AP v R

[2013] NSWCCA 189

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	AP v R [2013] NSWCCA 189
Hearing dates:	6 August 2013
Decision date:	16 August 2013
Before:	Leeming JA at [1]; RA Hulme J at [32]; Button J at [33]
Decision:	Leave to appeal refused
Catchwords:	CRIMINAL LAW - appeal against conviction - whether trial judge put defence case to jury - objection not taken at trial - substance of defence case in fact put to jury - leave to appeal refused
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1986 Criminal Appeal Rules
Cases Cited:	ARS v R [2011] NSWCCA 266 Condon (1995) 83 A Crim R 335 FP v R [2012] NSWCCA 182 ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 R v Germakian [2007] NSWCCA 373; (2007) 70 NSWLR 467 R v Meher [2004] NSWCCA 355 RPS v R [2000] HCA 3; (2000) 199 CLR 620 Tekely v R; Nagle v R [2007] NSWCCA 75 Wong v R [2009] NSWCCA 101
Category:	Principal judgment
Parties:	AP (Applicant) Regina (Respondent)
Representation:	Counsel: C Taylor (Applicant) H Wilson (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2009/12606
Decision under appeal	Date of Decision: 2011-08-02 00:00:00 Before: Neilson DCJ File Number(s): 2009/12606

Judgment

1. LEEMING JA: The applicant was convicted by a jury on 2 August 2011 of three counts of sexual intercourse with child under ten contrary to s 66A of the Crimes Act1900. He was acquitted of other charges pursuant to ss 66A, 66EA and 61M(2) of the Crimes Act. On 7 October 2011, a head sentence of imprisonment for three years with a non-parole period of 18 months was imposed in relation to each conviction, with different starting dates.

1. The overall term expires on 1 November 2014. The applicant was admitted to parole on 1 May 2013, following completion of the non-parole periods of his sentences. He continues to be at liberty, subject to parole.

1. The single ground of the proposed appeal is that "the trial judge failed to put the Appellant's case to the jury."

Leave to appeal is required

1. The notice of appeal was filed on 29 April 2013. Although it is confined to a question of law, there are two reasons why leave is required. First, there was and is some confusion as to the extent to which an extension of time was required. The Court's Registrar appears to have extended time, repeatedly, until 26 April 2013. Even so, a notice of appeal was not filed until 29 April 2013. However, an earlier notice of appeal was filed on 26 July 2012, without legal assistance. The Crown took the view, properly, that it would not oppose a three-day extension of time if that were necessary. In the circumstances, the question of delay is of minor significance to the resolution of the application, although it is to be regretted that the delay has been such that the applicant has now been admitted to parole.

1. Much more substantively, and as was (very properly) disclosed in the applicant's written submissions, counsel then appearing at the trial was asked by the primary judge whether he wanted a summing up on the facts. He said that he did not. No objection as to the adequacy of the summing up was made at the trial. Accordingly, leave is required by reason of r 4 of the Criminal Appeal Rules.

1. In order to deal with the threshold question of leave, it is necessary first to deal with the factual and procedural background.

Background

1. At the time of the offences, the applicant lived with his mother and sister in Tregear in western Sydney. At the time of the events the subject of the indictment, the complainant was four, later five, years old and lived next door. The applicant was aged fifteen, later sixteen. The complainant and her mother would often visit, and play in, and eat at, and occasionally sleep at, the applicant's house. The Crown case was that on three occasions in 2006 the applicant sexually or indecently assaulted the complainant when she visited him in his bedroom. The complainant was interviewed in 2006, but charges were not laid until 2009 following a further interview. When charged in 2009, the applicant was cautioned and exercised his right to remain silent.

1. On 25 July 2011, the applicant was arraigned, the jury empanelled and the Crown opened. The complainant (then aged nine) gave evidence on 26 and 27 July. Evidence was also given by the complainant's mother, her step-grandmother, three police officers, a doctor from the child protection unit at the Children's Hospital at Westmead, and two DNA experts (one called by the accused) relating to DNA evidence (addressed further below). The applicant and his sister gave evidence on 29 July (a Friday). On Monday 1 August 2011 the Crown and defence made their closing addresses and the judge summed up. His Honour commenced his summing up before lunchtime. The jury retired at 3.10pm, was recalled for a further direction given at the request of the Crown, and returned a verdict at 1.20pm on Tuesday 2 August 2011.

1. The essence of the applicant's case at trial was that he denied the allegations, he was a person of good character, he said that the reliability of the complainant's first interview in 2006 was suspect, that there were inconsistencies in the complainant's evidence, and that the DNA evidence was flawed, or could be explained by innocent transfer.

