Ewen v R - [2015] NSWCCA 117

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Ewen v R [2015] NSWCCA 117
Hearing dates: 9 February 2015
Decision date: 27 May 2015
Before: Basten JA at [1]; Simpson J at [38]; Davies J at [238]
Decision:
(1)  Appeal against conviction dismissed;
(2)  Leave granted to appeal against sentence;
(3)  Appeal against sentence dismissed.
Catchwords:
APPEAL - conviction - sexual intercourse without consent, s 61I Crimes Act 1900 (NSW) - trial by judge alone; Criminal Procedure Act 1986 (NSW), s 133 - obligation to state relevant principles of law - whether explicit reference need be made to presumption of innocence - principle of presumption of innocence is not separate to or distinct from the onus and standard of proof

APPEAL - conviction - whether trial judge required to give “Murray direction” - uncorroborated evidence of the complainant of commission of crime - R v Murray (1987) 11 NSWLR 12; Longman v The Queen [1989] HCA 60; Crofts v The Queen [1996] HCA 22 - Criminal Procedure Act 1986 (NSW), s 294AA - giving “Murray direction” prohibited when evidential issues based solely on absence of corroboration of complainant

APPEAL - conviction - whether trial judge erred in failing to give warning under Evidence Act 1995 (NSW), s 165(1)(c) - whether reliability of complainant’s evidence affected by intoxication - no request for warning made - intoxication not in issue at trial

APPEAL - conviction – whether error in failing to direct that evidence of flight as consciousness of guilt not applicable - Edwards v The Queen [1993] HCA 63 - trial judge made no such inference

APPEAL - conviction - whether error in assessment of witness reliability

APPEAL - conviction - whether verdict unsafe or unsound - Criminal Appeal Act 1912 (NSW), s 6(1) - appeal dismissed

APPEAL - sentence - Crimes (Sentencing Procedure) Act 1999 NSW, s 21A(2)(eb) - offence committed in home - use of home to host party irrelevant
APPEAL - sentence - erroneous sentence - wrong application of totality principle - identification of offences as “mid-range” - whether sentences unduly harsh and severe - leave to appeal granted - appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A, s 9, s 21A(2), s 44(2)
Crimes Act 1900 (NSW), s 61I, s 405B, s 405C
Criminal Appeal Act 1912 (NSW), s 5, s 6
Criminal Code (Qld), s 632
Criminal Procedure Act 1986 (NSW), s 33, s 132, s 133, s 166, s 294, s 294AA
Evidence Act 1906 (WA), s 36BE
Evidence Act 1995 (NSW), s 128, s 164, s 165
Cases Cited: Carr v The Queen [1988] HCA 47; 165 CLR 314
Crofts v The Queen [1996] HCA 22; 186 CLR 427
Edwards v The Queen [1993] HCA 63; 178 CLR 193
Fleming v The Queen [1998] HCA 68; 197 CLR 250
Green v The Queen [1971] HCA 55; 126 CLR 28
Greensill v The Queen [2012] VSCA 306; 226 A Crim R 416
Jones v The Queen (1997) 191 CLR 439
Kelleher v The Queen [1974] HCA 48; 131 CLR 534
Kurtic v R (1996) 85 A Crim R 57
Longman v The Queen [1989] HCA 60; 168 CLR 79
M v The Queen [1994] HCA 63; 181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R v BWT [2002] NSWCCA 60; 54 NSWLR 241
R v Murphy [2000] NSWCCA 297
R v Murray (1987) 11 NSWLR 12
R v Stewart [2001] NSWCCA 260; 52 NSWLR 301
Reg v Henry; Reg v Manning [1968] 50 Cr App R 150
Robinson v The Queen [1999] HCA 42; 197 CLR 162
SKA v The Queen [2011] HCA 13; 243 CLR 400
Tully v The Queen [2006] HCA 56; 230 CLR 234
Texts Cited:
Attorney General’s Department (NSW), Criminal Justice Sexual Offences Taskforce, Responding to Sexual Assault: The Way forward (2006), Ch 6, Jury directions and sexual assault trials

Judicial Commission of New South Wales, Criminal Trial Courts Bench Book, [3-610]
Victorian Law Reform Commission, Sexual Offences Law and Procedure: Final Report (July 2004) at [7.132]
Category: Principal judgment
Parties: Simon Ewen (Appellant)
Regina (Respondent)
Representation:
Counsel:
M Ramage (Appellant)
N Williams (Respondent)
Solicitors:
Voros Lawyers (Appellant)
J Pheils - Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/132900
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

5 April 2013

Before:

Bennett DCJ

File Number(s):

2011/132900

Judgment

BASTEN JA: For the reasons given by Simpson J, I agree that the appeal against the convictions in the present case must be dismissed. Subject to one matter addressed below, to the extent that the applicant required leave to appeal against the convictions under the Criminal Appeal Act 1912 (NSW), s 5(1)(b), that should be granted. Having reached the same conclusion as Simpson J as to the absence of error, I gratefully adopt her reasoning for holding that the convictions were not unreasonable or unsupportable on the evidence nor was there, for any other reason, an identifiable miscarriage of justice. I also agree that there should be permission to appeal against the sentences but that the appeal should be dismissed, for the reasons provided by Simpson J.

Conviction – unreasonable verdict

The trial of the applicant was conducted by a judge sitting without a jury. Such a procedure is permitted under the Criminal Procedure Act 1986 (NSW), s 132. Section 133 operates in those circumstances, and provides:

133   Verdict of single Judge
(1)   A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.
(2)   A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
(3)   If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.

The primary focus of the present appeal was on the nature of the “warnings” required to be taken into account pursuant to s 133(3) and the need to record such warnings in compliance with Fleming v The Queen. [1] That issue is dealt with below. There is a separate question as to the scope and nature of the reasons for judgment. The term “finding” in s 133(1) appears to refer to an ultimate finding which could constitute the verdict of a jury, had there been one. The reference to “findings of fact” to be included in a judgment, pursuant to s 133(2) applies to a wider range of what are sometimes described as “primary” facts and inferences which are material to the ultimate finding of guilt or innocence. They will also require a statement of essential elements of the offence and, where appropriate, any specific defence.
1. [1999] HCA 68; 197 CLR 250.
There was no complaint in the present case with respect to the adequacy of the “judgment”, namely the reasons and the findings of fact recorded by the trial judge. There was, however, a complaint that the verdict was unreasonable and unsupportable on the evidence, in terms reflecting what is often described as the first limb of s 6(1) of the Criminal Appeal Act. How such a ground is to be assessed will obviously differ in the case of an opaque jury verdict and a fully reasoned judgment. Section 6(1) was undoubtedly drafted on the basis that a jury verdict would not contain findings of fact or reasoning from the evidence to the facts. The way in which an appeal court should deal with such a ground in relation to a jury verdict is well-travelled territory. The question is whether the approach must be adapted in the case of a judge only trial.
Putting aside errors of law (within the second limb of s 6(1)) there is a catchall ground (the third limb) dealing with any basis on which a miscarriage may be established. On one view, it may seem unlikely and unnecessary to require the appellate court to reach a finding of unreasonableness or a verdict that cannot be supported (under the first limb) before intervening. A lesser factual error may be sufficient to warrant a finding of miscarriage of justice under the third limb.
The history of such provisions is to be found in Conway v The Queen. [2] It need not be reviewed here, because there was no discussion as to how a ground formulated in terms of the first limb of s 6(1) should operate in the context of a judge only trial. A point of practical distinction, however, is that in circumstances where there is a fully reasoned judgment, an appeal court can expect to have its attention directed to particular matters upon which an applicant seeks to rely in asserting that there has been a miscarriage. That occurred in the present case. For that reason, and because the points were not unarguable, it was appropriate to grant leave to appeal to address what were largely questions of fact or, at best, mixed questions of fact and law.
2. [2002] HCA 2; 209 CLR 203.

Judge required to give ‘directions’

It may seem odd that warnings that are traditionally required to be given to juries, because of weaknesses in the prosecution case which may not readily be perceived by those not experienced in criminal trials, must be expressly identified by a trial judge sitting alone. It is implausible that a trial judge, accustomed to directing juries, would fail to “take the warning into account in dealing with the matter.” However, an obligation in those terms is imposed by s 133(3) (formerly s 33) of the Criminal Procedure Act. The curiosity is diminished by the further requirement that the judgment must include a statement of the relevant legal principles: s 133(2). As explained in Fleming v The Queen [3] the obligation to take the warning into account “is not only to be discharged but also to be seen to be discharged.”
3. [1998] HCA 68; 197 CLR 250 at [32].
An important issue in a case such as the present is the consequence of failing to record a required warning. As Fleming noted:[4]

“…if the judgment fails to show that the judge applied a relevant principle of law, two possibilities are presented. One possibility is that, notwithstanding such failure the principle was applied. Upon that hypothesis there has been a breach of s 33(2) by reason of the omission from the judgment. The other possibility is that the principle was not applied, with the result that, independently of the question of breach of s 33(2), there has been an error of law which may attract at least the second limb of s 6(1) of the Criminal Appeal Act 1912 (NSW). The obligation imposed by s 33(2) was to ensure that the judgment included all principles of law which the judge applied. Unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle is not applied, rather than applied but not recorded.”
4. Fleming at [30].

Despite the presumption in the last sentence, it is possible in theory that the principle was applied but not recorded as having been applied. In that case, there might be an issue as to whether there has been a miscarriage of justice. However, whilst accepting the logical possibility of that outcome, it is clear from an earlier passage in the reasoning in Fleming that this will rarely be the case. That is because s 33(2) is not satisfied,

“…merely by a bare statement of the principles of the law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached.”[5]

Where that process has not been exposed, it may be accepted that there has been a miscarriage of justice.

