellanto admitted that the applicant slapped the complainant. He said there was provocation, but accepted that provocation was not a defence and that the applicant preferred to leave all of the facts in relation to the assaults the subject of counts 1 and 9 to the jury.
Directions were essential as to the need for the Crown to prove beyond reasonable doubt that the complainant did not consent to the acts of sexual intercourse and that she was not acting voluntarily in engaging in acts of fellatio.
The jury had the indictment. They were invited to find that the indictment set out the elements of the offences with which the applicant was charged.
In her summing up the primary judge repeatedly said that the onus rested upon the Crown to prove all of the elements of each charge beyond reasonable doubt.
The primary judge said: "It is not for the Crown to prove every fact, however, beyond reasonable doubt. They do not have to do that. What they do have to prove beyond reasonable doubt, though, are the essential elements that come to make up the charges on the indictment, and you have a copy of the indictment which I have got here with me, and I am going to take you through that very briefly shortly, but it is those elements that the Crown must prove beyond reasonable doubt and, as you will appreciate, there is probably any number of facts that might go up to make an element in a charge. Those individual little facts do not have to be proved beyond reasonable doubt but there are some, I might say, fundamental facts; for example, whether or not the complainant was, in fact, assaulted. Those kinds of fundamental facts are matters that you need to be sure of beyond reasonable doubt in respect of each of the elements before you can find a person guilty."
Charges 3, 4, 6, 7 and 8 contained a description of the offence that included as an element that the applicant had sexual intercourse with the complainant without her consent, knowing that she did not consent.
The primary judge gave the following directions in relation to the element of the offences that the acts of sexual intercourse alleged were without the complainant's consent. Her Honour said: "I am not going into terms, in any great length, about the concept of sexual intercourse in respect of counts 3, 4, 5, 6, 7 and 8 other than to say sexual intercourse will include penile/vaginal sex, as you might expect. It will also include penile/oral sex. So, again, if you are satisfied beyond reasonable doubt that those acts occurred that, as a legal matter, is sexual intercourse for the purposes of those charges. I do need to say something about consent because whilst, of course, there was a factual dispute about what occurred, and I will come to that in detail when I come to dealing with the evidence, one of the primary issues in this trial, of course, was consent. One of the primary issues was at what point the complainant and the accused started arguing and wrestling, and it does not seem to be an issue in this trial that that occurred, the extent to which it occurred and the circumstances in which it occurred are in dispute and they give different accounts of that and they certainly give different accounts about timing. And, of course, you will recall that the issue about consent to those sexual acts that are said to have occurred, is very much a live issue in this trial. Could I give you this legal direction about consent? Even someone who is not particularly enthusiastic about having sexual intercourse, who has been convinced or persuaded to have sex when they were not particularly interested in it, at least at the outset, can be consenting. It depends on the circumstances. It is a question for you to determine whether or not, at the point that sexual intercourse took place, that they freely and voluntarily agreed to participate. You have heard submissions from counsel about what was said or not said by the complainant, even on the Crown case about her consenting or not. Mr Crown reminded you that at the point where the complainant - for example, the complainant and the accused were first in bed, that he went to approach her and that she put her hands in front of her and gave words to the effect that she did not want to have sexual intercourse and, thereafter said very little. Of course, that is an account that is in contest. The accused said that that is not how it occurred at all, that they both voluntarily got into bed and both voluntarily engaged in the sex and the sexual intercourse as described by the accused. Of course, it is a matter for you to look at those facts, look at the surrounding circumstances, look at what occurred, come to a view about those facts and then come to a view in respect of the charges whether or not, firstly, that sexual intercourse occurred. Secondly, the circumstances in which it did occur and you will need to come to a view about the facts about that obviously and those matters, of course, need to be determined beyond reasonable doubt. The next step is to determine whether or not you can decide beyond reasonable doubt whether or not, firstly, the complainant consented. That is, whether or not she freely and voluntarily agreed to participate in the act set out in the charges. And you will see, for example, in count 3 that the final element is that the accused was knowing that she did not consent. So there are two aspects to consent. The first one is that you will need to come to a view whether or not the Crown has proved beyond reasonable doubt that she did or did not consent and, secondly, whether or not the accused knew that she was not consenting. Now whether or not he had knowledge has, itself, a couple of elements to it and I am sorry if this is not straightforward but it really is just a matter of tracking through these concepts. You need to come to a view whether or not the Crown has proved beyond reasonable doubt that he either actually knew or whether or not he had reckless disregard as to whether or not she was consenting or not. I think the Crown put it in these terms, and he will correct me if I am wrong, that he did not care whether or not she was consenting. And, of course, as I say, the accused's case is that not only was she consenting, that in some circumstances she instigated the sexual contact and continued on with it and gave, on the accused's case, no indication that she was not consenting." (Underlining added.)
