Dries v R

[2022] NSWCCA 33

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Dries v R [2022] NSWCCA 33

Hearing dates:

12 November 2021

Date of orders:

23 February 2022

Decision date:

23 February 2022

Before:

Macfarlan JA at [1];
Rothman J at [71];
Dhanji J at [75]

Decision:

(1) Leave to appeal granted.

(2) Appeal dismissed.

Catchwords:

CRIME – appeal against convictions following refusal of application to discharge jury – references in prosecutor’s address to complainant’s lack of sexual experience – s 293 Criminal Procedure Act – retractions by Crown and trial judge’s directions to jury overcame prejudice – appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW), s 66A

Criminal Appeal Act 1912 (NSW), ss 5, 6

Criminal Procedure Act 1986 (NSW), s 293

Cases Cited:

Browne v Dunn (1893) 6 R 67

Caleo v R [2021] NSWCCA 179

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

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

Greenaway v R [2021] NSWCCA 253

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

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

Maric v The Queen (1978) 52 ALJR 631

Medich v R [2021] NSWCCA 36

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

Munn v Regina; Miller v Regina [2006] NSWCCA 61

Orreal v The Queen [2021] HCA 44

Rogerson v R [2021] NSWCCA 160

Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30

Y v Regina [2009] NSWCCA 287

Category:

Principal judgment

Parties:

Mr Rodney Stephen Dries (Applicant)
Regina (Respondent)

Representation:

Counsel:
B Robinson (Applicant)
C Curtis (Respondent)

Solicitors:
T&S Law Firm (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2019/224976

Publication restriction:

Statutory non-publication order on the identity of the complainant under s 578A Crimes Act 1900 (NSW) and on the identities of her half-siblings under s 15A Children (Criminal Proceedings) Act 1987 (NSW). An order was made by the District Court on 27 July 2020 that the non-publication orders extend to the names of the complainant’s mother and maternal grandfather.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

20 November 2020

Before:

Beckett DCJ

File Number(s):

2019/224976

Judgment

1. MACFARLAN JA: On 27 July 2020 the applicant was arraigned in the District Court before a judge and a jury panel on an indictment charging him with having had sexual intercourse with a child under the age of 10 years, contrary to s 66A of the Crimes Act 1900 (NSW). After the applicant pleaded not guilty, a jury was empanelled and the trial proceeded, culminating in the jury returning a unanimous verdict of guilty on 11 August 2020. The applicant seeks leave under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to appeal against his conviction on the following ground:

“A miscarriage of justice was occasioned as a result of the trial judge’s failure to discharge the jury”.

2. The indictment alleged that the charged offence occurred between 15 October 2018 and 13 June 2019 with a child (“the complainant”) who was then aged 4 or 5 years. As opened to the jury, the sexual intercourse the subject of the charge involved the complainant sucking the applicant’s penis, and the Crown told the jury that it was anticipated that they may hear evidence that it had happened more than once.

3. In October 2018 the complainant had been removed from the care of her mother, JW, and had begun to live with MD, who was a grandmother to two of JW’s other children, and MD’s partner, the applicant. The Crown alleged that the complainant disclosed the offence to JW and a representative of Family and Community Services (“FACS”), Ms Nima Arwani, on 14 June 2019 during a “contact visit” involving JW and the complainant, organised by FACS.

4. At the end of the Crown’s closing address at the trial, the applicant applied, in the absence of the jury, for the trial judge to discharge the jury. The principal basis of the application was that in his address the Crown Prosecutor said that in assessing the complainant’s evidence the jury should consider “her physical size, her age, her life experience, her lack of sexual experience and her maturity” (emphasis added). The applicant contended that the reference to the complainant’s life experience and lack of sexual experience was made in the absence of any evidence on the topic and was also a breach of s 293 of the Criminal Procedure Act 1986 (NSW), which is relevantly in the following terms:

293 Admissibility of evidence relating to sexual experience

(1) This section applies to proceedings in respect of a prescribed sexual offence [of which the offence charged at the present trial was one: see s 3 Criminal Procedure Act].

(2)    Evidence relating to the sexual reputation of the complainant is inadmissible.

(3)    Evidence that discloses or implies—

(a)    that the complainant has or may have had sexual experience or a lack of sexual experience, or

(b)    has or may have taken part or not taken part in any sexual activity,

is inadmissible.

(4)    Subsection (3) does not apply—

(a)    if the evidence—

(i)    is of the complainant’s sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and

(ii)    is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed,

(b)    if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant,

(c)    if—

(i) the accused person is alleged to have had sexual intercourse (within the meaning of Division 10 of Part 3 of the Crimes Act 1900) with the complainant, and the accused person does not concede the sexual intercourse so alleged, and

(ii)    the evidence is relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person,

(d)    if the evidence is relevant to—

(i)    whether at the time of the commission of the alleged prescribed sexual offence there was present in the complainant a disease that, at any relevant time, was absent in the accused person, or

(ii)    whether at any relevant time there was absent in the complainant a disease that, at the time of the commission of the alleged prescribed sexual offence, was present in the accused person,

(e)    if the evidence is relevant to whether the allegation that the prescribed sexual offence was committed by the accused person was first made following a realisation or discovery of the presence of pregnancy or disease in the complainant (being a realisation or discovery that took place after the commission of the alleged prescribed sexual offence),

(f)    if the evidence has been given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question that may, pursuant to subsection (6), be asked,

and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.

