Dixon v The Queen

Case •

[2017] NSWCCA 299

•

15 December 2017

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Dixon v R [2017] NSWCCA 299
Hearing dates: 4 September 2017
Decision date: 15 December 2017
Before: Basten JA at [1];
McCallum J at [30];
Wilson J at [124]
Decision:

(1) As to ground 1, leave under r 4 refused.

 

(2)   As to grounds 2 and 3, leave to appeal granted.

 (3)   Appeal dismissed.
Catchwords:

CRIME – appeal against conviction – where defence counsel opened to the jury that the accused would give evidence – where accused did not give evidence – whether combination of those events resulted in a miscarriage of justice – alleged incompetence of defence counsel in failing to seek a discharge of the jury or a specific direction – whether miscarriage of justice

  CRIME – appeal against conviction – obligation of trial judge to put fairly before the jury defence case – short trial run on single issue of complainant’s credibility – whether judge obliged to summarise submissions – whether miscarriage of justice
Legislation Cited: Crimes Act 1900 (NSW), s 66A(1)
Criminal Appeal Act 1912 (NSW), s 5(1)
Criminal Procedure Act 1986 (NSW), s 161
Criminal Appeal Rules, r 4
Cases Cited: AP v R [2013] NSWCCA 189
Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46
Domican v R (1992) 173 CLR 555; [1992] HCA 13
Maraache v R [2013] NSWCCA 199
R v Davis [1999] NSWCCA 15
R v Meher [2004] NSWCCA 355
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
RR v R [2011] NSWCCA 235
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Williams v R (1999) 104 A Crim R 260; [1999] NSWCCA 9
Wong v R [2009] NSWCCA 101
Category:Principal judgment
Parties: Edward Michael Dixon (appellant)
Regina (Crown)
Representation:

Counsel:
C Wasley (appellant)
E Balodis (Crown)

  Solicitors:
Legal Aid NSW (appellant)
Solicitor for Public Prosecutions (Crown)
File Number(s): 2014/273093
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
26 October 2015
Before:
O’Connor ADCJ with a jury
File Number(s):
2014/273093

Judgment

  1. BASTEN JA: In October 2015 the applicant, Edward Michael Dixon, was convicted of two counts of sexual intercourse with a child under the age of 10 years. The conduct occurred on one night during the period from 30 April to 15 November 2012. The victim was a young boy, then seven or eight years of age, referred to in the proceedings as BA. The two separate incidents involved the applicant making BA fellate him and the applicant then having penile-anal intercourse with the boy.

Grounds of appeal

  1. Although the applicant was sentenced on 9 February 2016, a notice of appeal was not filed until 15 June 2017. The grounds, as originally filed, raised two matters. First, it was said that the judge failed to put the defence case properly to the jury (ground 1); secondly, it was said that, the jury having been told by counsel for the accused in opening that he would give evidence, when in fact he did not give evidence a miscarriage of justice resulted (ground 2).

  2. In written submissions filed on 15 June 2017 counsel for the applicant stated with respect to ground 2:

“There will have been a miscarriage of justice if the [court] considers that the alleged incompetence of counsel deprived the applicant of a chance of acquittal that was fairly open.”

Reference was made to the decision of the High Court in TKWJ v The Queen. [1] This was the first allegation of incompetence on the part of trial counsel.

1. (2002) 212 CLR 124; [2002] HCA 46.

  1. On 31 August 2017 the applicant filed affidavits from his trial solicitor (Stephen Eccleshall), trial counsel (Grahame Kennedy) and himself. The affidavits each related to the circumstances of changing instructions in the course of the trial as to the accused giving evidence. Counsel for the Director objected to the reading of the affidavits on the basis that a determination as to whether or not there had been a miscarriage turned on inferences to be drawn from the trial record, and not on an examination of the subjective circumstances leading to particular forensic decisions.

  2. In the course of oral submissions counsel for the applicant clarified the purpose of relying on the evidence, namely to demonstrate that, when the applicant decided he did not want to give evidence, he was not advised as to the consequences of that decision in light of the fact that counsel had foreshadowed in opening that he would be giving evidence.

  3. The first suggestion (that the accused would give evidence) was not said to demonstrate incompetence on the part of counsel, although it was said to be an unusual course to take. It was not suggested (i) that the accused had not indicated an intention to give evidence before the commencement of the trial; (ii) that the accused did not change his instructions; or (iii) that the decision was not one for the accused to make. Whether the choice was ill-advised or not has no bearing on the issue raised by ground 2, namely whether trial counsel dealt appropriately with the change of course in addressing the jury.

  4. In the course of her submissions, counsel for the applicant sought leave to file an amended notice of appeal specifically alleging incompetence of counsel as the basis on which a miscarriage of justice was said to have arisen. The incompetence was said to inhere in counsel’s failure “to seek a discharge of the jury or specific direction to cure the prejudice occasioned to the applicant by trial counsel’s remarks to the jury that the applicant would be giving or calling evidence in his defence” (ground 3).

The change of course

  1. The brief opening statement by counsel for the accused probably took less than two minutes. He did state, “I anticipate that the accused will give evidence …”, and referred to the need for the jury to weigh the prosecution evidence “against that denial which will come at a later date in the trial”. [2] Counsel also stated that the jury would not have all the evidence before it “until the Crown closes and I call such evidence as I call …”. [3]

    2.    Tcpt, 21/10/15, p 18(21) and (34).

    3.    Tcpt, p 18(42).

  2. As it turned out, the accused did not give evidence and there was no evidence called in his case. Counsel for the accused was evidently conscious that his opening remarks had overstated the basis on which the jury had been invited to maintain an open mind. He returned to the opening remarks in commencing his closing address in the following terms: [4]

“About two days ago or so when this case started, I got to say something to you. What I said was, ‘Ladies and Gentlemen of the jury, you’re going to hear a case where you will hear evidence that is graphic and disturbing. It’s not only the nature of the case, it’s true of this particular case.’ … What I was saying was this, keep an open mind. Wait till you hear the entirety of the evidence.”

4.    Tcpt, 26/10/15, p 12(5)-(12).

  1. Counsel had, of course, said a little more in his opening; he could not, however, have confronted the situation more directly without some statement as to the reason for the change in course. Almost certainly, nothing useful could have been said to ameliorate any possible prejudice.

  2. It would have been equally unhelpful to invite the trial judge to give some direction; the same problem would have arisen. Strategically, the better course was to sidestep the issue rather than confront it, as counsel did in his closing address. There was no incompetence in adopting that approach.

  3. That leaves the objective question as to whether the statement that the accused would be called (and might call other evidence) led to a miscarriage of justice. It is difficult to see how that could be so. Juries are uniformly directed at the commencement of a trial to keep an open mind as to their verdicts until all of the evidence has been heard. If they are not told whether the accused will give evidence, or what evidence may be called in the defence case, they will no doubt understand that the accused may give evidence. The usual directions will be given in the summing up as to the prosecution’s burden of proof, whether or not the accused gives evidence. It is possible that, in circumstances where they believe there will be evidence in the defence case, the jury may more readily keep an open mind than in circumstances where they understand from the outset that no contrary evidence will be called. It is difficult to conclude that the mere raising of an expectation that there will be evidence from the accused, which does not eventuate, can lead the trial to miscarry. Grounds 2 and 3 should be dismissed.

Summing up the defence

  1. There remains the question raised by ground 1 as to whether the trial miscarried because the trial judge did not put “the defence case” to the jury. The fact that no further directions were sought by counsel for the accused means that leave is required pursuant to r 4 of the Criminal Appeal Rules in order to rely upon a ground challenging the inadequacy of the summing up. In addition, leave is required pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW).