Later, in her summing up, when addressing counts 6 and 7 the primary judge said: "... And, of course, you will see in counts 6 and 7 the other elements that I have already talked about and you also need to come to a view whether or not the Crown has proven beyond reasonable doubt that those acts that occurred after the kitchen - and you will recall that they are said to be two acts of fellatio. You will remember that in between those two acts of fellatio there was said to be an act where the complainant licked or kissed the accused's nipple. That is the dividing fact between those two allegations and, of course, you need to come to a view about whether or not that fellatio occurred, but not only whether or not it occurred, but whether or not she consented to it and you will recall that the parties are at issue in respect of that and, in fact in respect of that, the accused says that she initiated it. That is denied by her, and the Crown case is that that was done in circumstances where it had come to a point where the complainant was compliant because she felt she needed to be to be safe and that she did as she was told, essentially, from that point after the kitchen. But I will not repeat the submission that the Crown have made to you in respect of that issue, or those of Mr Bellanto. They are factual matters that you are going to have to come to a view about and decide whether or not beyond reasonable doubt the Crown has proved that it was not only without her consent but, again, that he knew or was recklessly indifferent about whether or not she was consenting." (Underlining added.)
The jury was also told that the accused bore no onus of proof in respect of any fact.
Neither the Crown Prosecutor nor junior counsel for the applicant sought a redirection or a further direction that the Crown had the onus of establishing beyond reasonable doubt that the complainant did not consent. The Crown did seek a further direction as to how consent, or the absence or withdrawal of consent, can be communicated. The primary judge told the jury that: "Consent must be something that is conscious and voluntary. I think I mentioned that to you earlier and I just wanted to make clear if it was not, that that consent can be given verbally or expressed by actions. Similarly, an absence of consent or a withdrawal of consent also does not have to be in words. It can be communicated in other ways, such as offering resistance, although that resistance is not necessary, as the law provides that a person who does not offer actual physical resistance by reason only of that fact is not to be regarded as consenting to sexual intercourse."
There are at least the following errors in the directions given: 1. The jury had to determine whether the Crown had established beyond reasonable doubt that the complainant had not consented. Its function was not to determine "whether or not you can decide beyond reasonable doubt whether or not ... the complainant consented." 2. The jury's function was to determine whether it was satisfied beyond reasonable doubt that the complainant did not freely and voluntarily participate in the acts set out in the charges. Its function was not simply to determine (without reference to onus) whether or not she freely and voluntarily participated. 3. The Crown's obligation was not to prove beyond reasonable doubt that the complainant "did or did not consent". It had to prove beyond reasonable doubt that she did not consent. 4. The Crown's obligation was not to prove beyond reasonable doubt whether the accused "either actually knew or whether or not he had reckless disregard as to whether or not she was consenting or not" (sic). The Crown had to prove beyond reasonable doubt that the accused knew she was not consenting, or had reckless disregard as to whether or not she was consenting.
Listening to the directions as a whole, they could be understood as conveying that it was the Crown's case that the applicant did not care whether or not the complainant was consenting. Although unclear, the tenor of the charge to the jury was that unless the jury could be satisfied that the complainant consented, the accused could be convicted if the jury were satisfied beyond reasonable doubt that the accused did not care whether or not she consented.