(5)    A witness must not be asked—

(a)    to give evidence that is inadmissible under subsection (2) or (3), or

(b)    by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible.

(6)    If the court is satisfied—

(a)    that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period—

(i)    had sexual experience, or a lack of sexual experience, of a general or specified nature, or

(ii)    had taken part in, or not taken part in, sexual activity of a general or specified nature, and

(b)    the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication,

the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified.

(7)    On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury.

(8)    If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision.

(9)    (Repealed)

5. Both the trial and the application for leave to appeal proceeded on the basis that s 293, or at least the legislative policy reflected in it, was breached by at least the reference to a lack of sexual experience even though the statement was a submission by counsel and not “evidence”, which is the term used in s 293.

6. The trial judge rejected the application to discharge the jury and the trial proceeded with the Crown retracting the relevant statement and the trial judge directing the jury to disregard it. The applicant contends on appeal that these steps were inadequate to overcome the prejudice that he suffered as a result of the impermissible statements being made to the jury.

7. For reasons that appear below, I have concluded that the trial judge did not err in refusing the discharge application and that the applicant has not suffered any miscarriage of justice. As a result, although leave to appeal should be granted, the appeal should be dismissed.

THE EVIDENCE AT THE TRIAL

8. It is sufficient for the purposes of the appeal proceedings to refer to the following evidence adduced at the trial. Where necessary, further aspects of the evidence are referred to later.

The complainant’s evidence

9. The complainant gave evidence in chief by way of three recorded interviews with police.

10. In the first interview, the complainant stated that she sucked the applicant’s “wah wah” (words she used to refer to genitals, also referred to in the transcript by the word “wawa”). She indicated by reference to a body map that she was referring to the genital region of his body.

11. In the second interview she gave more detailed evidence and demonstrated to police what had occurred by “rock[ing] back and forward … with her mouth open”. She gave large and confused numbers when asked “how many times have you sucked [the applicant’s] wah wah” and said that “nothing else happened” apart from this act.

12. In her third interview she was asked to explain a statement, “that’s a lie”, that she was heard to have made during the playing in court of her second interview. She said that that comment related to her answer that she had been sitting on her bed at the relevant time, when the truth was that she was “confused” about whether she had been sitting, standing or bending.

13. Cross-examination pursued two different themes in particular. The first was that there were reasons why the complainant preferred living with her mother to living with the applicant and his partner (relating to what the complainant was allowed to eat and how much time she was allowed to spend on her iPad). The second was whether her mother had suggested that she allege that she had sucked the applicant’s “wawa”, which she denied. As part of that theme, the complainant was asked whether it would be “a lie” to say that the applicant touched her “wawa”, to which she responded “[u]m, the truth”.

14. After the complainant’s evidence concluded, there was an exchange between the trial judge and counsel in which, as the applicant contended on appeal, the judge indicated that defence counsel should not be concerned, from the point of view of the principle in Browne v Dunn, that he had not put to the complainant in cross-examination inconsistencies that he intended to allege existed in her evidence. The Crown, at least implicitly, supported what her Honour indicated.

Ms Arwani’s evidence

15. Ms Arwani was a contact worker with FACS with responsibility for JW’s family, including monitoring interactions between JW and the complainant. She gave evidence suggesting that opportunities for JW to make suggestions to the complainant about anything she should say were limited.

16. Ms Arwani also gave evidence that during a contact visit on 14 June 2019 the complainant said to her and JW that the applicant “let me touch his wawa”. When asked by JW to repeat what she had said, the complainant said that the applicant “let me lick his wawa”. Following discussions between the adults, including JW’s father (DW) who arrived separately, the complainant was asked about the topic again.

17. Ms Arwani summoned the caseworker responsible for the family, Ms Rutledge, who subsequently arrived with another caseworker, Ms Tamrakar. Ms Arwani said that this was her “first disclosure of an allegation [of] sexual abuse”.

The mother, JW’s, evidence

18. JW gave evidence of the complainant’s statements during the contact visit of 14 June 2019 and was cross-examined extensively about a number of topics including matters relevant to the complainant’s apparent preference to live with her mother.

Ms Rutledge’s evidence

19. Ms Rutledge, the FACS caseworker, gave evidence of the complainant’s complaint on 14 June 2019, including that when she was alone with the complainant and Ms Tamrakar, the complainant said to her “I was watching TV and I told mum that [the applicant] let me touch his wawa”. Ms Rutledge said that when the complainant was asked when it happened, her response was “not last night” because she had a sore on her mouth and “couldn’t do it”; and Ms Rutledge observed a sore on the complainant’s mouth (there was medical evidence that this was angular cheilitis). Ms Rutledge said that the complainant told her that the conduct had happened more than once.

The applicant’s evidence

20. The applicant denied that he had ever put his penis into the complainant’s mouth, and that he had ever touched her in a “sexual way”.