  2. As was recently stated in Castle v The Queen,[5] “[t]he essential requirements of the summing up in a criminal trial were stated in RPS v The Queen”. [6] In RPS, the joint reasons stated that the judge was required “to put fairly before the jury the case which the accused makes.” The reference to the accused making a case should be understood to encompass any challenge to the prosecution evidence and submissions. Further, a judge’s instructions about “the significance of the appellant not giving evidence” should stop at “pointing out that he was not bound to do so, that there may have been many reasons why he did not do so (and the jury should not speculate about those reasons), that it was for the prosecution to prove its case beyond reasonable doubt, and that the jury should draw no inference from the appellant not having given evidence”. [7]

    5. (2016) 259 CLR 449; [2016] HCA 46 at [59].

    6. (2000) 199 CLR 620; [2000] HCA 3 at [41] (Gaudron ACJ, Gummow, Kirby and Hayne JJ).

    7. RPS at [43].

  3. The first step in assessing this ground is to identify how counsel for the accused left the case to the jury. In substance, he relied upon two lines of challenge. The first was the implausibility of the complainant’s evidence that he “forgot” about the matter after the evening in question. He said that the accused placed “very considerable weight” on what the complainant, BA, said about the aftermath of the alleged incident, namely: [8]

“The accused allegedly says, ‘Don’t tell anyone, it’s our secret,’ or whatever. BA says, ‘I have to tell someone.’ BA leaves the room, BA goes through that small house – … and goes up to [SD] and he starts off by saying … ‘Aunty, Aunty, Aunty, Aunty.’

Then he says this happens, ‘And then I forgot what I was going to say.’ And that forgetting is something that happened on a continuing basis.”

8.    Tcpt, 26/10/15, p 12(36).

  1. Counsel submitted that for various reasons the “forgetting” was implausible. First, the complainant and the accused lived in a small village and he saw the accused several times within a short period following the incident. Secondly, there was evidence of a “big poo” accompanied by blood which he showed to his mother and which led his parents to drive the boy to see a paediatrician. The trip was three hours each way in the car and he spent approximately an hour with the paediatrician, but did not mention the assault. Thirdly, he was involved in a motor vehicle accident which, although counsel accepted that there was no evidence of “organic brain damage”, suggested that there must have been some “interference with his cognitive processes”. [9]

    9.    Tcpt, 26/10/15, p 13(50).

  2. The evidence of the “forgetting” was addressed in the prosecution case by reference (indirectly through a police officer) to an expert report by Dr Shackel as to reasons for delay in children reporting sexual abuse. The judge noted that a reason for the delay was “perhaps, that he was ashamed about it; against a background, that he had communication difficulties; that he would shut down from time to time.” [10] After setting out Dr Shackel’s findings in the form in which they appeared in the evidence of the officer, the judge continued: [11]

“You will bear in mind, and I will deal with it shortly in a minute, the defence case is that it is most unlikely in this case because what the complainant is saying is that he forgot entirely from the very moment the event took place about the offence at all. That he saw the accused on a number of occasions in a number of places in [the town] and not even those encounters were such as to bring back the memory.”

10.    Summing up, 26/10/15, p 12.

11.    Tcpt, p 14.

  1. Although it was submitted that the judge had intended to come back and say something more about the defence case, this passage identified the principal submission noted above.

  2. The second aspect of the defence case relied upon differences in the first complaint made to his godmother, SC, in Queensland, which was followed by a police interview and a statement to his father. The initial complaint, involving the brief verbal exchange noted above at [15], differed from the account reported by the complainant’s father, RA. He was asked to recall what the complainant had said to him and did so in the following terms: [12]

“I believe he [the accused] told BA not to tell anyone or he’d hurt BA or myself and BD [the complainant’s mother].”

The initial complaint had not involved a threat to hurt anyone, let alone the complainant’s parents.

12.    Tcpt, 22/10/15, p 77(30).

  1. In his submissions to the jury, counsel for the accused referred to that threat and noted that the complainant had been “questioned closely about the truth of that assertion.” He continued: [13]

“This is what I ask you to find, first of all, that [RA] is accurate and truthful, that [RA] has correctly told what he was told by BA and that BA, when he says, ‘There was no threat other than my father,’ and a slanging match, in effect, between the father and the accused, BA is wrong.

… in that respect, BA was probably less than honest.”

13.    Tcpt, 26/10/15, p 14(19).

  1. Counsel for the accused then proceeded immediately to deal with a further possible discrepancy in the evidence of complaint to SC, which was not repeated in later accounts, stating that “[h]e [the accused] put his boogalas [penis] on my boogalas”. [14] Counsel suggested to the jury that “what [SC] says BA said about the boogalah on the boogalah, my submission is that that’s what BA said and, as the Crown says, it’s never been repeated, it seems, it’s never been passed on, but at that time it was said and it was entirely wrong.” [15]

    14.    Tcpt, 21/10/15, p 25(45).

    15.    Tcpt, 26/10/15, p 15(5).

  2. If true, that conduct would have been an indecent assault separate from the fellatio and anal intercourse; it was not the subject of any charge. However, in the course of noting the inconsistency, counsel also stated: [16]

“I bring you to this, the child goes to [SC], and this seems to be – as the Crown says – when the floodgates open. It was absolutely true, at least the Crown argues, that there is a consistency in the central area of complaint from that point on. But there is, however – if [SC] is right – an inconsistency as to the nature of the sexual interference that she says she received a complaint of: the boogalah on the boogalah.”

16.    Tcpt, p 14(35).

  1. In dealing with the question of delay, the judge referred to the inconsistency in the evidence of the exchange at the time of the incident recounted by the father, which the complainant had denied, “that there was a threat by the accused, that he would hurt the parents or, indeed, the complainant.” [17] (BA’s evidence in that respect was quite confusing and it was not entirely clear that there were not two conversations.)

    17.    Summing up, pp 12-13.

  2. The judge did not say that the accused had relied upon this inconsistency as a basis for doubting the credibility of the complainant; nor did he refer to the other element of inconsistency in the complainant’s account. However, he did, after reading to the jury evidence of the complaint to SC, and some of the evidence of the father RA, set out the cross-examination of RA as to the threats allegedly made by the accused to the complainant. He also read out the concession obtained from the father that the complainant “had a problem with pooing himself since a very earl[y] age”. [18]

    18.    Summing up, p 11.

  3. The trial judge was quite selective in setting out the evidence. Apart from referring to the evidence of the expert, which was unchallenged, his recounting of the complaint and the evidence of the father covered no more than three pages of the transcript. With respect to the addresses he merely stated, early in the summing up: [19]

“You have heard addresses from counsel for the Crown and counsel for the accused.

You will consider those submissions that have been made and their addresses and give to those submissions such weight as you think fit. In no sense are those submissions evidence in the case.”

19.    Summing up, p 3.

  1. At the end of the summing up he invited both counsel to indicate if there were anything further they wished him to raise; neither sought any further direction. [20]

    20.    Summing up, p 22.

  2. The fact that all the evidence was called in the prosecution case, the limited references given by the judge in the summing up, and the avoidance of repetition of counsel’s submissions, tended to avoid any apparent imbalance or suggestion of partiality in the manner in which the matter was left with the jury.

