Badans v R - [2012] NSWCCA 97

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Badans v R [2012] NSWCCA 97
Hearing dates: 5 December 2011
Decision date: 17 May 2012
Before: Meagher JA at [1]
Hoeben J at [84]
Rothman J at [85]
Decision:
(1) Refuse leave to appeal against the conviction on grounds 1 and 2.
(2) Grant leave to appeal against the conviction on ground 3.
(3) Dismiss the appeal against conviction.
(4) Dismiss the appeal against sentence.
(5) Allow the appeal against the order for payment of Dr Nielssen's costs.
(6) Set aside the order made by the District Court on 24 June 2011 that the Crown pay the costs of calling Dr Nielssen in the sum of $1500.

Catchwords: CRIMINAL LAW - appeal - conviction - whether misdirections in summing up to jury - evidence - whether verdict unreasonable or unsupportable on evidence - Criminal Appeal Act 1912, s 5(1)(a) and s 5(1)(b)
CRIMINAL LAW - appeal - sentencing - whether manifestly inadequate - standard non-parole period - consideration of Muldrock - significance of appellant's intellectual disability - Criminal Appeal Act 1912, s 5D(1)
CRIMINAL LAW - appeal - procedure - sentencing hearing - order Crown pay costs incurred by appellant in calling expert under s 177(7) of Evidence Act - no direction in accordance with s 4(2)(a) that law of evidence applied - costs order set aside
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Appeal Rules
Evidence Act 1995
Cases Cited: Alseedi v R [2009] NSWCCA 185
Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
Dionnet v R [2009] NSWCCA 85
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1
Engert v R (1995) 84 A Crim R 67
Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423
Kocer v R [2006] NSWCCA 328
Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Matzick v R [2007] NSWCCA 92
McCartney v R [2009] NSWCCA 244
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329
Nagi v Director of Public Prosecutions (NSW) [2009] NSWCCA 197
O'Neil-Shaw v R [2010] NSWCCA 42
R v Achurch [2011] NSWCCA 186
R v Allpass (1993) 72 A Crim R 561
R v Fahda [1999] NSWCCA 267
R v Gilham [2007] NSWCCA 323; (2007) 73 NSWLR 308
R v Hemsley [2004] NSWCCA 228
R v Isaacs (1997) 41 NSWLR 374
R v Israil [2002] NSWCCA 255
R v Koloamatangi [2011] NSWCCA 288
R v Letteri (New South Wales Court of Criminal Appeal, 18 March 1992, unreported)
R v Li [2003] NSWCCA 386; (2003) 140 A Crim R 288
R v Murray (1987) 11 NSWLR 12
R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174
R v Pavia (1993) 67 A Crim R 364
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Reberger v R [2011] NSWCCA 132
SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Luke Badans (Appellant)
Director of Public Prosecutions (NSW) (Crown)
Representation: Counsel:
G Jones (Appellant)
M M Cinque (Crown)
Solicitors:
Meehan Solicitors (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2009/194646
Decision under appeal

Before:

Syme DCJ

File Number(s):

2009/194646

Judgment

MEAGHER JA: On 3 December 2010, following a trial before Syme DCJ which commenced on 29 November 2010, Luke Badans (the appellant) was found guilty of one count of sexual assault in contravention of s 61I of the Crimes Act 1900. The count charged in the indictment was -

"On 22 August 2009 at Macquarie Fields in the State of New South Wales, did have sexual intercourse with [the complainant] without her consent and knowing she was not consenting."

On 24 June 2011 the trial judge sentenced the appellant to imprisonment for three years with a non-parole period of one year. The applicable maximum penalty was imprisonment for 14 years and there was a standard non-parole period of seven years.

At the sentencing hearing the Crown required the attendance of Dr Olav Nielssen, a psychiatrist retained on behalf of the appellant, for cross-examination. Following that hearing, the trial judge ordered, pursuant to s 177(7) of the Evidence Act 1995, that the Crown pay the costs of $1500 incurred by the appellant in relation to the attendance of Dr Nielssen.

In this proceeding:

(1) the appellant appeals against his conviction pursuant to s 5(1)(a) and also seeks leave to appeal against that conviction pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (the Act).

(2) the Director of Public Prosecutions appeals against the sentence pursuant to s 5D(1) of the Act.

(3) the Director of Public Prosecutions appeals against the order for payment of Dr Nielssen's costs pursuant to s 5F(2) of the Act.

It is convenient to deal with the three appeals in the order in which they are referred to above.

The conviction appeal

There are three grounds of appeal. Grounds 1 and 2 are directed to statements made by the trial judge in her summing up. Ground 3 is that the verdict was unreasonable or cannot be supported having regard to the evidence.

To address the arguments in support of these grounds, and in particular Ground 3, it is necessary to summarise the relevant evidence concerning the circumstances of the offence. The issue for the jury was whether they accepted the complainant's evidence. Her evidence was that she was asleep at the time the appellant commenced to have sexual intercourse with her. The appellant's evidence was that the complainant was awake and that, by what she said and did, she invited him to have intercourse with her. The resolution of that issue depended on whether the jury was satisfied beyond reasonable doubt as to the truthfulness and reliability of the complainant's evidence: Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 at 515; R v Li [2003] NSWCCA 386; (2003) 140 A Crim R 288 at [72].

The evidence at trial

A party was held at the house of the complainant's friend, Kristy Hayes, at Macquarie Fields on Friday evening, 21 August 2009. The complainant had stayed at the house on the previous evening and arrived at the party at about 6.30pm with Grant Lane who previously had been her boyfriend for about one month. By 7.30pm at least eight people were at the house. They included Ms Hayes' partner, Paul Buckton, and the appellant, who had been a work colleague of Mr Lane and Mr Buckton for about eight years or so. The complainant had known the appellant for about one year as an acquaintance.

During the night those present listened to music, played pool and consumed alcohol. The complainant said she had about eight to ten glasses of bourbon and coke and two "jelly shots" containing vodka. The complainant took an amphetamine during the evening. There was an issue as to where those drugs came from. The complainant said that whilst she was having a cigarette at the back of the house with Mr Lane, Mr Buckton and the appellant, she was offered an amphetamine. Ms Hayes' evidence was that during the evening the complainant called her into her bedroom and showed her a bag containing a substance which she understood was a form of 'speed'. Ms Hayes said that the complainant offered her and that she took some of that substance which did not have any effect on her. The complainant denied that this had occurred. The complainant said that the drug she took did not affect her. Ms Hayes' evidence was that the complainant was "jumpy" and "more happy go lucky" than usual.

Mr Lane said that during the evening he had a lengthy conversation with the complainant on the back balcony of the house. The complainant could not recall that occurring. In the early hours of the morning Mr Lane went to his car which was parked in the driveway, at the rear of the house. The complainant joined him a short time later. They talked about their break-up, how they missed each other and agreed that they both wanted to resume their relationship again. The complainant and Mr Lane gave evidence to this effect. After an hour or so in the car, the complainant returned to the house to use the toilet. After she had done so, those in the house teased her about what she and Mr Lane had been up to in the car. Eventually, particularly at the urging of Mr Buckton, she decided not to go back to the car. She remained in the lounge room for about 15 minutes and then went to Ms Hayes' bedroom to sleep. At that time the appellant, Mr Buckton, Ms Hayes and two others remained in the lounge room talking. The complainant described her condition by this time as being "pretty drunk". In the bedroom, she changed into a black T-shirt and a pair of boxer shorts. She was also wearing underpants and a sanitary pad as she had her period.

The complainant left the door to the bedroom open and the bedroom light was off. She said she fell asleep immediately. The next thing she recalled was waking up with the appellant on top of her and having sex with her. She was lying on her back, legs open and her knees were bent. He was moving up and down with his penis in her vagina. She said that as soon as she opened her eyes she saw it was the appellant. Having recognised him she just froze and lay there. She said she was in shock. When the appellant finished he got up, pulled his pants up and jumped off the bed. He looked at her and said "Stay there, shut up" and walked out. She then pulled up her underpants and boxer shorts and pulled the bed covers up. She saw the appellant's rolling tobacco on the bed, picked it up and threw it onto the floor. As she lay there she then started to cry. A couple of minutes later she heard the hall door open and someone jumped on her. She saw it was the appellant. He asked where his rolling tobacco was. She pointed to the ground. He picked it up and said "Be quiet. Just be quiet. I told them I tried to wake you up. Be quiet." He again left the room.