THE CLOSING ADDRESSES AND SUMMING UP

21. The following aspects of the closing addresses and summing up are relevant to the issues raised and submissions made on appeal.

22. Early in his closing address, the Crown prosecutor said the following:

“On to my first topic and that is the how to approach the evidence of [the complainant]. Now it's important I suggest to you, members of the jury, that her evidence should not be taken in a piecemeal way. The evidence at the trial given more broadly should be taken as a whole and you should consider factors which I've got on the screen at the moment including the chronology, the content, the language used by [the complainant]. The physical demonstrations she gave on occasion and her demeanour. They all point to her being a credible and reliable witness.

This trial is about things [that] happened to [the complainant] when she was four or five years old. She’s now six and a half years old. Consider her physical size, her age, her life experience, her lack of sexual experience and her maturity when you consider the evidence that she gave. Consider about what she did and what she didn’t do. What she said and how she said it and how she demonstrated it. Children are not little adults. All of you may or would have experience with young children. Some of you may have young kids of your own, some may have nieces and nephews.

It’s wrong in my respectful submission to assume that they follow the same thought processes as an adult does. Sometimes they might, sometimes they mightn’t. In my submission to you, you would know from your own experience that it can be harder to predict what is going through the mind of a young child than through the mind of an adult. Maybe it would [be] appropriate to expect that a rational adult would avoid going near someone who has sexually assaulted her. But children are not little adults and judging them by adult expectations of how they should behave or respond to a situation, in my respectful submission, is a flawed process.” (Emphasis added.)

23. The Crown’s use of the emboldened words was the principal subject of the applicant’s application for the jury to be discharged. Its use of the words “her life experience” was not criticised on appeal.

24. Later in his address, the Crown reminded the jury of the following parts of the cross-examination of the complainant and then made the comment set out below:

“   ‘Q. Did you make up that story about sucking the wawa so you could go back to live with mum?

A. No.

[…]

Q. Did you - did mummy tell you to talk to [the applicant] about sucking his wawa? [Sic. Original question was: “Did mummy tell you to talk about [the applicant] and you sucking his wawa?”.]

A. No.

[…]

Q. Did you tell [Ms Arwani] [that] [the applicant] touched your wawa?

A. I don’t know.

Q. But that wouldn't be true would it?

A. It would. It would be true [sic. Original answer was only: “It would.”]’.

She did tell [Ms Arwani] and that he had touched his wawa [sic]. ‘[The complainant] could you have made up a story about [the applicant] making you suck his wawa?’, ‘No’. How could a five year old child I suggest to you members of the jury as a matter of common sense make up such a detailed and extraordinary story?”

The applicant did not object at the trial to this part of the Crown’s closing address.

25. Later in his closing the Crown put that a reason for accepting the complainant’s evidence was that what she recounted was “complicated but consistent” and he continued:

“So, if [the complainant] herself had set out to tell a pack of lies, this particular pack of lies then it would have been necessary for her to keep up such a complicated series of lies for such a long period of time. This disclosure 14 June. One year one month after the fact, she would have had to continue to persist with the pack of lies. The first interview went for almost 30 minutes and it's a long time for a child and the second, about 20. So here in Court 14 months after, those lies that she apparently has told to the police in her interview she's maintained them on her own wind. See, the process of cross-examination is available to test the evidence and [the complainant] was asked a number of questions about these incidents and it wasn't put to her the aspects that she describes of the sexual acts were any different between the answer she provided to the police and what she said in court.” (Emphasis added.)

26. At the adjournment that occurred soon after, defence counsel contended in the absence of the jury that the last emboldened portion of the address quoted in the previous paragraph was contrary to an agreement that he would not be “held to account” for failing to put details of inconsistencies in the complainant’s evidence to her in cross-examination. This was a reference to the exchange between the trial judge and counsel noted in [14] above. After the adjournment, the Crown withdrew the submission by saying the following to the jury:

“SOLICITOR ADVOCATE: Ladies and gentlemen, before lunch I said that the inconsistency in the sexual acts hadn’t been put to the complainant by [the applicant’s] lawyer, and therefore, the inference that you would use that as an ability to more readily accept what she has to say. Can I say two things quickly about that? The first is I withdraw as part of my submission any part of that statement. That being that the [the applicant’s] lawyer, he didn’t have to put that inconsistency to her about any sexual acts. But the second thing I want to say is though, I maintain the submission that any inconsistency in the sexual acts would not cause you to have a reasonable doubt about the totality of her evidence.

So for example, within the evidence of [the complainant] you may recall that she disclosed that [the applicant] touched her wawa when asked that question. But that seems to not be the tenor of her evidence concerning the count on the indictment. You can accept that that happened if you wish or you can reject that that happened if you wish, but it’s there as part of context, and much like the fact that this happened on more than one occasion on the Crown case, you can accept that that happened as context evidence, or you can simply accept that it happened only once, or not at all.