5. Fleming at [28].

The second issue raised by this appeal concerned the content of the warning which the trial judge was said to have omitted. This must be identified by reference to the requirements of warnings to be given to juries.
Trials of serious criminal offences by judge alone are not the norm: juries are the preferred mechanism for resolving questions of fact in criminal trials. [6] Juries are supposed to bring with them the collective wisdom and experience of the wider community (but also, no doubt, the prejudices and a range of possible misconceptions). Their functioning has long been subject to general law principles imposing checks and balances. These have conventionally been found both in the exclusionary rules of evidence and the requirements for specific directions. For example, traditionally jurors were thought to be peculiarly susceptible to accepting false complaints of sexual attacks. The somewhat unedifying, if not misogynist, views accepted in times past are carefully recorded in Crofts v The Queen; [7] the attitudes of judges from 1968, as expressed by Salmon LJ in Reg v Henry; Reg v Manning, [8] are set out in Longman v The Queen. [9] In Australia the gender stereotyping was formally abandoned in Kelleher v The Queen. [10] The effect, however, was still to cast women (being the majority of complainants of such conduct) into what remained a suspect class, [11] on whose uncorroborated testimony it would be “dangerous to convict”. [12] In 1981 the New South Wales legislature attempted to ameliorate the general law by enacting ss 405B and 405C of the Crimes Act 1900 (NSW), [13] in terms similar to the current s 294 of the Criminal Procedure Act.
6. The consent of the accused is a necessary precondition to an order for trial by judge alone: Criminal Procedure Act, s 132(3).
7. (1996) 186 CLR 427 at 447-448.
8. (1968) 53 Cr App R 150 at 153.
9. (1989) 168 CLR 79 at 85, 92 (Deane J) and 104-107 (McHugh J).
10. (1974) 131 CLR 534 at 553 (Gibbs J).
11. As explained by McHugh J in Longman at 105.
12. Kelleher at 553 (Gibbs J).
13. Inserted by the Crimes (Sexual Assault) Amendment Act 1981 (NSW).
The effect of those provisions was to permit judges to give such warnings based on “experience derived from other cases” which was, as McHugh J pointed out in Longman, logically incoherent once the existence of a class treated as suspect on the basis of experience, had been removed. [14] The warning was now to be justified by some “intrinsic lack of reliability going beyond the mere credibility of witnesses”[15] and somehow obscure to a jury who had heard and seen the witness cross-examined. Fear of an “unfair trial” allowed warnings not dissimilar to the conventional warning to be continued and even required. [16] Further, just as statutory reforms were circumspect and incremental, as the reforms strengthened, they have been treated by judges with circumspection.
14. Longman at 106.
15. Ibid, quoting Carr v The Queen (1988) 165 CLR 314 at 319 (Wilson and Dawson JJ).
16. See Crofts at 449, referring to R v Omarjee (1995) 79 A Crim R 355 at 368.
In the present case, there were factors which might have rendered the complainant’s evidence unreliable. These included her state of inebriation and the possible use of methamphetamine. The question was whether, in these circumstances, the trial judge would have been obliged to give a warning to a jury, had there been one.
In particular areas where concerns have arisen as to unreliability, the laws of evidence have adopted five broad techniques, namely (a) excluding the evidence (as with hearsay); (b) requiring corroboration (as with perjury); (c) requiring a warning that to convict without corroboration is dangerous and unsafe (as with accomplices and sexual offences); (d) requiring a warning that the jury should scrutinise the evidence with care, and (e) permitting a warning as to the need for careful scrutiny in the particular case.
Statutory reforms have moved away from exclusions and mandatory requirements in favour of a permissive approach dependent on the circumstances of the case. Relevantly for present purposes, the requirement for corroboration has been abolished except with respect to perjury. [17] The requirement to warn that it is “dangerous to act on uncorroborated evidence” has also been removed, in terms which should be expressly identified:

164   Corroboration requirements abolished
(1)   It is not necessary that evidence on which a party relies be corroborated.
…
(3)   Despite any rule, whether of law or practice, to the contrary, but subject to the other provisions of this Act, if there is a jury, it is not necessary that the judge:
(a)   warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect, or
(b)   give a direction relating to the absence of corroboration.
17. Evidence Act 1995 (NSW), s 164(1) and (2).

Unreliability is dealt with generically in s 165. Evidence may be “unreliable” for a number of reasons, including (a) difficulties surrounding initial perception (bad light or poor eyesight); (b) difficulties with accurate recall (due to delay, subsequent events or psychological reconstruction of memory); (c) the conditions under which recollection is reported (such as the courtroom environment); (d) falsification, including denial of recollection, invention and omission. Section 165 does not discriminate between causes of unreliability - it provides:

165   Unreliable evidence
(1)   This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
(a)   evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies,
(b)   identification evidence,
(c)   evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like,
(d)   evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding,
(e)   evidence given in a criminal proceeding by a witness who is a prison informer,
(f)   oral evidence of questioning by an investigating official of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant,
(g)   ….
(2)   If there is a jury and a party so requests, the judge is to:
(a)   warn the jury that the evidence may be unreliable, and
(b)   inform the jury of matters that may cause it to be unreliable, and
(c)   warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(3)   The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4)   It is not necessary that a particular form of words be used in giving the warning or information.
(5)   This section does not affect any other power of the judge to give a warning to, or to inform, the jury.
(6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child’s evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165A (2) and (3).

The requirement for a warning (in subs (2)) is couched in conditional terms, in two respects. First, the obligation is not engaged unless a party (usually the accused) requests a warning; secondly, the warning need not be given if the judge is satisfied there are “good reasons for not doing so” (subs (3)). This somewhat awkward formula raises a particular issue with respect to a judge only trial. An unsuccessful request for a direction will often not give rise to a reasoned judgment, but a discussion, recorded in the transcript. In circumstances where the judge declines to give such a direction, is the failure to articulate the reasoning in a written judgment a contravention of s 133 of the Criminal Procedure Act? The issue may be complicated by the fact that counsel for the accused, unless alert to the terms of both s 165 of the Evidence Act and s 133 of the Criminal Procedure Act, may not articulate a “request” for a warning in circumstances where there is no jury.

The second difficulty with the terminology of s 165, relevantly for present purposes, is the savings provision in subs (5). Because of the imprecision of the description of evidence which “may be unreliable” it is not entirely clear what “other power[s]” may be preserved, unaffected by the section. Indeed, one implication to be drawn from the savings provision is that the section does otherwise affect the powers to which it applies. The uncertainty is increased by the non-exhaustive form of s 165(1) referring to “evidence of a kind” that may be unreliable, as to which the categories identified are examples only, though likely to include the examples most commonly faced. In R v Stewart [18] Spigelman CJ suggested, without the need to resolve the matter in the case then before the Court:

“The word ‘kind’ is a word of a breadth and generality which it may be appropriate to read down. Any reason that could be advanced for questioning the reliability of evidence in the specific circumstances of a case can be stated at different levels of generality. Once stated at a level of generality higher than the specific facts of a particular case, such a reason could satisfy the description of “a kind” of evidence. That would have the result that in every case in which an assertion of lack of reliability is made, the compulsory provisions for a warning on request in s165(2) would apply, subject only to the exception in s165(3). The acknowledgment, in s165(5), that there will be other circumstances in which a judge will be required to warn or inform the jury with respect to these matters, suggests that the word ‘kind’ must be read down in some way.”
18. [2001] NSWCCA 260; 52 NSWLR 301 at [16].

The other members of the Court dealt with the matter somewhat differently. Howie J, with whom Hulme J in this respect agreed,[19] stated:[20]

“Where a matter which might adversely affect the reliability of evidence in the trial would readily be understood and appreciated by a jury because it falls within their general experience and understanding and where the court has no special knowledge about the matter or no reason to doubt that the jury will appropriately assess its weight, then the evidence is not ‘of a kind that may be unreliable’ and the section does not apply.”
19. Stewart at [38].
20. Stewart at [98].

If it were necessary to resolve this difference in approach, I would prefer the reasoning of the Chief Justice. In its terms, the section applies to all evidence of a kind that may be unreliable; the fact that the jury needs no warning is accommodated by subs (3).
The kinds of case in which a warning was frequently required under the general law, but “which would not generally attract a warning under s 165” were identified by Howie J. [21] A helpful list (applicable in sexual assault cases) is also to be found in the judgment of Wood CJ at CL in R v BWT. [22] Of particular significance in the present case, is the first matter identified by Wood CJ at CL, namely a Murray direction[23] “to the effect that where there is only one witness asserting the commission of a crime, the evidence of that witness ‘must be scrutinised with great care’ before a conclusion is arrived at that a verdict of guilty should be brought in”.
21. At [99].
22. [2002] NSWCCA 60; 54 NSWLR 241 at [32].
23. Derived from R v Murray (1987) 11 NSWLR 12 (Lee J, Maxwell and Yeldham JJ agreeing), approved by the High Court in Robinson v The Queen [1999] HCA 42; 197 CLR 162 at [21]-[22].
That particular situation is not expressly identified in s 165(1). Nor is it necessarily an element of unreliability: that is, the mere fact that only one person is in a position to give particular evidence does not mean that that person’s evidence is unreliable. Rather, the justification for the Murray direction is better understood as a consequence of the presumption of innocence and the concomitant requirement that the prosecution establish its case beyond reasonable doubt. In this Court, the applicant raised an issue both as to the failure to record a direction as to the presumption of innocence and the failure to identify a warning based on the unreliability of the complainant’s evidence. To the extent that a warning of the general kind identified by Wood CJ at CL is required, it does not fall (or does not entirely fall) within the terms of s 165. There remains, however, a question as to the limitations on warnings imposed by other provisions or the general law.
Three specific provisions should be noted but need not be considered further. First, s 165A of the Evidence Act imposes express constraints on the warnings which may be given with respect to children’s evidence, but is not applicable in this case. Secondly, s 165B deals with the nature of a warning which may be permitted or required where there has been a delay in prosecution of the offence which has given rise to significant forensic disadvantage to the accused. Thirdly, s 294 of the Criminal Procedure Act deals with absence of complaint or delay in making complaint, in the case of prescribed sexual offences, and the relevance of those matters with respect to the credibility of the complainant. Again, that issue did not arise in the present case.
Of more direct relevance is s 294AA, which is in the following terms:

294AA   Warning to be given by Judge in relation to complainants’ evidence
(1)   A judge in any proceedings to which this Division applies must not warn a jury, or make any suggestion to a jury, that complainants as a class are unreliable witnesses.
(2)   Without limiting subsection (1), that subsection prohibits a warning to a jury of the danger of convicting on the uncorroborated evidence of any complainant.
(3) Sections 164 and 165 of the Evidence Act 1995 are subject to this section.

