Ambury v The Queen

[2018] NSWCCA 275

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Ambury v R [2018] NSWCCA 275
Hearing dates:	24 September 2018
Decision date:	03 December 2018
Before:	Macfarlan JA at [1]; Johnson J at [79]; N Adams J at [80]
Decision:	(1)   Grant the appellant leave to appeal to the extent that he requires it. (2)   Dismiss the appeal.
Catchwords:	CRIME – appeal against conviction – appellant convicted of three offences of participating as a client with a child under 18 years in an act of prostitution – appellant self-represented – 24 grounds of appeal, including whether appellant’s convictions should be set aside on the basis that they are “unreasonable, or cannot be supported, having regard to the evidence” – appeal dismissed
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998, s 43 Crimes Act 1900 (NSW), ss 91C, 91D(1)(b) Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1) Criminal Appeal Rules, r 4 Criminal Procedure Act 1986 (NSW), ss 20, 29, 293, 306I Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 123
Cases Cited:	Bell v Regina [2017] NSWCCA 207 CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25 Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 R v Abusafiah (1991) 24 NSWLR 531 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 R v Murray (1987) 11 NSWLR 12 RR v R [2011] NSWCCA 235; (2011) 216 A Crim R 489 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253
Category:	Principal judgment
Parties:	Michael Ambury (Appellant) Regina (Respondent)
Representation:	Counsel: Self-represented Appellant T Smith (Respondent)   Solicitors: Self-represented Appellant Solicitor for Public Prosecutions (Respondent)
File Number(s):	2012/214693
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 19 August 2015 Before: Tupman DCJ File Number(s): 2012/214693

Judgment

1. MACFARLAN JA: Following a judge alone trial in the District Court, the appellant, Mr Michael Ambury, was convicted of three offences under s 91D(1)(b) of the Crimes Act 1900 (NSW) of participating as a client with a child under 18 years in an act of prostitution. The trial judge (Tupman DCJ) had earlier directed a verdict of acquittal in respect of a fourth count charging a similar offence under the same provision of the Crimes Act. The appellant has completed serving the terms of imprisonment to which the trial judge sentenced him.

2. The appellant was represented by counsel before Tupman DCJ and at an earlier aborted trial before a judge (Lakatos SC DCJ) and a jury. He was self-represented in this Court.

3. The appellant has appealed, or sought leave to appeal, against his convictions on 25 grounds which are identified below. Some of the grounds appear only in his written submissions and others are in slightly different terms to those listed in his filed “Grounds of Appeal against Conviction”. There are two grounds numbered 22. To the extent that these grounds do not involve a question of law alone, the appellant requires leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).

4. The appellant does not on appeal, and did not at his trial, deny that he had sexual intercourse with the two children the subject of the charges (EH and OK) and that they were aged less than 18 years at the time. Rather, his case is that he denies, and contends that the Crown did not prove beyond reasonable doubt, that he paid the children for sexual intercourse. He submits that it was not therefore proved that he participated as a client in acts of prostitution.

THE LEGISLATIVE PROVISIONS

5. The appellant was charged with committing offences under s 91D(1)(b), which provides:

91D Promoting or engaging in acts of child prostitution

(1)    Any person who:

…

(b)   participates as a client with a child in an act of child prostitution,

is liable to imprisonment for 10 years or, if the child is under the age of 14 years, to imprisonment for 14 years.

…”

An “act of child prostitution” is defined in s 91C as:

“act of child prostitution means any sexual service, whether or not involving an indecent act:

(a)   that is provided by a child for the payment of money or the provision of any other material thing (whether or not it is in fact paid or provided to the child or to any other person), and

(b)   that can reasonably be considered to be aimed at the sexual arousal or sexual gratification of a person or persons other than the child, and includes (but is not limited to) sexual activity between persons of different sexes or the same sex, comprising sexual intercourse (as defined in section 61H) for payment or masturbation committed by one person on another for payment, engaged in by a child.”

THE CROWN’S CASE AT TRIAL

6. Count 1 of the Indictment alleged that on 31 May 2012 the appellant (then aged 49 years) engaged in the act complained of with EH, who was then aged 16 years. The act the subject of Count 2 was alleged to have taken place on the same occasion with OK, who was then aged 15 years. Count 3 alleged that a further act of prostitution with EH occurred between 31 May and 15 June 2012.

7. Neither EH nor OK gave oral evidence at the judge alone trial. Instead, DVDs recording the evidence that they gave at the earlier aborted trial, together with records of interview with OK tendered at that trial, were tendered and played in accordance with s 306I of the Criminal Procedure Act 1986 (NSW). Transcripts were made available as aide-mémoires.