Despite there only being one charge on the indictment, you shouldn’t read into that, that because the Crown case is that there are multiple alleged acts of this or repetition, that somehow that feeds into an inconsistency or a deficiency in the Crown case. So I suggest to you that evidence has been led by way of context. You shouldn’t view it in the way simply because there’s that single count on the indictment, that therefore, the Crown has not led all these other counts. I hope that’s clear to you.”

27. The second and third of these quoted paragraphs sought to characterise the complainant’s evidence that the applicant had “touched her wawa” and that the sucking or licking of his wawa had occurred on more than one occasion as “context evidence” because it did not relate to the charged offence as particularised in the opening to the jury (see [2] above). In its discharge application, the defence contended that this reference to context evidence had taken it by surprise.

28. Moving on in his closing to Ms Arwani’s evidence, the Crown referred to the complainant’s disclosure as something that “stood out for [Ms Arwani] because this hadn’t happened before”, and to Ms Arwani being “very familiar” with JW’s family and that she had been involved in over 50 interactions with members of the family (there being two children in addition to the complainant) and continued:

“She’s [Ms Arwani] demonstrated or knows that there’s been nothing regarding sexual abuse before having been disclosed. She’s never mentioned, that is the complainant or [JW] rather, [the applicant’s] name, the [applicant’s] name” [sic].

(The second sentence in the above quote was presumably intended to be a reference to the evidence of Ms Arwani that she had never heard JW mention the applicant’s name before.)

29. The defence then sought discharge of the jury on the basis of the s 293 issue and the Crown’s references to “context evidence” (see [4] and [27] above). After argument, the trial judge rejected the application, for reasons that she later gave in writing.

30. On resumption of the trial the Crown said the following to the jury concerning his comments on the evidence of Ms Arwani referred to in [28] above and his reference to the complainant’s lack of sexual experience (see [22] above):

“Members of the jury, during my closing address at transcript p 399 I said, ‘In the context…her sexual experience’ [sic, referring to [22] above] and at p 418 of the closing address [see [28] above], I said that, ‘[Ms Arwani] demonstrated or knows that there's been nothing regarding sexual abuse before having been disclosed by [the complainant]’. In relation to the second point, that was not [Ms Arwani’s] evidence. [Ms Arwani’s] evidence was that during her time or her employment with FACS this had been her first disclosure of sexual abuse for one of her cases and what she in fact said in evidence about this area at p 118 is, [she was asked] ‘that in terms [of your training and experience did you understand that was normal protocol that the child would be isolated and they would further discuss the disclosure with] them in private’ and her response was, ‘I haven't been in that situation before but I assume, I assume so’.

She was asked, ‘So this - if I put it this way, this is your first disclosure of an allegation of sexual abuse?’ And she said, ‘That's correct’ and that she then went on to say that this particular incident stand[s] out in her mind. In relation to the first issue that I raised, there's no evidence about [the complainant’s] sexual experience and it was an error for me to make that submission to you and I formally withdraw that submission. Her Honour will provide you with directions as to matter of law and I can inform you that it was wrong of me to say that as a matter of law and also as a matter of fact. It was wrong as a matter of fact because there was no evidence about that and as well you know and you've been directed and her Honour will remind you that it's the evidence that you mustn't speculate at any stage.” (Emphasis added.)

The judgment refusing the discharge application

31. The trial judge summarised the basis of the discharge application as follows:

“[3] … During the course of his closing comments the Crown made reference to the complainant's ‘lack of sexual experience’, ‘life experience’ and that the evidence indicated there had been an absence of any previous disclosures of ‘sexual abuse’. Further, evidence concerning a complaint that the accused had touched the complainant's genital areas (described by the complainant as her ‘wa wa’) fell into the category of context evidence. The [applicant] sought an adjournment and in the absence of the jury, having obtained instructions from his client, made an application for the jury to be discharged on the basis of the further comments.”

32. As to the context evidence issue (see [27] above), her Honour concluded that there had not been any prejudice to the applicant as a result of the manner in which the Crown conducted its case, at least not so long as her Honour gave appropriate directions to the jury in her summing up. The applicant did not challenge this conclusion on his application for leave to appeal to this Court.

33. As to the s 293 issue, her Honour concluded:

“[42] In all the circumstances of this case I consider that the Crown overstepped when he made submissions to the jury that they were entitled to consider the complainant's lack of sexual experience, and absence of prior disclosures of sexual abuse. So much was conceded by the Crown during the course of the application.”

34. In considering the impact of this transgression by the Crown, her Honour referred to relevant factors identified in authorities such as Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 and continued:

“[59] Turning my mind to the factors set out at [34] above [referring to factors such as those set out in Crofts at 440-441], I consider that the issues raised concern matters that are not (when taken together) wholly insignificant, but nor are they matters that go to integrity of the trial proceedings, nor are they incapable of being corrected. The Crown can correct the record as to the errors today and the defence has the opportunity to close today, prior to the weekend. On Monday the jury will receive directions just prior to deliberations commencing. In these circumstances I do not think that any asserted error would realistically affect the outcome of the trial. I note that the issue arose at the very end of the trial and whilst the [complainant’s] evidence has been pre-recorded various witnesses would need to be called again, including the mother of the child [JW] who fits within a vulnerable category of witness. Nonetheless, it is obvious that fairness to the [applicant] is the principle issue that ought guide my discretion. Whilst the statements to the jury were clearly intentionally made I do not find that there was any mala fides on behalf the Crown, and are far removed from the category of misconduct. I have come to the view that the jury will abide by directions of law I will give them in respect of the issues that have been raised on this application. The jury have to date indicated they are attentive and have to date asked appropriately focused questions. I have no reason to believe that they are not capable or unwilling to understand and abide by my directions.