Section 294AA(3) expressly recognises that the section will impose constraints on what might otherwise be permitted or required under ss 164 and 165 of the Evidence Act. To determine its effect with respect to a direction reflecting the discussion in R v Murray, it is necessary to identify the terms of the direction approved in Murray. Thus, Lee J said: [24]

“The fact that a judge does not comment upon the absence of corroboration of the complainant’s evidence … does not mean that the judge cannot or should not, as is done in all cases of serious crime, stress upon the jury the necessity for the jury to be satisfied beyond reasonable doubt of the truthfulness of the witness who stands alone as proof of the Crown case. In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness’ evidence is unreliable.”
24. Murray at 19D-E.

In its terms this proposition could have wide application and indeed in some cases no application where some warning might be thought desirable because, for example, the prosecution case depends on circumstantial evidence. “One witness” cases may include cases depending on DNA identification, or confessions to a single person, as well as complainants in sex offences. However, Lee J had in mind only sex offences, where “absence of corroboration of the complainant’s evidence” might previously have given rise to a mandatory warning. Indeed, if that is the true scope of a Murray direction, it must now be reformulated to comply with s 294AA.
There is no basis in the terms or intendment of s 294AA to qualify the well-established principle as to the burden of proof in relation to criminal prosecutions. However, there is a fine line, which must be approached with some care, between a warning focusing the minds of the jury on the burden of proof borne by the prosecution, and a “suggestion” that complainants as a class are unreliable. Subsection (1) is directed towards reliance on stereotypical assumptions, which should be contradicted by a firm direction to focus on the evidence and the witness. Subsection (2) is not directed to the propriety of drawing the attention of the jury to the lack of supporting evidence, but rather focuses on the importance of not warning the jury of “the danger” of convicting on the uncorroborated evidence of the complainant. As noted by the Victorian Court of Appeal in Greensill v The Queen, [25] referring to a report of the Victorian Law Reform Commission supporting a similar provision in that State, the words “dangerous or unsafe to convict” were “likely to be interpreted by juries as a direction to acquit.” [26]
25. [2012] VSCA 306; 226 A Crim R 416 at [42] (Redlich, Osborn and Priest JJA).
26. Victorian Law Reform Commission, Sexual Offences Law and Procedure: Final Report (July 2004) at [7.132].
In introducing the Criminal Procedure Amendment (Sexual and Other Offences) Bill (NSW) on 18 October 2006, the Minister acknowledged in the second reading speech that the Bill arose out of recommendations of the Criminal Justice Sexual Offence Taskforce, which had reported in April of that year. [27] The Taskforce report noted: [28]

“Despite the fact that s 164(3) Evidence Act (NSW) provides that it is no longer necessary for a judge to give a warning that it is dangerous to act on the uncorroborated evidence of a witness, it appears that a Murray warning is frequently given in sexual assault trials in NSW.”
27. Attorney General’s Department (NSW), Criminal Justice Sexual Offences Taskforce, Responding to sexual assault: the way forward (2006), Ch 6, Jury directions and sexual assault trials.
28. At p 103.

This passage, which no doubt accurately reflected practice at the relevant time, is troubling in a number of respects. First, to describe it as a “warning” is apt, given the length and language of the suggested form of the direction contained in the Bench Book. [29] However, a warning is more appropriate where there is some concealed risk of which the judge is more likely to be aware than is the jury. The standard direction makes no reference to any such risk: rather, it is an extended elaboration of the standard direction with respect to the burden of proof on the prosecution. If given in abstract terms, it comes close to transgressing the long established principle that judges should not seek to paraphrase, explain or embellish what is meant by “satisfaction beyond reasonable doubt”. [30]
29. Judicial Commission of New South Wales, Criminal Trial Courts Bench Book, [3-610].
30. See Green v The Queen (1971) 126 CLR 28 at 31-32 (Barwick CJ, McTiernan and Owen JJ), reiterating statements from earlier authorities.
Like the so-called Longman direction with respect to the possibility of prejudice to an accused resulting from lengthy delay between the alleged offending and the trial, statutory constraints preceding s 294AA have been said not to “abrogate a general requirement for a trial judge to give a warning ‘whenever it is necessary to do so in order to avoid a risk of miscarriage of justice’.”[31]
31. Tully v The Queen [2006] HCA 56; 230 CLR 234 at [161] (Crennan J, Heydon J agreeing) quoting Robinson v The Queen [1999] HCA 42; 197 CLR 162 at [20] (Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ).
Kirby J in Tully, although in dissent, but in a passage cited with approval by Crennan J, stated: [32]

“The case law on judicial warnings does not progress by perceived similarity amongst the facts of particular cases but by reference to the dangers of miscarriages of justice that particular facts serve to illustrate.”
32. Tully at [51], approved by Crennan J at [173], Heydon J agreeing.

Accepting that to be so, labelling warnings according to particular cases is apt to mislead. As stated by Hayne J in Tully:[33]

“Because the criminal law has become as complex as it now is, ‘bench books’ of standard forms of instructions to the jury are readily available for the assistance of trial judges. Properly used, such books are invaluable. But there is a risk that the prescription of common forms of instruction, which must necessarily be framed without reference to specific facts, and thus in abstract terms, will be used without relating them to the issues that the jury has to decide.”
33. Tully at [93].

Nor is it for the judge to determine the reliability or otherwise of a particular witness. The exercise in deciding what directions to give to a jury must take account of the specific features of the case. As explained by Crennan J in Tully in rejecting a challenge to a verdict based on the absence of proper directions as to the effects of delay:[34]

“Here… no specific or particular forensic disadvantage to the appellant, as a result of delay, was identified to the trial judge: rather it was contended on appeal that the concatenation of factors of… the sexual nature of the offences …, the delay in complaint… and inconsistencies in the complainant's evidence necessitated a warning. ... It was not explained how [a forensic disadvantage] occurred or why a jury might fail to appreciate such an occurrence. A practical and orthodox direction was given by the trial judge in relation to the inconsistencies in the complainant's evidence…”
34. Tully at [178].

Putting the matter positively, and relevantly to the case before her, Crennan J continued:[35]

“The question is whether all of the circumstances gave rise to some forensic disadvantage to the appellant, palpable or obvious to a judge, which may not have been apparent to the jury, thus necessitating a warning so as to avoid a miscarriage of justice. There is a clear distinction between such a case and a case where all the circumstances can be evaluated by a jury in the light of their own experiences.”
35. Ibid (citations omitted).

There is a further problem: the proposition that a judge should always direct a jury “to avoid a perceptible risk of miscarriage”[36] is based on an assumption that the risk is one perceptible to the trial judge. However, the nature of the risk must take account of the constraints imposed by Parliament. Thus, if the judge may not make any suggestion to a jury that complainants as a class are unreliable, nor should a direction be based on a “risk” of that kind, care must be taken that directions not continue past practices under a neutral guise.
36. Longman v The Queen [1989] HCA 60; 168 CLR 79 at 86.
It is perhaps ironic that in an age when jurors are generally better educated directions are far more complex than they used to be and appellate courts appear to require formulaic precision. As noted in the passages set out above, the statutory reforms are in part designed to lessen these tendencies.
Bearing these general considerations in mind, I gratefully adopt the careful analysis of the caselaw undertaken by Simpson J. I agree with her conclusions.
SIMPSON J: On 12 February 2013, in the District Court at Bathurst, the appellant was arraigned on an indictment that charged two counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). Pursuant to s 132 of the Criminal Procedure Act 1986 (NSW) the appellant (with the agreement of the Crown) elected to be tried by judge alone. The trial proceeded before Bennett DCJ. On 27 February Bennett DCJ found the appellant guilty of both offences and entered convictions accordingly. The appellant entered a plea of guilty to a charge identified on a certificate under s 166(1)(b) of the Criminal Procedure Act of supplying a prohibited drug (amphetamine). At some point he was also charged with (and apparently pleaded guilty to) an offence of breaching a bond.
The maximum penalty prescribed for offences against s 61I of the Crimes Act is imprisonment for 14 years. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”) a standard non-parole period of 7 years is prescribed. The maximum penalty prescribed for the offence of supplying a prohibited drug is imprisonment for 15 years. (This is an offence which can be dealt with summarily, in the Local Court, in which case it is subject to a jurisdictional limit of imprisonment for 2 years.)
On 5 April 2013 Bennett DCJ sentenced the appellant in respect of all offences. On the charge of breach of a s 9 bond, he had already imposed a sentence of imprisonment for a fixed term of 6 months commencing on 18 July 2012. In respect of the supply prohibited drug offence, he imposed a sentence of imprisonment for a fixed term of 12 months commencing on 18 January 2013 (that is, wholly accumulated upon the breach of bond sentence). On the first count of sexual intercourse without consent he imposed a sentence of 8 years, made up of a non-parole period of 6 years and a balance of term of 2 years, commencing on 18 July 2013, and therefore accumulated by 6 months on the drug supply sentence. On the second count of sexual intercourse without consent, he imposed a sentence of 10 years, made up of a non-parole period of 6 years, with a balance of term of 4 years, commencing on 18 July 2014, and therefore accumulated by 1 year on the earlier imposed sentence.
The effect of the sentencing was an overall term of imprisonment for 12 years, commencing on 18 July 2012, with a non-parole period of 8 years which will expire on 17 July 2020.
The appellant now appeals against the convictions, and seeks leave to appeal against the sentences.

The Crown case

A very brief outline of the Crown case is as follows. The offences occurred in the home of Adam Hotham in Bathurst on 14 January 2011, a Saturday. On the previous evening, the complainant and a friend (Rianna Appleby) went to the house with a view to selecting a puppy from a litter. They took with them a 700ml bottle of bourbon. Others were present at the house; one of those present was Ms Amanda Burt. The complainant and Ms Appleby consumed some of the bourbon. At one stage, Ms Appleby gave the complainant an amphetamine. Although she consumed it, it had no significant noticeable effect on her.
During the evening, others came and went. Michael Godfrey, a cousin of the complainant, arrived sometime between 10.00pm and 11.00pm. Amphetamines were produced and consumed. The group sat around a table in the back yard. The complainant continued to drink the bourbon. She had become moderately affected by the alcohol. Sometime after midnight, Ms Burt borrowed the complainant’s telephone. Not long after that, the appellant and another man (Steven Foster) arrived and joined the party. A little later the complainant was preparing to leave. The appellant, who was standing in the doorway of a bathroom, invited her to join him, saying that he had something to show her. He ushered her into the bathroom, shut the door, pushed her head down and forced her to perform fellatio upon him. The complainant lost consciousness for a time. When she recovered, she was lying on the floor, partly undressed. The appellant was behind her, having penile/vaginal intercourse.
The complainant told the appellant that he was hurting her and asked him to get off her. He left the room. The complainant remained in the bathroom, hysterical, until others entered and asked her what had happened. She immediately complained that she had been raped. Ms Appleby confronted the appellant, who denied having anything to do with what had happened. He then jumped over the back fence of the property, and ran off. An hour or two later the complainant, in company with Ms Appleby and Michael Godfrey, walked to the police station. She was very distressed. A detective took her to the local hospital, where she was seen by a sexual assault counsellor and then a doctor. At about 8.00am, at the hospital, she had a conversation with Detective Senior Constable MacLean.
The appellant was arrested on 21 April 2011. He told police that he had nothing to hide, and that “it was all consensual” and that he would be making a full statement.