The complainant said she was crying and, shortly afterwards, opened the hall door and motioned to Ms Hayes to come into the bedroom. She then told her that the appellant had raped her. Ms Hayes' evidence was that the complainant said "I thought it was Grant", "when I woke up he was on top of me" and "I opened my eyes and saw it was Luke". The complainant did not dispute that she said words to that effect. Ms Hayes also described the complainant as being "sort of a bit out of it". She waited with the complainant until she fell asleep. The complainant woke up some time later on the Saturday morning.

There was an issue as to whether the complainant spoke to Mr Lane by telephone on the Saturday morning. His evidence was that in a telephone conversation she described to him what had happened as follows:

"Luke came in during the night. I thought it was you."

and

"It wasn't until he finished that I realised it wasn't you."

He also said that she told him that the appellant had grabbed her by the throat and told her to shut up. The complainant denied that she had a telephone conversation with Mr Lane on that morning. However, she accepted that she had a face to face conversation with him later in the afternoon in which she reported what had happened to her. It will be necessary to consider later in these reasons the cross-examination of the complainant on this conversation.

The appellant's evidence was that during the evening he consumed about 10 beers and that he was "a little bit tipsy" but not drunk. He described the complainant as "quite intoxicated" but not completely drunk or slurring her words or falling over. When the complainant returned to the lounge room about 3.00am or so she sat there and talked with the appellant, Ms Hayes, Mr Buckton and two other girls. Then she got up saying "I'm going to bed". About 15 minutes later the appellant got up and said that he was "going to go and wake her up". He agreed that to this point in time the complainant had not said anything which provided a basis for him to believe that she wanted to have, or would consent to, sexual intercourse with him. The lights in the bedroom were off and the door was open. He stood in the doorway and the complainant said "Come and lay down next to me". He was unsure what she meant by this but lay down because he was starting to feel a bit tired. She then started to rub her fingers over his body with a light scratch and said "Aren't you going to do anything?" He understood her to mean anything sexual and started to do the same thing back to her. He scratched his fingers over her arm and belly. She then said "I want to fuck you". He then stood up and took off his pants. She took her own pants off and they had intercourse until he ejaculated. He did not use a condom as he did not carry them and did not go there expecting to have sex. He then put his pants on and went back to the lounge room, realised he had left his 'smokes' in the bedroom and went back to retrieve them. The complainant told him they were "over there". He then picked them up and walked out.

In cross-examination the appellant accepted that he had "quite a distinctive voice". His evidence was that when the complainant said to him "Come and lay down" she appeared to be looking at him, that she was lying on her back and her head was up on two pillows. When they were lying on the bed and she said "Aren't you going to do anything?" she was also looking at him and he was looking at her but he maintained he could not really see her face as it was dark. He also recalled in cross-examination that when he first stood in the doorway and said "Come on wake up", the complainant responded "I'm still awake". He denied that he pulled the complainant's pants down. She did not tell him that she had her period. After he had put his pants on and she had put her pants on he said to her "Thanks" and she said "Any time". The appellant denied that the complainant was asleep when he first commenced having intercourse with her. He denied that he said to her before he left the room "Stay there and shut up" and that when he came back to retrieve his cigarettes he had said "Be quiet. Just be quiet. I told them I tried to wake you up. Be quiet." The appellant maintained that when he commenced having sex with the complainant he thought she was consenting.

The evidence of Ms Hayes and one of the other witnesses present in the lounge room was that after the complainant had gone to bed, the appellant had said that he was going to go to the bedroom to "wake her up" and that he did so and returned five or six minutes later and said "Oh man. She's fucked" meaning that she was 'out of it'.

Ground 1

Ground 1 is that in her direction on the standard of proof, the trial judge erred in giving the taking of drugs at the party as an example of something which the Crown did not need to prove beyond reasonable doubt. The appellant contends that there was an issue as to whether the complainant had taken drugs and was affected by them and that the trial judge's direction "had the ability to take [that issue] away from the jury" by suggesting that the jury need not be concerned with that issue.

In its address the Crown had pointed out that the appellant may suggest that the complainant was too drunk or too affected by drugs to be a reliable witness or that her state of mind was such that she did not know what was going on. The Crown submitted that notwithstanding that the complainant had consumed alcohol and an amount of a prohibited drug, she remembered clearly what the appellant had done to her. The appellant's counsel in his closing address also referred to the complainant's drinking and drug taking as providing an explanation for the complainant behaving as the appellant's evidence indicated she had.

The relevant part of the summing up was as follows:

"The burden of proof of guilt of the accused is placed on the Crown. The onus rests upon the Crown with respect to every element of the charge. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence. But it is for the Crown to prove his guilt and to prove his guilt beyond reasonable doubt. ...

The Crown does not, however, have to prove every single fact in the case to that standard. For example in the context of this case, the Crown does not have to prove if there were drugs at the party or if there were, who took them or who brought them to the party. In the context of this case, how the complainant got to the party, proof to that standard is not required. These are small or large conflicts in the evidence that you may take into account in other ways, but the Crown case does not depend upon them being proven to that higher criminal standard. The onus which rests upon the Crown is to prove the elements of the charges beyond reasonable doubt." (emphasis added)

(Tcpt 2/12/10, p 5)

At the conclusion of the summing up, it was suggested by counsel for the appellant that what had been said might indicate that there was an issue as to whether a drug was taken by the complainant whereas there was no real issue because her evidence was that she had taken an amphetamine. The trial judge responded that she was only addressing "the standard of proof" and that she did not propose to amend the direction. Counsel for the appellant "accepted" that as the position and did not press for any amendment to the summing up. In my view, he was correct not to do so.

The part of the summing up extracted above makes clear that not all conflicts arising on the evidence concerned matters which were relevant or required to be proved beyond reasonable doubt. It also made clear that the elements of the charges had to be proved beyond reasonable doubt. Those elements were identified later in the summing up. When referring to the evidence as to drug taking, the trial judge did not suggest that there was no evidence as to drug taking or as to its effect upon the complainant or that the jury could not take evidence as to those matters into account when considering whether the elements of the charges had been proved beyond reasonable doubt. Later in her summing up, when referring to the appellant's submissions as to why his evidence should be accepted, the trial judge reminded the jury:

"The accused's counsel on the other hand, refers to drugs, alcohol and desire. These are the factual matrix in which you must weigh the evidence. These are matters for you members of the jury." (emphasis added)

(Tcpt 2/12/10, p 13

For these reasons ground 1 is not made out. Because the appellant's counsel did not require any specific direction or amendment to the summing up which squarely addressed the subject matter of this ground, r 4 of the Criminal Appeal Rules applies. This is not a case in which the leave required by that rule should be granted.

Ground 2

Ground 2 is that the trial judge erred:

(a) in not correcting the Crown proposition that because counsel for the appellant did not state that the complainant had sex with the appellant by mistake, it was not available for the jury to consider, that the victim had sex with the appellant because she thought he was Mr Lane, and

(b) when directing the jury as to how to deal with the uncontested Crown evidence that the complainant said to Mr Lane:

"Luke came in during the night. I thought it was you. It wasn't til he finished that I realised it wasn't you."

Ground 2(a)

Ground 2(a) can be dealt with shortly. The part of the Crown's address said to include the "Crown proposition" referred to above was in the following terms:

"I don't know if my friend is going to suggest that [the complainant] thought it was Grant not the accused coming into the room and that she proceeded to have consensual intercourse, consensual sexual intercourse under that mistaken belief. That certainly wasn't put to [the complainant] so she didn't have a chance to respond to that. But if my friend does suggest that, then you only need to think about it for a moment to realise how implausible it is. The accused comes into the room. [The complainant] thinks it's Grant. They have a conversation. [The complainant] thinks it's Grant despite the distinctive sound of the accused's voice. [The complainant] invites the accused onto the bed and he does so. [The complainant] still thinks it's Grant. The accused rubs his hand over her body. She still thinks it's Grant. She does the same to him. Still things it's Grant. They take off their pants. She still thinks it's Grant. They kiss. She plays with his penis, engaging in sexual intercourse, they kiss. She still thinks it's Grant. Members of the jury it is not believable. It is not even remotely plausible. If the accused's version of events is true Ruth had ample opportunity to see who had come into the room. And there is simply no room for mistake. The accused had no trouble recognising the person in the room as [the complainant] so he says. And [the complainant] would not have had any difficulty knowing it was the accused if she were awake and if those things had happened." (emphasis added)

(Tcpt 1/12/10, p 7)

The premise upon which this ground is based is not made out. The Crown did not submit that because counsel for the appellant had not put to the complainant in cross-examination that she had sex with the appellant by mistake, it was not open to the jury to consider that this may have been what had occurred. The Crown was entitled to point out that the complainant had not been cross-examined on this hypothesis: MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 at [19]. The remainder of the Crown submission assumed that the matter was one for the jury to consider and addressed the implausibility of the suggestion that the complainant had been mistaken. There was no proposition put which required correction. For these reasons ground 2(a) is not made out.