I agreed with the submission of counsel for the applicant that the directions tended to shift the onus of proof to the accused by suggesting that the jury had to determine if it accepted the assertion of the accused that the complainant did consent. I agreed with the submission that the judge's repeated use of the phrase "whether or not" endorsed the idea that the jury's task was to decide between two competing versions rather than determining whether it was satisfied beyond reasonable doubt that the complainant did not consent. It may even have been open to members of the jury to have thought that to be satisfied that the complainant did consent, they needed to be satisfied of that beyond reasonable doubt.
The position was not clarified by other statements made by the primary judge in her summing up on the issue of consent. The difficulty with the directions given in relation to counts 3 to 8 is exacerbated by the wrong direction given in respect of count 2, that it would be sufficient to establish that an indecent assault occurred if the particular act had a sexual connotation or overtone, irrespective of whether or not there was consent in that respect.
It is true that having given directions in respect of consent in relation to counts 3 to 8, when addressing specifically counts 6 and 7, the primary judge referred to the jury's having to be satisfied beyond reasonable doubt that the Crown had proved that what was done was done "not only without her consent" but also that the applicant knew or was recklessly indifferent about whether or not she was consenting. That direction perhaps clarified what had previously been said before to indicate that the Crown needed to establish beyond reasonable doubt that the complainant did not consent. But that was said only in relation to counts 6 and 7. They were counts on which the applicant was acquitted.

Absence of objection

On appeal the Crown emphasised that the jury was repeatedly told that the Crown had to establish each element of the offence beyond reasonable doubt. The jury had the indictment that, in respect of counts 3 and 4, described each element of the offence including that sexual intercourse took place without the complainant's consent. On appeal the Crown correctly accepted that a direction that the Crown was obliged to prove each element of the offence beyond reasonable doubt would have been insufficient. But the directions given did not elucidate that general instruction. Rather, the instructions qualified, contradicted or, at best, obfuscated that direction.
The Crown relied upon the fact that counsel for the applicant did not raise any concern about the directions given with respect to consent, or raise any concern that the jury might have found the directions were confusing. The Crown rightly submitted by reference to R v Dookheea [2017] HCA 36; (2017) 91 ALJR 960 at [37] that the passages of the summing up I have addressed above have to be read in the context of the summing up as a whole and in the context of the case as a whole on the basis of how a jury listening to the summing up might understand it, rather than upon "some subtle examination of its transcript record or by undue prominence being given to any of its parts". As the High Court said, where the accused has been represented by competent counsel, the reaction of defence counsel on hearing the impugned portion of the summing up is a cogent consideration. Senior counsel for the applicant was not present during the summing up, but experienced junior counsel who had been present during the trial was.
The Crown did not submit that the failure of defence counsel to take objection or to raise an issue on the summing up might be explicable by the fact that counsel said nothing hoping to gain a later advantage. It is also relevant that in a matter so fundamental as the giving of directions on the onus of proof of each element of the offence, the Crown Prosecutor did not raise an issue as to the deficiency in the directions. The Crown points to this as indicating that in the atmosphere of the trial neither counsel perceived the errors in the judge's directions.
Neither counsel at trial raised an issue in relation to the directions given in respect of the onus of proof in respect of either count 2 (where the Crown accepts the conviction should be quashed) or counts 3 to 8. This might be because it did not occur to experienced counsel that her Honour was not conveying what they expected would be conveyed. That is, having heard a confusing direction, and without the benefit of transcript, both the Crown Prosecutor and defence counsel may have interpreted the primary judge's directions consistently with their understanding and expectation of the directions that would be given in accordance with the Criminal Trial Bench Book, without appreciating the departure from the standard directions. It cannot be assumed that the jury had the same understanding.