[60] I have discussed at some length the directions I intend to put to the jury in respect of the issues referred to above. The Crown has undertaken to correct the ‘sexual inexperience’ submission and I will direct also as to the lack of evidence in this respect (including the absence of evidence in respect of the circumstances in which she was removed from her mother's [JW’s] care) and the prohibition against evidence of this type together with the general prohibition against speculation.”

The summing up

35. Having referred to matters that the jury might wish to take into account when considering the complainant’s reliability, the trial judge continued:

“They are matters entirely for you. However, there is one matter that I must warn you specifically about because it was referred to in the Crown closing address and you will recall the Crown had to come back after lunch and correct the record, but I must go to it again.

That is the submission that was originally made that you could take into account the complainant’s life and sexual inexperience and lack of history of abuse into account in assessing her reliability, including her descriptions of the male genitals and perhaps even the description, demonstration she gives during the JIRT interview. Let me be clear that there is no evidence whatsoever before the Court as to the complainant’s sexual experience or exposure to sexual matters, or exposure to prior sexual abuse, or exposure to the male body by whatever means. That is for the very good reason that the law prohibits such evidence being put before the Court.

No evidence was given as to the circumstances or reasons behind [the complainant] being placed into FACS care, again, because the law prohibits certain material contained within FACS’ reports being adduced in criminal trials. For that reason, it was wrong to say that [the complainant] lacked experience as it would be wrong to say that she had not. There is simply no evidence one way or the other and it would be wrong to speculate. You must consider this evidence with the presumption of innocence in mind until you are convinced otherwise.”

LEGAL PRINCIPLES

Appeals against a conviction following refusal of an application to discharge a jury

36. An appeal against a conviction following refusal of an application to discharge the jury is not against the failure to discharge the jury but against the conviction (Maric v The Queen (1978) 52 ALJR 631 at 634). The principles that apply are therefore those that apply to criminal appeals generally, notwithstanding that a decision not to discharge a jury is a discretionary decision (Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219 at [127]-[128]). In the present case the applicant requires leave to appeal because his proposed appeal does not relate to a question of law alone (ibid at [77]-[78]).

37. In Miller v R [2015] NSWCCA 206; (2015) 252 A Crim R 486 at [126], this Court referred to Maric and Crofts and summarised “key considerations” in deciding an application to discharge a jury as including:

“(a)    the fairness of the trial: Crofts at 440;

(b)    the nature of the statements said to have given rise to the prejudice, including whether they were such as to ‘have been left vividly etched on the mind of the jury’: Crofts at 441;

(c)    the seriousness of the occurrence in the context of the contested issues: Crofts at 440;

(d)    the stage at which the mishap occurs: Crofts at 440; Maric at 635;

(e)    the deliberateness of the wrongful conduct: Crofts at 440; Maric at 635;

(f)    the likely effectiveness of a judicial direction designed to overcome the apprehended impact of the evidence, and particularly the difficulty of formulating a direction that does not refer specifically to the evidence and by doing so reinforce the prejudice: Crofts at 440–441; Maric at 635.”

See also Hamide at [114] and Rogerson v R [2021] NSWCCA 160 at [585].

38. The applicant’s proposed ground of appeal in the present case asserts that a “miscarriage of justice” occurred. If established, this would require the appeal against conviction to be allowed, subject to the operation of the proviso to s 6(1) of the Criminal Appeal Act. Recent decisions of the High Court have established that not every irregularity in the conduct of a trial constitutes a miscarriage of justice. That will only occur where there has been “practical injustice” to the accused or the absence of a trial according to law “to the prejudice of the accused” (Edwards v The Queen [2021] HCA 28; (2021) 95 ALJR 808 at [74]-[75]; Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937 at [41]; see also [100]-[102], [118] and [121]-[123]).

39. As, for the reasons given below, I have concluded that there has been no practical injustice or relevant prejudice to the applicant, the possible application in the present case of the proviso to s 6(1) (that is, dismissal of the appeal if the Court considers that “no substantial miscarriage of justice has actually occurred”) does not arise for consideration. It is however difficult to see how the proviso could apply here because, if a “miscarriage of justice” in the sense referred to above were found, the finding would necessarily indicate that the jury’s verdict had been impaired by what had occurred, with the result that this Court could not rely upon it to indicate how the critical issue of credibility which arose at the trial should be resolved (see Orreal v The Queen [2021] HCA 44 at [41]-[42]).

Section 293 of the Criminal Procedure Act

40. The applicant relied on appeal on the following two decisions of this Court concerned with the introduction of “matters contrary to s 293” in the Crown Prosecutor’s closing addresses.