8. The complainants gave evidence that before 31 May 2012 they had the habit of spending time at Kings Cross and mixing with people there. They both lied to people about their ages, telling them that they were 18 years old. OK gave evidence that they extracted small amounts of money from people by telling them that they needed money to get home. They met the appellant, and people with whom he was associated, in this context.

9. Following that meeting, the complainants and the appellant communicated and met with each other on a regular basis. Both complainants said that the appellant asked them on a number of occasions to have sex with him for money and that they eventually agreed. They arranged to meet him at his apartment in Kings Cross on 31 May 2012 for that purpose, for which they agreed with the appellant that they were each to be paid $250. On that day they had sexual intercourse with him, in each other’s presence, at the apartment. He paid them $100 each.

10. Later that day, EH sent a text to the appellant saying “thank you for a good night”, with an “x” indicating a kiss. She also sent a text to him saying “[c]an we meet up again next week? I had lots of fun” with the “s” in the word “lots” replaced by three dollar signs.

11. The appellant had sexual intercourse with EH again on 1 June 2012. EH gave evidence that the appellant paid her $150 for it.

12. The fourth count in the Indictment related to an incident on 6 July 2012 when police, acting on information they had received, entered the appellant’s apartment and found OK in his bed in her underwear. At the conclusion of the Crown case, Tupman DCJ directed a verdict of acquittal on this count on the basis that the only evidence of contact between the appellant and OK before the police arrived was kissing. She found that this was incapable of proving an act of child prostitution.

13. Other, limited, evidence that the Crown led in support of Counts 1, 2 and 3 is referred to in the following summary of her Honour’s judgment.

THE TRIAL JUDGMENT

14. The trial judge noted that the appellant’s counsel indicated at the commencement of the trial that the appellant accepted that the sexual intercourse had occurred as alleged. Her Honour said that the only issue therefore was whether that which occurred was “for the payment of money” and that, whilst the appellant did not deny having paid sums of money to the complainants at or about the time he had sexual intercourse with them, he denied that the payments were made for sex.

15. Recognising that the Crown case was almost wholly dependent upon the evidence of the complainants, the trial judge gave herself a “Murray Direction” (R v Murray (1987) 11 NSWLR 12 at 19) to the effect that the evidence of EH and OK was to be scrutinised with great care.

16. Her Honour summarised EH’s and OK’s evidence and then referred to two other items of evidence to which she considered little, if any, weight should be given. First, there was evidence that on about 16 June 2012 OK told a friend, Emma H, that she had had sex with the appellant and that he had given her $400 for it. (This was a lie to the extent that OK inflated the amount she had been paid. OK said that she lied because she did not want her friend to think she had had sex with the appellant for as little as $150.) Secondly, there was evidence that EH told OK sometime after 1 June that she had had sex with the appellant on 1 June and that he had paid her for it. Her Honour specifically declined to use this as complaint evidence capable of being used as some evidence of the truth of the allegations and did not place any weight on it for the purpose of re-establishing the credibility of EH.

17. Her Honour then referred to a number of admitted lies that EH and OK had told. For example, when they went to Kings Cross, they regularly lied to their parents about where they were going and they lied on a number of occasions about their ages. Her Honour said about these lies:

“These are I accept lies that each of the complainants told. They each agreed that that was the case. They each also however gave reasons for telling those lies.

As the tribunal of fact I am entitled to accept parts of what a witness says and reject other parts. The fact that a person tells a lie about something does not necessarily mean that they ought to be regarded as a completely unreliable or incredible witness in relation to the rest of their evidence. It is appropriate and available to take into account an admitted lie in assessing the reliability and credibility otherwise of a witness, but the fact that a person told a lie does not necessarily mean that the balance of their evidence must be rejected.”

18. Her Honour then referred to the appellant’s election not to call evidence and continued:

“He did, however, engage in two records of interview which I am obliged to and entitled to take into account in determining whether or not the Crown has proved his guilt beyond reasonable doubt for the charges. They were lengthy, they were verbose, they were garrulous, they were self-serving. The accused gave the appearance of labouring the point about the assertion he was making that the two complainants voluntarily had sex with him for some purpose other than for money. In particular he laboured the point with police about the fact that he knew the law, that one of his occupations was that of an escort agency owner, and that he knew it was illegal to organise sexual services of another for money if that person was under 18.

He also lied in both of these interviews about the fact that he had had sex with the two complainants in the way that they allege and which he now admits in this trial. I will come to that soon. Nothing in his records of interview in my view raises any doubt about the reliability of the complainants on the issue of whether or not payment was made for sexual services.”