DNA testing confirmed that semen taken from the complainant’s vagina was that of the appellant.

The defence case

The appellant gave evidence in the trial, to the following effect. During the course of the evening he received a number of telephone calls and text messages from Ms Burt, who asked him to bring amphetamines to the party. He also spoke to the complainant. He had never previously spoken to her. In the bathroom of the house, he gave Ms Burt some amphetamine, in paste form, on a butter knife. She immediately left the bathroom saying that she needed a drink. A little later, Ms Burt asked him to give some of the drug to the complainant. He agreed to do so. He waited for her in the bathroom. She joined him. She asked him to close the window so that others present would not know that she used drugs. He gave her some amphetamine on the same butter knife, which she consumed. The complainant was initially flirtatious, then made a bold and direct sexual advance to him. She took hold of and fondled his penis until it became erect. He invited her to perform fellatio, which she did, kneeling in front of him. He asked if she wanted “a root”. She suggested moving closer to the door in case they were interrupted. She bent over, he removed her shorts and underwear. She fell to the floor on her knees. They had consensual penile/vaginal sexual intercourse.
The complainant invited the appellant to contact her again. He rebuffed this advance, saying that he would not contact her and was not interested in a relationship.
At the complainant’s request, he left the bathroom first, and re-joined the others at the outside table. Shortly after, Ms Appleby attacked him physically and one of the men threatened to kill him. Another man also attacked him. He then jumped the fence and ran off.

The trial

Evidence in the trial was given by a number of those who had been present. I will refer to the evidence specific to the various grounds of appeal in dealing with the grounds.

The complainant’s evidence

The complainant’s evidence was that her friend Ms Appleby picked her up after work at about 6.00pm. They were going to the home of a mutual friend (Adam Hotham) to look at puppies that were for sale, with a view to purchasing one.
On the way there, Ms Appleby and the complainant stopped and bought a bottle of bourbon and some soft drink. When they arrived, at about 6.30pm, others were already present, some of whom the complainant had previously met. One of those present was Amanda Burt, who was already quite intoxicated. At about 9.00pm Adam Hotham’s brother, Heath, arrived. By this time the complainant had had about three drinks, bourbon mixed with cola. She, with others, played pool for a time. Ms Appleby gave the complainant “something in a small shot glass” which Ms Appleby called “gas”, and which she told the complainant was a “party drug”. Although the complainant was not a user of drugs, she took the drug, which was mixed with water, and cloudy. She did not like the taste, so finished it quickly. She had never previously used anything like that. She did not notice any particular effect, other than that she “felt maybe a little bit more awake”.
The group moved outside to sit at a table in the backyard.
The complainant’s cousin, Michael Godfrey, arrived a little before 10.00pm. By this time Adam Hotham had gone to bed. The complainant and those presented chatted for a time; they continued to drink the bourbon. Another man, Scott Gibson (“Gibbo”) joined the party.
In what the complainant assessed to be the early hours of Saturday morning, Ms Burt asked if she could borrow the complainant’s phone, as she had no credit on hers. The complainant gave her phone to Ms Burt. Ms Burt said that she was ringing a friend.
After another hour, two men arrived. (It was accepted that these were the appellant and his friend Steven Foster.) Ms Burt walked inside, followed by one of the men (the appellant) and into a bathroom. They closed the door and remained in the bathroom for about 20 minutes. The complainant remained at the table in the backyard. By this time, the complainant considered herself to be “a little bit tipsy”. She sent text messages to Ms Appleby, telling her that she was ready to go home. She went inside to pick up her bag. The transcript records that she said:

“My bag was sitting to the left as I went to pick it up the male that had walked inside with Amanda was still standing in the doorway of the bathroom and he said to me to come over to the bathroom he had something to show me so I walked over towards the bathroom and he kind of ushered me in had his hand on my back and shut the door quite quickly.”

She said that as soon as she entered the bathroom, the appellant pushed her head down and ordered her to suck his penis, which was erect.

She said that the next thing she remembered was the appellant being quite forceful; she assumed that she was concussed because she woke up lying on the floor with the left side of her face on the tiles of the bathroom, and the appellant was in the process of having penile/vaginal intercourse with her. She did not know how she came to have her face on the tiles but assumed that it was because of the force the appellant had used.
She said that when the appellant left the bathroom she was still face down, and was in shock, and did not see him leave. She said:

“I think I went into a state of shock I was just trembling and shaking and in disbelief and quite scared [about] what had just happened and I sat in the bathroom just in hysteria I guess until Michael [Godfrey] and Rianna [Appleby] came in to find me.”

She was asked why she went into the bathroom with him, to which she is recorded as replying:

“I had no reason to go in there just because he said to ‘Come over here I have something to [show] you’ so I just walked over there and as I said I was about to leave so I wasn’t expecting what was - what followed to happen I, if I knew anything like that was going to happen I wouldn’t have walked in there.”

After a time she walked with Mr Godfrey and Ms Appleby to the police station where she spoke to detectives. She was then taken to the Bathurst Hospital. She spoke briefly to a counsellor. Mr Godfrey did most of the talking.
In cross-examination the complainant maintained that she had never previously used amphetamines or other illicit drugs. When asked what led her to use amphetamines given to her by Ms Appleby on this occasion she said:

“Nothing led me to want to have it. Rianna [Appleby] suggested it, experimental I guess. There was nothing leading me to have it, I didn’t even know it was there.”

In cross-examination the complainant rejected a series of propositions put to her to the effect that she had cooperated with Ms Burt in the attempt to obtain more drugs, and had herself spoken to the appellant for that purpose.

Rianna Appleby

Ms Appleby’s evidence generally confirmed that of the complainant. She was granted a certificate under s 128 of the Evidence Act 1995 (NSW). She then confirmed that she had given amphetamines to the complainant and had herself consumed some of the drug. She confirmed that Ms Burt had borrowed the complainant’s phone, and had made a telephone call and then returned to the table. Shortly after that the two men (the appellant and Foster) arrived. Ms Appleby said that she saw Ms Burt walk into the bathroom with the appellant. The other man, Foster, remained at the table with the rest of the group. After some time Ms Burt returned. She was not with the appellant. Ms Appleby confirmed that she and the complainant arranged, by text message, to leave, and that the complainant left the table, presumably for the purpose of getting her bag. She then saw the complainant walk into the bathroom. She did not see anybody else go into that room. After a time Ms Appleby walked through the house looking for the complainant. She saw the bathroom door open and the appellant walk out. The complainant was standing in the door way of the bathroom. She was very shaken up, shaking. She appeared to be in shock. She was not responding to Ms Appleby’s inquiries.
Ms Appleby confronted the appellant, pushing him in the chest. Michael Godfrey and Heath Hotham joined the confrontation. The appellant jumped over the back fence and ran off.
Ms Appleby, the complainant and Scott Gibson walked to the police station, but returned to Adam Hotham’s house. The complainant was still shaken, crying, and in shock. They sat in front of the house for an hour or so, and persuaded the complainant to go back to the police station.

Amanda Burt

It is worth prefacing the outline of Ms Burt’s evidence with the following observations. In the first pages of transcript, she said:

that she lived in the house with Adam Hotham (Adam Hotham gave evidence that he lived alone);

that she and Adam Hotham went to a house in Rocket Street (that she seemed to think was occupied by the complainant and Ms Appleby, although there was no evidence that they shared accommodation);

that the reason that she and Adam Hotham went to that house was to look at puppies that Ms Appleby and the complainant had at their house (Ms Appleby’s evidence, and the complainant’s evidence, was that they went to Adam Hotham’s house for the purpose of looking at puppies - Ms Burt conceded that she had been in error in giving that evidence);

that she had already been drinking “quite a fair bit actually”;

that she was under the influence of alcohol and amphetamine; and

that she acquired some more amphetamines that she also used.

Ms Burt’s examination in chief was interrupted by an application by the Crown prosecutor for leave to cross-examine her. In cross-examination she agreed that she had made a statement to police on 11 March 2011, but said that at the time she made that statement:

“I was under the influence of amphetamines at that time as well. I had grown an addiction. It started very small and it was very small at that stage but it was an everyday use.”

After the Crown prosecutor was given leave to cross-examine Ms Burt, she said that she had little recollection of the day in question. In answer to a specific question, she said:

“I don’t remember the whole freaking day. I can only give you what you ask me and it’s going to be an honest question to an honest answer [sic] to what I can give you now. That statement to me is nothing. You want to know something honest from me, I can only give you what I can remember. I read the statement this morning which I shouldn’t have because I don't remember half of it.”

She said that at about 2.00am or 2.30am there was talk of acquiring more drugs. She is then recorded as saying:

“… The conversation that took place about the amphetamines was taken part by all of us. I couldn’t really specify anyone but it was mainly [the complainant] and Rianna [Appleby] and myself that were speaking about this.
…
We were all drunk and bored and had nothing else to do and we were already off our heads on amphetamines and it was just the next thing that sort of happened. I don’t know how that conversation comes up.”

She was then asked:

“Q. Who was off their heads on amphetamines?”

To which she replied:

“A. I know I was. I know [the complainant] and Rianna [Appleby] were.”

She said that she knew that because:

“Earlier on in that night there was a gathering in the kitchen, around the kitchen sink, and we all had a dip in a bag that was brought by, I have no idea, but it was there. So we all had a dip and went out the back to continue drinking.”