41. In Munn v Regina; Miller v Regina [2006] NSWCCA 61 the two accused were charged with sexual offences against a seven year old girl. It was apparent from the complainant’s records of interviews that were in evidence that she had some sexual knowledge from watching TV, observing her mother on one occasion and from her description of a twelve year old boy having had sexual intercourse with her; but that knowledge did not extend to acts involved in the charges against the accused such as masturbation, digital penetration and oral intercourse. One of the accused sought leave to cross-examine the complainant to ascertain whether she had broader experience or knowledge which embraced these matters. The application was refused.

42. Notwithstanding this, in his closing address the Crown Prosecutor referred to the acts described by the complainant that the Crown alleged constituted the offences and said:

“She hasn’t got that from TV. She hasn’t got that from watching her mum under a doona. She’s got that, I suggest to you, from what these accused did to her. She describes masturbation, digital penetration, penile vaginal penetration and oral intercourse. You might think things out of the experience of just about any seven year old, or eight year old you could think of.” (Emphasis in original judgment.)

43. Barr J (with whom Spigelman CJ and Simpson J agreed), concluded as follows that there had been a miscarriage of justice:

“[36] … The possibility that the complainant might have had experience of such other matters was one which defence counsel had been prevented from raising. It was quite unfair to make such a submission, particularly because when the matter had been raised before the complainant gave evidence the Crown Prosecutor had nowhere indicated that he intended to put the case as he did in his closing address. I think that a miscarriage of justice resulted.”

44. As the defence did not take any objection at the trial, the trial judge did not attempt to correct the irregularity. Barr J continued on appeal:

“[37] Since no point was taken at trial, leave is needed to rely on this part of the ground. It is difficult to see how the situation could have been retrieved, however, once the idea of the complainant’s general lack of experience had been planted in the minds of the jurors. Perhaps that was why counsel thought it better not to raise the matter at all. I would grant leave to argue this part of the ground and uphold this ground of appeal.”

45. In Y v Regina [2009] NSWCCA 287 the trial judge refused applications by the accused for leave under s 293 to adduce evidence of prior sexual experience of two young complainants who gave evidence in support of sexual offences against them by the accused. Notwithstanding this, in his closing address the Crown Prosecutor referred to the complainants as “naïve little girls” who “have had limited sexual education to that point”, and it was found that this implied that they “would not have had the background to be able to create the graphic details of their allegations of the sexual abuse by the appellant” (at [61]).

46. Allsop P (with whom Howie and Hislop JJ agreed) found that the conduct of the Crown in its closing address was unfair, in a similar way to that found in Munn, in that the Crown proceeded with the advantage of the rulings under s 293 which prevented the accused countering the Crown’s suggestion of the complainants’ lack of sexual experience or knowledge (at least in the absence of an application under s 293(6), which had not been made and it was found could not have been made at the time of the closing addresses). Again, as the accused did not object at the trial to the Crown’s address, the trial judge did not give any remedial directions whose impact needed to be assessed on appeal.

CONSIDERATION OF THE APPLICATION FOR LEAVE TO APPEAL

47. On appeal, the applicant’s counsel referred to the s 293 issue as the “primary subject” of his client’s application for leave to appeal and to other criticisms by him of the Crown’s closing address at trial as simply identifying the “context” in which the s 293 matter was to be considered. None of the other criticisms is therefore relied upon as itself founding the application for leave to appeal. In these circumstances, it is convenient to address the s 293 issue in isolation and then consider whether any of the applicant’s other criticisms assist his case.

The s 293 argument

48. On appeal, the applicant submitted that there was an “inextricable link between the central issue in the trial and the s 293 CPA breach” and that the subject matter of the trial was “likely to raise emotion in the jury”, such that the jury’s ability to comply with the remedial directions given by the trial judge would have been overwhelmed. He submitted that the ineffectiveness of such a direction was recognised in the decision in Munn referred to in [44] above.

49. He went on to contend that there were references to the complainant’s lack of sexual experience in three parts of the Crown’s closing address, being those quoted in [22], [24] and [28] respectively above, and that the multiplicity of the offending statements indicated that they were deliberate.

50. The Crown accepted both at trial and on appeal that the first of these references in its closing address, that is, that which referred explicitly to the complainant’s “lack of sexual experience”, was improper in light of the terms of s 293.

51. At the trial, the applicant did not criticise the making of the second reference and on appeal characterised it as no more than “an oblique reference”. It is at least strongly arguable that the reference did not conflict with s 293 and to the extent there was any implied assertion of a lack of sexual experience of the complainant the trial judge’s directions to the jury in my view adequately corrected that, for the reasons that I give below in relation to the first reference. The second reference can therefore be put to one side.

52. The third reference about which the applicant complains (in relation to Ms Arwani’s evidence – see the first sentence of the quotation in [28] above) was also the subject of an adequate correction by the Crown and direction to the jury by the trial judge, for the reasons I indicate below.

53. Before turning to the trial judge’s directions, it is necessary to refer to the Crown’s corrections to the jury as they are a factor to be considered in determining whether the applicant suffered a miscarriage of justice.