  3. The manner in which the case for the accused was run depended heavily upon careful forensic judgment. It is clear that counsel took such advantage as he could glean from the inconsistencies in the accounts given by the complainant and the delay in making a complaint. However, the inconsistencies did not go to the heart of the complaint, and the delay was capable of explanation on a basis other than forgetfulness. The strength of the points taken for the defence was likely to have been diminished rather than augmented by repetition. There was little that could have been said by the judge in restatement of the defence case; the rejection by trial counsel of the opportunity to seek further directions was readily understandable in the circumstances. Nor was there any focused submission in this Court as to what precise directions might have been sought. In these circumstances, leave should be refused under r 4 to rely upon ground 1.

  4. It follows that I agree with the orders proposed by McCallum J.

  5. McCALLUM J: The applicant was tried in the District Court at Moree before O’Connor ADCJ and a jury of twelve on two counts of sexual intercourse with a child under the age of ten years contrary to s 66A(1) of the Crimes Act 1900 (NSW). Each count alleged that the applicant, between 30 April 2012 and 15 November 2012 at Wee Waa in the State of New South Wales, had sexual intercourse with BA, a child then under the age of 10 years, namely seven or eight years. Count one was based on an allegation that the applicant caused BA (a boy) to perform oral intercourse on him. Count two was based on an allegation that, on the same occasion, the applicant had penile-anal intercourse with BA.

  6. The trial was short. The Crown case was completed within two days, commencing on Wednesday 21 October 2015. The Court did not sit on the Friday. When the trial resumed on the Monday, the applicant’s counsel indicated (contrary to what had previously been said) that he would not be going into evidence. The closing addresses were short. The judge’s summing up was mostly complete before the lunch adjournment. The jury was sent out to deliberate its verdict at 2:17pm. Apart from requesting the transcript of evidence and being brought back into court for that purpose, the jury deliberated without interruption until 3:32pm, when they returned with a verdict of guilty on both counts.

  1. The applicant was sentenced on 9 February 2016 to terms of imprisonment totalling ten years imprisonment with a total non-parole period of seven years backdated to commence on 26 October 2015, the date of the verdict. He is eligible for release to parole on 25 October 2022. His sentence expires on 25 October 2025.

  2. The applicant seeks leave to appeal against his conviction on both counts. There is no appeal against sentence.

  3. The original grounds of appeal, filed on 5 June 2017, were as follows:

1.    The learned trial Judge’s failure to put the defence case properly to the jury resulted in a miscarriage of justice.

2.    Counsel for the applicant’s remarks to the jury that the applicant would be giving evidence in circumstances where the applicant did not ultimately give or call evidence resulted in a miscarriage of justice.

  1. At the hearing of the application, the applicant sought leave to add a further ground alleging incompetence of trial counsel. Amended grounds of appeal filed on 4 September 2017 added ground 3, as follows:

3.    Trial counsel’s incompetence in failing to seek a discharge of the jury or specific direction to cure the prejudice occasioned to the applicant by trial counsel’s remarks to the jury that the applicant would be giving or calling evidence in his defence in circumstances where the applicant did not ultimately give or call evidence resulted in a miscarriage of justice.

Summary of the Crown case

  1. The Crown case was based primarily on the evidence of the complainant together with complaint evidence. The complainant first complained of the offences in about March 2014 to his godmother, SC, with whom he was then living in Queensland. His evidence in chief at the trial was given in the form of a video-recorded interview conducted at Goodna Police Station in Queensland on 22 March 2014 which was played to the jury.

  2. The applicant is a member of the complainant’s extended family (his mother’s cousin) but is referred to by the complainant as “Uncle”. The Crown case was that the offences were committed during a gathering at the house of the complainant’s aunty in Wee Waa in New South Wales. She is evidently known by two names, anonymised at the trial as SD and SC. She is referred to by both abbreviations in the transcript, which is apt to cause confusion as another important witness (the godmother in Queensland) was also anonymised as SC. I will refer to the aunty in Wee Waa at whose house the party was held as SD and the godmother in Queensland as SC.

  3. In the video-recorded interview, the complainant said that, on the night of the gathering at SD’s house, he was watching a movie with his cousin, JD, in a bedroom when the applicant summoned him into a different bedroom. The complainant described the applicant as being drunk. The applicant gave the complainant a cigarette to smoke, but the complainant threw it away. The applicant told the complainant to pull down his pants. When the complainant said “no”, the applicant pulled down the complainant’s pants. The applicant made the complainant put the complainant’s mouth on the applicant’s “doodle” or “boogerlaas”, a word commonly used within the complainant’s community to mean the penis and testicles (alternatively spelt “boogalas” or “boogalah” in the trial transcript). The applicant made the complainant “go up and down” and said “suck”. The applicant then turned the complainant over so he was positioned “how a baby crawls”. The applicant then put his “boogerlaas” in the complainant’s “bum”. This felt “weird”, then sore, and then it “hurt really bad”. The complainant asked the applicant to stop. He described seeing “slimy stuff coming” which was “kind of sticky” and was a colour “like spit”. The complainant described the applicant’s “doodle” as looking “big” with “loose skin and it was pulling back”. Afterwards, the complainant pulled his pants up and tied them “real tight” “in case something happened again” and in case “they would make me do something even badder”.

  4. The applicant told the complainant not to tell anyone, saying “It’s a secret. The complainant said “I gotta tell somebody” to which the applicant said “no, you can’t, no.” Afterwards, the complainant had to “poo” and it was “really sore”. When he looked at his “poo” he saw “real white stuff and then slimy stuff coming out of [his] bum”. Even by reference only to the transcript of the video, it may be seen that the Crown case was strong. There is nothing quite so compelling as a child’s unwitting description of acts and events the sexual nature of which they do not yet understand.

  5. The complainant made no immediate complaint. He said during the interview that, after he left the room, he saw his cousin JD and told him that he had to go home. (JD gave evidence confirming that he saw the complainant come out of the room.) The complainant said JD told him to ask JD’s mother, SD, if she could take the complainant home. He said (in response to Q31 and Q32):

“A31: And my bum was really sore. And then [SD] took me home. And that was all. I went back home and then when I went back home I forgot about it. And now when I came up to Queensland, I was, I was down in Narrabri and I forgot about it.

A32: And when I came up to Queensland, I just remembered it, like, one month ago.”

  1. Later in the interview he said (in response to Q194 and Q195):

“A194: Then he, I pulled my pants up and I tied them real tight.

A195: And then I said, I runned out to the lounge room and I said, Aunty [SD], could you take me home now? And she said, Yeah, wait til I finish this beer and I’ll take you home.”

  1. Later, he was asked about the earlier answer in which he had said the applicant had said to him “It’s a secret. Don’t tell anybody”. The police officer asked whether the complainant had then said anything to the applicant (Q220). He gave the following answer:

A220: I said, I gotta tell somebody. And he said, No, you cant, no. That’s when I wanted to go tell and because aunty was chatting and I kept saying, Aunty, aunty, aunty. And then I forgot what I was going to say and then I said, Could you take me home?”

  1. In cross-examination at the trial, the complainant was taken back to his answer to Q31 (set out above). It was put to him that, “after what happened at SC house” he “forgot about it altogether” (here, the reference to “SC house” must be a reference to SD’s house). He agreed (T4.1). He was pressed on that issue. It was put to him that, from the time of the incident at SD’s house up until a month before his interview with police, he had forgotten about the incident with the applicant. He said “I forgotten a tiny bit” and “Yeah I forgot some of it”.

  2. He also accepted, in response to a further leading question, that he forgot what happened within the space of five minutes between leaving the room where the alleged incident occurred and speaking to his aunty, SD. He accepted (when put to him) that he was not embarrassed or afraid to tell SD and that, rather, he forgot all about the incident.

