Cox v R

[2022] NSWCCA 66

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Cox v R [2022] NSWCCA 66

Hearing dates:

25 February 2022

Date of orders:

1 April 2022

Decision date:

01 April 2022

Before:

Beech-Jones CJ at CL at [1]
Hamill J at [64]
Cavanagh J at [65]

Decision:

(1)   The Applicant be granted leave to raise ground 1 of the appeal.

(2)   The Appeal be dismissed.

Catchwords:

CRIMINAL LAW -appeal against conviction on sexual offences – Crown witness – said to accused in presence of jury “Don’t worry. We’ll get you off…” – Judge gave jury direction that did not repeat the words as addressed – possibility that jury might hold statement against applicant – other types of prejudice raised on appeal but not at trial – no miscarriage of justice – leave to appeal granted – appeal dismissed

Legislation Cited:

Crimes Act 1900

Criminal Appeal Act 1912

Supreme Court (Criminal Appeal) Rules 2021

Cases Cited:

Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22

De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48

Edwards v The Queen (2021) 95 ALJR 808; [2021] HCA 28

GBF v The Queen (2020) 94 ALJR 1037; [2020] HCA 40

Gilbert v R (2000) 201 CLR 414; [2000] HCA 15

Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219

Hamilton v The Queen (2021) 95 ALJR 894; [2021] HCA 33

Hofer v R [2021] HCA 36; (2021) 95 ALJR 937

Medich v R [2021] NSWCCA 36

Miller v R (2015) 252 A Crim R 486; [2015] NSWCCA 206

Rogerson v The Queen; McNamara v The Queen [2021] NSWCCA 160

Tomlinson v R [2022] NSWCCA 16

Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81

Category:

Principal judgment

Parties:

Gregory David Lennox Cox (Applicant)
Regina (Respondent)

Representation:

Counsel:
G Lewer (Applicant)
B Baker (Crown)

Solicitors:

File Number(s):

2018/237888

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

13 December 2019

Before:

Ellis DCJ

File Number(s):

2018/237888

Judgment

1. BEECH-JONES CJ at CL: This is an appeal under s 5(1) of the Criminal Appeal Act 1912 against seven convictions for six offences of having sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 and one offence of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act.

2. The essence of the complaint on appeal is that the integrity of the trial was affected by statements said to have been made by a Crown witness in the vicinity of the jury after he finished giving evidence. For the reasons that follow, I am satisfied that, when that event is considered in the context of the trial as a whole, no miscarriage of justice was occasioned (Criminal Appeal Act, s 6(1)). I would dismiss the appeal.

The Crown and Defence Case

3. On 9 September 2019, the applicant was arraigned in the District Court before a jury panel and his Honour Ellis DCJ on an indictment that charged him with seven counts under s 61 of the Crimes Act and one count under s 59. He pleaded not guilty. At the conclusion of the Crown case, his Honour directed a not guilty verdict on one of the counts under s 61I, being count 3 on the indictment. On 18 September 2019, the jury returned guilty verdicts on all of the remaining counts. On 13 December 2019, the trial judge sentenced the applicant to an aggregate sentence of 9 years and 6 months, with a non-parole period of 6 years and 6 months.

4. Both the applicant’s submissions and the Crown’s submissions provided an accurate and concise summary of the Crown case. The following is largely taken from their submissions.

5. All of the offences charged on the indictment relate to the same complainant. In her evidence the complainant said she met the applicant on 18 June 2018 in Kempsey. Her car had been damaged and “was not working properly”. The applicant had offered to fix it and to let her stay at his home. The complainant was homeless and had been living in a motel, and then with a man that she knew called “Gary”. The complainant met the applicant when she was in her car while parked at Gary's house.

6. On 20 June 2018, the applicant returned to Gary's house and again offered to fix the complainant's car and to allow the complainant to stay at his place. The complaint said she was reluctant, but eventually agreed to leave with the applicant. The applicant drove the complainant in his car to his place in Baker's Creek, where he lived in a caravan. Two other men, Chris Parmenter and Chris Hough, also lived on the property but not in the caravan.