Ground 2(b)

The trial judge's direction to the jury concerning Mr Lane's evidence as to what the complainant reported had happened was as follows:

"... The Crown case clearly is that [the complainant] was asleep when the sexual intercourse occurred. The Crown case is that she woke up when sexual intercourse was already underway. As such, if you accept this, according to my directions, she was not in a position to consent. ..."

(Tcpt 2/12/10, p 8)

"In this case, as I have said, the issue is that of consent. However, there has been an unavoidable issue raised as to the question of knowledge, that I should deal with now, and that [is] the issue raised by Mr Crown in his address to you and by Mr Jones in cross-examination, and that is the issue of whether the complainant consented to sexual activity perhaps believing that she was consenting to sexual activity with Grant Lane. Mr Crown said to you that Mr Jones did not put such a proposition to [the complainant]. He said that to you in his address. Therefore she, the complainant, did not have the opportunity to comment on it. That is true. Mr Jones did put to [the complainant] the statement Mr Grant Lane made to police in his statement to police."

(Tcpt 2/12/10, pp 9-10)

The reference to the "issue raised by Mr Crown" is to the Crown submission extracted in [23] above. The summing up then made reference to Mr Lane's evidence and to the complainant's evidence in cross-examination. The former evidence is set out in [12] above. The complainant gave the following evidence in cross-examination concerning her conversation with Mr Lane:

"Q. The only reason I ask you that - I'll again be fair again - at paragraph 11, Mr Lane says - and he prefaces this by paragraph 10. He says he thought initially things occurred at about 10am. Then he says,

"When I asked this, Luke wouldn't look at me, and I knew him well enough to say that he's lying to me. I didn't say anything else to Luke, as I wanted to find out what happened. When I got to Newcastle, which is probably about 40 minutes later, 10.40am, I called [the complainant] on her mobile phone. I spoke to [the complainant] and asked her what happened. [She] said 'Luke came in during the night. I thought it was you. It wasn't until he finished that I realised it wasn't you.'"

A. That's wrong.

Q. You say, again, that what Mr Lane has conveyed in his statement -

A. I can verify that for you, if you like.

Q. You say, again, what Mr Lane has conveyed to you in his statement is factually incorrect. That's right?

A. Yes, some of it's incorrect. The way that he's put it across is incorrect.

Q. You say you had no conversation at all with Mr Lane. That's your case isn't it?

A. Yes. I remember saying that to him in the afternoon, face to face.

Q. But it was not --

A. But I do not remember saying that over the phone to him.

Q. You now preface it by not so much you didn't have the conversation, but you can't remember it?

A. I can't remember that conversation on the telephone, no." (emphasis added)

(Tcpt 29/11/10, p 38)

The cross-examiner then directed the complainant to what she had said to Ms Hayes:

"Q. [Ms Hayes] said, "I cannot recall exactly what order [the complainant] told me what happened, but she was really upset. But I do remember her saying, 'I thought it was Grant'".

A. Before I opened my eyes and realised what was happening, I thought I was in the back seat with Grant still. I opened my eyes, and it hit me where I was and what was going on.

Q. So whilst you were lying in bed, you weren't asleep. You thought you were in the back seat of the car with Grant. Is that right?

A. I was waking up from my sleep. I was asleep and I was waking up, and that was the first thing that came to mind before I even opened my eyes. I just remembered being in the car with Grant. I opened my eyes, and then I realised where I was.

Q. I'm just trying to get this right because I might have misheard you. As I understood it, you first said to me you thought you were in the car with Grant, and then you woke up.

A. Well, as I was - you know, when you wake up, and when you haven't opened your eyes and you're still coming to terms, and I was very drunk and I was thinking I'm in the car with Grant, and then I've opened my eyes, and it's hit me: I'm in Kristy's room in Kristy's bed and then, my God, Luke's on top of me." (emphasis added)

(Tcpt 29/11/10, p 39)

The summing up of the trial continued:

"Now I raise that for you only because counsel has raised that issue and there was cross-examination on it and I think I'm aware from your previous jury note, somebody had thought of it beforehand.

As I said to you in relation to that matter, it is the duty of defence counsel to put to witnesses any instructions they have that contradict the evidence that has been given. That's counsel's duty. It was the case of the accused [the complainant] was awake and consenting to sex. It is not the accused's case that such consent was given under some sort of misapprehension by [the complainant] at least as far as he was aware of. That is, as far as the accused was aware of. That is a matter that Mr Grant Lane says was conveyed to him by [the complainant]. But when it was put to [the complainant] she disagreed with that portion of Mr Lane's statement. You may think the disagreement is unclear or ambiguous or whether it is in reference to the statement itself, or whether it is in reference to a face to face meeting or a telephone conversation. These are matters for you members of the jury, as judges of the fact." (emphasis added)

(Tcpt 2/12/10, p 11)

The appellant submits that the trial judge's comments commencing with the reference to the "duty of defence counsel" involved error in two respects. First, it is said that they suggested that the appellant's counsel had a duty to put to the complainant that she had invited the appellant onto the bed and engaged in sexual activity because she mistakenly thought he was Mr Lane. It is also said that at the same time those comments implied, in the absence of that having occurred, that the jury need not address that scenario. Secondly, it is said that in describing the complainant as having "disagreed with that portion of Mr Lane's statement" the trial judge's comments did not accurately and fairly summarise the complainant's evidence. In my view, the trial judge's summing up did not involve either of these errors.

As to the first asserted error: The trial judge did not in terms direct the jury that the appellant's counsel had a duty to put to the complainant that she may have been under a misapprehension as to the appellant's identity. The duty was described in general terms as being to put to relevant witnesses "any instructions" that counsel had which contradicted the evidence given. Although the duty was not described as limited to instructions given by the accused, the immediately following reference to it not being the accused's case that the complainant was under any misapprehension "at least as far as he was aware" made it sufficiently clear that the instructions to which the duty was directed were instructions of the accused. That reference explained why the duty did not apply in this case. It also left open the possibility that the complainant was under a misapprehension as to the appellant's identity although not to the appellant's knowledge. That possibility was then referred to as the matter Mr Lane said "was conveyed to him".

The trial judge's reference at the start of this passage to what she had said "in relation to that matter" was to her response, two days earlier, to a note from the jury inquiring as to the origin of a statement put by the appellant's counsel to the complainant in cross-examination. The trial judge's response to that question had included the following:

"Now, it's the defence counsel's job and indeed duty to take instructions and it is defence counsel's duty to put the instructions that he has from the accused person to the complainant by way of cross-examination."

(Tcpt 30/11/10, p 67)

What was subsequently said to the jury during the summing up was to the same effect.

The summing up did not say that in the absence of any such cross-examination of the complainant, it was not open to the jury to find that the complainant was under some sort of misapprehension and no such submission was made by the Crown. The trial judge's direction acknowledges that the possibility of misapprehension was raised by Mr Lane's evidence as to what he had been told. The trial judge recorded that the complainant had disagreed with that part of Mr Lane's evidence and left the matter to the jury.

As to the second asserted error: The trial judge was correct to observe that the complainant had expressed disagreement with Mr Lane's statement: see [26] above. She said in response to the passages read from Mr Lane's statement "that's wrong" and that some of what Mr Lane's statement conveyed was "incorrect". The trial judge's comment that the complainant had "disagreed" drew attention to this evidence. She then pointed out that the jury may think that what the complainant was disagreeing with, or saying was not correct, was "unclear or ambiguous" or uncertain. That was a correct observation. The complainant could be understood to have been referring to the content of Mr Lane's statement or to the fact of the telephone conversation. Those matters of uncertainty in the evidence were left to the jury. The summing up did not unfairly or materially misstate the evidence which had been given. For these reasons, ground 2(b) is not made out.