48. As indicated in [30] above, the Crown told the jury that, contrary to what he had earlier said, there was no evidence of the complainant’s sexual experience, that it was an error for him to submit otherwise and that he formally withdrew the submission. He reiterated that it was wrong of him to submit what he did, both “as a matter of law and also as a matter of fact”. This form of words was agreed at the trial between counsel and was not alleged on appeal to constitute an inadequate retraction.

49. In her summing up, the trial judge referred to the Crown’s correction and gave a strongly worded direction as to the absence of any evidence of the complainant’s sexual experience or inexperience, stating that the law prohibited any such evidence being adduced (see [35] above). Neither at the trial nor on appeal in his written submissions did the applicant criticise the form of her Honour’s directions; he simply maintained that directions could not cure the prejudice he suffered. In oral address on appeal his counsel however suggested that the direction “might have been a little bit stronger”.

50. On appeal the applicant also emphasised the timing of what occurred in relation to the application for discharge of the jury. The Prosecutor’s reference to the complainant lacking sexual experience was made and objected to on Wednesday 5 August 2020. Argument then occurred later that afternoon and the reference was withdrawn by the Crown in the presence of the jury the next morning. The Crown also foreshadowed to the jury that the trial judge would direct it about the point. Defence counsel addressed on the Thursday and the trial was adjourned to Monday 10 August when the trial judge gave the directions referred to in [35] above.

51. Contrary to the applicant’s submission, this chronology does not in my view assist him. The submission as to the complainant’s lack of sexual experience was withdrawn by the Crown on the day after it was made and directions from her Honour were foreshadowed. No submission was made on behalf of the applicant that an immediate direction should be given. No difficulty arose out of the trial judge’s direction being given on the next sitting day, particularly as it had been foreshadowed and it almost immediately preceded the jury retiring to consider its verdict. As recently pointed out in Greenaway v R [2021] NSWCCA 253 at [56], the time at which directions should be given is very much dependent on the circumstances of the particular case.

52. It is a relevant consideration, as was pointed out in Miller (see [37] above), that the irregularity in the present case arose out of deliberate conduct on the part of the Crown Prosecutor and I take that into account. Whilst deliberate, the conduct, as the trial judge held (see [34] above), was not engaged in with “mala fides”, by which I understand the trial judge to have meant that the impugned statements were not made with a consciousness that they were improper, but rather with careless disregard for that being the position.

53. As a general rule courts proceed on the assumption that juries will obey judicial directions. Bathurst CJ (Beech-Jones and N Adams JJ agreeing) recently referred to this principle in Caleo v R [2021] NSWCCA 179 at [151] as follows:

“As was pointed out in Gilbert v The Queen (2001) 201 CLR 414; [2000] HCA 15 at [13], [31] and [32], the system of justice as administered by appellate courts requires the assumption that, as a general rule, juries understand and follow the directions given by the trial judge. As is evident from the need for separate trials in particular cases, there are cases where there is a real risk that, notwithstanding the directions given, the jury will unconsciously take into account the inadmissible evidence. However, for the reasons I have given this is not a case which falls into that category.”

60. Moreover, the trial judge’s view that particular directions will be able to overcome an irregularity in the conduct of a trial before him or her is to be accorded significant weight because of the judge’s familiarity with the matter and the atmosphere of the trial (Crofts at 440-441; Hamide at [151] and Medich v R [2021] NSWCCA 36 at [241].) In the present case, the trial judge expressly stated that she considered that to be the case in the trial before her and noted that she had taken into account her observations of the particular jury in reaching that conclusion (see [34] above). The latter is a relevant matter to be taken into account (see by analogy Webb v The Queen (1994) 181 CLR 41 at 55-56; [1994] HCA 30).

61. Contrary to the applicant’s submission, the decision in Munn does not determine that judicial directions are incapable of overcoming the adverse impact of an irregularity such as occurred in the present case. Both Munn and Y are cases that turned, as do virtually all cases, on their particular facts. In them the Crown took unfair advantage of earlier rulings that denied the accused the ability to lead evidence that would have contradicted what the Crown said in closing address. In the present case however the Crown Prosecutor readily conceded his error when his attention was drawn to it and made a forceful and explicit retraction of it before the jury. This occurred a relatively short time after the error was made (see [56] above). Moreover, the trial judge referred to the correction in her summing up, shortly before the jury retired to consider its verdict. As well, in the present case, objection was taken at trial so that actual retractions and directions are able to be assessed on appeal as to their adequacy and efficacy. That did not occur in either of the other cases cited which relevantly only included the observation of Barr J in Munn, made in a vacuum, doubting the ability of directions to overcome the irregularity identified on appeal.

62. A further point of distinction is that in those cases the irregularity would arguably have been incapable of correction simply by retractions and directions because, as events transpired, the accused would arguably have had to be allowed to call the evidence they had sought to adduce (under s 293(6)), a clearly impractical step.

63. In these circumstances, I conclude that any prejudice resulting to the applicant from the Crown saying that the complainant lacked sexual experience (or implying that from a reference to “life experience”) was overcome by the Crown’s retraction and the trial judge’s directions. A recent affirmation of the potential of judicial directions to have this effect is to be found in Orreal at [23] (see also [45]).