7. The complainant gave evidence that she initially slept on the floor of the applicant’s caravan, but got into bed with the applicant when she woke up cold in the early hours of the morning. She said that she consented to having sexual intercourse with the applicant but only if he wore a condom. The applicant pulled out a condom, said that he would use it, and opened it. However, when the applicant put his penis in her vagina, she realised that he was not wearing a condom. She begged him to stop but he refused. The complainant said she was crying. This constituted count 1 on the indictment being an offence under s 61I of the Crimes Act.

8. The complainant said that she awoke the next morning to find that the applicant had forced himself on her from behind and was pushing his penis inside her vagina. The complainant was crying and begged him to stop. She said the applicant responded “[s]hut up. Just shut your mouth before I punch your head in.” This constituted count 2 on the indictment being an offence under s 61I of the Crimes Act.

9. The third count was another allegation of intercourse without consent on the same day as count 2. As noted, there was a directed verdict on that count.

10. The complainant remained at the applicant’s property. She told the jury she was scared of him. She said that during the seven days following 22 June 2018, the applicant discovered a pimple on his penis and believed he had contracted a sexually transmitted disease. The complainant told the jury that between one and two days later she was with the applicant in his van when he forced himself on her. The applicant held her down and put his penis in her vagina without a condom. He laughed and said, “how does it feel to have my syphilis cock inside you?” This constituted count 4 on the indictment being another offence under s 61I of the Crimes Act.

11. On 2 July 2018, the applicant attended the Macksville Hospital to receive treatment for the issue involving his penis. The complainant gave evidence that about one week later the applicant anally penetrated her. The complainant said that she was crying and begging the applicant to stop. This constituted count 5 on the indictment being another offence under s 61I of the Crimes Act.

12. On 16 July 2018, the complainant drove her car to a mechanic. The applicant followed her in his car. She managed to lose him but then became lost. She said that she recognised that she was near the house of a friend of the applicant’s, Scott Cambourne. She visited him. However, Mr Cambourne texted the applicant and told him that the complainant had arrived at his house.

13. The applicant drove to Mr Cambourne’s house. According to the complainant the applicant arrived there at around 10.00pm. She said that she and Mr Cambourne were each sitting in a chair in the same room when the applicant “barged in." The complainant told the jury that applicant picked her up from her “chair, said to her “[y]our car’s fucked now. I’ve put urine and sugar in it” and then he “king hit me”. She said that he “hit me really hard like, straight in the eye” with his right fist. She said he knocked her straight back into the chair. She said that her eye became cut and swollen. She told the jury that Mr Cambourne was sitting in the chair and watching. This constituted count 6 on the indictment, being an offence of assault occasioning actual bodily harm.

14. On 20 July 2018, the applicant drove the complainant to collect her mobile phone from the Kempsey police station. She had lost it the previous day. The applicant remained in his car whilst the complainant entered the police station. The complainant obtained her phone and had a short conversation with police about the injury to her right eye. A female police officer asked the complainant about the injury and whether she was “safe”. The complainant responded that she was not, but said that she could not give a statement because the applicant would know she had spoken to police and she was scared. The complainant promised the police officer that she would go to a hospital, and that she would call police from the hospital.

15. Later that night, the complainant and the applicant were inside the applicant’s van when he hit the complainant about “30 times in the left side of her head, causing a large lump and bruising”. He pushed her so that she was sideways across the bed. He put his penis in her vagina. She told the jury that with every thrust she banged her head against the wall. She cried and begged him to stop. She said she was slipping in and out of consciousness. This constituted count 7 on the indictment being an offence under s 61I of the Crimes Act.

16. The complainant told the jury that the last time she had any sexual activity with the applicant was on Thursday 26 July 2018. She said that the applicant “was banging my head into the wall as he did it and I thought I was going to die ... I was so concussed.” The complainant was crying and told the applicant that she did not want to have intercourse. This constituted count 8 on the indictment being another offence under s 61I of the Crimes Act.

17. A few days later the complainant attended the Kempsey Hospital and disclosed the above allegations to medical staff. She had not disclosed them when she attended Kempsey hospital on 15 July 2018. The complainant told the jury that was because the applicant was “right outside” and she was “petrified” of him. On 1 August 2018, the complainant reported the matter to police.