Ground 3

Ground 3 is that the verdict is unreasonable or cannot be supported having regard to the evidence: s 5(1)(b) and s 6(1) of the Act. The question this Court must address is "whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty": M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493; MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [25]. When addressing that question this Court must make an independent assessment of the evidence and determine whether, notwithstanding that there is evidence upon which a jury might convict, "none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand": M v The Queen at 492-493.

The test in M v The Queen requires attention to whether on the whole of the evidence there is a reasonable doubt as to the accused's guilt. In circumstances where the court entertains such a doubt it also requires attention to whether it was nevertheless "open to the jury", acting reasonably, and with its advantage in seeing and hearing the evidence, to resolve that doubt and be satisfied as to the accused's guilt. In M v The Queen at 494, the majority said:

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full disclosure for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."

Because the Crown case depended upon the acceptance of the evidence of the complainant, it is (and was for the jury) necessary to scrutinise that evidence with great care. It was for that reason that a direction was given in accordance with R v Murray (1987) 11 NSWLR 12.

The complainant maintained that she was asleep and did not wake up until the appellant had commenced to have intercourse with her. The appellant's evidence was that the complainant was awake at the time he entered the bedroom and engaged in activity including conversation which invited the events which followed. It was suggested that an explanation for the complainant having behaved as described by the appellant was that she was mistaken as to his identity.

The appellant relies on two matters as calling into question the reliability and truthfulness of the complainant's evidence. The first is the evidence of Mr Lane and Ms Hayes as to what the complainant reported happened to her. It is said that this evidence was consistent with the appellant's evidence that she had been awake, or at least alert enough to know she was having sex, although mistaken as to the identity of her partner. The second is that the complainant gave evidence which in a number of respects was inconsistent with or contrary to the evidence of other Crown witnesses.

When addressing this ground it is also necessary to consider whether there are any other matters which could give rise to a reasonable doubt as to the truthfulness and reliability of the complainant's evidence. They include whether the complainant may have been so affected by drugs or alcohol or both as to be an unreliable witness to what happened during the evening, whether any conduct of the complainant was inconsistent with her version of events and whether the complainant's version of events was improbable in any respect. It is also necessary to consider whether the appellant's evidence was such as to give rise to a reasonable doubt as to his guilt. It is convenient first to deal with the arguments made by the appellant and then to consider these other matters.

Ms Hayes' evidence is summarised in [11] above and the complainant's evidence is extracted in [26] above. There is no inconsistency between what Ms Hayes recalled the complainant telling her and the complainant's version of what happened. The complainant told Ms Hayes that when she woke up "he was on top of me".

Mr Lane's evidence is set out in [12] above. It could be understood as the complainant reporting that she thought the appellant was Mr Lane when he "came in during the night" and that it was not until "he finished" that she realised it was not him. When that version of events was put to the complainant she said that it was "wrong" and "incorrect"; meaning that was not how events happened or that was not as she reported the events to Mr Lane or, perhaps, both. Mr Lane's evidence could also be understood as the complainant reporting that the appellant came into the room, at some time she thought he was Mr Lane and that it was not until he "finished" that she realised he was not Mr Lane. Because Mr Lane's evidence was hearsay as to what happened in the bedroom and also could be understood in either of these ways, there was no necessary or irreconcilable inconsistency between it and the truthfulness of the complainant's evidence. The jury could regard her evidence as not being inconsistent with what she had told, or was likely to have told, Mr Lane. The jury could consider the explanation for any inconsistency to be a lack of precision in her reporting of what had happened or in his recollection of what he had been told or a combination of both. Mr Lane's evidence does not give rise to a doubt as to the truthfulness of the complainant's evidence which the jury could not reasonably have resolved in one of these ways.

The appellant refers to a number of respects in which the complainant's evidence is said to have been inconsistent with or contrary to the evidence of other Crown witnesses. As the analysis which follows shows, none of those inconsistencies was with respect to the complainant's evidence of what happened in the bedroom or such as to cast doubt on the veracity of that evidence. The first concerns whether Mr Buckton had driven the complainant to Ms Hayes' house on the afternoon of the day before the party (20 August 2009) as the complainant said in evidence. Mr Buckton said in his statement that he first saw the complainant at the party. In cross-examination he said that although he could not recall driving her to the party, he may have subsequently forgotten that he had. There is no necessary inconsistency in this evidence because it was not sufficiently clear that Mr Buckton's evidence was addressing the day of the party rather than the day before or both. More significantly, any inconsistency was as to a matter of detail on the very periphery of the critical matters in issue. The second concerns who supplied the complainant with the amphetamine she admitted taking. The complainant said the drugs were supplied by one of the men present. Ms Hayes said that the complainant supplied her with drugs. Although there remained this conflict in the evidence, the fact that the complainant may not have told the truth as to the source of the amphetamine she took does not cast any significant doubt on her evidence as to what happened later in the evening. There were likely to be reasons why she may not have wanted to tell the truth as to whether she had brought drugs to the party. This aspect of the evidence did not necessarily call into question her reliability as a witness of truth.

The third concerns what the complainant and Mr Lane had spoken about on the "back balcony" before going to his car. The complainant said she could not remember spending an hour or so on the balcony talking to Mr Lane. To the extent that she denied anything about the conversation on the balcony, it was that she had spoken to Mr Lane about "getting back together". Her recollection was that this was discussed in his car. Mr Lane's evidence was that this was discussed on both occasions. Again, this was an inconsistency in the evidence but not one which related to the critical events in the bedroom or raised doubts as to her credibility. The fourth concerns whether the complainant had told the doctor who examined her on the evening of 21 August that she had taken a "tiny tablet of speed", as he recorded in his note, or "some speed" as she maintained in evidence. This is an immaterial difference not relevant to the complainant's reliability as a witness. The final inconsistency relied upon concerns whether the complainant was "seeing" Mr Lane in January 2009, as she said, or July or August 2009, as he said. Again, this inconsistency was as to a minor detail unrelated to the critical matters in issue.

There was one matter in relation to which the complainant accepted in cross-examination that she had not been truthful. In her first statement to the Police she did not refer to Mr Buckton's presence at the party. In cross-examination she agreed that this part of her statement was not correct and said that she had been asked by Ms Hayes to leave him out of her statement because he was subject to an apprehended violence order which may have been breached by his presence at the party. Her explanation for why she made that false statement was plausible and provided a reasonable basis for not treating this aspect of her evidence as raising questions as to her reliability as a truthful witness.

Another question which arose on the evidence was whether the complainant was too drunk or too affected by drugs to be a reliable witness. Ms Hayes' evidence concerning the complainant's condition was that she had "a fair bit to drink" and that she was "very happy", "very lively" and "more happy go lucky" than usual and Ms Hayes attributed her behaviour to drug taking. Ms Hayes also said that the complainant was not slurring her words, falling over things or at the stage where she was "the typical sort of drunk". Mr Lane had lengthy conversations with the complainant, first on the back balcony, and later in his car. His evidence as to her condition at the time they were talking on the back balcony was that she was "fine". The appellant's evidence was that when the complainant returned to the lounge room before going to the bedroom, she sat down and he had "a good conversation" with her before she went to bed. Whilst the complainant conceded that she was "pretty drunk" at the time she went to bed and one of the others present described her as "drunk", the evidence does not suggest that she was so drunk or affected by drugs as to be unable to reliably recall what happened after she went into the bedroom and particularly as to how she woke up.

There is nothing in the complainant's conduct immediately after the events in the bedroom which gives rise to any doubt as to the cogency or reliability of her version of events. Ms Hayes described her as "hysterical" and "sobbing uncontrollably". Her complaint to Ms Hayes and the story which she gave to the doctor who medically examined her at Liverpool Hospital were consistent with her evidence to the jury. The doctor's history recorded that he was told:

"At around 4.00am she went to bed in a bedroom at Kristy's house after changing into her pyjamas (boxer shorts and top). She woke up when she felt her body being shaken and saw Luke on top of her and her shorts and undies around her left ankle. She felt Luke inside her. He jumped off when she saw him. She started to cry but he told her to "Shut up - I told them I came to wake you up"."