She said that the complainant and Ms Appleby looked through their telephones for drug supply contacts. Using the complainant’s telephone, Ms Burt rang the appellant, and arranged for him to bring drugs to the house. The appellant arrived with another man Ms Burt did not know (Steven Foster). Ms Burt, the appellant and Foster went into the bathroom. The appellant gave Ms Burt amphetamine, in paste form, on a butter knife, which she consumed. It caused her mouth to burn. She went outside to get a drink.
The Crown prosecutor sought to press Ms Burt with respect to the time that had elapsed between when she left the bathroom, and when she saw the appellant leave the bathroom. She answered:

“I walked outside and I poured a drink. It was the first thing I did. I had speed rolling around my mouth and it was burning. I didn’t like it, so I went out to pour a drink, it was the first thing I did. I’d poured the spirits, half way through pouring the coke and [the appellant] walked out the back door. I can't tell you how long that takes to pour a drink.”

She said that Ms Appleby then came into the backyard “in a very raged mood”, and attacked the appellant. The appellant was walking backwards, looking quite confused. Two other men came and joined the confrontation. The appellant “then went over the back fence”. She noticed that the complainant was upset and crying.
Ms Burt agreed that she had given untruthful information to police investigating the complainant’s report.

Michael Godfrey

Michael Godfrey is the complainant’s cousin, and in close contact with her. His evidence (relevant to the grounds of appeal) was that the appellant and Steven Foster arrived at the party. Ms Burt went inside with one of the men (the appellant) and went into the bathroom. He said:

“… I remember watching [the complainant] go into a room with one of the men, to the bathroom.
…
I was outside and then I noticed that they walked inside and I thought it was a bit odd so I went and checked and they were just both in the bathroom with the door open. I looked at both of them and the man just shut the door, just for privacy, I guess, and I didn’t think anything of it so I went into the kitchen …”

Later in his evidence, when asked about the appellant going into the bathroom, he said that he saw “them” go into the bathroom. He was asked whether they went in together, to which he replied:

“It was both at the same time or - sorry. I’m not too sure. From what I remember, he might have already been in there and then [the complainant] walked into the bathroom … and then the door was closed.”

In cross-examination Mr Godfrey said that, having seen the complainant go into the bathroom, he went towards the bathroom. The door was open at the time and he looked inside.
There was some confusion in Mr Godfrey’s evidence concerning the state of the bathroom door. It is quite plain that his recollection was imperfect. However, he said that he opened the bathroom door and saw the complainant standing in the bathroom and the appellant facing her. They both looked at him (Godfrey) and the appellant closed the door.

Heath Hotham

Heath Hotham gave evidence that he was in the backyard talking to “Scott” and other people. Two men (the appellant and Steven Foster) came down the side driveway, into the house looking for Ms Burt. They then moved into the house with Ms Burt and one male re-joined the group in the backyard. Ms Burt was in the house for “10 to 15 minutes approximately”. At that time the complainant was present in the backyard; Mr Hotham saw her go into the house with both the appellant and Mr Foster but Mr Foster came out soon after. However, immediately after, he said that Mr Foster remained outside and it was the appellant who went inside with the complainant. He said that the complainant was inside for at least 20 minutes. He said that the appellant then came out of the bathroom and stayed in the backyard for a short time when Ms Appleby went to the bathroom and came back out. It was soon after this that the confrontation occurred.

Andrew MacLean

Detective Senior Constable Andrew MacLean gave evidence that he was recalled to duty at about 8.00am on 15 January. He spoke to Ms Appleby and Ms Burt. He then attended the Bathurst Base Hospital and spoke to the sexual assault counsellor and then to the complainant. He said that the complainant appeared to be very upset, agitated and that her appearance was dishevelled. He gave evidence of a conversation with her, taken from a statement by him made some time later, which included an account of the circumstances in which the complainant entered the bathroom with the appellant. The detective recorded the complainant as saying that the appellant had offered to give her drugs if she went into the bathroom. The full text of the conversation as recorded by Detective MacLean, is set out below, under the consideration of Ground 5 of the appeal.

The appellant

The appellant’s evidence was that he had been at Steven Foster’s house during the evening, when he received a telephone call from Ms Burt, asking him to supply her with amphetamine. Her requests were persistent; he said that she “harassed” him. He said that he also spoke to the complainant. So far as his provision of amphetamine to Ms Burt was concerned, the appellant’s evidence accorded with what she had said.
However, his evidence as to the circumstances in which the complainant entered the bathroom with him was different. He said that Ms Burt asked him if he would “fix [the complainant] up with some speed still”. He said that he walked into the bathroom alone, and was there for a minute or two when the complainant came into the bathroom. There was an encounter between the complainant and Michael Godfrey; Michael Godfrey produced a bag of speed and said to the complainant:

“… ‘If it’s speed you want, isn’t mine fucking good enough? You don’t have to go in there with that fuckwit or cunt,’ or some abusive language.”

He said that he and the complainant walked towards the basin in the bathroom, she asked him to close the door, he opened the window, but she asked him to close that because she did not want others to know that she was using drugs. The complainant was flirting with him. She consumed the amphetamine from a butter knife, in the same way as Ms Burt had, and then made sexual advances to him.
He said that she performed fellatio on him, and they then engaged in consensual penile/vaginal sexual intercourse. During the course of this, Michael Godfrey’s voice was heard outside the bathroom, as a result of which the complainant “spun out”. This brought the sexual intercourse to an end.

The judgment

Trial by judge alone is governed by the provisions of ss 132-133 of the Criminal Procedure Act. Section 133 provides:

“133  Verdict of single Judge
(1)  A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.
(2)  A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
(3)  If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.”

The fundamental importance of compliance with the requirements of sub-ss (1) and (2) of s 133 of the Criminal Procedure Act was emphasised by the High Court in Fleming v The Queen [1998] HCA 68; 197 CLR 250. (At the time Fleming was decided, the provisions that now appear in s 133 of the Criminal Procedure Act were to be found in s 33 of the same Act, part of Pt 9. The terms of the sections are identical.) Both sub-sections “are framed in terms of legal imperative”; failure to observe either of them constitutes error of law for the purposes of s 6(1) of the Criminal Appeal Act 1912 (NSW), and may also constitute miscarriage of justice (Fleming at [27]). Compliance with both provisions is an aspect of the principles of open justice, that justice must not only be done, but must be seen to be done (Fleming, [22], [32], [37]).
Bennett DCJ delivered judgment on 27 February 2013. In accordance with s 133(2) of the Criminal Procedure Act he set out the principles of law that he applied. The principles to which he referred included numerous reference to the onus and standard of proof. For example, he said:

“This is a criminal trial; the crown has the onus of proof to the standard beyond reasonable doubt in respect of every element of the charges.
The accused admitted that sexual intercourse occurred by fellatio and penile/vaginal intercourse, but claimed that both were consensual. The crown must prove in respect of each charge that the complainant did not consent to the sexual intercourse and that the accused knew so or was reckless as to whether she was consenting to the sexual intercourse …
It is not for the accused to disprove those elements, but for the crown to prove them beyond reasonable doubt. Suspicion is not a substitute for proof beyond reasonable doubt … If at the end of my deliberations I am not satisfied that the crown has established in respect of each offence, either of those essential matters beyond reasonable doubt, having taken into consideration the evidence both for the crown and for the accused, and after taking into consideration the submissions made to me by the crown and the accused counsel in their addresses, then it is my duty to bring in verdicts of not guilty because the crown failed to do what the law requires it to do.
It is vitally important that I clearly understand that the accused must be found not guilty if any one of the essential ingredients of the charges has not been proved to my satisfaction beyond reasonable doubt. It follows that if I am left unable to decide whether the crown has proved its case beyond reasonable doubt in relation to any such essential ingredient, even though I might suspect that the accused engaged without consent in the conduct upon which the charges are brought, the accused is entitled to the benefit of that doubt and I must find him not guilty.
…”

There are many other references throughout the judgment to the onus and standard of proof.

His Honour then summarised the Crown case fairly briefly and the appellant’s case at some length. He followed this by stating the findings of fact on which he relied. He began by finding that the appellant was untruthful in his evidence and said:

“He has taken some facts that were the truth and has woven a web of lies around them. I do not accept that [sic] attributions that he has given to the complainant.”

He then said:

“A matter which I found of some note was that Ms Amanda Burt, an experienced user of amphetamines, taking it in paste form as she did, was compelled to take a drink immediately because it was burning her mouth, and yet the same substance administered to the complainant did not prompt any such reaction. Indeed, rather than cause her any discomfort or distress, according to the accused’s version she proceeded immediately as a seductress willing to perform fellatio and have unprotected sex with this person that she had met this night for the first time, with the implication in what he had to say that she found him so attractive that she pursued him for that purpose, and was so disappointed when he rebuffed her after he had taken his pleasure that she chose to make false allegations about the sexual intercourse to the extent alleging that it was without her consent.
I reject the whole proposition as preposterous.”

He then again reminded himself that, notwithstanding that he disbelieved the appellant, it remained his obligation to assess the evidence and determine whether or not it persuaded him beyond reasonable doubt of the guilt of the appellant.
By contrast with his finding concerning the credibility of the appellant, his Honour found the complainant to be “a compelling, honest and reliable witness”. He made similar findings concerning other Crown witnesses. However, the approach he took to the evidence of Ms Burt was different. Of her, he said:

“Amanda Burt presented something of a challenge to the Crown in this case. However, it was in my judgment an evening when she was under the influence of amphetamines that she had been consuming all of the day and into the evening, and she had been consuming excessive quantities of alcohol. Her memory of the event was so tainted that at the very beginning of the evidence she had confused the fact that the complainant and Ms Appleby had gone to the Rankin Street address to look at the puppies. Her evidence was that she and others had in fact gone to their home to look at puppies.”

Another witness of whose evidence Bennett DCJ was sceptical was Detective MacLean. He considered it unlikely that what was attributed to the complainant in Detective MacLean’s statement accurately reflected what the complainant had said to him.
On the basis of these and other relevant findings, Bennett DCJ found the appellant guilty of both counts on the indictment.

THE GROUNDS OF APPEAL AGAINST CONVICTION

The grounds of the appeal against conviction are pleaded as follows:

“1.  The trial judge erred in failing to direct himself on the presumption of innocence;
2.  The trial judge erred in failing to give himself a Robinson/Murray type of warning and/or failing to take heed and apply such warning;
3. The trial judge erred in failing to give himself a warning pursuant to s 65(c) [sic - s 165(c)] Evidence Act;
4.  The trial judge erred in failing to direct himself that flight as consciousness of guilt was not applicable;
5.  The trial judge erred in rejecting or discounting the evidence of Detective Senior Constable MacLean;
6.  The trial judge erred in relying on the evidence of Amanda Burt to draw a conclusion as to the immediate effect of the consumption of amphetamine would have on the complainant [sic];
7.  The verdict was unsafe or unsound.”