19. Her Honour next referred to the appellant’s contention that EH and OK had had sex with him, not for money, but because they had become friends and had developed an ongoing relationship with him. Her Honour rejected this proposition as not being able to “withstand the test of logic or common sense”.

20. Her Honour then considered at some length whether she could take account of the appellant’s lies in his records of interview as some evidence of his guilt of the offences charged. She concluded that she could, but considered that in the circumstances of the case she could nevertheless only convict the appellant if she was satisfied beyond reasonable doubt of the truthfulness of the complainants’ evidence. Her Honour was so satisfied, stating:

“[c]learly, they are not universally witnesses of truth but they provided explanations for telling … lies and I find those explanations to be logical, particularly taking into account the fact of their ages and the circumstances they were in.”

21. Her Honour then convicted the appellant of the offences charged in Counts 1, 2 and 3 in the Indictment.

DETERMINATION OF THE APPEAL

GROUND 1: “THE TRIAL JUDGE ERRED IN ALLOWING POLICE VIDEO OF ENTRY [IN]TO [THE] APPELLANT’S HOME [ON] 6TH JULY 2012 TO BE ADMITTED AS EVIDENCE, AS POLICE DID ‘NOT HAVE A VALID SEARCH WARRANT’”

22. As the appellant’s trial counsel did not object to the admission of this video, the appellant is unable to rely upon this ground without leave of the Court given pursuant to r 4 of the Criminal Appeal Rules. As this Court has stated on numerous occasions, “[t]he requirements of r 4 … do not constitute some mere technicality which may simply be brushed aside” (R v Abusafiah (1991) 24 NSWLR 531 at 536; see also RR v R [2011] NSWCCA 235; (2011) 216 A Crim R 489 at [75]). McHugh J summarised the effect of r 4 in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [72]:

“There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant’s conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant. Where the evidence was admissible, but the trial judge had a discretion to limit its use, the burden on the appellant is greater: the appeal can succeed only if the Court of Criminal Appeal is satisfied that the discretion would have been exercised in favour of the appellant and that, if it had, it is more likely than not that the appellant would have been acquitted … ”

23. At the time of the admission of the video into evidence, it was clearly relevant to the then subsisting Count 4. It was also relevant to provide context for the appellant’s records of interview which were admitted into evidence in relation to all counts. After the verdict of acquittal on Count 4, the video did not however assume any particular importance in the conduct of the trial and the trial judge was quite capable of disregarding it to the extent that it did not bear on the remaining counts. There is no indication in the judgment that her Honour did not do this. There is therefore no reason why, as the appellant asserts, her Honour’s dismissal of Count 4 should have led to her disqualifying herself from continuing with the trial.

24. Moreover, Detective Senior Constable Arnold gave evidence at the trial of the police entry into the appellant’s apartment and the reasons for it. He said that the entry occurred because police believed that a child was at imminent risk of serious harm in the premises and that acts of child prostitution had occurred there. In these circumstances, s 43 of the Children and Young Persons (Care and Protection) Act 1998 entitled the police to enter the premises without a warrant. Contrary to the appellant’s assertion in this ground of appeal, the entry was therefore not unlawful.

25. In these circumstances, no basis has been demonstrated for the Court to grant leave for the appellant to rely upon this ground. He is not therefore entitled to do so.

GROUND 2: “THE TRIAL JUDGE ERRED IN ALLOWING, THE APPELLANT’S POLICE INTERVIEW[S] ‘ERISP 1 & 2’ THAT WERE CLEARLY NOT VOLUNTARY, TO BE CONSIDERED ADMISSIBLE AS EVIDENCE IN [THE] TRIAL”

26. After the appellant’s counsel initially foreshadowed an objection to the appellant’s records of interview, an edited version of the first was prepared and no objection was taken to the tender. After the trial judge expressed concerns about the admissibility and relevance of parts of the second interview, both records were edited further and admitted, in lieu of the earlier tenders, without objection. Rule 4 of the Criminal Appeal Rules therefore requires the appellant to obtain the Court’s leave to rely upon this ground (see [22] above).

27. The appellant’s submissions in support of this ground comprise three principal contentions.

28. First, he alleges that he was not afforded the rights conferred by s 123 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) to communicate with a lawyer and another person of his choice. There is material in the records of interview relevant to this topic. It includes the following in the first interview:

“Q18: Do you agree that you’ve been given the opportunity to contact a solicitor?

A: Yes I also agree, I also agree that if I’m not released after this interview I was given the opportunity to contact two people out of my cell phone, one being a lawyer and one being a friend.”

29. It also includes, in the second interview, a confirmation by the appellant that he had the opportunity to speak to a lawyer (the answer to Question 567).