If the appellant's version of events was correct, there was no real room for any mistake on the part of the complainant as to his identity. He had a distinctive voice and, at the door, said "Come on wake up" to which the complainant responded "I'm still awake". The complainant was lying on her back and her head was on two pillows. They then lay together and kissed before removing their pants. If the complainant had been awake and not mistaken as to the appellant's identity she must have decided to have sexual intercourse with the appellant notwithstanding that she had agreed with Mr Lane to resume their relationship, notwithstanding that the appellant was only an acquaintance and not someone in whom she had any sexual interest and notwithstanding that she had her period. None of these matters make it unlikely that the complainant's version of events occurred.

Finally, it is necessary to address the appellant's evidence. He maintained his version of events under cross-examination. A reading of the transcript suggests that the appellant was straightforward and not evasive in his answers. He agreed that he was at first confused and unsure as to the complainant's invitation to "fuck me" which on his version of events occurred. In many respects his conduct after the event was not consistent with his believing that he had done anything wrong. After he left the bedroom he returned to the lounge room and remained there for some time talking to the others present. At one stage he took a glass of water to the complainant and Ms Hayes while they were in the hallway. He had earlier gone back to get his cigarettes from the bedroom. Nevertheless, there was nothing in that version of events which was so cogent or compelling that it could not be put aside in the face of the complainant's evidence. There was also at least one aspect of the appellant's evidence which was improbable. His evidence was that he saw and could recognise the complainant's face from the doorway but could not see whether her eyes were open. His evidence also was that he could not see her face when he was lying on the bed with her and they were kissing and when he was on top of her either because he had his eyes shut or his head on a pillow or both. Any other evidence would have allowed of the possibility that he could have seen the complainant's face and that she was asleep. If the complainant was not asleep the question arose as to why she did not see and recognise the appellant and say something before the sexual intercourse commenced. These questions had to be weighed by the jury when assessing the truthfulness of the appellant's evidence.

These matters, considered separately and together, do not give rise in my mind to a doubt as to the appellant's guilt which could not have been resolved by the jury's advantage in seeing the witnesses and hearing their evidence. The jury was in the best position to assess the truthfulness and reliability of the evidence of the complainant's and appellant. This was so notwithstanding that the complainant's evidence was given remotely by closed circuit television. Any possible discrepancies and inconsistencies between that evidence and the evidence of Mr Lane was explained by the complainant in cross-examination in a way which was plausible, consistent with her subsequent behaviour and complaint and consistent with her subsequent report to the hospital doctor. There was also no respect in which her version of events was inherently improbable.

For these reasons there is no basis to warrant this Court interfering with the jury's verdict on the ground that it is unreasonable or not supported by the evidence. Accordingly, ground 3 is not made out.

The sentencing appeal

The offence charged is one to which Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act) applies. The grounds of appeal and the Crown's written argument were formulated before the High Court's decision in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. Muldrock rejected a construction of s 54B(2) of that Act as mandating the specification of a standard non-parole period for offences within the mid-range of objective seriousness: Muldrock at [24], [25]. In doing so it rejected a two-stage approach to sentencing for such offences which first assesses whether the offence falls in that middle range by reference to an hypothesised offence answering that description and, if it does, inquires whether there are matters justifying a longer or shorter non-parole period: Muldrock at [25], [28]. To the extent that this Court upheld such an approach in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, that decision must be regarded as wrong.

Instead, the sentencing court is to take the approach described by McHugh JA in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51]; Muldrock at [26]. That approach is to identify all the factors relevant to the exercise of the sentencing discretion, to discuss their significance and then to make a value judgment as to what is the appropriate sentence given all of those factors. That decision obviously must be made in the light of the purposes for imposing a sentence: see s 3A of the Sentencing Act; Muldrock at [20].

The factors which the sentencing court is required to take into account in relation to a Div 1A offence are those described or referred to in s 21A as well as the maximum sentence and the standard non-parole period for the offence: Muldrock at [27]; Way at [103]. They include the aggravating and mitigating factors identified in ss 21A(2) and (3) as well as "any other objective or subjective factors that affect the relative seriousness of the offence". The closing words of s 21A(1) also make clear that the factors specifically listed are not intended to be exhaustive of the matters which may properly be taken into account: Muldrock at [19]; Way at [57], [104].

When taking into account the standard non-parole period it is necessary to note that it represents the non-parole period for an offence in the middle of the range of objective seriousness assessed without reference to matters personal to a particular offender or class of offenders and therefore determined "wholly by reference to the nature of the offending": Muldrock at [27], [31]. Such an assessment would not take account of circumstances personal to the offender even if they were causally related to the commission of the offence: cf Way at [86], [88], [99]; Muldrock at [22]. The maximum sentence, as a yardstick or guideline, directs attention to the relative seriousness of the offence and is a factor to be taken and balanced with all of the other relevant factors when making the judgment as to the appropriate sentence: Markarian at [31]; Muldrock at [31]; Way at [51], [53]. It remains an essential part of the sentencing process to consider the objective gravity of the offending: R v Koloamatangi [2011] NSWCCA 288 at [18]-[19]; Zreika v R [2012] NSWCCA 44 at [46]-[47].

Grounds 1, 2 and 3

It is not surprising then, that the Crown's arguments in respect of grounds 1, 2 and 3 focus on an approach which would require an evaluation of the objective seriousness of the offence, taking into account the characteristics of the offender having some causal connection with its commission, against an hypothesised offence that falls in the middle range of objective seriousness assessed on the same basis. In support of ground 1 it was submitted that the trial judge erred when assessing where the offence fell in the range of objective seriousness in not concluding that it was "in the mid-range of offending" which in this context was a reference to the middle of the range of objective seriousness: see s 54A(2). Muldrock holds that the sentencing judge is not required to undertake that exercise: Muldrock at [25]. Accordingly the trial judge was not in error in failing to do so or in failing to conclude that the offence was in the "mid-range of offending". Ground 1 is rejected.

In support of grounds 2 and 3, specific reference was made by the Crown to the decision of this Court in R v Achurch [2011] NSWCCA 186 at [77], where it was said in relation to Div 1A offences that it is necessary to specify where the offence lies on the range of objective seriousness. It was submitted that the trial judge failed to impose a sentence that reflected the objective seriousness of the offence (ground 2) and that the trial judge failed to have regard to the standard non-parole period of seven years in imposing a non-parole period of one year (ground 3). The premise underlying each of these grounds is that the trial judge was required to assess and classify the objective seriousness of the offence relative to the "mid-range of objective seriousness of the offence" and that s 54B(2) mandates the specification of a standard non-parole period for offences within the mid-range of objective seriousness. Muldrock rejected an approach to sentencing which requires that assessment and treats s 54B(2) as having that effect. For that reason grounds 2 and 3 are rejected.

Grounds 4 and 5

The substantial argument made by the Crown is addressed to ground 5 and, although expressed in more general terms, to ground 4. That argument is that the trial judge erred in finding and taking into account as a relevant factor that the appellant's intellectual disability contributed to the commission of the offence so as to reduce his moral culpability. The Crown submits that by reason of the jury's verdict and the evidence given at the trial by the appellant, it was not open to the trial judge to find that "the offender's intellectual functioning reduce(d) his moral culpability to some extent" (ROS p 16) and that this made him an inappropriate medium for making an example to others (ROS p 15). It also submits that such a finding should not, in any event, have led to any substantial diminution in the assessment of the objective seriousness of the offence or in the ultimate sentence imposed. The former criticism must be rejected in the light of the decision in Muldrock. The latter remains to be addressed, but also in the light of that decision.

It is not controversial that the fact that an offender is suffering from a mental illness or intellectual disability may be taken into account in various ways in the exercise of the sentencing discretion. The relevant principles are summarised in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1 at [177]. Those principles make clear that an offender's mental illness or intellectual disability may be taken into account notwithstanding that no causal connection has been established between it and the commission of the offence. In Engert v R (1995) 84 A Crim R 67 at 71 Gleeson CJ said:

"... the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system."

See also the discussion in R v Fahda [1999] NSWCCA 267 at [42]-[47] per Simpson J. However, such a causal relationship must be established if the illness or disability is to be relied on as reducing the offender's moral culpability so as to militate against the need for denunciation by the sentence: R v Letteri (New South Wales Court of Criminal Appeal, 18 March 1992, unreported) per Badgery-Parker J; R v Fahda at [42]-[47]; Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442 at [48]; R v Israil [2002] NSWCCA 255 at [23]-[24]; R v Hemsley [2004] NSWCCA 228 at [33]; DPP v De La Rosa at [177] (and specifically the first principle there summarised); Muldrock at [54], [55].