1. The summing up by the trial judge did not deal separately with the defence case. His Honour commenced by referring in general terms to the submissions that had been made on behalf of the Crown and the accused earlier that morning. He addressed the onus of proof and said:

"The fact that the accused has given evidence and called evidence before you does not alter the burden of proof. The accused does not have to prove that his version is true. The Crown has to satisfy you the account given by the accused and his sister should not be accepted as a version of events that could reasonably be true."

1. When addressing the standard of proof, the judge said:

"The accused has given and called evidence in answer to the case led by the Crown. You have heard this on Friday. If, having considered that evidence and the submissions of both counsel in relation to it, you accept it, then, of course, you must acquit the accused and bring in a verdict of not guilty because it would follow that the Crown has not established beyond reasonable doubt its case in relation to the essential matters that it must prove. However, as I have told you, there is no obligation on the accused to persuade you to accept that evidence. The Crown must satisfy you beyond reasonable doubt that you should reject it as a reasonably possible version of the facts."

1. The trial judge addressed the importance of the evidence of the complainant, and said this:

"You must exercise caution before you convict the accused because the Crown case largely depends on your accepting the reliability of the evidence of a single witness. This being so, unless you are satisfied beyond reasonable doubt that the complainant is both an honest and an accurate witness in the account she has given, you cannot find the accused guilty. Before you can convict the accused, you should examine the evidence of the complainant very carefully in order to satisfy yourselves that you can safely act upon that evidence to the high standard required in a criminal trial."

1. On the DNA evidence, the judge gave a relatively extensive direction, which included the following:

"It is not a case of choosing between [the experts'] evidence. If you think that there is a reasonable possibility that the evidence of Dr McDonald, favouring the accused, taken in conjunction with all the other evidence, may be correct, then you should proceed on that basis. In other words in determining whether the Crown has proved its case beyond reasonable doubt you are required to take into consideration the reasonable possibility that the evidence of Dr McDonald, when taken in conjunction will all the other evidence, may be correct.

...

Ladies and gentlemen, perhaps I should sum up to some extent the expert evidence. It appears to me to be based on a number of things. One, there is a challenge to the methodology adopted by Ms Neville. [His Honour then summarised the criticism of the methodology which had led Ms Neville to conclude that very few individuals in the community in addition to the accused would have had the same DNA profile as had been found in the complainant's clothing]. ... However, perhaps this is rather academic because the real question is, how did the DNA get in the underpants? Dr McDonald told you, and he was not challenged in this, that on average 1,000 cells per square centimetre of skin are shed every hour, right? ... The technology used in the laboratory can readily identify DNA from approximately 20 cells. So, if the accused was sitting at his computer for six hours per day shedding skin cells at the rate of 1,000 per square centimetre per hour, imagine how much DNA would have been on his mouse, on his keyboard, on his chair, all around him.

...

The Crown asks you to infer that the accused's DNA got inside the complainant's underpants because he touched her genitals, skin cells went from his hand or penis onto her genitalia and then, when she pulled her pants up, that DNA of the accused was transferred from the skin of the complainant onto her underwear. That of course is a possible explanation of how it got there. But is it the only rational inference to be drawn in the circumstances? Can you think of other scenarios which might explain how the DNA got inside the accused's underpants? Could, for example, the complainant have played with the computer mouse for five or ten minutes, picked up DNA from the accused and somehow got it inside her own underpants? Is that possible? Is that a scenario? Again, I again draw your attention to the direction I have given you concerning inferences. That is that where proof is required beyond reasonable doubt, you should not draw any inference from the direct evidence unless it is the only rational inference in the circumstances."

1. The judge directed the jury as to the applicant's silence, and no complaint is made about that direction. The trial judge then concluded his summing up as follows:

"Under our law an accused person has a right to silence. However, he has not remained silent. He was not required to give evidence. As you have been told repeatedly, he does not have to prove anything. Yet he has entered the witness box and given you evidence on oath. However, as has been pointed out to you, that does not change anything. He is just another witness and you must assess him as a witness in the same way as you would assess any other witness.

The accused has called evidence to establish that he is a person of good character. The evidence demonstrates that he has no prior criminal convictions, no prior dealings with the police. In light of that, it is clearly open to you to find that the accused is a person of good character. The law provides that the accused is entitled to have you take that evidence into account in his favour in the following two ways. Firstly, the fact that the accused is a person of good character entitles you to consider the improbability of his having committed the offences alleged. In other words, you are entitled to take the good character of the accused into account on the question of his guilt. Secondly, the accused has given evidence in this trial. The fact that he is a person of good character supports his credibility. This is a factor which the accused is entitled to have you take into account therefore when deciding whether you accept his evidence. None of this means of course that good character provides the accused with some kind of defence. It is only one of the many factors which you are to take into account in determining whether you are satisfied beyond reasonable doubt of the guilt of the accused on any of the charges which he faces.