  3. The complainant accepted that he had remained in Wee Waa after the incident and had seen the applicant a number of times during that period but had still not recalled the incident. It was ultimately put to him that he had “a false memory of this night”. He denied that.

  4. It was put to the complainant that the applicant was in the company of a particular female the whole time he was at the house that night. The complainant disagreed, saying that the woman in question was “with Darren”.

  5. As already noted, the indictment alleged that the offences occurred between April and November 2012 in Wee Waa, which was intended to cover two separate short periods when the complainant was living in Wee Waa (ascertained by reference to school records). In 2013, the complainant was having difficulties in school. At some point during that year, his godmother, SC, visited the family. His mother asked SC whether the complainant could go to Queensland to live with her in the hope that it would settle him down. He went to Ipswich to live with SC in November 2013.

  6. SC gave evidence that, shortly after his arrival at her home in November 2013, she told the complainant that he could always come and talk to her about everything. Soon after he started school in Ipswich the following year, on 16 March 2014, SC was contacted by the school because he had been acting up that day. SC spoke with the complainant after school and asked him why he was “mucking up at school all the time”. She reminded the complainant that he could talk to her about everything. In response, the complainant said he was “very ashamed about talking about” and that “[the applicant] did something to me.”

  7. According to SC, the complainant then told her that, at SD’s house, the applicant took the complainant into a room, “asked me to lie on my stomach, on my back and he put … his boogalas on my boogalas”. SD asked what else had happened. The complainant said “And then he bent me over and put his boogalas in my bum” (T25). The trial judge later sought to clarify what had been said. She said the exact words the complainant used were “He made me lay on my back he put his boogalas on his boogalas and then he made bend over and he put his boogalas in my bum” (T38).

  8. SC then left the room to tell her husband what had happened. When she returned the complainant was upset, sitting on his bed crying with a pillow over his face and just sobbing (T25). The complainant then said that the applicant had “made him put his boogalas in his mouth” (T26). According to SC, the complainant said that after the acts described above the applicant gave him a cigarette but he flicked it away. SC reported the matter to the police the following day, after seeking advice from her sister, her mother and the school.

  9. SC agreed in cross-examination that “boogalas” is a word used by Indigenous people in New South Wales which has a fairly well-defined meaning. It is understood to mean “penis and testicles”. She agreed that when the complainant said the applicant “put his boogalas on [the complainant’s] boogalas”, that meant the applicant put his penis or testicles on the complainant’s penis or testicles. SC also gave evidence of a conversation she had with the complainant’s biological father, RA. RA had spoken to the complainant independently. RA told SC that the complainant had told him “the same thing”. In re-examination, SC clarified that RA did not articulate the detail of conversation he had with the complainant. Rather, SC had already given RA (and the complainant’s biological mother) some information about the allegations and RA said “he’s told me the same thing” without particularising exactly what the complainant had said to RA.

  10. There was evidence in the trial that the complainant was hit by a car while he was playing on a bridge in Narrabri in late 2013, a couple of months before he went to live in Queensland with SC. The complainant was cross-examined about that incident, evidently with a view to establishing some connection between the alleged false memory and the injuries he suffered in the accident. He said he was on a low level bridge about to jump off when he was knocked to the ground by a car. He knocked his head on the ground. He could not recall if he became unconscious. It was put to him “It’s after that incident that your memory starts to come back to you is that right?” He agreed.

  11. The complainant’s godmother, SC, was also cross-examined about the supposed connection between the accident on the bridge in November 2013 and the complainant’s complaint to her in March 2014. She was asked whether he received medical treatment “as a result of the injuries that he suffered” (apparently a reference to her evidence that he hit his head). SC said she understood that at the time of the accident the complainant “had a head scan and they couldn’t find any injuries whatsoever”. SC also had the complainant examined by doctors in Queensland to “check him over” and they could not find “any injuries whatsoever to his head”. She had given evidence that the complainant sometimes has trouble expressing himself but said “that’s always been BA” (T23.48) and “it’s got nothing to do with his head injury” (T29.30).

  12. The complainant’s mother, BD, also gave evidence about the car accident. She said the complainant was taken to hospital where CT scans were done to see if there was bleeding on the brain. She was told that the complainant was fine and could go home. She said he suffered a couple of scratches.

  13. Regarding the terms of the complaint, the mother’s evidence was that, after the complainant complained to SD, his godmother, SD rang her (the mother) saying she had some bad news. SD told her the complainant’s allegations. The mother travelled to Queensland to be the complainant’s support person at the police station. She was told not to discuss the allegations with him as he needed “a clear mind” before he made his statement. She did not discuss the allegations with him but she did pull him aside and ask him “why didn’t you tell mum or dad?” He replied “I didn’t want to upset you because you’ll chuck a fit”. The mother gave evidence that she understood him to be referring to the fact that she suffers from epileptic fits, but it was not explored whether that was what the boy meant.

  14. The complainant also told his father (RA) what had happened. His father gave evidence as to the conversation between the complainant and the applicant (T77.25) as recounted to him by the applicant:

“I believe he [the applicant] told BA not to tell anyone or he’d hurt BA or myself and BD [the mother].”

In cross-examination, RA said that he had asked the complainant why he had not told him earlier about the abuse, which was when the complainant told him about the threat by the applicant (T82). RA stated that it was “very clear” in his mind that the complainant told him about the threat and not the other way around (T83.5).

  1. An aspect of the applicant’s case was that RA’s evidence on that issue was inconsistent with the evidence of the complainant. The defence relied on the inconsistency to cast doubt on the credibility of the complainant. It is far from clear that an inconsistency was established. The proposition put to the jury was that RA’s evidence established that the complainant had accused the applicant of making “a threat to harm BA and his mother and father” (26/10/15 T14.17). The complainant had not said anything about a threat in his video-recorded interview. He said the applicant said “It’s a secret. Don’t tell anybody”. In cross-examination, it was put to him that the applicant had never made any threats to hurt him. He agreed. It was then put that the applicant had never made any threats to hurt his father. He disagreed. There was a measure of confusion in the cross-examination that followed.

  2. There was also evidence that BA had had issues with soiling his pants. This pre-dated the alleged incident involving the applicant, but the complainant said it “got worser” (implicitly, after the offences). There was also evidence of an incident, after the offences, when the complainant passed a very hard stool and saw blood in the toilet bowl. He told his mother, who arranged for him to see a paediatrician in Dubbo (a three-hour drive from Wee Waa), mainly in relation to the issue of soiling himself. His mother’s evidence was that, during the journey to Dubbo, they did not discuss his problems with soiling himself. In cross-examination, the complainant accepted that the paediatrician asked him about any problems with his bum but said that he did not tell the paediatrician about the alleged sexual abuse because he did not remember it. The complainant thought the paediatrician had examined his bum. However, the complainant’s mother’s evidence was that they did not examine him but rather spoke to him for about an hour and gave him instructions on how to go to the toilet properly. The complainant’s father (RA) similarly gave evidence that the paediatrician did not examine the complainant’s anus but spent an hour or two discussing his “pooing problem” and nothing was said about the alleged offences or any sexual contact.

  3. Finally, evidence was led (without objection) of the content of a report from Dr Rita Shackel, an expert in the area of child sexual abuse. Her report set out her findings, based on research, as to the “behavioural, emotional and psychological dimensions” of that type of abuse. Extracts of her report were led through the officer in charge of the investigation, directed mainly to the psychological explanations for delay and reticence in the disclosure of child sexual abuse, particularly in the case of male victims.