18. As noted by the Crown in its submissions, its case included other evidence as follows:

(i)   Two police officers each gave evidence about observing the complainant’s eye injury when the complainant attended the police station to collect her phone. One of them gave evidence about a conversation she had with the complainant about the eye injury;

(ii)   Two witnesses from a service provider for homeless people gave evidence about bruising that they observed on the complainant;

(iii)   Scott Cambourne, who was in the vicinity when count 6 occurred, also gave evidence. His evidence is addressed below;

(iv)   Joel McPherson, a friend of Mr Cambourne, gave brief evidence that he visited Mr Cambourne and saw a female outside sitting in a car. He recalled she had a “black eye”;

(v)   A woman who lived near the applicant said that she saw bruising on the complainant’s face and that the complainant had told her that injuries were sustained in an attack at Port Macquarie. The witness acknowledged that she had not mentioned the statement by the complainant in her police statement but said that she was “a bit illiterate” and had only read some words in the statement; and

(vi)   The Officer in Charge read a statement from a Centrelink worker about a conversation that she had with the complainant on 24 July 2018. The Centrelink worker noticed the complainant’s black eye and asked the complainant whether she was safe. The complainant said that she was not safe and agreed to have a social worker contact her.

19. The evidence also included a statement from Mr Parmenter which is outlined below.

20. The applicant participated in a voluntary record of interview with police which was played at the trial. The police only put allegations of physical violence to him which he denied.

21. The applicant gave evidence at the trial. He disputed the timing of some of the acts of intercourse. He said that each act of penile‑vaginal intercourse was consensual. He denied having penile‑anal intercourse with the complainant as alleged by her in relation to count 5.

22. In relation to count 6 he agreed that he went to Scott Cambourne’s house. He said Mr Cambourne told him to come in and, when he entered, Mr Cambourne and the complainant were both sitting in separate chairs. The applicant said that he and the complainant argued. He said that the complainant pushed him in the chest with both hands “[a]nd I stumbled back, and I was going to fall into the wood heater, and I slapped her with my right hand.” He agreed that the slap struck her in the left side of the face. He also said that she bruised herself through clumsiness (“she would climb off the top bunk onto my bunk, she would always smash her head into that shelf”). The applicant was asked where Mr Cambourne was when he slapped the complainant. He told the jury that “I think he [i.e., Mr Cambourne] had just gone outside to get his dog, because he lets his dog stay in the house at night”.

23. On behalf of the applicant, it was submitted to the jury that they should not accept the complainant’s evidence. Counsel pointed to her drug use as causing her to experience delusions and injure herself, alleged inconsistencies in her account and what were said to be occasions when it could have been expected she would complain about having been sexually assaulted but did not. It was suggested that the complainant had a motive to lie about the sexual assault allegations, being to receive emergency payments from Centrelink.

Mr Cambourne’s Evidence

24. The Crown called Mr Cambourne. He said that he met the applicant through his friend Mr Parmenter in the period June to July 2018. Mr Cambourne said he met the complainant about a week after he met the applicant. Mr Cambourne said that a couple of days after meeting the complainant, she turned up at his house at around 3.00pm. The complainant told Mr Cambourne that she had had an argument with the applicant and that she was lost.

25. Mr Cambourne said that he rang Mr Parmenter or the applicant but he could not recall which, although he recalled that the complainant had asked him to make the call. He said the applicant arrived at his house at “about 11”. Mr Cambourne said that he went outside. Mr Cambourne said that he heard the applicant question the complainant about where she had been and asked her what she was doing at Mr Cambourne’s house. He described the applicant as “a little bit upset”. When he was outside, he heard the applicant say, “[s]orry babe” and the complainant respond by saying “[w]hy did you hit me for?” He said the applicant apologised a number of times. Mr Cambourne said that he did not see any injury immediately, but that the complainant’s left eye appeared swollen about 10 minutes later. Mr Cambourne said he did not notice that injury before he went outside. Mr Cambourne said that when he returned inside, he told the applicant “[d]on’t ever hit her, you don’t need to be hitting”. He said the applicant and the complainant stayed the night and left the next morning. He said the complainant’s eye was “black” and “swollen”.