The trial judge made the following findings as to the appellant's intellectual disability and its consequences, based upon the evidence: He has an intellectual capacity at the lower 5% of the normal range for the population which places him at a degree of intellectual disability but does not classify him as intellectually disabled (ROS p 3); he is functionally illiterate and as a result of learning difficulties has suffered a degree of social rejection throughout his life so as to have a very low level of social functioning (ROS pp 3, 5); his understanding of consent is limited and his understanding of social situations is poor (ROS p 4); his intellectual disability causes shyness and social isolation (ROS p 15). The Crown does not submit that any of these findings involved any error.

The trial judge took account of the appellant's intellectual disability in a number of ways. First, she found that his "intellectual and social functions had some but not an overwhelming effect on the commission of the offence" (ROS p 6) so as to reduce his moral culpability and the need for denunciation of the offence (ROS p 15). Secondly, when addressing the need for general deterrence in the sentence, the trial judge found that the appellant's intellectual disability and very low level of social functioning made him an inappropriate medium to be made an example to others (ROS p 15): see Muldrock at [53]. Thirdly, the trial judge found that his intellectual and social functioning were more likely to improve outside the prison system so as to justify a reduced non-parole period (ROS pp 10, 11, 17). Fourthly, she found that the appellant would be vulnerable to bullying behaviour in the prison system, and that his intellectual disability and limited social functioning would make it difficult for him to adjust to that system with the result that a custodial sentence was likely to weigh more heavily on him (ROS pp 10, 11, 12). Finally, the trial judge found that his intellectual disability did not have the consequence that the appellant presented a level of danger to the community giving rise to considerations which might result in an increased sentence (ROS p 15): see Muldrock at [60].

The Crown's submissions in relation to grounds 4 and 5 are addressed to the first and second of these ways in which the trial judge took account of the appellant's intellectual disability and social functioning in the exercise of the sentencing discretion. As I have noted above, it is only in respect of the first of those ways that there must be some causal relationship between the illness or disability and the commission of the offence. Before addressing those submissions, it is necessary first to consider the evidence before the trial judge on the sentencing hearing and then to consider the relevant findings of the trial judge.

Two psychiatric reports were tendered at the sentencing hearing. The earlier in time was the report of Dr Nielssen, a qualified psychiatrist, dated 3 February 2011. That report recorded that Dr Nielssen had read the "Police Facts" in relation to the charge. That document set out the complainant's version of events including that she had been asleep at the time the appellant commenced to have intercourse with her. Dr Nielssen's report also restated the appellant's version of events which he maintained notwithstanding that he had been found guilty.

Dr Nielssen diagnosed the appellant as having an intellectual disability and a substance abuse disorder which was in partial remission. He summarised his opinion in the following terms:

"Mr Badans' overall level of intellectual function was estimated to be around the bottom of the normal range, as he had been able to work consistently since leaving school, he is reported to be reasonably numerate, and to have some aptitude for mechanical work.

...

Mr Badans has been convicted of a sexual assault of a woman who was affected by a combination of alcohol and amphetamine. From the history provided, it seems Mr Badans had fairly limited experience of relationships at that time. He had also consumed a large quantity of alcohol. The combination of emotional immaturity, low intelligence and the effects of alcohol is likely to have affected Mr Badans' perception of the events and also his capacity to recognise that [the complainant] was not consenting, or was not in a fit state to give consent to sexual intercourse.

Mr Badans does not have a history of other forms of disturbed conduct, or any previous criminal convictions. He has a history of consistent employment despite his intellectual difficulties. There is also a history of good a response to counselling for cannabis use. People with intellectual disabilities and brain injuries are often more susceptible to the effects of alcohol, and he should consider further counselling regarding his use of alcohol.

Mr Badans was thought to carry a low risk of re-offending. He would be a vulnerable prisoner if he were given a custodial sentence, and if that were considered necessary, he should be referred to the intellectual disability service within the prison system for appropriate placement." (emphasis added)

The later report was a Psychological Pre Sentence Assessment of Dr Yusef, a forensic psychologist of Forensic Psychology Services within Corrective Services NSW and dated 9 May 2011. That report refers to the "Police Facts" and to the complainant having "awoken" with the appellant on top of her. It also recites the appellant's version of events as described to the author in an interview conducted on the date of the report. In relation to that interview the author notes:

"6.3 During the interview, he did not demonstrate a firm understanding on the meaning of consent and did not appear to understand that the victim was vulnerable due to her substance use. Mr Badans displayed little insight into the causes of his behaviour and was not able to identify alcohol as a potential contributor." (emphasis added)

The author's conclusions included the following:

"11.2.1 ... While Mr Badans does not deny having sexual intercourse with the victim, he strongly denied that he had forced the victim to have sex, saying that 'she was consenting, she led me into the room ... she was touching me'. Mr Badans appears to have misconstrued the victim's behaviour as being sexually inviting, and he was unable to recognise that the victim may have been vulnerable given her level of intoxication both from alcohol and amphetamines.

11.2.2 Mr Badans also appeared to be emotionally immature, and this may have been a contributor to his offending behaviour. Mr Badans has had very limited interpersonal relationships and coupled with low self-esteem, any interest shown by the victim in Mr Badans (ie via conversation, etc), may have been misunderstood, on his behalf, as sexual interest.

...

11.2.3 Therefore, in concurrence with Dr Nielssen's psychiatric report, it appears that Mr Badans' intellectual ability is linked to his offending behaviour in that he appears to have deficits in interacting with others and a lack of understanding regarding consent. His misinterpretation of the victim's behaviour as being sexually inviting may have been amplified by a series of factors including his own interest in the victim, his cognitive ability and his alcohol consumption which inhibited his self regulation and self control. These factors, amalgamated, appear to have been a catalyst for Mr Badans' offending behaviour." (emphasis added)

In the proceedings on sentence, the Crown cross-examined Dr Nielssen with particular reference to the fact that the jury's verdict involved an acceptance that the complainant was asleep and to the appellant's evidence that, before he entered the bedroom, he had no reason to believe that the complainant was sexually interested in him.

That cross-examination of Dr Nielssen included the following exchanges:

"Q. Assuming that the victim's version is the correct version, and that's what the jury found, are you suggesting in your report that Mr Badans' emotional immaturity or low intelligence may have affected his capacity for him to recognise that she was asleep?

A. No I'm not suggesting that.

Q. So given you're not suggesting that how it is that you can say that his 'emotional immaturity, low intelligence and the effects of alcohol' affected his capacity to recognise whether or not she was consenting?

A. Well it seems at some stage she must have been roused from sleep and then the issue would have been a live one.

...

Q. The facts of the case, based on the version accepted by the jury, the victim's version was that she was asleep, she woke up, she was in shock, she froze and that he continued to have sexual intercourse with her until he finished and then told her to stay there and shut up and then left the room. Assuming those are the facts of the case how can it be said that there's any nexus at all between his low intelligence and emotional immaturity and his ability to understand whether or not she was in a fit state to consent?

A. Well I think it's kind of obvious you know that, whether or not he was able to - you know that he could realise that she may not have wished to proceed with sexual intercourse -

Her Honour: Doctor is it a matter of his perception that you're talking about rather than what somebody else or a jury might have thought?

A. Well that was the point of making the opinion, that his capacity to understand those issues is less than other persons.

Q. And perhaps a capacity to understand that somebody who's asleep might not be in a position to consent?

A. That was also part of the end of the paragraph.

...

Counsel: Q. Did you, during the interview, ask Mr Badans whether or not he knew that a sleeping woman is a person who is not able or who is unlikely to be willing to consent to sexual intercourse?

A. I can't remember if I asked that specifically.

...

Q. Dr Nielssen, Mr Badans in his evidence in the trial, said that he agreed with the proposition I put to him that he had no reason to believe that [the complainant] was sexually interested in him before he went into the room and did what he did. Assuming he was telling the truth about that, does it change your opinion?