The standard directions include that: "The Crown must prove beyond reasonable doubt: 1. that, at the time and place alleged, [the accused] had sexual intercourse with [the complainant], 2. without [the complainant's] consent, 3. knowing that [the complainant] did not consent." (Criminal Trial Courts Bench Book, s 61I.) That direction was not given.
The wrong directions on onus of proof were fundamental to the fairness of the trial.

Rule 4 of the Criminal Appeal Rules

The Crown also submitted that because no objection to the direction was raised by defence counsel at trial, the applicant needed leave under r 4 of the Criminal Appeal Rules to rely upon the ground of misdirection.
The applicant submitted that the misdirection was an error of law and leave was not required because r 4 was invalid in so far as it purportedly denied the applicant a right of appeal in respect of an error of law.
Section 5(1) of the Criminal Appeal Act 1912 (NSW) provides: "5 Right of appeal in criminal cases (1) A person convicted on indictment may appeal under this Act to the court: (a) against the person's conviction on any ground which involves a question of law alone, and (b) with the leave of the court, or upon the certificate of the judge of the court of trial that it is a fit case for appeal against the person's conviction on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal, and (c) with the leave of the court against the sentence passed on the person's conviction."
Section 6(1) provides: "6 Determination of appeals in ordinary cases (1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."
Rule 4 of the Criminal Appeal Rules provides: "4 Exclusion of certain matters as grounds for appeal etc No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal."
In the present case the directions were erroneous in law.
A challenge to the validity of r 4 was rejected by this Court in R v Esposito (Carruthers, Finlay and Studdert JJ) (23 July 1990, unreported). The Court held that the rule was within the rule-making power conferred by s 28(2)(a) of the Criminal Appeal Act. Section 28 relevantly provides: "28 Rules of court (1) Rules of court for the purposes of this Act may be made under the Supreme Court Act 1970. (1A) Subsection (1) does not limit the rule-making powers conferred by the Supreme Court Act 1970. (2) Such rules may be made with respect to all or any of the following matters: (a) The regulation of the practice and procedure under this Act, ... (h) Any matters which in the opinion of the Rule Committee of the Supreme Court are necessary or expedient for giving effect to the purposes of this Act."
The Court noted that a provision in terms similar to r 4 was not to be found in the corresponding legislation or rules of any of the other States or Territories of Australia, nor in the United Kingdom, but that in those jurisdictions, the fact that no objection was taken at the trial to a direction, omission to direct, or decision as to the admission or rejection of evidence given by the judge presiding at the trial is a matter of significance in the appellate process. The Court cited the judgment of the Full Court of the Supreme Court of Victoria in R v Gay [1976] VR 577 at 584 where the Court said that "... if there is substantial reason for allowing a criminal appeal, the objection that the point now taken was not taken by counsel at the trial is not necessarily conclusive." The Court in Esposito held that r 4 was made "with respect to the regulation of the practice and procedure under the Act". It drew an analogy with Re Richardson; Ex parte Barker (1925) 26 SR (NSW) 142 in which a bankruptcy rule which limited the time within which an application could be made to set aside a bankruptcy notice was held to be valid as within the authority to make rules as to matters of practice and procedure. (That analogy might be thought to support the rule limiting the time by which a notice of appeal from conviction should be filed rather than r 4.) The core of the Court's reasoning was: "Bearing in mind the established principles in relation to the consequences of a failure to take objection at the trial, it seems to us appropriate that this Court should have promulgated a rule in the terms of r.4. The rule does not seek to impose any fetters on the Court when the application for leave comes before it. In our view, therefore, the rule is properly to be considered as a matter of practice and procedure. The rule does not seek to divest persons who seek to invoke the jurisdiction of this Court of rights which they otherwise would have had under s.5 of the Act. The rule merely imposes a procedural obstacle which the Court may remove at will."