26. In cross-examination, Mr Cambourne was taken to the police statement that he signed on 18 September 2018. Mr Cambourne agreed that in the statement, he said that he could hear the applicant and the complainant “yelling and arguing”. He agreed that in the statement he described the complainant as having a “red eye” when he returned inside. He also said that he told the applicant “don't hit her; not in this house” and that the applicant responded, “I just slapped her”. The Crown did not re-examine Mr Cambourne.

The Discharge Application and the Jury Direction

27. After Mr Cambourne’s evidence concluded, two other witnesses gave short evidence. The jury were then sent home. The Crown Prosecutor informed his Honour that, as Mr Cambourne was leaving the Court and was within approximately two to three metres of the jury, he said “some words which I didn’t quite catch but I thought it was something along the lines of “Don't worry Greg; we'll get you off.” The applicant’s counsel said he had been provided with a note that recorded the statement “[w]e’ll get you off Greg”. He added “[t]hat would be most unfortunate if there was thought to be some form of conspiracy between the accused from an idiotic comment from a witness”. The trial judge stated that he did not hear him say that, but he was not paying particular attention. His Honour stated that he had heard Mr Cambourne state “[s]ee you again, your Honour” and he, the trial judge, responded “unlikely”.

28. The recording was played, and the judge and the parties were able to hear what was said. Mr Cambourne was recorded as stating “Don't worry. We'll get you off Greg.” He was also recorded as saying, “[s]ee you later, your Honour." His Honour responded, “[p]robably not.”

29. After the recording was played his Honour observed that a number of the jury “may, or may not, have heard it”. The applicant's counsel then applied for discharge of the jury. He observed that “it certainly appeared as though Cambourne and the witness that followed had enjoyed their day before they got here” but added that “I don’t cast any aspersions on the second person” which was Mr Mcpherson. He submitted that if Mr Cambourne’s comment was heard by the jury it may “reflect badly upon the accused potentially in the eyes of the jury”. He acknowledged that some in the jury may have seen the witness "walking 5 metres or stumbling 5 metres" and might say “[w]ell he’s just an idiot”. However, he submitted that “it casts a pall over the [complete defence case]” in that it raises the “concept [of] ‘he beat it’. Not that he didn’t do it but he did it but you beat it”.

30. The trial judge then discussed with the Crown Prosecutor giving the jury a direction to address the prejudice said to arise from these comments. Counsel for the applicant said he did not withdraw his application to discharge the jury but that if the application was refused, he did not want to be “heard against” the giving of a direction.

31. His Honour refused the discharge application and gave reasons for doing so. His Honour accepted that there was potential for the comments to prejudice the accused. However, his Honour concluded that prejudice could be addressed by a jury direction. His Honour found:

“… I am of the view that I can give directions which would make it clear to them that they should not in any way hold anything that they heard or did not hear against either the Crown or the accused. I will not necessarily emphasise the accused because that in itself might be suggesting some involvement of the accused. I will be emphasising that Mr Cambourne was simply a loose cannon so far as both sides are concerned, and if they did hear anything that he said they should, for that reason and others, simply disregard it.”

32. When the jury returned, the trial judge directed the jury as follows:

“Ladies and gentlemen, l brought you back. The Crown has raised the matter that he needed to raise and it is necessary now for me to give you some directions in relation to the matter that he raised.

You may recall Mr Scott Cambourne giving his evidence. You may also recall when Mr Cambourne was making his way from the witness box to the backdoor that on his way he was speaking. And it may, or may not, have been your conclusion that he might have been under the influence of some type of substance.

But in any event, I didn't hear what I'm told both defence, and Crown, heard – I had the sound recording replayed, and then I did hear what it was that was said. I don't know whether any of you heard what it was that was said, and in case you didn't I'm not going to repeat what it was that he said. But it is necessary that I say something about it.

The first thing is, whatever he did say when he walked from that jury box to the back, is not evidence. Whatever he did say was said of his own volition without any contribution by the Crown, or the defence – that is or [the applicant] [sic]. It's pretty clear to everybody that no one in this courtroom, including[the applicant], had any input into what that man was thinking, or going to say, and arguably he might be described on his way out as being somewhat of a loose cannon – which might explain why it was that when he said, 'I'll see you later' to me, and I said, '[p]robably not' you may have understood where l was coming from. It's really important that, as l told you at the beginning of the trial, that you decide this case based on the evidence. Not on a loose cannon's comments on his way out of the courtroom – whatever they might be, but on the evidence. And so far as he is concerned, his evidence is what he said when he sat there in the witness box, not what he said on his way in, or on his way out. Whatever he did say, and whatever of that that you heard, you should put it out of your minds.