Grounds 2 and 3

  1. It is convenient to consider grounds 2 and 3 first. Ground 2 contends that counsel for the applicant’s remarks to the jury that the applicant would be giving evidence in circumstances where the applicant did not ultimately give or call evidence resulted in a miscarriage of justice. That ground was formulated at a time before the applicant’s current representatives had access to information from his former representatives as to the conduct of the trial. The further information made plain that, at the time defence counsel made his opening address to the jury, the applicant had expressly confirmed his intention to give evidence. As the argument was developed in submissions (with the benefit of that further information), its principal focus was the asserted incompetence of trial counsel in failing at a later point to apply for a discharge of the jury or to seek a specific direction to cure the prejudice allegedly occasioned by those events (now addressed in ground 3). The oral submissions also addressed an alleged failure to advise the applicant of the significance of deciding not to give evidence after the jury had been told he would, but that contention did not make its way into ground 3 as filed.

  2. To the extent that ground 2 raises an issue as to an omission to direct, it requires leave under r 4 of the Criminal Appeal Rules, since the matter was not raised at trial. Ground 3 does not require leave under rule 4 but does require leave under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), since it raises a question of mixed law and fact. As the two grounds are inextricably linked and raise a question that could arise in other cases, I consider that leave as respectively required under each provision should be granted.

  3. It is appropriate to set out trial counsel’s opening address in full, as it appears in the transcript:

“In this trial, I anticipate that the Accused will give evidence on..(not transcribable)..for you. That, however, won’t happen until after the Crown has presented or – I just want to say this to you because I think it’s fundamentally important. The nature of a case like this, involves evidence – as this one does produce – graphic and you may find disturbing.

…. But the point is, you are going to have to judge – at the end of the – whether you find a reasonable doubt weighing BA’s evidence and the other Crown evidence against that denial which will come at a later date in the trial. I want to ask you this, and I’m picking up on something his Honour has already told you. You must make your decision on all of the evidence, not one side, all of the evidence. You’re going to hear graphic and disturbing evidence, maybe even distressing. But the decision that you have to make comes, not when you do that – when you get to that point – I’d close your mind at any point, until such a time as you’ve been put in a position of hearing all the evidence.

And that’s not until the Crown closes and I call such evidence, as I call it, planting the Accused. Process is to then sit down with an open mind, then to judge the veracity and acceptability of all of the evidence in tail and to apply to law as it will be explained by his Honour. And his directions of law, of course, are binding on you and you must follow them. So ladies and gentlemen, the fundamental point in this trial, is to leave your mind open, leave your ears open, hear the totality of the evidence, weight the evidence, then make your verdict, then make your decision.”

  1. The expression attributed to Mr Kennedy (“planting the accused”) is a curious one. At the hearing of the application, I suggested he might have said “And that’s not until the Crown closes and I call such evidence as I call exculpating the Accused”. However, in the absence of evidence on that issue, I accept that this Court should determine the matter by reference to the words recorded in the transcript, as contended on behalf of the applicant. The Crown was content to address grounds 2 and 3 on the premise asserted in those grounds, namely, that the opening remarks indicated to the jury that the applicant would be called or at least that that was anticipated.

  2. After the close of the Crown case, the following exchange took place in the presence of the jury:

“KENNEDY: Your Honour I would be asking you to start this again on Monday morning.

HIS HONOUR: Could I enquire how many witnesses you have in your case?

KENNEDY: There is certainly one.”

  1. The following Monday, Mr Kennedy informed the judge that he would not be calling any evidence. When the jury was brought in, the trial continued as follows (after the judge had apologised for a delayed start):

“HIS HONOUR: … But the trial has now been shortened. I understand that, Mr Crown, you’ve closed the Crown’s case?

TRIAL ADVOCATE: I have, your Honour.

HIS HONOUR: And Mr Kennedy, I understand you’re calling no evidence.

KENNEDY: That’s the situation.”

  1. Defence counsel began his closing address by referring back to his opening address, reiterating what he had said about keeping an open mind but omitting any reference to the applicant’s election not to give evidence, as follows:

“About two days ago or so when this case started, I got to say something to you. What I said was, ‘Ladies and gentlemen of the jury, you’re going to hear a case where you will hear evidence that is graphic and disturbing. It’s not only the nature of the case, it’s true of this particular case.’ You sat and watched that young lad on tape, tell his version, it would be a very hard-hearted person who didn’t have a totally normal human reaction to listening and watching that experience. What I was saying was this, keep an open mind. Wait till you hear the entirety of the evidence. You’re not asked to give a verdict until you come back with a verdict.

HIS HONOUR: Mr Kennedy, can you just come back towards the microphone please, so we get you recorded.

KENNEDY: You are not asked for a verdict till the end of the case. What I was saying was, look, keep an open mind in this case – an incredibly hard, perhaps, thing to do. Many people would find it impossible to do, I suggest, but it’s what I asked you to do and it was a big ask, I know that. Ladies and gentlemen, in this case – although it’s occupied two days of hearing – there are 134-odd typed pages of material given in Court. That’s a lot of evidence. I don’t intend – you’ll be pleased to hear – to read that. I intend to say this to you though, the evidence you’ve just heard, I submit it will be – or should be, one would expect – fresh in your minds. Transcripts vary from – sometimes they’re great, sometimes they’re not.

What really matters at the end of the day is what you heard, your assessment, not only of the personalities, but your hearing of the words as to what was said. And you have that with you, and you have two days, and it’s on that basis that I ask you to make your judgment.”

  1. No direction as to the change of tactic was sought or given. The trial judge gave the appropriate standard directions including a direction as to the onus and standard of proof. His Honour then distributed a document setting out the elements of the offences (MFI 6) and, after addressing those elements by reference to the evidence, reiterated that, if the Crown failed to prove any of them beyond reasonable doubt, the verdict must be “not guilty”. Towards the conclusion of the summing up, the judge noted that the accused had not given or called evidence and gave the appropriate standard direction as to the accused’s right to silence upon arrest and at trial, again reiterating that the Crown bore the onus of proof and that the accused bore no onus of proof in respect of any issue in dispute. That was the last legal direction in the summing up. It was given in the last part of the summing up, after lunch and just before the jury was sent out to deliberate.

  2. The applicant sought to rely on three affidavits in respect of ground 2: an affidavit sworn by the applicant, one sworn by Mr Kennedy and one sworn by the solicitor having carriage of the appeal, Mr Eccleshall. The Crown opposed the admission of that material to support ground 2 which he submitted should be determined objectively, by reference to the record of the trial. At that point, we reserved our decision as to the admissibility of the affidavits. The applicant was subsequently granted leave to add ground 3 alleging incompetence of counsel. In my opinion, while the Crown was right to oppose the admission of the affidavits to support ground 2, they are relevant to ground 3 and should be admitted on that basis.

  3. For the purpose of considering ground 2 alone, attention should be confined to the record of the trial. On the strength of that material, I am not persuaded that there was a miscarriage of justice. The burden of the applicant’s submission was that counsel’s opening remarks created an expectation that the jury would hear from the applicant and that they “needed to be told in some way” to disregard that expectation; that “things change during trials” and that the applicant “still has the benefit of his right to silence and has decided at this point to exercise it”.

  4. As explained above, the trial judge gave appropriate directions as to the onus and standard of proof and the right to silence. In a short summing up in which few other legal directions were ultimately required and his Honour chose not to summarise the evidence (as allowed under s 161 of the Criminal Procedure Act 1986 (NSW)), those directions took a place of some prominence. The direction as to an accused person’s entitlement to elect to remain silent was given in emphatic terms and was the last thing the jury heard before they retired to deliberate their verdict. I consider that the directions were adequate to dispel any expectation that the applicant would give evidence. The jury was properly directed. Any attempt to embellish upon the standard directions in an attempt to explain counsel’s opening remarks is likely to have diluted the impact of those directions.