Ground 1: “presumption of innocence”

This ground can be disposed of quickly.
As set out above, s 133(2) of the Criminal Procedure Act requires a judge sitting without a jury in a criminal trial to include in his or her judgment the principles of law applied.
I have set out, at some length, the references to the relevant principles of law made by Bennett DCJ. This included numerous references to the onus of proof in criminal cases, and the standard which that proof must reach.
It is correct that the words “presumption of innocence” do not appear in the judgment. However, there is no difference in substance between a statement that, in a criminal trial, the Crown must prove (beyond reasonable doubt) every element of the offence charged, and a statement that a person charged with a criminal offence is presumed to be innocent unless and until proved beyond reasonable doubt to be guilty. The “presumption of innocence” that applies in every criminal trial (unless excluded by statute) is not a principle separate and distinct from the onus and standard of proof.
There is no substance in this ground of appeal. I would reject it.

Ground 2: a “Robinson/Murray” direction

For the appellant to succeed on this ground of appeal it is necessary that he establish that a direction of the kind mentioned would have been required by “any Act or law” to be given in a jury trial: Criminal Procedure Act, s 133(3).
What is commonly called a “Murray direction” derives from the decision of this Court in R v Murray (1987) 11 NSWLR 12. Lee J, with whom Maxwell and Yeldham JJ agreed, said:

“Section 405C(2) [of the Crimes Act] has brought about the result that women are no longer, in the eyes of the law, to be put before juries as persons whose evidence requires corroboration before it is safe to act upon it. That concept which has been in the law for a long time has now gone. That, of course, does not mean that a judge cannot draw attention to the absence of corroborating testimony from witnesses who are shown by the evidence to have been present and able to offer corroboration of the girl's story, if it were true, nor does it preclude the judge from making such observations as he considers ought to be made about the credibility of the complainant's evidence, but always with the proviso, of course, that he must make it clear to the jury that those are his opinions and that the weight to be given to the testimony of the woman is entirely a matter for the jury. The fact that a judge does not comment upon the absence of corroboration of the complainant's evidence cannot, in my view, in the case of those offences to which s 405C applies now be made the basis of a criticism of his summing-up, but again this does not mean that the judge cannot or should not, as is done in all cases of serious crime, stress upon the jury the necessity for the jury to be satisfied beyond reasonable doubt of the truthfulness of the witness who stands alone as proof of the Crown case. In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness’ evidence is unreliable.
There will be cases where the failure to bring home to the jury the position of the uncorroborated witness will undoubtedly lead to the verdict being set aside but that is a different matter altogether from requiring a direction that it is unsafe to act on the uncorroborated evidence of the complainant in a sex case.” (italics added)

It is important to note that the only basis on which it is asserted in this appeal that a direction drawn from Murray ought to have been given was that the complainant’s evidence of what she claimed took place behind closed doors in the bathroom was uncorroborated. No other circumstances were referred to as relevant to the asserted requirement of a direction in accordance with Murray. (The appellant opted to refer to other matters, such as evidence of the complainant’s amphetamine use and alcohol intoxication in relation to the third ground of appeal, concerning s 165 of the Evidence Act, but did not put those circumstances as relevant to any requirement for a “Murray direction”.) The submission was that, because the complainant’s evidence as to what took place in the bathroom was uncorroborated, the judge ought to have directed himself, in terms, that he ought to scrutinise her evidence with great care before convicting the appellant.
The term “Murray direction” tends to be loosely used, and to be undefined. As I understand it, it is most commonly used to refer to a direction that, in any case in which the sole evidence of the commission of a crime is that of a single witness, the evidence of that witness must be scrutinised with great care. It is in that sense that I use the term “Murray direction” in these reasons.
The question that now arises is whether a Murray direction (or a variant of it) would have been required in a jury trial. If so, the failure of the trial judge to record the direction and expressly take it into account constitutes error fatal to the conviction. That conclusion is an inevitable result of the application of s 133(3): Fleming, at [33].
Failure of a judge exercising jurisdiction under s 132 of the Criminal Procedure Act to record, in the reasons for verdict, a warning that would have been required in a jury trial is not excused by an assumption, or even an inference, that the judge was aware of the law, and could be assumed to have taken the warning into account (Fleming, [37]-[38]).
At the time Murray was decided, s 405C(2) of the Crimes Act provided:

“On the trial of a person for a prescribed sexual offence, the Judge is not required by any rule of law or practice to give, in relation to any offence of which the person is liable to be convicted on the charge for the prescribed sexual offence, a warning to the jury to the effect that it is unsafe to convict the person on the uncorroborated evidence of the person upon whom the offence is alleged to have been committed.”

It was this to which Lee J was referring in the first paragraph, and the first italicised sentence, in the extract above.

Prior to the enactment of s 405C, there was an entrenched rule of practice that, in cases of alleged sexual assault by a male on a female, a direction was given to the jury that it was dangerous to convict on the uncorroborated evidence of the complainant: Carr v The Queen [1988] HCA 47; 165 CLR 314 at 318 (in Longman v The Queen [1989] HCA 60; 168 CLR 79, at p 105, McHugh J said that the requirement was gender neutral, although it nevertheless applied disproportionately to women, since women were overwhelmingly the victims of sexual offences). The explanation given was that judicial experience had identified the uncorroborated evidence of an alleged victim of a sexual offence as one of three classes of evidence calling for such a direction. The other classes were the uncorroborated evidence of an accomplice, and the sworn evidence of a child (Carr, at pp 318-319). The “rule” was discussed by Deane J and McHugh J in Longman at pp 91-94, and pp 104-106 respectively; and see Crofts v The Queen [1996] HCA 22; 186 CLR 427.
It was in order to abolish that rule of practice that s 405C was enacted in NSW in 1981. Similar, but not always identical, legislation was enacted in other States. It is to be observed that s 405C fell far short of forbidding any direction in accordance with Carr and other cases; it did no more than eliminate the requirement that had previously been believed to exist. It did not abolish the discretion of a judge to comment on the circumstances of a particular case: Longman, per Brennan and Toohey JJ.
The effect of Murray was to endorse a narrow construction of s 405C, so that it applied to a direction in general terms that there existed a danger of acting on the uncorroborated evidence of alleged victims of sexual offences as a class. This interpretation was confirmed by the High Court in Longman at p 87. It thus remained open to a trial judge to direct the jury in the circumstances of a particular case that where there was only one witness asserting the commission of a crime, the evidence of that witness must be scrutinised with great care before the accused person could be convicted. Moreover, the statement that such a direction was “customary” “in all cases of serious crime” appears to have been widely interpreted as mandating such a direction. That may have been to read more into the statement than Lee J intended.
The opening words of the second paragraph of the extract from Murray should not be overlooked. That “there will be cases” where the failure to bring home to the jury the position of the uncorroborated witness will lead to the verdict being set aside has the corollary that there will be cases where that result does not eventuate. In other words, notwithstanding that a direction as envisaged in Murray is “customary”, such a direction is not necessarily “required” (the use of the word “customary” as distinct from “required” supports that view) and its absence will not necessarily be fatal to the conviction.
Murray has been referred to by the High Court on six occasions. One of those references (Crofts) concerns a different principle stated in Murray (directions to be given to a jury “in regard to the lateness of a complaint”). Another (MFA v The Queen [2002] HCA 53; 213 CLR 606) contained a mere acknowledgment of the abolition of the requirement for corroboration of minors as to sexual offences. It is useful to examine what the High Court has said in other cases about the extracted passage.
A “Longman direction” is commonly taken to refer to a direction to be given in cases (frequently of alleged sexual offending, but not necessarily so) where there has been a lengthy delay in the disclosure of the conduct the subject of the charges. In fact, Longman has a greater significance than that. A (if not the) central proposition that emerged from Longman is:

“Apart from the special rule, the general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.”

In Longman, the appellant was charged in Western Australia with two sexual offences against a girl (his step-daughter) under 14 years of age. The offences were alleged to have been committed 26 and 22 years earlier, and to have been committed when the complainant was asleep. The appellant was convicted. The relevant legislation (s 36BE of the Evidence Act 1906 (WA)) contained a provision, in par (a) in the same terms as s 405C. However, a second paragraph provided:

“(b) the judge shall not give a warning to the jury of the kind described in para (a) unless satisfied that such a warning is justified in the circumstances.”

I will return to consider the interpretation of par (b).

A number of factors were advanced in Longman as justifying a warning under par (b). They were the long period of time that had elapsed since the events giving rise to the charges; the lack of any satisfactory reason for the absence of complaint to the complainant’s mother; the appellant’s inability, given the passage of time, to support his denial of the allegation; the ease of making and the difficulty of disproving such allegations; and, finally, the absence of any corroborative evidence.
In a joint judgment, Brennan, Dawson and Toohey JJ adopted the construction given by Lee J in Murray to s 405C of the NSW Crimes Act, and held that, in the circumstances of Longman, a warning was required. The circumstances identified by their Honours were the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged, the alleged awakening of a sleeping child by indecent acts, and the absence of complaint either to the applicant or to the complainant’s mother. In the judgment of Deane J, a direction was called for because of the combination of the circumstances of the alleged offences and the possible effect, in the context of those circumstances of what he called “the extraordinary lapse of time before complaint and trial”. In the judgment of McHugh J, the jury should have been warned that, in evaluating the complainant’s evidence, they had to bear in mind that it was uncorroborated, that over 20 years had elapsed since the last of the alleged offences occurred, that experience has shown that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors, that the likelihood of error increases with delay, that the complainant testified concerning incidents occurring to her as a young child after she had awoken and pretended to be asleep, that no complaint was made to her mother, and that, by reason of the delay and lack of specificity as to the dates, the defence was unable to examine the circumstances of the alleged offences.
McHugh J said:

“If, however, the evidence discloses any circumstance which suggests that the evidence of the complainant may be unreliable, the trial judge has a duty to make the jury aware of the dangers concerning that person’s evidence. As in any case where the prosecution depends solely upon the evidence of one witness, the trial judge is entitled to point out that the evidence of the complainant requires careful scrutiny before acting upon it. But cases will frequently arise where the circumstances will require a stronger warning. The terms of that warning will depend upon the particular circumstances of the case [citing Carr at p 318]”. (italics added)

I interpolate that McHugh J drew a significant distinction: where the evidence discloses circumstances which suggest unreliability on the part of the complainant the trial judge “has a duty” to draw that to the attention of the jury; but where the prosecution depends solely on the evidence of one witness, the trial judge “is entitled” to give the direction. What circumstances call for a direction, and the terms of the warning, depend upon the particular facts of the individual case.
Although the construction given to s 405C in Murray was adopted in Longman (in the joint judgment), there is no express endorsement of any proposition that, in all cases where there is only one witness asserting the commission of a crime, the evidence of that witness must be scrutinised with great care.

had the complainant experienced such a reaction, it was unlikely that she would have proceeded immediately in the seduction of the appellant, including performing fellatio on him;

it was therefore unlikely that the complainant had, as the appellant claimed, consumed drugs provided by him; and

the appellant’s evidence concerning what had taken place in the bathroom therefore could not be accepted.