A. No, not in terms of what I think is wrong with him.

Q. Doesn't that suggest that he knew full well that she wasn't a person who was ...

Her Honour: Mr Cristofi, you keep on doing this, you've asked the doctor a question, he has given you an answer and you are becoming argumentative, it's unseemly." (emphasis added)

Although the Crown says that the trial judge, by this last exchange effectively put an end to the cross-examination of Dr Nielssen, it does not submit that there was any denial of procedural fairness or other error involved in that exchange. It rightly points out if there are disputes as to fact or opinion evidence relied upon before the sentencing court, those disputes should be resolved by the accusatorial process and upon the evidence before the court which, if necessary, will include cross-examination: R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at [21]; O'Neil-Shaw v R [2010] NSWCCA 42 at [26]; Reberger v R [2011] NSWCCA 132 at [48]. If counsel considers that cross-examination or further cross-examination is necessary to test properly evidence which is disputed, he or she should seek to do so and not be put off doing so by statements such as those made by the trial judge in this case. If counsel is stopped by the trial judge from doing so, a question may later arise as to whether there was a denial of procedural fairness in what occurred. However, that is not this case.

When finding facts relevant to sentencing, the trial judge was entitled to form her own view as to the facts provided that her view was consistent with the jury's verdict: R v Isaacs (1997) 41 NSWLR 374 at 378; Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at [14], [169]. That is so even if the view of the facts which the trial judge was obliged to take by the jury's verdict is different from that which she would have taken unconstrained by the verdict. The Crown submits that the verdict is only consistent with the jury having found that the complainant was asleep when the appellant commenced to have sexual intercourse with her and that by their verdict the jury must be taken to have rejected the appellant's evidence that the complainant was awake when he entered the room and thereafter engaged in conversation with him whilst she was awake. Whilst all of that may be accepted, the jury's verdict is consistent with the appellant having laid on the bed with the complainant and having had close physical contact with her before they commenced to have intercourse and she was roused from her sleep. At some stage in that process and before she became conscious of where she was and with whom, the complainant thought she was in the back of Mr Lane's car with him. That evidence carries with it the likelihood that she said or did something in her sleep which from the appellant's perspective with his limited intellectual and social functioning led him to think that she was interested in having sex with him.

The relevant finding of the trial judge was that the appellant's "intellectual and social functions had some but not an overwhelming effect on the commission of the offence" (ROS p 6). She rejected the suggestion that such a finding would be inconsistent with the jury's verdict (ROS p 5). She did so on the basis of her earlier finding that the appellant's "understanding of consent is so limited and his understanding of social situations is so poor that, looking at it from his point of view, there was a cognitive difficulty that he had in understanding the nature and degree of consent required" (ROS pp 4-5). That finding was directed to circumstances which included that the complainant was asleep when the appellant entered the bedroom and remained so when he first joined her on the bed. It was a finding open to the trial judge on the evidence of Dr Nielssen. He agreed that his observation as to the appellant's capacity to recognise whether someone was giving consent extended to someone who was apparently asleep: see [62] and [66] above. The other psychiatric evidence, which was not tested, was consistent with that evidence. It referred to the appellant being "emotionally immature", as having "deficits in interacting with others" and as having a lack of "understanding regarding consent": see [64] above.

The trial judge referred to the appellant's conduct after the event as indicating a "very low level of social functioning" (ROS p 5) and described the appellant's "lack of cognitive understanding as to why [the complainant] was upset and as to what he should do about it" as also indicative of this lack of understanding. The trial judge's finding takes account of the probable sequence of events from when the appellant entered the bedroom whilst the complainant was asleep until she was roused from her sleep by the appellant. It concludes that in that sequence of events the appellant's intellectual and social functioning had "some but not an overwhelming effect" on what he did. In my view that finding was available on the evidence and not inconsistent with the jury's verdict. For those reasons ground 4 is rejected.

In support of ground 5, the Crown also argues that the trial judge's findings as to the appellant's intellectual disability reducing his moral culpability should not have resulted in the ultimate sentence imposed. This argument does not take account of the other factors which the trial judge took into account. In addition to those relating to his intellectual and social functioning, they included the appellant's prior good character and that he had no record of previous convictions (ROS p 9); the low risk of the appellant re-offending as assessed by the psychiatric evidence (ROS pp 9-10); and the appellant's lack of remorse explained by his intellectual disability and emotional immaturity (ROS p 9).

The Crown argues that the trial judge was wrong to conclude that the lack of remorse was of "less significance" in this case. I do not agree. Whilst remorse may be a major factor in determining whether an offender is unlikely to re-offend and has good prospects of rehabilitation, the circumstances of each case must be considered on their merits. Here, the appellant's intellectual disability and social immaturity provided an explanation for his lack of remorse and the uncontested psychiatric evidence was that the risk of his re-offending was low and that his prospects of rehabilitation were good. For these and the earlier reasons given in relation to ground 4, ground 5 is also rejected.

Ground 6

Ground 6 is that the sentence imposed was manifestly inadequate. In Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671-672 the High Court approved the following statement by this Court of the relevant principle in R v Allpass (1993) 72 A Crim R 561 at 562:

"An appellate court will only interfere if it is demonstrated that the sentencing judge fell into material error of law or fact. Such error may appear in the reasons given by the sentencing judge, or the sentence itself may be manifestly excessive or inadequate, and thus disclose error. However, the facts and circumstances of individual cases are often such that sentencing judges have a substantial discretion, and the appellant court does not intervene simply upon the basis that the members of that court would have exercised their discretion differently from the judge at first instance."

The Crown, relying on its submissions in relation to grounds 1 to 5, submits that the sentence "bespeaks error" when regard is had to the standard non-parole period. That submission wrongly assumes that s 54B(2) mandates the specification of the standard non-parole period for offences within the mid-range of objective seriousness and that the standard non-parole period in some way had determinative significance in the sentencing of the appellant. Such an approach was rejected in Muldrock: esp at [32]. The Crown relies upon three cases as suggesting a manifestly inadequate sentence in this case. An examination of the facts in each confirms the limited utility of comparing outcomes of the exercise of the sentencing discretion, especially as between cases which involve a question of mental illness or disability and those which do not. In Dionnet v R [2009] NSWCCA 85 there were two occasions of sexual intercourse and the offender used violence to coerce the victim. The accused was sentenced to concurrent terms of imprisonment of 10 years with a non-parole period of 7 years. The sentencing judge did not find that the offender's mental state or social functioning in any way diminished his moral culpability for the two offences or that it should otherwise be taken into account in the sentencing process. In Alseedi v R [2009] NSWCCA 185 the offender was convicted of two counts of indecent assault and one of sexual intercourse without consent. The latter involved the offender physically forcing the victim to perform oral sex upon him, albeit for only a short period. An overall sentence of 8 years was imposed with a non-parole period of 5 years. On appeal the appellant was re-sentenced to imprisonment for 7 years with a non-parole period of 4 years. There was no suggestion that the offender suffered from any intellectual disability or lack of social functioning with the consequences found by the trial judge in this case.

The third case relied upon is McCartney v R [2009] NSWCCA 244 in which there was a plea of guilty to one count of sexual intercourse where the complainant and the accused had gone to bed together, but the complainant had made clear that she did not want to have intercourse. The offender was sentenced to a total term of 2 years and 6 months with a non-parole period of 1 year and 3 months. Describing the sentence as lying "within the lowest echelon of the range of available sentences for this serious offence", this Court rejected an appeal by the offender observing that it was "difficult to conceive how a lesser sentence" could be imposed for this offence "allowing the very greatest mitigation for the undoubtedly substantial matters available to the applicant". Again, that case did not involve an offender with an intellectual disability engaging the considerations taken into account by the trial judge in this case.

The trial judge had regard to the maximum penalty and standard non-parole period for the offence of which the appellant was found guilty (ROS pp 1, 16, 17). She had regard to the circumstances of the offence and specifically that it involved penile-vaginal intercourse without the use of a condom, the appellant ejaculating into the complainant's vagina, the complainant being asleep and not capable of consenting, the complainant having her period, there being no evidence of force or coercion although none appeared to have been necessary, no subsequent threats to the complainant about disclosing what had happened, that what had happened (these being the findings of the trial judge on the sentencing hearing which involved rejecting the complainant's evidence at [10] above), that what had happened appeared to have been completely spontaneous and unplanned on the part of the appellant and that the consequences for the complainant were her personal violation and consequent mental trauma.