  5. For those reasons, I would dismiss ground 2.

  6. Turning to ground 3, the affidavit evidence establishes that the applicant did intend to give evidence. Shortly before the trial, he and Mr Kennedy had watched the complainant’s video-taped interview together. Mr Kennedy advised the applicant that he thought it was compelling and that the applicant should give evidence on oath “so the jury have your story”. According to Mr Kennedy’s evidence, he asked the applicant to make that decision before the trial started so Mr Kennedy could tell the jury as soon as possible that the applicant would be giving evidence. That evidence was not disputed.

  7. In oral submissions in support of ground 3, the applicant expressly disavowed any complaint that the decision to inform the jury that the applicant would give evidence of itself reflects incompetence. In my respectful opinion, that was an appropriate concession. It was potentially a powerful point in the face of a strong complainant.

  8. The applicant’s affidavit confirms that he made the decision to give evidence before the trial began and that he communicated that decision to Mr Kennedy. He said:

I was told that the prosecutor would try to make me angry. I said I could handle it because I’m innocent. Mr Kennedy told me he thought I should give evidence in my case and I said I would.

  1. The applicant explained his change of heart:

Court was getting me stressed. I remember seeing Mr Kennedy after court on the second day, the 22nd October, and saying that I was thinking that I did not want to give evidence in my case.

  1. On the strength of the record of the trial, it is not surprising that the applicant experienced stress. The complainant had fared well under cross-examination. Other witnesses largely supported his credibility. By the end of the second day of the trial, the Crown case must have appeared strong to any person who had been in court.

  2. The applicant said that Mr Kennedy did not at that stage say anything to him about the fact that the jury had been told he would be giving evidence “and why, because of this, it would be a bad decision for me not to give evidence.” However, he does not suggest he would have taken a different course had he been reminded of what had been said to the jury before deciding not to give evidence.

  3. There is a contest within the applicant’s evidence as to what advice Mr Kennedy gave at that point. The applicant in his affidavit says that Mr Kennedy said during these discussions that there was no point giving evidence because the Crown case was so strong. Mr Kennedy, in his affidavit, says he told the applicant that his opinion as to the need for the applicant to give evidence had not changed. The Court is accordingly placed in the difficult position of having to resolve a conflict within the evidence adduced by the applicant. It seems unlikely that, having given advice that the applicant should give evidence because the Crown case was strong, Mr Kennedy would have revisited that advice as the case appeared to get stronger. I am not persuaded that the applicant was encouraged in any way by Mr Kennedy to resile from his original decision to give evidence.

  4. Ground 3 as formulated asserts incompetence in failing to seek a discharge of the jury or specific direction to cure the prejudice allegedly occasioned by the combination of the opening remarks and the later decision not to give evidence. For the reasons stated in respect of ground 2, I am not persuaded that there was prejudice. But even if there was, it is clear from the applicant’s evidence that it was due to a change of attitude on his part. In that circumstance, it could not be said that a discharge was necessary to prevent a miscarriage of justice. As to seeking a specific direction, as explained above, in my view any attempt to explain the applicant’s decision not to give evidence carried the risk of diluting the directions properly given as to onus of proof and the right to silence.

  5. For those reasons, I would dismiss ground 3.

Ground 1 – failure to put the defence case properly to the jury

  1. Ground 1 alleges that the trial judge failed properly to put the defence case to the jury, resulting in a miscarriage of justice.

  2. In circumstances where the applicant did not give or call evidence, the defence case, such as it was, stood to be discerned from the evidence adduced in cross-examination and from the submissions put by defence counsel in his closing address.

  3. The topics addressed in cross-examination of the complainant were the failure to complain earlier to various persons and the complainant’s explanation for that (the issue of forgetting), his evidence that he continued to forget even after seeing the applicant a number of times in Wee Waa, the impact of the car accident on his memory, the problem of soiling clothes, the suggestion that the applicant was in the company of a particular female for the whole of the relevant night, the terms of any threat made by the applicant and whether the complainant told his father about any such threat. It was ultimately put to the complainant (at T13) that his account was a “false memory” (which counsel defined to mean a memory that had come back to him later). Separately, it was put to him “you are not telling the truth about your Uncle”. Importantly, it was not put to him that he had been untruthful in what he had said to his father about any threat.

  4. The cross-examination of the complainant’s godmother raised an issue as to inconsistent complaint based on her evidence that the complainant said the applicant “put his boogalas on my boogalas” whereas he said nothing to that effect in the video interview. The two counts on the indictment alleged oral intercourse and anal intercourse but no act of penis-to-penis contact. The cross-examination of the complainant’s father raised the alleged inconsistency as to what had been said about threats (considered above).

  5. Mr Kennedy’s closing address made no reference to the issue of soiling clothes or the proposition put to the complainant (which he rejected) that the applicant was in the company of a particular female all night. The evidence on those issues provided no support whatsoever for the defence and may be put to one side.

  6. The closing address otherwise rehearsed what had been put in cross-examination. The topics addressed were complaint (the absence of complaint to persons to whom it might have been expected he would complain – Aunty SD, the biological parents and the paediatrician – and the alleged forgetting), the car accident, the alleged inconsistency with the father’s evidence about threats, the alleged inconsistency in the complaint to the godmother about “his boogalas on my boogalas” and Dr Shackel’s report.

  7. The principal focus of the address was the complainant’s explanation for not complaining at various stages before he spoke to his godmother (the issue of forgetting). Mr Kennedy reminded the jury of the evidence that, immediately after the offences, the complainant went to tell his aunty, SD, what had happened but then said he “forgot what he was going to say”. Counsel noted that this “forgetting” occurred on a continuing basis and that the complainant had accepted he did not subsequently remember until a considerable period of time later. He suggested the jury would have difficulty accepting that a person, even at the complainant’s age, could be subjected to the alleged conduct and forget about it over such a short course of travel and “stay forgotten” for the period of time it took until he complained to his godmother over a year later. He emphasised that, over the period when the complainant claimed not to recall the event, he spent some further time in Wee Waa and that he saw the applicant six or eight times during that period.

  8. Counsel also reminded the jury that there was evidence that, on an occasion after the alleged offences, the complainant passed a large stool accompanied by blood which caused his parents alarm. They took him see a paediatrician, which involved a three hour journey in each direction. He also had an hour’s conversation with the doctor. None of that had prompted him to recall the alleged offences. His failure to tell them was not, according to his evidence, because he was ashamed or embarrassed, but because he did not remember the incident at that time.

  9. As to the car accident, counsel reminded the jury that the complainant was struck to the head; that an ambulance was called; that the complainant was taken to hospital and that scans of his head were undertaken both then and at a later time. The scans did not show any “organic brain damage”. The jury had to assess the truth and accuracy of the complainant’s evidence. Defence counsel asked, “how can it be that a person can go through a head accident of this kind, requiring that sort of treatment and not have some interference with his cognitive processes?” The submission invited speculation; there was no evidence whatsoever of cognitive harm. In my view, it would have been open to the Crown to ask that the submission be withdrawn. To return to the issue would have been to the applicant’s detriment.