You certainly should not draw any prejudice against either the Crown, or indeed [the applicant], if you did hear what he said. Whatever he did say seems to me to have been something that came out of his somewhat different thinking; had little, if anything, to do with reality, and nothing to do with [the applicant], and nothing to do with Mr Crown. So when I say disregard what, if anything, you did hear, I mean exactly that. Nobody in this courtroom should be blamed for what that man said, or what you heard him say on the way out. And can I say from what I saw of it there can be no veracity in anything that he did say, and so I'm imploring you not [to] hold anything that he did say, if you heard it, against [the applicant], or against the Crown – it simply is a complete and utter irrelevancy, and as they say in the classics, '[t]hat's all I've got to say about that.' Actually I think it was the American movie Forest Gump, I think that was from – not that I'm a great one at quoting, but my daughter in particular is, so some of these things stick.

At this stage I'm going to ask you to retire until Monday – you can have the weekend off, and I'm anticipating that you're still on track to be asked to retire to consider your verdict sometime on Wednesday. Please don't discuss the case with anyone; don't discuss anything that you did hear – if you did hear anything said by Mr Cambourne. It should not be the subject of any discussion other than to say we've dismissed it, and be careful when you leave, and when you return. Have a nice weekend and we'll see you back here on Monday – 10 o'clock start.”

33. Five matters should be noted about this direction.

34. First, his Honour was careful not to repeat the comments made by Mr Cambourne so as to ensure that this direction was only directed to those jurors who heard what he said and did not extend any potential prejudicial effect to those jurors who did not hear him.

35. Second, this direction reflected what was foreshadowed in his Honour’s judgment. It addressed the very prejudice that the applicant’s counsel had identified, namely that the jury may form an adverse view of the applicant because of Mr Cambourne’s comments.

36. Third, his Honour referred to Mr Cambourne as being a “loose cannon”. This description was also consistent with his Honour addressing the prejudice identified by the applicant’s counsel in that it implies that Mr Cambourne was not acting in concert with the applicant.

37. Fourth, his Honour referred to the possibility that Mr Cambourne “might have been under the influence”. This possibility was raised by the applicant’s counsel in submissions to his Honour. This description was also consistent with his Honour addressing the prejudice identified by the applicant’s counsel. It reinforces the impression that Mr Cambourne’s comments may have been made because he was “under the influence” rather than because the applicant had put him up to it.

38. Fifth, neither the Crown nor the applicant raised any issue with the direction. In particular, it was not suggested to his Honour that the direction failed to address some other prejudice that might be occasioned to the applicant from Mr Cambourne’s comments much less that it exacerbated that prejudice.

Closing Addresses

39. The Crown Prosecutor made only brief reference to Mr Cambourne in his closing address. The Crown Prosecutor commenced his submissions relating to Mr Cambourne stating “[n]ow I’m not suggesting to you that you'd accept much of what Scott Cambourne says, unless it’s supported by other evidence.” The Crown Prosecutor then referred to Mr Cambourne’s evidence that the applicant and the complainant had a bit of a “tuffle” (an argument), that Mr Cambourne went outside, and that when Mr Cambourne was outside, he heard the applicant apologise and the complainant ask the applicant why he had hit her. The Crown also referred to Mr Cambourne’s evidence that about 10 minutes later, the complainant's eye appeared swollen and sore.

40. In his closing address, the applicant’s counsel stated as follows in relation to Mr Cambourne:

“Mr Crown talked about Mr Cambourne. You might think it is not immediately clear whether or not Mr Cambourne and the witness who followed him are regularly residents of earth given some of their presentation, but they appeared. Mr Cambourne gave his evidence. Mr Crown says you can accept the important parts of his evidence. You might think one of the important parts of his evidence, it’s entirely a matter for you, was it was put to the accused today during the course of his evidence-in-chief, that he just made up this slap. It wasn’t in his interview, he just made it up. Well you might recollect, of course, that Mr Cambourne gave evidence that the accused said he did slap her and he said that what you might think is contemporaneously to the events occurring. So that’s not made up, you might think, ladies and gentlemen. That came from Mr Cambourne when he was giving evidence. It maybe that later on I’m in a position to give you a transcript reference for that.” (emphasis added)

41. The latter part of this submission is a reference to a point in the trial when the applicant was being cross‑examined about his denial to the police that he ever assaulted the complainant. It was suggested to him that he did not tell the police that he had slapped the complainant because he was “making … up” his evidence.