30. Secondly, the appellant asserts that he was unwilling to participate in the interviews. In his written submissions, the appellant identified a number of points in his records of interview which, he submitted, support his contention that he did not voluntarily participate in either interview. For example, in answer to Question 23 of the second interview, the appellant stated:

“No, sir at this point in time, um, we’ll just call it quits now, I mean, I’ve been, you know, accused of doing something extremely serious, um, that, that as I’ve read on this form, ah, if I’m going to be charged I should be charged and released on bail.”

The appellant however continued to participate in the interview, which continued for a further 750 questions. Moreover, in answer to Question 23 in the first interview, he confirmed that he was willing to participate in the interview, as he did also at its conclusion (Question 582). In the second interview, he said near its conclusion that “I’m happy, if this is going to wind up fairly quickly” (Question 677) but he nevertheless answered the three remaining questions in the interview.

31. Thirdly, the appellant asserts that he was under the influence of cannabis during the first interview. This assertion was not made at the trial and there is nothing in the record of interview to support his assertion.

32. In summary, the appellant has not pointed to any feature of the interviews that could arguably indicate that he has suffered an injustice as a result of their admission into evidence. His trial counsel was clearly alive to the possibility of objecting to their admission as she foreshadowed an objection which did not need to be pressed in light of edits that were made to the records of interview, including those made following remarks made by the trial judge. As a result, the appellant has not demonstrated any basis upon which he should be granted leave to contest the admissibility of the records of interview when he was represented by counsel at trial and no objection to their admission was taken there.

GROUND 3: “THE TRIAL JUDGE ERRED IN A CONTRADICTORY ASSESSMENT OF THE APPELLANT’S POLICE INTERVIEWS”

33. The appellant submits that the trial judge took contradictory approaches in relation to the appellant’s records of interview. What occurred however was that her Honour expressed concerns about the records of interview but, after discussions with counsel and two rounds of edits, accepted their tender.

33. Again, the appellant has not identified any reasonable basis for the Court to grant leave to him to challenge the admission of the records of interview when he was represented by counsel at the trial and they were admitted into evidence without objection (see [22] above).

GROUND 4: “THE TRIAL JUDGE ERRED IN MISAPPREHENDING EVIDENCE THAT THE APPELLANT APPARENTLY LABOURED THE POINT OF HAVING CONSENSUAL SEX WITH EH & OK BUT NOT FOR MONEY WHEN NO SUCH EVIDENCE WAS GIVEN”

GROUND 6: “A MISCARRIAGE OF JUSTICE OCCURRED BY WAY OF UNNECESSARY DEMEANING, DISPARAGING & PREJUDICIAL REMARKS MADE BY THE TRIAL JUDGE WHEN SHE HANDED DOWN HER FINAL DECISION 23RD APRIL 2015”

35. These grounds refer to the trial judge’s observations concerning the records of interview quoted at [18] above.

36. Her Honour’s description of the appellant’s answers recorded in the records of interview as “lengthy”, “verbose”, “garrulous” and “self-serving” was not unreasonable. However, her Honour’s remark that the appellant “gave the appearance of labouring the point about the assertion he is making that the two complainants voluntarily had sex with him for some purpose other than money” involved an error because during the interviews (unlike the position at the trial) the appellant denied that he had had sex with the complainants. This must have been a slip on her Honour’s part as she was well aware that the appellant took this position during the interviews (see [18] above). Her Honour went on to consider at length whether the lies that the appellant had told in the interviews on this topic could be used as evidence of his guilt (see [20] above).

37. Presumably, her Honour was intending to refer to the appellant’s point, which he emphasised in the interviews, that he had a good relationship with the complainants and that he knew that it would have been illegal for him to participate in an act of prostitution with persons, such as the complainants, who were under 18 years of age.

GROUND 5: “THE TRIAL JUDGE ERRED IN LAW FINDING CONSCIOUSNESS OF GUILT WAS AVAILABLE TO SUPPORT A FINDING OF GUILT”

GROUND 20: “THE TRIAL JUDGE ERRED NOT GIVING AN EDWARDS DIRECTION CAUSING A MISCARRIAGE OF JUSTICE”

38. The trial judge considered, in accordance with the principles stated in Edwards v The Queen (1993) 178 CLR 193 at 210-211; [1993] HCA 63, whether the appellant’s lies in his interviews that he had not had sex with the complainants were capable of being evidence of his guilt. Properly, her Honour considered whether there were possible explanations for the appellant telling the lies apart from a realisation of guilt.