Taking these matters into account, the trial judge assessed the relative seriousness of the offence as being below mid-range seriousness but not at the lowest range (ROS p 17). That assessment was less favourable to the appellant than the assessment of the offence in McCartney v R which did not involve a sleeping victim. The trial judge concluded, for the reasons discussed above, that the appellant's personal circumstances called for a "very much reduced non-parole to parole period ratio" and for the imposing of a lenient sentence, well below the standard non-parole period. In the circumstances I am not convinced that the sentence of 3 years with a non-period of 1 year was outside the appropriate range of sentence which might reasonably have been imposed in the circumstances as found. Whilst I agree that the sentence is at the low end of the range of sentence for this offence, it cannot be described as manifestly inadequate. Accordingly, ground 6 is rejected.

The appeal against the costs order

The trial judge ordered the Crown to pay the costs incurred by the appellant in calling Dr Nielssen assessed at $1500. She did so under s 177(7) of the Evidence Act 1995. Her reasons for doing so were as follows:

"On my observation of the cross-examination of [Dr Nielssen], there were issues raised with the report which were unnecessarily raised. There were issues taken with his assessment of what the expert considered to be the effect of Mr Badans' intellectual disability and the effect that it had on the commission of the offence. At no time did any part of Dr Nielssen's report challenge the findings of the jury or of the facts. Issue was also taken with respect to whether Mr Badans would have some difficulty if he was placed in the general prison population.

...

Section 177 is there in order to assist in the streamlining of proceedings before this Court, especially proceedings of this nature. I did not find any particular assistance by Dr Nielssen's presence here otherwise than providing a courtesy to him of asking him some questions as he had come all this way but otherwise his report was perfectly adequate."

The Director of Public Prosecutions appeals from this decision on two grounds. First, it says that the Evidence Act did not apply to the sentencing proceedings because no direction in accordance with s 4(2)(a) was made that the law of evidence apply to the sentencing proceedings. Secondly, it says that the power to award costs under s 177(7) may only be exercised against a party "who has, without reasonable cause, required a party to call a person to give evidence" and that the trial judge erred in concluding that the Crown did not have reasonable cause to require the appellant to call Dr Nielssen.

There is an antecedent question as to whether there is a right of appeal. The appeal is brought by the Director of Public Prosecution under s 5F(2) as being against an "interlocutory order" given in proceedings within s 5F(1) for the prosecution of an offender on indictment in the District Court. In my view an order purportedly made under s 177(7) was such an "interlocutory order". It was made in the course of the sentencing hearing which was part of proceedings to prosecute the appellant. It did not conclude or finally dispose of those proceedings and was an order made in the course of and ancillary to the exercise of the jurisdiction to convict and sentence: see Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 at 440; R v Pavia (1993) 67 A Crim R 364 at 368-369; Kocer v R [2006] NSWCCA 328 at [13]; Nagi v Director of Public Prosecutions (NSW) [2009] NSWCCA 197 at [23].

In my view each of the two grounds relied upon by the Crown is made out. No direction was made by the trial judge at any stage in relation to the sentencing proceedings that the law of evidence should apply to that proceeding. It seems fairly clear that as between the parties a copy of Dr Nielssen's report was served and written notice given on the basis that s 177 would apply. However, the giving of a notice purportedly pursuant to the section could not cure the absence of a direction under s 4. When the application for payment of the costs was argued at the end of sentencing proceedings, the Crown pointed out that no such direction had been made. Even at that stage no direction was made and the trial judge's reasons do not address the Crown's argument that s 177 was not available. In the absence of a direction under s 4, the Court did not have power under s 177(7) of the Evidence Act to make the order for costs: see, for example, Matzick v R [2007] NSWCCA 92 at [38]; R v Gilham [2007] NSWCCA 323; (2007) 73 NSWLR 308 at [66]. The appellant does not seek to support the order for costs on any other basis.

Although Dr Nielssen's report includes the Police Facts among the documents referred to as read, it was unclear whether the concluding opinion concerning the appellant's capacity to recognise that the complainant was not in a fit state to give consent addressed the circumstance that the complainant was asleep when he first entered the bedroom. That uncertainty was relevant to the exercise of the sentencing discretion and the Crown was entitled to seek to clarify it with Dr Nielssen and explore with him whether the appellant's intellectual disability affected his appreciation that the complainant was not in a fit state to give consent. That matter was eventually addressed in response to a question from the trial judge (see [66] above). It was not pursued any further by the Crown. Nevertheless, the need to clarify this aspect of Dr Nielssen's evidence was a good reason to require Dr Nielssen for cross-examination and the trial judge erred in concluding otherwise. For these reasons the appeal from this costs order must be allowed.

Conclusion

The orders I propose are:

(1) Refuse leave to appeal against the conviction on grounds 1 and 2.

(2) Grant leave to appeal against the conviction on ground 3.

(3) Dismiss the appeal against conviction.

(4) Dismiss the appeal against sentence.

(5) Allow the appeal against the order for payment of Dr Nielssen's costs.

(6) Set aside the order made by the District Court on 24 June 2011 that the Crown pay the costs of calling Dr Nielssen in the sum of $1500.

HOEBEN J: I agree with Meagher JA and the orders which he proposes.

ROTHMAN J: I agree with Meagher JA and the orders he proposes.

As to the ground of appeal based on an unreasonable verdict, I consider, after examining the evidence, that the evidence as a whole does not raise a reasonable doubt which is not resolved by the ability of the jury to have observed the evidence when adduced: SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571.

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Decision last updated: 17 May 2012

Medium Neutral Citation:	Badans v R [2012] NSWCCA 97
Hearing dates:	5 December 2011
Decision date:	17 May 2012
Before:	Meagher JA at [1] Hoeben J at [84] Rothman J at [85]
Decision:	(1) Refuse leave to appeal against the conviction on grounds 1 and 2. (2) Grant leave to appeal against the conviction on ground 3. (3) Dismiss the appeal against conviction. (4) Dismiss the appeal against sentence. (5) Allow the appeal against the order for payment of Dr Nielssen's costs. (6) Set aside the order made by the District Court on 24 June 2011 that the Crown pay the costs of calling Dr Nielssen in the sum of $1500.
Catchwords:	CRIMINAL LAW - appeal - conviction - whether misdirections in summing up to jury - evidence - whether verdict unreasonable or unsupportable on evidence - Criminal Appeal Act 1912, s 5(1)(a) and s 5(1)(b) CRIMINAL LAW - appeal - sentencing - whether manifestly inadequate - standard non-parole period - consideration of Muldrock - significance of appellant's intellectual disability - Criminal Appeal Act 1912, s 5D(1) CRIMINAL LAW - appeal - procedure - sentencing hearing - order Crown pay costs incurred by appellant in calling expert under s 177(7) of Evidence Act - no direction in accordance with s 4(2)(a) that law of evidence applied - costs order set aside
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912 Criminal Appeal Rules Evidence Act 1995
Cases Cited:	Alseedi v R [2009] NSWCCA 185 Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 Dionnet v R [2009] NSWCCA 85 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1 Engert v R (1995) 84 A Crim R 67 Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 Kocer v R [2006] NSWCCA 328 Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442 Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Matzick v R [2007] NSWCCA 92 McCartney v R [2009] NSWCCA 244 MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 Nagi v Director of Public Prosecutions (NSW) [2009] NSWCCA 197 O'Neil-Shaw v R [2010] NSWCCA 42 R v Achurch [2011] NSWCCA 186 R v Allpass (1993) 72 A Crim R 561 R v Fahda [1999] NSWCCA 267 R v Gilham [2007] NSWCCA 323; (2007) 73 NSWLR 308 R v Hemsley [2004] NSWCCA 228 R v Isaacs (1997) 41 NSWLR 374 R v Israil [2002] NSWCCA 255 R v Koloamatangi [2011] NSWCCA 288 R v Letteri (New South Wales Court of Criminal Appeal, 18 March 1992, unreported) R v Li [2003] NSWCCA 386; (2003) 140 A Crim R 288 R v Murray (1987) 11 NSWLR 12 R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 R v Pavia (1993) 67 A Crim R 364 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 Reberger v R [2011] NSWCCA 132 SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571 Zreika v R [2012] NSWCCA 44
Category:	Principal judgment
Parties:	Luke Badans (Appellant) Director of Public Prosecutions (NSW) (Crown)
Representation:	Counsel: G Jones (Appellant) M M Cinque (Crown) Solicitors: Meehan Solicitors (Appellant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2009/194646
Decision under appeal	Before: Syme DCJ File Number(s): 2009/194646