The attack made under this ground appears to be that his Honour was in error in accepting Ms Burt’s evidence that the drug he had given her had caused a burning sensation in her mouth. That factual matter was the foundation of the reasoning process.
The written submissions challenged that foundational fact - that Ms Burt had suffered a burning sensation as a result of consuming the drug - on the basis of her credibility. It was pointed out that the evidence showed that Ms Burt was very intoxicated on the night in question, whether from alcohol or drugs or both; that the Crown had acknowledged the unreliability of her evidence; and that in other respects, the trial judge had not accepted her evidence as reliable. It was also pointed out that there was no evidence that Ms Burt had complained to anybody else about the state of her mouth; that the appellant was not asked whether the drug he consumed had caused his mouth to burn, nor whether the complainant complained, nor whether she sought to or did have a drink in the bathroom; and that the finding assumed that the complainant’s mouth was “as tender” of that as Ms Burt. (It is somewhat ironic that the appellant attacks Ms Burt’s reliability under this ground, having relied upon her evidence under Ground 3.)
I do not accept that it was not open to the trial judge to accept Ms Burt’s evidence in this respect. It is always open to a tribunal of fact to accept some of the evidence of any witness, and to reject other parts of it. Indeed, that is a standard jury direction.
Having accepted the foundational fact, it was open to the trial judge to use that fact to reason to a rejection of the appellant’s evidence. It is of some note that he immediately went on to remind himself that, notwithstanding his rejection of the appellant’s evidence, he nevertheless had to be satisfied beyond a reasonable doubt, on the evidence in the Crown case, of the appellant’s guilt.
I would reject this ground of appeal.

Ground 7: verdict was unsafe or unsound

Ground 7 complains that the verdict of the judge is “unsafe and unsound” - that is, that it is unreasonable and cannot be supported on the evidence: see Criminal Appeal Act, s 6(1).
The principles to be applied in the determination of such a ground are well known and well established: see M v The Queen [1994] HCA 63; 181 CLR 487; MFA; SKA v The Queen [2011] HCA 13; 243 CLR 400. It is necessary that this Court make its own independent assessment of the evidence, and determine whether (in a jury trial) it was open to the jury to convict. In this appeal, it was not suggested that the ground is not available where the trial is by judge alone, notwithstanding that the judge is obliged to give reasons for the decision. Without deciding, I will proceed on the basis that the ground is available. The statement of reasons may make it easier to understand the basis on which the verdict was reached.
In outlining the evidence below, I will attempt to confine myself to mentioning the evidence relevant to the specific arguments raised on appeal. I exclude evidence such as evidence that the appellant’s DNA was found in the complainant’s vagina, because sexual intercourse with the complainant was confirmed by him.
The argument advanced on behalf of the appellant raised a number of factual matters which, it was argued, called into question the sufficiency of the evidence to support the finding of guilt. It is convenient to identify those factual matters at this point. They are:

in what circumstances, and for what reason, the complainant entered the bathroom with the appellant;

what happened while the complainant and the appellant were in the bathroom;

the effect on the complainant’s reliability of the complainant’s earlier consumption of amphetamine;

the effect on the complainant’s reliability of her consumption of alcohol;

that medical examination disclosed no evidence of injury to the complainant; and

what happened immediately after the events in the bathroom.

A significant part of what was relied upon was the extent (if any) to which the complainant was affected by the consumption of drugs or alcohol. For this purpose, significant reliance was placed upon the evidence of Ms Burt. For my part, having regard to the answers given by Ms Burt to which I have referred above, I could place no reliance upon her evidence at all. This also appears to have been the view of the trial judge, who described her as presenting “something of a challenge to the Crown”. He considered that she had been under the influence of amphetamines and excessive quantities of alcohol which she had been consuming all day. She said as much herself. A reading of the transcript of her evidence establishes that her perceptions and recollections were significantly distorted by her intoxication.
The other evidence of the complainant’s use of drugs and alcohol was given by her, and is that she had had one shot glass containing amphetamine, which had little effect on her other than to make her more awake, and had drunk some of the bourbon to the point that she was “a little bit tipsy”. That accorded with the evidence of Ms Appleby.
Another point taken on behalf of the appellant was that Detective MacLean had recorded an admission by the complainant that she had gone into the bathroom with the appellant for the specific purpose of obtaining drugs. I have already dealt with why his Honour was entitled to reject this evidence. That being so, I do not regard it as casting doubt upon the verdict.
Finally, the appellant relies upon what is said to be conflicting evidence of what occurred in the immediate aftermath of the complainant’s entry into the bathroom. It is true that there are some different versions. As his Honour noted, in the circumstances of this case, it is hardly surprising that there would be some difference in the accounts of the events. What is consistent in every version is the description of the complainant as in a state of severe distress. Moreover, she made immediate complaint. The doctor who examined the complainant at the hospital noted that she was “tearful, depressed, quiet”.
I am satisfied that it was open to the trial judge to find the appellant guilty of the offence charged. Having made an independent review of the evidence, I am satisfied beyond reasonable doubt of his guilt.

The application for leave to appeal against sentence

I have set out in the opening paragraphs of these reasons the sentences imposed.
There was a small amount of additional material before the court for sentencing purposes.
The complainant provided and read a detailed victim impact statement, which attested to the long-term impact upon her of the offences. Although the victim impact statement cannot be treated as evidence in the usual sense, its contents were unsurprising and uncontroversial. The complainant was 34 years of age at the time of the offences. She had held the same employment for 14 years but, after some time, was forced to give up that employment. She has had to undergo continuing medical monitoring. She has suffered emotionally as a result of the offences.
Also available to the sentencing judge was a pre-sentence report concerning the appellant. He was born in December 1975 and was 35 years of age at the time of the offences. He had a lengthy criminal record, which relevantly included a number of convictions for assault, one (in 2002) for indecent assault, and one for being armed with intent to commit an indictable offence. At the time of the offences he was subject to a bond imposed in the Local Court. He has a longstanding history of drug and alcohol abuse, which he has made some efforts to address, although without success.

The Remarks on Sentence

The sentencing judge recounted at some length the circumstances of the offences. He had regard to the provisions of s 21A(2) of the Sentencing Procedure Act, which identifies (non-exhaustively) aggravating factors that (where they are known and applicable) a sentencing judge is required to take into account. By s 21A(2)(eb), that the offence was committed in the home of the victim or any other person is an aggravating factor. The sentencing judge held that that was the only aggravating factor derived from the catalogue in s 21A(2). He expressly declined, in the absence of supporting medical or psychological evidence, to make a finding for the purposes of s 21A(2)(g), that the injury or emotional harm caused by the offence were substantial.
With respect to the offences themselves, he held that they were “achieved with force rather than coercion” and that the force used was of “moderate proportion”. He found that each offence fell into the mid-range of objective gravity of offences of the kind, the second (penile/vaginal intercourse) marginally more serious than the first. He noted the appellant’s personal circumstances and criminal history. He made particular mention of what he referred to as “a prior sexual assault offence” (indecent assault).
He considered that the appellant had demonstrated little regard for opportunities given for his rehabilitation.
He had already imposed a fixed term of imprisonment for the breach of bond offence, of imprisonment for 6 months commencing on 18 July 2012. He proceeded to impose, in respect of the supply amphetamine charge, a sentence of a fixed term of imprisonment for 12 months, commencing on 18 January 2013, and sentences in respect of each of the sexual assault offences of non-parole periods of 6 years, the first subject to a balance of term of 2 years, and the second to a balance of term of 4 years and each partially accumulated on the preceding sentence. The total sentence imposed, as noted above, was of imprisonment for 12 years with a non-parole period of 8 years.

Grounds of the application

The grounds of the application for leave to appeal against sentence were pleaded as follows:

“1.  The sentencing judge erred in sentencing the applicant on the basis that he had committed a prior sexual assault offence;
2.  The sentencing judge erred in finding that the offence was aggravated by having occurred in a home occupied by Mr Hotham to which the complainant had resorted on a social occasion;
3. The sentencing judge erred in the sentence imposed for the s 166 offence;
4.  The sentencing judge erred in his application of the principle of totality;
5.  The sentencing judge erred in finding that the sexual assault offences fell within the mid-range for such offences;
6.  The sentences imposed were unduly harsh and severe.”

Ground 1

Senior counsel who appeared for the appellant accepted that Ground 1 was based on a false premise, and that the appellant had in fact been convicted of an offence of indecent assault. This ground can be rejected.

Ground 2

By this ground it was argued that s 21A(2)(eb) is inapplicable in the circumstances of this case. It was not easy to understand why this was so. Section 21A(2)(eb) expressly provides that an offence is committed in the home of the victim “or any other person” is an aggravating factor. Senior counsel appeared to argue that, because this event occurred in a home that was being used for the purposes of a party, the sub-paragraph was inapplicable. I would reject this proposition. It is contrary to the plain words of the sub-paragraph. In my opinion Ground 2 should be rejected.