39. The appellant has not identified any arguable basis for impugning her Honour’s analysis or conclusion.

GROUND 7: “THE TRIAL JUDGE ERRED IN FAILING TO SEPARATE COUNTS 1, 2, 3 & 4 CAUSING A MISCARRIAGE OF JUSTICE”

GROUND 8: “THE TRIAL JUDGE SUBSEQUENTLY ERRED IN ‘FAILING TO GIVE A SEPARATE COUNTS DIRECTION’ IN COUNTS 1, 2, 3, & 4”

GROUND 21: “THE TRIAL JUDGE ERRED IN NOT DISQUALIFYING HERSELF FROM HEARING ANY EVIDENCE IN CHARGES 1, 2 & 3 FOLLOWING ACQUITTAL OF THE APPELLANT BY DIRECTION OF CHARGE 4 CAUSING A MISCARRIAGE OF JUSTICE”

40. By judgment of 21 October 2013, Lakatos SC DCJ dismissed an application made on behalf of the present appellant that there be separate trials in relation to offences allegedly committed against EH, OK and a third complainant. In a carefully reasoned decision, his Honour concluded that there should be separate trials in relation to the EH and OK charges on the one hand and the third complainant’s charge on the other. It does not appear that any further application for separate trials was made.

41. The trial of the EH and OK charges together was authorised by s 29 of the Criminal Procedure Act 1986 (NSW), as the offences arose out of the same set of circumstances and formed part of a series of offences of the same or a similar character. It is apparent from her judgment that Tupman DCJ was understandably conscious of the need nevertheless to consider separately the evidence relating to each count.

42. There was no reason for the trial judge to disqualify herself after she directed a verdict of acquittal on Count 4. She was well able to consider the remaining counts on the basis of the evidence relevant to them and there is no reason to conclude that she did not do so.

43. In these circumstances, Grounds 7, 8 and 21 should be rejected.

GROUND 9: “THE TRIAL JUDGE ERRED BY INCORRECTLY ASSESSING FACTS DEDUCED AT TRIAL THAT ULTIMATELY REFUTED EVIDENCE REQUIRED TO SATISFY THE ELEMENTS OF SECTION 91C”

44. The essence of the appellant’s submissions in relation to this ground is that the trial judge erred in not concluding that the appellant’s sexual activity with the complainants occurred because of friendship with them, rather than the payment of money, and it therefore did not satisfy the definition of an “act of child prostitution” in s 91C of the Crimes Act. The trial judge considered but rejected this contention (see [19] above). Her Honour’s decision was a substantially credit-based decision and well open to her on the evidence at the trial.

GROUND 10: “THE TRIAL JUDGE ERRED IN LAW BY ACCEPTING THE CROWN HAD DISCHARGED THEIR OBLIGATION OF PROVING ALL ELEMENTS REQUIRED TO SATISFY SECTION 91D BEYOND REASONABLE DOUBT WHEN THEY DID NOT”

45. The primary judge found that the element of an accused participating in an act of prostitution as a client referred to the person charged having paid for and received the relevant sexual service in exchange for that payment, as distinct from being the person who was paid to provide it. There was no error in this approach. Indeed, the appellant’s counsel accepted its accuracy. This ground should therefore be rejected.

GROUND 11: “THE TRIAL MISCARRIED AS A RESULT OF PREJUDICE INTRODUCED BY THE CROWN REVEALING THE TRUE AGE OF OK”

46. In his submissions concerning this ground, the appellant asserts that the trial judge should not have been made aware that at the relevant time OK was only 15 years of age, as it was sufficient for the prosecution to prove for the purposes of the subject s 91D offences that she was under 18 years.

47. It was however necessary for the purposes of its case for the Crown to prove OK’s age. The Crown did not seek to obtain any advantage from the fact that OK was under 16 years and that it was therefore prima facie unlawful for the appellant to have had sex with her, whether as an act of prostitution or not Moreover, as the trial judge recorded in her judgment, the Crown conceded at the beginning of the trial that it was not in a position to prove that the appellant did not, as he asserted he did, believe her to have been over 16 years (see CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25 as to the defence of honest and reasonable mistake of fact).

48. In these circumstances, there is no merit in this ground of appeal.

GROUND 12: “THE TRIAL MISCARRIED AS A RESULT OF PREJUDICE INTRODUCED BY THE CROWN OF ANY EVIDENCE OF [EF]”

49. This ground relates to evidence that the trial judge admitted in relation to Count 4, which was later the subject of a verdict of acquittal by direction.