Gentlemen, do you want me to sum up on the facts or do you think it is sufficiently covered?

Crown Prosecutor: I don't think so your Honour.

Porter: No."

1. Further, after the jury had retired, there was discussion as to further directions sought by the Crown. When defence counsel was asked as to his attitude, he said "I don't want to say anything".

Consideration

1. Counsel appearing for the accused was much better placed than this Court on appeal to assess whether a fair trial required the judge to say more than had already been said. On any view, this was a relatively straightforward trial, objectively speaking. The impression obtained from reading the record and in particular the closing addresses is that both counsel proceeded on the basis that the jury understood the fairly obvious issues for them to decide: did they have a reasonable doubt based on the denials of the accused and his sister? Were they persuaded to a very high standard of the truth of the evidence of a young girl? Was there sufficient doubt as to the DNA methodology and the possibility of indirect transfer? However, a transcript cannot fully convey the extent to which it was obvious to the judge and those present in the court that all members of the jury appeared either to understand or to fail to understand the significance of the evidence and the issues for their determination. That reflects part of the policy underlying r 4, as to which, as was said in Rv Germakian [2007] NSWCCA 373; (2007) 70 NSWLR 467 by Giles JA, Hulme and Hislop JJ at [10]:

"The requirements of r 4 do not constitute some mere technicality which may simply be brushed aside".

1. Further, as the Court added at [13].

"[L]eave under r 4 will only be granted where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings: R v Tripodina (at 195) or as Mahoney JA said in R v Jeffrey (Court of Criminal Appeal, 16 December 1993, unreported), at 7, followed in R v DH [2000] NSWCCA 360: '...unless there be a convincing reason why the matter was not raised at the trial and unless the possibility of real injustice appears, an accused should be held to what was done by or for him at trial level'."

1. Against this, Mr Taylor, who appeared for the applicant, candidly conceded that there was no explanation why counsel who appeared at the trial did not raise the matter, but pointed to what had occurred in Wong v R [2009] NSWCCA 101, where the same ground of appeal was taken. At that trial, the judge had asked at the conclusion of the summing up whether there was anything else counsel wanted him to say, and was told there was not (see at [126]), and yet Campbell JA, with the agreement of Grove and Howie JJ, after being taken to Germakian, concluded (at [145]) (emphasis in original):

"No explanation was provided, at the hearing of the appeal, as to why the objections were not taken at trial. Counsel for the appellant at the trial was an experienced criminal lawyer. Those two matters are ones that frequently count against leave being granted under Rule 4. Even so, the deficiency in the summing up in the present case is, in my view, one that is such a departure from the essential requirements of the law that it goes to the root of the proceedings. There are repeated statements of high authority that the defence case must be put to the jury, and the jury must be instructed about how the law applies to that case."

The statements of high authority included RPS v R [2000] HCA 3; (2000) 199 CLR 620 at [41], R v Meher [2004] NSWCCA 355 at [76] and [82]-[86] and Condon (1995) 83 A Crim R 335 at 347-348.

1. Campbell JA raised for consideration, but did not need to determine, whether there might be occasions where, despite the concurrence of counsel, the power in s 161 of the Criminal Procedure Act 1986 to dispense with a summary of the evidence, might not be available. The reason his Honour did not need to determine that point was because, as was said in [147] (emphasis added):

"While there are circumstances in which this court might decide that the failure of a trial judge to refer to certain items of evidence, or to relate certain items of evidence to the accused's case, was so serious that the judge could not have validly exercised his or her discretion under section 161, it is not necessary to decide whether the present case is such a case. That is because the failure to put the accused's case to the jury at all, and to apply the law to that case, is a sufficient reason why the conviction cannot stand."

1. There is, to my mind, a tension between the two lines of authority reflected in Germakian and Wong. On the one hand, it is said in Germakian that there must be a convincing reason for the point not being taken and the possibility of real injustice. On the other hand, and more recently, and after reference to Germakian but without squarely explaining why it was inapplicable, it has been said that failing to put the defence case to the jury by itself is appellable error.

1. So far as I can see, Wong has never been followed in any superior court in Australia. On the other hand, the principles in Germakian have repeatedly been endorsed and applied, including at the appellate level: see ARS v R [2011] NSWCCA 266 at [148] (Bathurst CJ, James and Johnson JJ agreeing) and FP v R [2012] NSWCCA 182 at [72] (RA Hulme J, McClellan CJ at CL and Schmidt J agreeing). Those later decisions have not addressed the potentially divergent approach in Wong.