42. In his summing up, the trial judge did not expressly refer to Mr Cambourne or advert to the topic of what occurred when he left the witness box. His Honour gave the jury the usual directions that the assessment of a witness’s evidence was entirely a matter for them, that they were “not obliged to accept every single thing that a witness says” and they could accept part of what a witness says, “but not some other part”.

The Appeal: Failure to Discharge the Jury

43. The sole ground of appeal is that a miscarriage of justice was occasioned by the trial judge’s failure to discharge the jury.

Principles

44. As this ground of appeal does not involve a question of law alone, a grant of leave is required to raise it (Criminal Appeal Act, s 5(1)(b)). Although the ground of appeal is framed by reference to the failure of the trial judge to discharge the jury, and the applicant’s submissions address the principles applicable when considering an application to discharge a jury, it was accepted that in a case such as this, an appeal to this Court is not against the failure to discharge the jury but against the conviction. Hence this Court must determine whether, in the circumstances of the case, a miscarriage of justice has occurred (Criminal Appeal Act, ss 5 and 6(1)(c); Crofts v The Queen (1996) 186 CLR 427 at 440; [1996] HCA 22 (“Crofts”); Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219 at [127]; Medich v R [2021] NSWCCA 36 at [87] - [90]; Rogerson v The Queen; McNamara v The Queen [2021] NSWCCA 160 at [585]).

45. Four matters should be noted.

46. First, as the focus is on whether a miscarriage of justice was occasioned, it follows that this Court is not concerned with or constrained by the trial judge’s reasons for refusing to discharge the jury (Crofts at 441). Instead, the relevant inquiry is whether the “result of the refusal to discharge the jury occasioned” the miscarriage of justice (Crofts id). That said, in this case it is important to note that the only potential prejudice that was raised by counsel for the applicant with his Honour was the jury forming an adverse view of the applicant, and that prejudice was squarely addressed by his Honour in the judgment refusing the application and in the direction given to the jury.

47. Second, unlike say Crofts, this is not a case where the matter that occasioned the application for a discharge was the admission of inadmissible evidence. Hence this case did not involve a failure to “strictly comply with the rules of procedure and evidence” (GBF v The Queen (2020) 94 ALJR 1037; [2020] HCA 40 at [24]; “GBF”), nor did Mr Cambourne’s statements occasion a “departure from a trial according to law” (Weiss v The Queen (2005) 224 CLR 300 at 308; [2005] HCA 81 [18]). Although it was not argued, it seems likely that it constituted an “irregularity” in the conduct of the trial (GBF at [24]). Regardless of how it is characterised, to constitute a miscarriage of justice under s 6(1) of the Criminal Appeal Act it had to be prejudicial in the sense that there was a “real chance” that it affected the jury’s verdict (Hofer v R (2021) 95 ALJR 937; [2021] HCA 36 at [41] and [47] per Kiefel CJ, Keane and Gleeson J; at [118] per Gageler J), “realistically [could] have affected the verdict of guilt” (at [123] per Gageler J), “had the capacity for practical injustice” or was “capable of affecting the result of the trial” (Edwards v The Queen (2021) 95 ALJR 808; [2021] HCA 28 at [74] per Edelman and Steward JJ); (see Tomlinson v R [2022] NSWCCA 16 at [121] to [142] per N Adams J).