50. The evidence was of an intercepted telephone call between the appellant and a person referred to in the proceedings as EF. The appellant told EF that OK was going to stay with him on the night of 6 July 2012 and be paid $150 or $200. The appellant’s trial counsel objected to the evidence on the basis that the appellant’s admission had been brought about by oppressive conduct on the part of EF who had been pressuring the appellant to have sex with her for money. In the course of argument, it emerged that EF was aged 14 years.

51. Her Honour rejected the objection and admitted the evidence but it ceased to have any significance when the appellant was acquitted on Count 4. The appellant however claims that it was highly prejudicial to him for the trial judge to have been aware of that evidence.

52. I reject this ground of appeal. The trial judge was well capable of disregarding the evidence as irrelevant to Counts 1, 2 and 3. This was reflected in the absence of reference to it in her Honour’s judgment.

GROUND 13: “THE TRIAL MISCARRIED WHEN THE CROWN UNNECESSARILY INTRODUCED THE STATEMENT OF EMMA H IN EVIDENCE”

53. This ground relates to the evidence of OK’s friend called Emma H, referred to at [16] above. The applicant contended in his submissions that Emma H’s evidence was inadmissible by reason of the hearsay rule and that she was never made available for cross-examination.

54. The Crown initially indicated that it would be calling Emma H to give evidence, but ultimately her statement was introduced into evidence with the agreement of the appellant’s counsel. As indicated above (at [16]), the trial judge declined to use the evidence as complaint evidence and placed “little if any weight” on it in relation to re-establishing OK’s credibility.

55. Another aspect of Emma H’s evidence in fact assisted the appellant’s case, in that it referred to an occasion when the appellant gave OK $100 to buy medication and cigarettes for him. This provided some support for his evidence that he had given money to OK for purposes other than engaging in sex.

56. There was no impropriety in the Crown leading Emma H’s evidence, indeed it was tendered by agreement, and there was no error in the way her Honour dealt with it. This ground of appeal should therefore be rejected.

GROUND 14: “THE TRIAL JUDGE ERRED IN ACCEPTING EH & OK AS RELIABLE & CREDIBLE WITNESSES OF THE TRUTH”

GROUND 15: “THE TRIAL JUDGE ERRED [IN] NOT ALLOWING FURTHER CROSS EXAMINATION OF COMPELLABLE WITNESSES EH & OK”

57. As indicated above (see [7]), the evidence of EH and OK comprised recordings of evidence that they had given at the earlier aborted trial and, in the case of OK, records of interview tendered at that trial. The appellant’s counsel applied to Tupman DCJ for leave to further cross-examine EH and OK but, after a careful consideration of the bases of the application, her Honour rejected it.

58. The appellant’s submissions in relation to this ground do not identify any error in the approach that her Honour took.

GROUND 18: “THE TRIAL JUDGE ERRED IN NOT GIVING HERSELF A KRM DIRECTION CAUSING MISCARRIAGE OF JUSTICE”

59. In relation to this ground, the appellant submits that OK’s lack of credibility in relation to Count 4 affected her credibility in relation to the remaining counts, such that the trial judge should have given herself a direction to that effect. The appellant refers in this ground to KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11 but it appears that he must have intended to refer to R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [186], [189]-[191], [257], [280].

60. This ground should be rejected because, as the trial judge stated in her judgment, the appellant was acquitted on Count 4 “not because of any finding in relation to the reliability or credibility of the complainant [OK] but because of [her Honour’s] finding that the Crown had no evidence to prove that a sexual service as defined had occurred”.

GROUND 22: “THE TRIAL JUDGE ERRED BY NOT DENOUNCING & RECOGNISING THAT THE MULTIPLE STATEMENTS & HAND WRITTEN NOTES OF LEANNE CONFRANCESCO AMOUNTED TO COACHING OF A WITNESS CAUSING A MISCARRIAGE OF JUSTICE”

61. This ground relates to two interviews of OK, conducted by the Joint Investigative Response Team (“JIRT”), that were played as part of her evidence-in-chief.

62. The recording tape malfunctioned during the course of the first interview. After the malfunction was rectified, the recording of the interview recommenced (the second interview). During the period when the tape was malfunctioning, Ms Leanne Confrancesco, a case worker who was present, took notes of the interview. These were tendered at the trial at the request of the appellant’s counsel, who relied on some aspects of them in address.

63. The appellant has not identified any reasonable basis for his allegation that there was coaching of OK during the interview.

GROUND 22: “THE TRIAL MISCARRIED AS A RESULT OF THE DEFENCE, CROWN & THE COURT IN FAILING TO DISCHARGE THEIR LEGAL OBLIGATION TO LOCATE & TENDER THE MISSING [JUDGMENT] OF HIS HONOUR JUDGE LAKATOS [SC] DCJ”

64. This is the second of two grounds numbered 22 referred to in the appellant’s written submissions.

65. The appellant contends that in a judgment of October 2013 Lakatos SC DCJ said:

“I suspect that these Two Young Women went about the Business Engaging in this Activity, for the Sole Purpose of something other than Money.”