1. However, in my opinion, it is not necessary, and therefore not appropriate, to resolve that tension in order to determine this application. This is not a case like Wong, where it was found that there was complete failure to put the defence case to the jury.

1. The ultimate question is whether the summing up as a whole fairly puts before the jury the case of the accused. In RPS v R Gaudron ACJ, Gummow, Kirby and Hayne JJ said at [41]:

"The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. ... It will require the judge to put fairly before the jury the case which the accused makes."

And the question of the fairness of the trial is a question of substance, rather than form. It is influenced by the nature of the issues, the nature of the case of the accused and the length of the trial.

1. It is true that the trial judge never separately identified and summarised the defence case. However, in my opinion that cannot of itself give rise to complaint. On no view of the law does the purpose of achieving a fair trial mandate that there be a separate section in the summing up identifying the elements of the accused's case. On occasion, and perhaps more frequently than not, the most effective way of the judge fairly putting the gravamen of the defence case to the jury is in the course of summarising the issues for their determination.

1. In my view, that is what occurred here. When dealing with the DNA evidence, the trial judge squarely summarised the challenge to the methodology, and explained in a way which was neutral, and fair, the defence case of the possibility of indirect transfer. When dealing with the evidence of the complainant, the judge stressed the caution that was necessary before relying on her evidence. His Honour did not summarise the evidence of the complainant to the effect that the accused had assaulted her, nor did his Honour summarise the evidence of the accused, that it had not happened. But I am not persuaded that that fundamental disparity between the testimonial evidence on the part of the Crown and the accused was not obvious. That was what the trial, at its most basic level, was all about. The trial judge told the jury that if they believed the accused, they must acquit, and further told them as to his right to silence and his good character. That is to say, in my opinion it was not necessary for the judge to include an extra sentence:

"The accused has given and called evidence in answer to the case led by the Crown. You have heard this on Friday. Of course, you will remember that he denied he ever touched the complainant in any sexual way. If, having considered that evidence and the submissions of both counsel in relation to it, you accept it, then, of course, you must acquit the accused and bring in a verdict of not guilty because it would follow that the Crown has not established beyond reasonable doubt its case in relation to the essential matters that it must prove."

1. Any other result would be to elevate form over substance.

1. At one stage in oral submissions, the applicant said that the essence of the defence case was:

"The Accused stated that he did not sexually abuse the Complainant. The Complainant was an unreliable witness and the DNA evidence was open to interpretation."

1. In my view, there is no good reason to doubt based on the material available on the appeal that those essential elements were conveyed by the judge in his summing up, in a way that was fair. However, Mr Taylor submitted that although it might not seem to a court that there could be any real doubt, that was not to say that some or all of the jurors might not have appreciated the defence case.

1. There is force in Mr Taylor's point, in principle. However, to my mind, that brings to the forefront the considerations underlying r 4. For it is well settled that "a failure to raise objections at the close of the judge's summing up is usually a reasonably reliable indicator of the fairness and adequacy of it": ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [90] (Ipp JA); Tekely v R; Nagle v R [2007] NSWCCA 75 at [89] (Sully J); ARS v R at [148] (Bathurst CJ). This was in my opinion not a case like Wong where there was no attempt at all to put the defence case to the jury. It is plain from the extracts reproduced above that, taking Mr Taylor's point at its highest, the substance of the defence case was, at the very least, put in large measure. In my opinion, it is permissible and accords with authority to rely upon the failure to object at trial to strengthen the conclusion that appears from the transcript, namely, that the summing up fairly put the defence case.

1. In short, the essential aspects of the defence case were the denial of the Crown case by the accused and his sister, the caution attaching to reliance on the evidence of the complainant, and doubts relating to the DNA evidence. As best as can be seen from the record, all three were squarely put to the jury by the judge, and the fact that that was so is consistent with counsel then appearing for the accused not making any complaint at the time.

1. For those reasons, there is not a proper basis to grant leave to appeal on a point not taken at the trial. This is not a case like Wong. No error is shown which goes to the root of the trial. To apply what was said in Germakian, no convincing basis has been shown for complaint not having been made at trial, and it does not appear that there was the possibility of real injustice in light of the way the trial was conducted. I propose that leave to appeal be refused.

1. RA HULME J: I agree with Leeming JA.

1. BUTTON J: I agree with Leeming JA.

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Decision last updated: 16 August 2013