48. Third, to determine whether there was a miscarriage of justice, it is necessary to consider the statement in the context of the entirety of the trial, including the “seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact” (Crofts at 440). In Crofts, Toohey, Gaudron, Gummow and Kirby JJ referred to the fact that “much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript” (at 440-441; Miller v R (2015) 252 A Crim R 631; [2015] NSWCCA 206 at [126]). An analogous principle is that the matters raised by counsel for an accused at the trial in these circumstances are often a sure guide to the true potential prejudice that the relevant event might have caused (see De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [35]; Hamilton v The Queen (2021) 95 ALJR 894; [2021] HCA 33 at [57] per Keifel CJ, Keane and Steward JJ). That is especially the case here as counsel for the applicant heard the comments made by Mr Cambourne. Counsel was in the best position to immediately identify the prejudice to his client’s case that they had the potential to cause.

49. Fourth, as noted by Bell P (as his Honour then was) in Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219 at [115] “[t]rial judges are neither required nor encouraged 'to take an overly sensitive approach to the accidental receipt of prejudicial material”’. His Honour noted that “the authorities are replete with statements expressing the trust that our legal system places in juries to follow judicial directions” (at [119]).

The Applicant’s Argument

50. The applicant’s submissions identified four forms of prejudice that were occasioned, or at least potentially occasioned, by Mr Cambourne’s remarks. The first was that it was said to undermine Mr Cambourne’s evidence which it was contended was potentially exculpatory of the applicant. Second, it was submitted that it potentially undermined evidence given by other witnesses. Third, it was contended that it potentially undermined the applicant’s own credibility in the evidence he gave in the case. Fourth, it was submitted that the comments “strongly suggested that the applicant may be involved in serious criminality by engaging in a scheme to improperly procure his acquittal by false evidence.” It was also submitted that the direction that was given was not only likely to be ineffective but instead had the tendency to heighten the potential prejudice occasioned.

51. In relation to the first form of alleged prejudice, the applicant’s submissions contended that Mr Cambourne’s evidence had the potential to be of assistance to his case in that, contrary to the complainant’s evidence, he said that he was outside when the applicant struck her and, to an extent, his evidence supported the applicant’s evidence that he slapped the complainant rather than striking her with his fist. The applicant’s submissions contended that the trial judge’s direction undermined Mr Cambourne’s evidence by suggesting that he may have been under the influence of some substance and suggested that he was a “loose cannon”.

52. These contentions are inconsistent with the approach taken by the applicant’s counsel at the trial. It was the applicant’s counsel who raised with the trial judge the potential for Mr Cambourne (and another witness) to be affected by drugs or alcohol. The only potential prejudice that counsel raised with his Honour was for the jury to associate the applicant with Mr Cambourne’s comments. As noted above, the reference to Mr Cambourne being a “loose cannon” was responsive to that concern. At no stage did the applicant’s counsel ever suggest that either Mr Cambourne’s comments or his Honour’s references to Mr Cambourne in the direction affected any reliance the applicant wanted to place on Mr Cambourne’s evidence. Instead, it is clear that counsel’s approach throughout the trial was to minimize any weight to be attached to Mr Cambourne’s evidence. Hence in the discharge application counsel implied that Mr Cambourne was affected by something intoxicating and referred to the possibility that the jury might just dismiss him as an “idiot”. That counsel was not concerned about the effect of either the comments made by Mr Cambourne or the direction to the jury on the weight to be attached to Mr Cambourne’s evidence, is borne out by his not making any submission in relation to the content of the direction that was given and that part of his address to the jury in which he doubted that Mr Cambourne “and the witness who followed him” were “regularly residents of earth”.

53. None of this is surprising. Generally, Mr Cambourne’s evidence was of no assistance to the applicant because he described the injury to the complainants’ eye in terms that were far more consistent with the complainant’s evidence than the applicant’s evidence. His description of how her black and swollen eye arose in a ten-minute period coincided with the time during which the applicant and the complainant argued. The fact that he said he was outside the house when the assault occurred, and the complainant said he was inside the house, is not a substantial discrepancy. Generally, assault victims cannot be expected to trace the movements of everyone in their vicinity when they are being either punched or slapped in the eye.

54. Both the content of Mr Cambourne’s evidence and the course of the trial suggest that counsel for the complainant was not intending to place reliance on his evidence. To the extent that his conduct and the trial judge’s direction might be said to reflect adversely on Mr Cambourne’s credit, that was not prejudicial to the applicant.