64. The third and remaining reference in the Crown’s closing address to which objection is taken on appeal is that concerning Ms Arwani’s evidence (see [28] above). In the address the Crown misquoted Ms Arwani’s evidence and arguably inferred that it suggested that the complainant did not have any sexual experience (see the first sentence of the quotation in [28] above). The Crown Prosecutor however corrected what he said (see [30] above). In addition, the trial judge’s directions helped to diffuse any erroneous impression by warning the jury against taking into account any suggestion of a “lack of history of abuse” (see [35] above). In these circumstances, the conclusion I reach in [63] above applies a fortiori in respect of the Crown’s reference to Ms Arwani’s evidence. This is so notwithstanding, as the applicant submitted, that the jury considered that Ms Arwani, as an employee of FACS, might have had access to information beyond that otherwise disclosed in the evidence.

The applicant’s other objections

65. The applicant’s other objections to which I referred in [47] above were to the following effect.

66. The first was to the Crown’s use of the expression “a pack of lies” (see [25] above) in submitting that for the complainant to have made up her complaint she would have had to lie on a significant number of occasions, that is to tell a “pack of lies”. The applicant referred also to other language that the Prosecutor used, such as his reference to the applicant having done “horrible things” to the complainant and any suggestion that the complainant had fabricated her story being “quite frankly ridiculous”. Whilst this language was colourful and arguably went further than was appropriate, it was not the subject of objection at the trial and its use does not in any way enhance the applicant’s argument on the s 293 issue, or otherwise assist him.

67. Secondly, the applicant’s submissions complained of the Crown’s “misquoting of the evidence”. This appears to have been another reference to the misstatement of Ms Arwani’s evidence. Its occurrence does not assist the applicant for the reasons given in [64] above.

68. Thirdly, the applicant submitted that the fact that the Crown made “a submission contrary to an agreement between the parties” (see [26] above) gives “a context and understanding of the significance of the introduction of the complainant’s lack of sexual experience”. As explained in [26] above, the Crown’s misstatement concerning matters not being put to the complainant in cross-examination was promptly brought to the jury’s attention and the submissions withdrawn. The withdrawal in my view overcame any prejudice to the applicant resulting from the submission. Again, the submission does not therefore assist him.

CONCLUSION AND ORDERS

69. For the reasons given above, the applicant was not in my view prejudiced by the irregularities at the trial to which he has referred, with the result that there has been no miscarriage of justice and his ground of appeal should be rejected.

70. I therefore propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

71. ROTHMAN J: I have had the advantage of reading in draft the reasons for judgment of Macfarlan JA and his proposed orders. I agree with the orders proposed and with the reasons of Macfarlan JA.

72. Without qualifying the foregoing agreement but by way of emphasis, I would add the following. First, as Macfarlan JA points out, the Court, in the absence of ambiguity or confusion, operates on the basis that juries listen to and follow the directions of trial judges. That is certainly my experience and the experience of others.

73. Secondly, the direction of the learned trial judge was clear, precise and compelling. Thirdly, each trial has its own context and atmosphere. The trial judge is ordinarily in the best position to determine whether an objectionable statement requires correction, whether it is capable of correction and whether any unfairness will occur. There are times when a correction will compound an unfairness and a more general statement of the principles the jury should apply will operate better.

74. The learned trial judge, in my view, handled the issue commendably and no miscarriage or unfairness has occurred. I reiterate my agreement with Macfarlan JA.

75. DHANJI J: I agree with the orders proposed by Macfarlan JA and with his Honour’s reasons. I would add only the following.

76. I would not be prepared to assume that any “failure” to confront a witness with arguably inconsistent versions given by the witness constitutes a breach of the rule in Browne v Dunn (1893) 6 R 67. That situation is quite different from the unfairness which may arise as a result of not putting matters to a witness and then subsequently calling evidence from a witness that materially contradicts that of the earlier witness. While it is desirable for the parties to discuss and reach agreements with respect to such matters, I would not necessarily accept that, if such agreement had not been reached in the present matter, it would be proper to criticise the conduct of the defence simply on the basis that an inconsistency or possible inconsistency, had not been put to the complainant. Of course, in a case like the present, if the versions of the complainant are logically reconcilable or there are other explanations for some asserted inconsistency, these matters can, and likely will, be raised in the Crown address. This will be a matter to be considered by defence counsel in making forensic decisions with respect to the cross-examination of the complainant.

77. With respect to the prosecutor’s address it is troubling that a prosecutor in a sexual assault trial would address a jury in the manner that occurred here. However, for the reasons given by Macfarlan JA, having regard to the steps taken by the prosecutor and the trial judge, the applicant has not shown that there has been a miscarriage of justice for the purposes of the third limb of s 6(1) of the Criminal Appeal Act1912, in the sense of that term as recently elucidated by the High Court in Edwards v The Queen [2021] HCA 28; (2021) 95 ALJR 808 at [30]; [74]-[75], Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937 at [102], [118], [121]-[123] and see also Orreal v The Queen [2021] HCA 44 at [43].

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Decision last updated: 23 February 2022