  10. As to the alleged inconsistency between the evidence of the complainant and that of his father, counsel invited the jury to find the father an accurate and truthful witness. The submission was made that the evidence had been that the complainant told RA the applicant had threatened to harm the complainant and his biological parents, RA and BD. In fact, as noted above, RA had said “I believe he told BA not to tell anyone or he’d hurt BA or myself and BD”. Counsel invited the jury to compare the father’s evidence with the complainant’s, which he said was of a “slanging match” between the applicant and RA in which the applicant threatened only RA. He invited the jury to find that the complainant’s evidence “in respect to that” was wrong. He submitted that while, with a child of such tender years, it is easy to prefer the view that “he’s just forgotten”, “the probabilities are that he was more than forgetting” and that, “in that respect, BA was probably less than honest.”

  11. It had not been put to the complainant that he was not honest with his father or in his evidence to the jury on that issue. As noted above, there was an element of confusion in the cross-examination – it scarcely established any inconsistency, let alone dishonesty. Again, in my view, it would have been open to the Crown to ask that the submission that he was “probably less than honest” be withdrawn (since it had not been put to the complainant). To return to the issue would have been to the applicant’s detriment.

  12. Counsel then referred to the complainant’s initial complaint to SC. He noted that, while there was a consistency in the central area of complaint from that point on, there was, if SC was right, an inconsistency as to the nature of the sexual interference as SC says she received a complaint of “the boogalas on the boogalas”. He invited the jury to find that SC was absolutely focussed on what she was being told at that point and the “overwhelming conclusion” was that her evidence of what the complainant told her was correct. It was submitted that, at the time it was said (the “boogalas on the boogalas” complaint), it was “entirely wrong.”

  13. The Crown had made cogent submissions on that issue, pointing to a number of possibilities including the obvious possibility that the acts described by the complainant may well have involved “the boogalas on the boogalas” at some point. As explained below, the judge did not refer to either party’s submissions on that issue, leaving it to the jury to make their own assessment but properly directing them as to the use to be made of the complaint evidence according to their assessment of it.

  14. Finally, Mr Kennedy reminded the jury of the expert evidence of Dr Shackel, led through the police officer. He invited the jury to look very carefully at the series of judgments made by Dr Shackel, saying (somewhat cryptically), “I suggest to you that this case is about memory that is suppressed, obliterated and then recovered in difficult circumstances. That’s the evidence you’ve heard. Upon that evidence you must judge this case.” The submission was obscure. How it might have been summarised by the judge in terms that would not have undermined the defence case is unclear.

  15. The trial judge commenced his summing up with a brief introduction and the usual general directions. He gave the jury the written directions and directed them as to the elements of the offences, referring briefly to the evidence relied upon to support each element. He then reminded them of the complaint evidence from SC and RA and read extracts of their evidence before directing them as to the use to be made of that evidence. His Honour did not put the case of either the Crown or the applicant as to those matters. He simply said it was a matter for the jury to decide whether the complaint was made and what its contents were.

  16. In that context, the judge said:

“It follows that if you find the complainant has not acted in the way you would have expected someone to act after being assaulted, as he described, then that may indicate that the allegation is false. But remember, there may be good reasons why the complainant did not raise the allegation immediately, and that a failure to do so does not mean that the allegation is false.

In that regard, the evidence that you will need to consider is what the complainant said to SC. Namely, a reason for the delay, perhaps, that he was ashamed about it; against a background, that he had communication difficulties; that he would shut down from time to time.

But there was – if you accept the evidence of RA, which the complainant did not give evidence about; – in fact, denied it was said – that there was a threat by the accused, that he would hurt the parent or, indeed, the complainant.” (At 12-13)

  1. The judge then reminded the jury of Dr Shackel’s evidence, reading out extracts of that evidence and saying “that’s the evidence that the Crown relies upon in relation to an explanation perhaps for the delay, between 2012 and 2014, in complaining about this alleged assault.”

  2. The judge then said:

“You will bear in mind, and I will deal with it shortly in a minute, the defence case is that it is most unlikely in this case because what the complainant is saying is that he forgot entirely from the very moment the event took place about the offence at all. That he saw the accused on a number of occasions in a number of places in Wee Waa and not even those encounters were such as to bring back a memory.” [Emphasis added].

  1. The judge then returned to the evidence of Dr Shackel and gave the standard direction about expert evidence. Read in that context, the words “I will deal with it shortly in a minute” may have been understood to refer to the direction about to be given as to expert evidence (that reading occurred to me only during the preparation of this judgment and was not raised at the hearing of the application).

  2. The applicant submits that it can be inferred from those remarks that the judge intended to say more about the applicant’s case and that his Honour overlooked returning to the matter. It is not necessary to determine whether that is what occurred. The question is whether, in the result, any miscarriage of justice occurred.

  3. After the lunch adjournment, the judge gave the standard direction concerning the drawing of inferences and the direction to which I have already referred about the accused’s entitlement to elect not to give or call evidence. His Honour concluded the formal part of the summing up by saying:

“Now, the evidence in this matter has been given over a relatively short period of some two days. You heard addresses from counsel, which they have directed to you, to the evidence upon which they rely in support of their submissions. I do not propose to go through that evidence, as it is no doubt fresh in your mind as to what evidence it is that both parties rely upon.”

  1. A judge presiding over a criminal trial with a jury is not required to summarise the evidence in every case. Section 161 of the Criminal Procedure Act 1986 (NSW) provides:

161   Summary by Judge

(1)   At the end of a criminal trial before a jury, a Judge need not summarise the evidence given in the trial if of the opinion that, in all the circumstances of the trial, a summary is not necessary.

(2)    This section applies despite any rule of law or practice to the contrary.

(3)    Nothing in this section affects any aspect of a Judge's summing up function other than the summary of evidence in a trial.

  1. This was an obvious case in which it was not necessary to summarise the evidence, as the trial judge concluded.

  2. The applicant submitted that a trial judge must nonetheless put fairly before the jury the case which the accused makes. So much may be accepted: RPS v R (2000) 199 CLR 620; [2000] HCA 3 at [41].

  3. The critical task is to determine the content of that requirement in any particular case. The applicant submitted that, in the circumstances of this case, the obligation on the trial judge to provide a fair account of the defence case was “even higher” owing to its weakness. Reliance was placed in that context on the decision of this Court in Maraache v R [2013] NSWCCA 199, in particular the additional joint reasons of Fullerton and Schmidt JJ at [101]-[102]:

“In R v Meher [2004] NSWCCA 355 Wood CJ at CL referred with approval to the judgment of Isaacs J in R v Tomazos (Court of Criminal Appeal, 6 August 1979, unreported) where his Honour said:

‘… A trial according to law includes as an essential prerequisite that the trial judge has put fairly, cogently and with clarity to the jury the accused’s defence. The weaker the defence the more essential it is for his defence such as it is to be put to the jury so that they can consider it in the light of the Crown case and evaluate it as part of their assessment together with the Crown evidence to see whether the Crown has discharged its onus of proof.

It can properly be said that the accused fairly lost a chance of acquittal because his case was never put to the jury by the trial judge. It is completely insufficient for a trial judge simply to say to the jury in effect, “Well you have heard all that has been said on behalf of the accused by the counsel; it is unnecessary for me to say anything more”. The trial judge must lend the weight of his judicial position and authority to putting before the jury himself the case for the accused.’

We are of the opinion that even if it might fairly be said that the applicant’s case was not compelling, he was entitled to have the trial judge refer to how his defence was advanced in the context of the evidence upon which he relied (particularly since the Crown case and the evidence on which the Crown relied was addressed in the summing up), and that a miscarriage of justice has been occasioned by his failure to do so.”