55. In relation to the second form of alleged prejudice, it was submitted that the use of the phrase “we” by Mr Cambourne suggested that any “plan” to ensure the acquittal of the applicant “might well exist among other witnesses to be called in the case”. The submissions noted that the trial judge stated that the “last three witnesses have not been star Crown witnesses” being a reference to Mr Cambourne, Mr McPherson and Ms O’Connor and noted that his Honour also said that Ms O’Conner appeared to be seeking to assist the applicant by deviating in her evidence from her statement. The submissions contended that there was an “appreciable risk [from Mr Cambourne’s comments] that the jurors may not have given the evidence given by the witnesses appropriate weight”.

56. Again, this contention does not find any support in the conduct of counsel for the applicant at the trial. Counsel heard the remark made by Mr Cambourne including his use of the word “we”. Counsel was in the best position to assess whether there was realistically any likelihood that the comments might suggest some form of conspiracy or plan between some of the Crown witnesses to assist the applicant. No such concern was raised by counsel for the applicant before the trial judge in support of the discharge application and, after that was refused, no application was made for the direction to extend to the jury’s consideration of the evidence of other witnesses. This is not an issue directed to the application of rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021. Instead, consistent with the authorities noted above, the conduct of counsel supports the conclusion that there was no realistic prospect of this form of prejudice arising. As noted, counsel heard the comments and was in a position to judge their potential effect on the applicant’s case.

57. The applicant’s submissions in relation to this form of prejudice pointed to the evidence of Mr Parmenter as potentially exculpatory evidence that was unfairly undermined by Mr Cambourne’s comments and the trial judge’s direction. As noted, Mr Parmenter lived in a caravan that was parked approximately five metres from the applicant’s caravan. His statement was read to the jury by a police officer. In the statement he said he recalled the complainant staying with the applicant and that he would regularly hear them “yelling at each other”. He recalled noticing bruising to the complainant’s face and on one occasion the applicant complaining that the complaint gave him herpes. He also stated that “I didn’t know [the applicant] had assaulted [the complainant] in any way” and “I hardly ever saw her”.

58. The Crown Prosecutor did not mention Mr Parmenter in his address to the jury. Counsel for the applicant made a brief reference to the last part of this statement as inconsistent with the complainant’s evidence. I do not accept that the jury could attribute Mr Cambourne’s comments as embracing a witness whose statement was read to the jury and barely mentioned by either counsel.

59. The third and fourth forms of prejudice referred to on appeal are both aspects of the prejudice identified by the applicant’s counsel and addressed by the trial judge in the judgment on the discharge application and the direction to the jury. The applicant accepted that, as a general rule, it can be assumed that juries understand and follow the directions they are given (Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 at [13] per Gleeson CJ and Gummow J). However, he contended that that was not always true and, in this case, the potential effectiveness of the direction “must be significantly limited by the gravity of the impropriety” and, in some cases, the direction may draw attention to the relevant “incident” rather than ameliorating the risk of prejudice.

60. In that context the applicant contended that the direction confirmed that Mr Cambourne did say something “and what it was”. It was submitted that “[t]o the jury members who had not heard the remark, it now meant that they knew what it was.” It was contended that “[t]he direction also had the potential to suggest that the trial judge had engaged in [an] investigatory exercise as to whether there was in fact a plan formed by the witnesses to pervert the course of justice.”

61. I do not accept these submissions. The direction did not repeat Mr Cambourne’s statement or imply what he said. To the contrary, it studiously avoided advising the jury what was said or the effect of the statement. Instead, the direction informed the jury that, if they had heard what Mr Cambourne said, they should ignore it, concentrate on the evidence and certainly not hold it against the applicant. The direction was more than sufficient to address any potential prejudice that arose in respect of those jurors who heard Mr Cambourne’s comment. Otherwise, the balance of the submissions contend that the direction did not address the second form of prejudice identified above. I have already not accepted that there was any risk of that prejudice arising.

50. I do not accept that a miscarriage of justice was occasioned. I would reject the sole ground of appeal.

Proposed Orders

63. I propose the following orders:

1. The Applicant be granted leave to raise ground 1 of the appeal.

2. The Appeal be dismissed.

   64. HAMILL J: I agree with Beech-Jones CJ at CL.

   65. CAVANAGH J: I agree with Beech-Jones CJ at CL.

**********

Decision last updated: 01 April 2022