66. What Lakatos SC DCJ relevantly said however (in considering an application under s 293 of the Criminal Procedure Act) was that:

“It is a legitimate forensic exercise for counsel for the accused to explore what other motives there may have been, apart from money, for such activity to have occurred and attempt to persuade the jury that that was the sole motivation in exclusion of payment of money” (p 2 Judgment of 29 October 2013).

67. This observation is uncontroversial and in any event of no assistance to the appellant in his challenge to Tupman DCJ’s decision. Moreover, his Honour’s observation was not binding on Tupman DCJ (see discussion in Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253 at [27]-[29]). This ground should therefore be rejected.

GROUND 23: “THE TRIAL MISCARRIED AS A RESULT OF CONTINUAL CHANGES TO THE ORIGINAL INDICTMENT 21ST OCTOBER 2013”

68. The Indictment was amended in the period between the two trials from specifying the date 1 June 2012 in relation to Count 3 to referring to the period of “31 May [to] 15 June 2012”. The amendment was permitted in accordance with s 20 of the Criminal Procedure Act.

GROUND 24: “PROOF THE TRIAL MISCARRIED AS A RESULT OF A LITANY OF ERRORS & MISCONCEPTIONS CLEARLY EVIDENCED IN THE FINAL SUMMING UP & SENTENCING OF THE APPELLANT”

69. The only specific matters that the appellant identifies in relation to this ground are, first, that the trial judge made an error as to when the appellant first met the complainants and, secondly, his contention that the trial judge had an “Abject Inability to Accept ‘Younger Women Could, May or Did want Sex with an Older Man”.

70. As to the first matter, the appellant alleges that the first meeting was some four to five months before 31 May 2012, not six weeks as the appellant asserts the trial judge found. (The trial judge found, in fact, that the complainants met the appellant “two or three weeks” before 31 May.) The difference is of no consequence.

71. Secondly, the trial judge considered, and rejected, the appellant’s contention that the complainants had reasons other than money for wanting to have sex with him. This was open to her Honour.

GROUND 16: “THE TRIAL JUDGE ERRED IN ACCEPTING COMPLAINANT EVIDENCE OF EH & OK”

GROUND 17: “THE VERDICTS IN COUNTS 1, 2 & 3 WERE UNREASONABLE & CANNOT BE SUPPORTED WITH REGARD TO THE EVIDENCE”

GROUND 19: “THE TRIAL JUDGE ERRED IN NOT FOLLOWING PROPOSITIONS & PRINCIPLES EXPRESSED IN THE MURRAY DIRECTION CAUSING A MISCARRIAGE OF JUSTICE”

72. As the trial judge recognised that she should not convict unless she was satisfied of the truthfulness of EH’s and OK’s evidence, these four grounds are variants on a contention that the appellant’s convictions should be set aside on the basis that they are “unreasonable, or cannot be supported, having regard to the evidence”, pursuant to s 6(1) of the Criminal Appeal Act. The principles applicable to an “unreasonable verdict” ground of appeal were recently restated by Bathurst CJ (with the concurrence of Johnson and Fullerton JJ) in Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 at [84]-[86] as follows:

“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 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].

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.

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) 258 CLR 308; [2016] HCA 35 at [46]-[48].”

73. In Bell v Regina [2017] NSWCCA 207 at [20]-[25], the Court (Bathurst CJ, McCallum and N Adams JJ) made the following observations concerning an unreasonableness ground of appeal following a judge alone trial:

“The nature of an appeal on that ground after a trial by judge alone was considered by the High Court in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29. The Court noted the provisions of s 133(1) of the Criminal Procedure Act 1986 (NSW), which provides that a judge who tries criminal proceedings without a jury, may make any finding that could have been made by a jury on the question of the guilt of the accused person and that any such finding has, for all purposes, the same effect as a verdict of a jury. The Court considered that the reference to the judge’s ‘finding’ in that context was to be understood to refer to the ultimate finding of guilt or otherwise, as opposed to the findings of fact leading to the ultimate finding: at [6] per French CJ, Bell, Keane and Nettle JJ; per Gageler J at [80].

The Court held that the combined effect of the two sections is that a judge’s finding of guilt ‘is not to be disturbed [under s 6(1) of the Criminal Appeal Act] unless there is no or insufficient evidence to support the finding, or the evidence was all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice’: plurality at [12]; and see Gageler J at [82]-[83].