  1. Those remarks do not derogate from the central proposition that the test is ultimately one of fairness, which is necessarily context-based. The obligation of the trial judge is to conduct a trial that is fair both to the accused and to the Crown. The notion that the judge has a “higher” duty in the case of a weaker defence is apt to distort the true task and cannot be regarded as a principle of law. The accused’s entitlement to a fair trial does not require the trial judge to advocate for the accused or to promote a weak defence beyond its actual strength. The applicant’s task in the present case is to show that the trial was unfair. The content of the obligation to put the defence, such as it was, is necessarily informed by the course of the trial and the matters Mr Kennedy had sought to put.

  2. It is necessary in that context to consider the significance of the fact that Mr Kennedy took no objection to the summing up and sought no further explanation of the defence case, raising a question as to the application of r 4.

  3. The applicant submitted that a failure to put the defence case fairly and accurately during the summing up exists regardless of any request from defence counsel, citing the decisions of this Court in Wong v R [2009] NSWCCA 101 at [113] and R v Meher [2004] NSWCCA 355 at [76].

  4. In Wong, the Court held at [142]-[146] that the failure properly to put the defence case to the jury was an irregularity that went to the root of the proceedings and on that basis granted leave under r 4. However, as noted by the Crown, that was a factually complex case of dangerous driving causing death where the trial judge’s summing up had failed to include anything about the defence case. The finding was specific to that case.

  5. The decision in Meher was also factually very different from the present case. Certainly, it is an application of the principle that it is “essential, if a summing up is to be fair and balanced, that the defence case be put to the jury” (at [82]). But that was a complex case in which the accused had given evidence. There were many complaints as to the summing up. The Court found, for example, that the judge had advanced arguments in favour of the Crown case that had not been relied upon by the Crown and which overlooked aspects of the evidence (at [113]-[114]).

  6. As to r 4, the applicant relied on the judgment of Emmett JA in Maraache where his Honour said at [66] (Fullerton and Schmidt JJ agreeing):

“Because of the fundamental nature of the requirement that, in a summing up in a jury trial, the defence case be put to the jury, if the defence case is not sufficiently put to the jury not only will it be appropriate to grant leave under rule 4 of the Criminal Appeal Rules for that omission to be a ground of appeal, notwithstanding the absence of objection by the party seeking to appeal, it may also be inappropriate to apply the proviso to s 6(1) of the Criminal Appeal Act by finding that there is not a substantial miscarriage of justice.”

  1. Such statements necessarily turn on the anterior judgment that the case has not been put “fairly” or “sufficiently”. The position adopted by trial counsel on that issue is of course not determinative but is appropriately regarded as “a reasonably reliable indicator of the fairness or sufficiency of what has been said”: AP v R [2013] NSWCCA 189 at [29]; Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [119]-[121].

  2. The applicant submits that, contrary to his obligation, the trial judge did not fairly put the applicant’s case before the jury. The submission assumed that the content of the requirement was to address each point made in counsel’s closing address.

  3. The Crown noted that the trial was short and involved only two counts arising out of a single incident. The single issue in the trial was the complainant’s credibility. The judge did not summarise the evidence and was entitled to take that approach. Apart from referring to particular kinds of evidence for the purpose of specific legal directions (complaint evidence and expert evidence), his Honour did not recite the evidence in any detail. He did not summarise the arguments put by either counsel.

  4. As to the content of the judge’s obligation in that context, the Crown relied on the decision of the High Court in Domican v R (1992) 173 CLR 555; [1992] HCA 13 at 561 where the Court (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) said:

“The requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence.”

  1. The Crown also relied upon Williams v R (1999) 104 A Crim R 260; [1999] NSWCCA 9 and R v Davis [1999] NSWCCA 15, both decisions of Wood CJ at CL (Spigelman CJ and McInerney J agreeing in each case). In Williams, described as “a short trial, where the focus was on the complainant’s credibility” (at [44]) the trial judge had said in summing up:

“Defence counsel on the other hand says that you should at least have a doubt about the reliability of her evidence, and he gave you a lot of eloquent reasons which I wouldn’t do justice to if I tried to repeat them, but they must still be ringing in your ears because he only not long ago stopped talking to you, and he presented his arguments to you very thoroughly and you should give them the weight you think they deserve.”

  1. Wood CJ at CL said (at [43]-[44]):

“The common sense and intelligence of the jury requires respect, as does the experience of trial counsel who, in this case, expressly stated that he did not require any further direction or redirection.

I am unpersuaded that in a short trial, where the focus was on the complainant’s credibility, anything would have been achieved by yet another restatement of that issue or of the points made either by the Crown or by the defence. The position is likely to be otherwise in a complex and lengthy trial, to which the observations in Domican are particularly apposite. It would also have been otherwise had the trial judge here undertaken, for example, a detailed analysis of the Crown case and then dismissed the defence case in short terms. What is required is a fair balance when any excursion into the issues and evidence is taken. Again I am of the view that leave should be refused to argue this ground under [rule 4].”

  1. Justice Wood took the same approach in R v Davis (at [24]):

“The need for, and extent of, any exploration of the evidence and of the issues, in a summing-up, is to be assessed in the context of the trial, its length, its complexity and in the light of the way that it has been run. Where the summing-up in a short trial has followed hard on the heels of a defence address, particularly where the appellant has not offered any evidence, very little is likely to be achieved by a reiteration of the evidence or of the points made by counsel in their closing addresses. To so require would be to credit the jury with little in the way of intelligence or common sense. An exercise of judgment is always required, on the part of the trial judge, to frame the summing-up in a way that is helpful to the jury. To elevate the observations in RJC and Zorad to a requirement that, in every case, regardless of its length or complexity, the trial judge must identify and repeat the points made by defence counsel, the relevant evidence, would be to go too far. Counsel should be expected to contribute in this regard, and to disclose whether they seek more, by way of summary the evidence and of the submissions, than the judge proposes.”

  1. Both decisions were cited with approval in RR v R [2011] NSWCCA 235 at [86]-[87] (Bathurst CJ, James and Johnson JJ agreeing).

  2. As submitted by the Crown, the jury in the present case could not have been left under any misapprehension as to the basis upon which the applicant argued there was a failure to prove the case against him. The sole focus of the defence was on the complainant’s credibility. The judge’s summing up did advance the defence case on that issue, albeit in general terms. As in Davis, the summing up followed “hard on the heels” of the defence address and the applicant had offered no evidence. In those circumstances, little was likely to be achieved by a reiteration of the evidence or points made by counsel within the hour or so before. As noted by Wood CJ at CL in Williams, in determining the content of this task, the common sense and intelligence of the jury require respect.

  3. Further, this is a case in which the lack of a request for a redirection provides a cogent basis for concluding that, in the circumstances of this particular trial, the trial judge’s summing up was perceived as adequate.

  4. For those reasons, I am not persuaded that the summing up was inadequate in the circumstances. Accordingly, I would refuse leave under r 4 to allow ground 1 as a ground of appeal.

  5. I propose the following orders:

  1. as to ground 1, that leave under r 4 be refused;

  2. as to grounds 2 and 3, that leave to appeal be granted;

  3. that the appeal be dismissed.

  1. WILSON J: I agree with the orders proposed by McCallum J, for the reasons expressed by her Honour. I also agree with the further remarks of Basten JA.

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Endnotes

Decision last updated: 15 December 2017

Most Recent Citation
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Cases Cited

14

Statutory Material Cited

4

TKWJ v The Queen [2002] HCA 46
Mraz v The Queen [1955] HCA 59
Castle v The Queen [2016] HCA 46