The applicant cited the observations of Bathurst CJ in Doyle v R; R v Doyle [2014] NSWCCA 4 at [426]-[427] where his Honour said: "426 The rule-making power in the Criminal Appeal Act is contained in s 10 and s 28 of that Act. The only relevant power is contained in s 28(2)(h), being the necessary or expedient rule-making power. It does not seem to me that this power could limit an express right of appeal conferred by the Act. 427 In Shanahan v Scott (1957) 96 CLR 245 at 250, the plurality emphasised that the power to make regulations providing for all or any purposes necessary or expedient for the administration of the Act or for carrying out its objects could not extend the scope or operation of the Act or widen the purpose of the Act to add new and different means of carrying them out or depart from or vary the plan that the legislature had adopted: see also Morton v Union Steamship Company of New Zealand Ltd (1951) 83 CLR 402. Such a regulation would go beyond the field marked out by the Act: Carbines v Powell (1925) 36 CLR 88 at 91-92."
The Chief Justice did not express a final view on the issue.
It is noteworthy that Bathurst CJ did not consider that the power conferred by s 28(2)(a) could support the rule.
The applicant submitted that in Greenhalgh v R [2017] NSWCCA 94 Basten JA (with whom Button J agreed and N Adams J generally agreed) doubted the correctness of earlier decisions of this Court which identify the circumstances in which leave will or will not be granted under r 4 if there has been no objection to the admission of evidence or no request for a redirection or additional direction by the judge presiding at trial. Basten JA said (at [10]) that there were serious difficulties in confining the exercise of the power under r 4 to circumstances where, although error had been detected in the trial, the appeal court was satisfied that there had been no substantial miscarriage of justice. His Honour also said: "14 Certain points may be made in relation to the purpose and effect of r 4. It is in terms a constraint upon the pursuit of a ground of appeal which would otherwise be available. It assumes the existence of a ground which, if upheld, could result in the quashing of a conviction. On the other hand, it does not assume that the ground will be upheld; rather, it precludes reliance upon the ground. If the ground can be seen to lack merit, leave will be refused. The converse is not necessarily correct. That is because, while lack of merit may be readily discernible, merit may not. That fact is inherent in the rationale for r 4; divorced from the understanding resulting from involvement in the trial, a claim that something should have happened which did not is hard to evaluate. If, in a clear case, a necessary element of a fair trial according to law was overlooked, leave should usually be granted. However, it is not possible to be prescriptive. It must, in some sense, be in the interests of justice that leave be granted; otherwise leave should be refused."
Nonetheless, as N Adams J observed in Greenhalgh, the test formulated in Picken v R; R v Picken [2007] NSWCCA 319 at [20]-[21] and endorsed by Bathurst CJ in ARS v R [2011] NSWCCA 266 at [147]-[148] is that leave will only be granted under r 4 if the applicant establishes that he or she has lost a real chance of being acquitted (see also R v Sterling (1981) 4 A Crim R 472 at 478 per Street CJ). Bathurst CJ added (at [148]): "A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373 ; (2007) 70 NSWLR 467 at [10]-[13]; Sanchez v R [2009] NSWCCA 171 ; (2009) 196 A Crim R 472 at [58]-[61]. An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130]."
I was of the view that assuming the validity of r 4, leave to rely upon the errors of law should be given because the errors did deprive the applicant of a real chance of acquittal and because a proper direction as to the elements of the offences was a necessary element of a fair trial (Obeid v R [2017] NSWCCA 221 at [24] and [25] per Bathurst CJ; Kalbasi v Western Australia [2018] HCA 7; (2018) ALR 1 at [15]; Pemble v The Queen (1971) 124 CLR 107 at 118).
In my view there was a clear misdirection as to the elements of the offence that gives rise to a miscarriage of justice and the applicant has lost a real chance of acquittal. The jury considered its verdict for over three days. The applicant was acquitted on four of the counts.
In my view it was not necessary to determine the applicant's challenge to the validity of r 4. I confess to having some difficulties with the reasoning in Esposito. On the face of it r 4 does divest persons of a right of appeal on a question of law which they otherwise would enjoy under s 5, and does impose a fetter both on a party seeking to appeal as of right on a question of law and on the Court in dealing with that application. Prima facie, it is difficult to see why rule 4 was introduced if the statement in Esposito that the rule "does not seek to impose any fetters" and is only a matter of "practice and procedure" is accepted. What then is the point of the rule?