In the case of an appeal from a jury verdict, the approach this Court should take to an appeal invoking the first limb of s 6(1) is well settled; the task is to review the whole of the record of the trial and to make an independent assessment of the evidence, both as to its sufficiency and its quality. It is not enough if a review of the evidence establishes that it was open to reach a different conclusion. Conversely, the question is not whether there was evidence on which a jury could convict: Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] per Hayne J. If, after giving full weight to the primacy of the tribunal of fact, the appellate court is left in reasonable doubt as to the verdict, it is only where the advantage of the tribunal of fact in seeing and hearing the evidence is capable of resolving that doubt that the Court can conclude there was no miscarriage of justice.

The decision in Filippou makes plain that those principles also govern an appeal invoking the first limb of s 6(1) from a finding of guilt after a trial by judge alone. In such a case, however, the task of the appellate court is complicated by the need to consider the judgment of the trial judge. In the case of a jury verdict, a court of criminal appeal does not have access to the reasons for the verdict. The court in that case is confined to an assessment of the evidence, the submissions of counsel and the directions of law given by the trial judge.

In the case of trial by judge alone, the judgment of the trial judge must include the principles of law applied by the judge and the findings of findings of fact on which the judge relied: s 133(2) of the Criminal Procedure Act.

The plurality in Filippou proceeded on the assumption that, assuming the trial judge has complied with that requirement, the appellate court in an appeal from the verdict of a judge should have regard to the judge’s reasons.”

74. In conformity with these principles, I have conducted an independent review of the record of the trial, both as to its sufficiency and its quality, and concluded that each of grounds 16, 17 and 19 should be rejected.

75. Fundamentally, the outcome of the trial was determined by the trial judge’s assessment of EH’s and OK’s credit. They did not give evidence before her Honour in person but her Honour had the advantage of seeing and hearing recordings of the evidence that they had given at the earlier trial and, in the case of OK, in the interviews, the records of which were adopted as part of her evidence-in-chief. Consistently with SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [29]-[31], I have confined my review of the record of the trial to the transcripts and not viewed the relevant films, there being no particular reason advanced for the Court to do otherwise. Her Honour therefore had an advantage over this Court in this respect and it is significant that her Honour formed a favourable impression when the complainants gave evidence.

76. Her Honour gave herself a Murray Direction (see [15] above) and consequently scrutinised the evidence of the complainants with considerable care. In particular, she considered the lies that they had told and whether they affected the reliability or credibility of their evidence on the critical issue of whether the appellant paid them to have sex with him. Her Honour also considered, and rejected, the appellant’s contention that they had had sex with him for reasons other than money. I can see no flaw in her Honour’s reasoning or conclusions.

77. Having independently assessed the evidence before the trial judge, I am not left with any reasonable doubt as to the correctness of her Honour’s verdict and do not therefore consider that the appellant’s convictions have resulted in any miscarriage of justice.

ORDERS

78. For the reasons I have given, I propose the following orders:

1. Grant the appellant leave to appeal to the extent that he requires it.

2. Dismiss the appeal.

79. JOHNSON J: I agree with the reasons of Macfarlan JA and his Honour’s proposed orders. With respect to Grounds 16, 17 and 19, I have independently assessed the evidence before the trial judge. I am not persuaded that the trial judge ought to have entertained a reasonable doubt as to the appellant’s guilt on Counts 1, 2 and 3.

80. N ADAMS J: I have had the advantage of reading in draft the judgment of Macfarlan JA. I agree with his Honour that the appeal should be dismissed for the reasons provided by his Honour. The appellant was legally represented at trial. Many of the complaints now made were not made before the trial judge. Many of the grounds allege error in relation to factual findings made by the trial judge which were open to her Honour to make. With respect to grounds 16, 17 and 19 I too am not persuaded, for the reasons set out by Macfarlan JA, that the trial judge ought to have entertained a reasonable doubt as to the appellant’s guilt. My agreement with his Honour on this ground was reached after an independent examination of the trial evidence.

81. In relation to ground 4, I agree that her Honour does appear to have misstated the evidence when describing the appellant's answers recorded in the records of interview. Her Honour observed that the appellant "gave the appearance of labouring the point about the assertion he is making that the two complainants voluntarily had sex with him for some purpose other than money”. That was his defence at trial but not what he initially told police. Despite this, it is apparent from her Honour’s reasons that she was aware that the appellant had denied that he had had sexual intercourse with the complainants at the time of his interviews. The slip is a minor one in those circumstances and could not give rise to any miscarriage of justice.

**********

Decision last updated: 03 December 2018