But it is unnecessary to pursue these questions, because leave should be given. For the reasons Heydon J gave in Green v The Queen (2011) 244 CLR 462 at [82]-[85] a challenge to the earlier decision of the Court of Criminal Appeal in Esposito would require a determination that the earlier decision was clearly wrong. Other considerations would also have to be addressed, such as the fact that r 4 has been in the Criminal Appeal Rules since 1953; that it appears only to have been challenged before this case once, in 1990, and that challenge was unsuccessful; that the decision in Esposito was a unanimous decision; and whether it has been shown that the decision has led to inconvenience or unjust results. Consideration would also need to be given to whether any substantively different approach would be taken if rule 4 did not exist, having regard to the jurisprudence in other jurisdictions, where an equivalent rule does not exist. In Chamberlain v R (1983) 46 ALR 493 Bowen CJ and Forster J said (at 502): "'... If some aspect of the summing up is made a ground of appeal, appellate courts regard it as of great importance that an experienced defence counsel failed to object to it at the trial. Such an omission points strongly to the conclusion that in the atmosphere of the trial itself there was nothing about the summing up calculated to lead to a miscarriage of justice - see generally R v Sorlie (1925) 42 WN (NSW) 152; R v Caplin (1933) 50 WN (NSW) 189 R v Smyth (1956) 73 WN (NSW) 539; R v Malas (1978) 21 ALR 225and Stirland v DPP [1944] AC 315; [1944] 2 All ER 13. The cases show, however, that where the appellate court is satisfied that a miscarriage of justice occurred the appeal will be allowed, despite the failure of counsel to object at the trial. Examples of this, where the appellate court was satisfied that there had been a miscarriage of justice because the jury may have considered the evidence on a wrong principle, are R v Kalinowski (1930) 31 SR (NSW) 377 R v Gaffney [1968] VR 417 .' See also Jones v Dunkel (1959) 101 CLR 298 at 315; La Fontaine v R (1976) 11 ALR 507, per Barwick CJ at 515; R v Lavery (1979) 20 SASR 430, per Wells J at 436-7.
It is not obvious that materially different considerations would arise on appeal on a question of law if no objection had been taken to directions or to the admissibility of evidence if rule 4 were invalid, than arise under rule 4.
Finally, it may be the case that as a matter of practice a five-judge bench would be constituted to consider this question.
Because leave should be given under rule 4, assuming its validity, it was not necessary to decide the validity of the rule.
For these reasons I concurred in the orders set out at [2] above.
FAGAN J: I agree with the reasons of White JA, which reflect my own reasons for having joined in the orders of the Court made on 17 August 2018. The case illustrates the utility of what has for many years been the common practice of trial judges in New South Wales, namely, to provide each member of the jury during the summing up with a document setting out the elements of each offence charged. In most cases, but especially where the elements may involve alternatives and some intricacy (such as with respect to knowledge of lack of consent on a charge under s 61I of the Crimes Act), a document of this nature will be more useful to a jury than a blur of spoken words. A written direction on the elements, followed closely in the course of oral elaboration, will save a trial judge from errors which otherwise might arise from inadvertent loose expression. Here, for example, her Honour fell into what became a mannerism of speech by frequent repetition of the phrase "whether or not", with the consequent legal inaccuracy identified by White JA.
At the end of day 9 of this trial, shortly before the summing up commenced, the Crown offered to the bench a draft written direction. Senior counsel for the accused said, "the directions are well-known. The Bench Book is the formal way of doing it and I have been asked that that be the case". Her Honour understood this as opposition to the jury having a document setting out the elements, and she deferred to it. The misdirections which followed would likely have been averted if an elements document had been settled, taking into account the submissions of both counsel, and provided to the jury.

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