Ground 3: the s 166 offence

The offence the subject of the s 166 certificate was an offence of supplying amphetamine to Ms Burt. That offence is subject to a maximum penalty of imprisonment for 15 years. However, it is an offence that can be dealt with in the Local Court, in which case the maximum penalty that may be imposed is 2 years. The argument was that the sentence imposed was half the Local Court jurisdictional limit, and was excessive having regard to the quantity of drug supplied and the circumstances in which it was supplied.
Reference was made to sentencing statistics which would suggest that it is relatively unusual for supply offences dealt with in the Local Court to result in the imposition of a fulltime custodial sentence, particularly where the sentence follows a plea of guilty.
That may be accepted, but the maximum penalty remains relevant. In any event, by reason of the partial concurrency of the offence of the sentence imposed in respect of the first of the sexual assault offences, the appellant will be required to serve only 6 months referable to this offence. In my opinion this ground should be rejected.

Ground 4: totality

Reference was made to a passage in the judgment of McHugh J in Postiglione v The Queen [1997] HCA 26; 189 CLR 295 as follows:

“… the court … adjust[s] the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.”

It was submitted that:

“Correct application of the principle should have been achieved by a backdating of the commencing date of the accumulated sentences and as well as reducing all the sentences, and or the amounts they were accumulated by.”

It was argued that, because the two sexual assault offences were committed within seconds of each other upon the same complainant and at the same location, they were part of the same criminal enterprise and could have been dealt with by concurrent sentences or by a more modest accumulation.
I accept none of these submissions. The two sexual assault offences, although committed in close proximity and time, and on the same victim, were separate and distinct offences, the second more brutal because it followed immediately on the first.
In my opinion each of the individual sentences appropriately reflected the objective gravity of the offence in respect of which it was imposed.
As an alternative, it was submitted that, pursuant to s 44(2) of the Sentencing Procedure Act, special circumstances ought to have been found resulting in a variation of the statutory proportion (75 per cent) between the non-parole period and the head sentence.
It was argued that, where sentences are accumulated, it is “conventional sentencing practice” to find special circumstances. That is true, but it is usually done in order to restore to the overall sentence the statutory proportions. In this case, the non-parole period is significantly less than 75 per cent of the head sentence. The appellant can have no justifiable complaint with respect to s 44(2).

Ground 5: mid-range of objective gravity

It was submitted that the finding that each of the sexual assault offences fell within the mid-range of objective gravity was inconsistent with the factual findings concerning the offences and “overestimated the objective criminality involved”. Just where the inconsistency lay was not stated.
I would reject this proposition. It seems to me that, if anything, the finding that the offences were of the mid-range of objective gravity was rather generous to the appellant.
It was further submitted that a distinction should have been drawn between the objective criminality involved in the first and second offences, and that the judge should have set out his reasons for finding as he did.
I would also reject this. In fact, the judge found a minor difference between the objective gravity of the offences, but that is different to the objective criminality. His Honour gave adequate reasons for the conclusions that he drew.
Finally, it was submitted that the severity of the sentences did not reflect the findings of mid-range objective gravity. I would reject this also. The maximum sentence applicable is imprisonment for 14 years. The standard non-parole period of 7 years is a relevant guidepost: Muldrock v The Queen [2011] HCA 39; 244 CLR 120.
In my opinion the sentences imposed, and their structure, were well within the range available to the sentencing judge.

Ground 5: “the sentences imposed were unduly harsh and severe”

Little was advanced in support of this ground in addition to what had previously been put in relation to other grounds. It was argued that “the total sentence was a very heavy one as were the individual components”.
When looked at as a sentence, imprisonment for 12 years with a non-parole period of 8 years could be perceived as a heavy sentence. Sentences do not stand in isolation, however. The sentence has to be looked at in the light of all of the circumstances of the offences, including their objective gravity. Seen in that light, these sentences, and the resultant overall sentence, were appropriate and not manifestly excessive.
I would reject all grounds advanced in support of the application for leave to appeal against sentence. I would, accordingly, grant leave to appeal against sentence, but dismiss the appeal.
The orders I propose are:

Appeal against conviction dismissed;

Leave granted to appeal against sentence;

Appeal against sentence dismissed.

DAVIES J: I agree with the orders proposed by Simpson J and her Honour’s reasons for those orders. I also agree with the additional remarks of Basten JA.
Since one of the grounds of appeal is that the verdict was unsafe or unsound I wish to make the following remarks.
As has been noted, this was a trial by judge alone. It seems clear that this Court has jurisdiction to entertain an appeal on the basis that the verdict was unsound because of the operation of s 133 of the Criminal Procedure Act (set out in the judgment of Basten JA at [2]) on s 6(1) of the Criminal Appeal Act.
The more difficult consideration is the basis upon which such a ground should be dealt with where the trial was by judge alone. The principal authorities in the High Court, M v The Queen, Jones v The Queen (1997) 191 CLR 439, MFA v The Queen and SKA v The Queen were all appeals from jury trials. The principles stated in those cases were all posited on a jury verdict which can be regarded as inscrutable or opaque. That is not the case with a judge alone trial and is not the present case where detailed reasons have been provided, as is required by s 133.
In Kurtic v R (1996) 85 A Crim R 57 at 60 Hunt CJ at CL (with whom Grove J and Barr AJ agreed) said, in reliance on M v The Queen, that the test to be applied by this Court on the ground that the verdict was unsafe and unsatisfactory is the same whether the case was heard by a judge alone or with a jury. That principle and others from Kurtic were challenged in Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250. The appeal was upheld on a ground that concerned a failure of the trial judge to comply with the earlier equivalent of s 133(3). The Appellant was unsuccessful in showing that this Court had failed to make a proper analysis and evaluation of the evidence. Whether the approach to the unsafe and unsatisfactory ground was correctly stated by Hunt CJ at CL was not determined.
The issue of the manner in which this Court should consider such a ground from a judge alone trial was not argued by the parties to the present appeal and it would be inappropriate in the circumstances to embark upon further discussion of that matter except to say that how such a ground should be approached remains to be clarified.
The approach that Simpson J has taken at [200], and which is seemingly agreed by Basten JA at [6] given how the ground was argued, is that it is only necessary in the present case to consider the evidence relevant to the specific arguments raised on the appeal which are said to indicate error in relation to fact finding or determinations of law, or mixed questions of fact and law. I have indicated above my agreement with Simpson J’s assessment of those matters in her Honour’s reasons.

The trial judge made three significant findings. The first was that the accused was untruthful in his evidence. His Honour provided some brief reasons for that conclusion. Secondly, he found the complainant to be a compelling, honest and reliable witness. Thirdly, his Honour found the witnesses called in the Crown case to be compelling and truthful witnesses. His Honour’s reasons for those last two findings were relatively brief also. Similar findings in Fleming were thought at [45] to be sufficient for the purpose.
Having read the evidence of the Crown witnesses and the accused I am left in no doubt that his Honour’s assessments of the evidence of the accused, the complainant and the Crown witnesses were correct. In particular, his Honour’s rejection of the accused’s evidence was amply justified. The accused constantly contradicted the evidence he had given in chief when being cross-examined about the events of the night. Further, the evidence of the complainant was largely consistent with the evidence of the other witnesses (except Amanda Burt) who were present and observed the circumstances immediately before and after the assault.
I am entirely satisfied from the assessment of all of the evidence that it was open to the trial judge to convict the appellant.

**********

Endnotes

Decision last updated: 28 May 2015

Medium Neutral Citation:	Ewen v R [2015] NSWCCA 117
Hearing dates:	9 February 2015
Decision date:	27 May 2015
Before:	Basten JA at [1]; Simpson J at [38]; Davies J at [238]
Decision:	(1) Appeal against conviction dismissed; (2) Leave granted to appeal against sentence; (3) Appeal against sentence dismissed.
Catchwords:	APPEAL - conviction - sexual intercourse without consent, s 61I Crimes Act 1900 (NSW) - trial by judge alone; Criminal Procedure Act 1986 (NSW), s 133 - obligation to state relevant principles of law - whether explicit reference need be made to presumption of innocence - principle of presumption of innocence is not separate to or distinct from the onus and standard of proof APPEAL - conviction - whether trial judge required to give “Murray direction” - uncorroborated evidence of the complainant of commission of crime - R v Murray (1987) 11 NSWLR 12; Longman v The Queen [1989] HCA 60; Crofts v The Queen [1996] HCA 22 - Criminal Procedure Act 1986 (NSW), s 294AA - giving “Murray direction” prohibited when evidential issues based solely on absence of corroboration of complainant APPEAL - conviction - whether trial judge erred in failing to give warning under Evidence Act 1995 (NSW), s 165(1)(c) - whether reliability of complainant’s evidence affected by intoxication - no request for warning made - intoxication not in issue at trial APPEAL - conviction – whether error in failing to direct that evidence of flight as consciousness of guilt not applicable - Edwards v The Queen [1993] HCA 63 - trial judge made no such inference APPEAL - conviction - whether error in assessment of witness reliability APPEAL - conviction - whether verdict unsafe or unsound - Criminal Appeal Act 1912 (NSW), s 6(1) - appeal dismissed APPEAL - sentence - Crimes (Sentencing Procedure) Act 1999 NSW, s 21A(2)(eb) - offence committed in home - use of home to host party irrelevant APPEAL - sentence - erroneous sentence - wrong application of totality principle - identification of offences as “mid-range” - whether sentences unduly harsh and severe - leave to appeal granted - appeal dismissed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A, s 9, s 21A(2), s 44(2) Crimes Act 1900 (NSW), s 61I, s 405B, s 405C Criminal Appeal Act 1912 (NSW), s 5, s 6 Criminal Code (Qld), s 632 Criminal Procedure Act 1986 (NSW), s 33, s 132, s 133, s 166, s 294, s 294AA Evidence Act 1906 (WA), s 36BE Evidence Act 1995 (NSW), s 128, s 164, s 165
Cases Cited:	Carr v The Queen [1988] HCA 47; 165 CLR 314 Crofts v The Queen [1996] HCA 22; 186 CLR 427 Edwards v The Queen [1993] HCA 63; 178 CLR 193 Fleming v The Queen [1998] HCA 68; 197 CLR 250 Green v The Queen [1971] HCA 55; 126 CLR 28 Greensill v The Queen [2012] VSCA 306; 226 A Crim R 416 Jones v The Queen (1997) 191 CLR 439 Kelleher v The Queen [1974] HCA 48; 131 CLR 534 Kurtic v R (1996) 85 A Crim R 57 Longman v The Queen [1989] HCA 60; 168 CLR 79 M v The Queen [1994] HCA 63; 181 CLR 487 MFA v The Queen [2002] HCA 53; 213 CLR 606 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Postiglione v The Queen [1997] HCA 26; 189 CLR 295 R v BWT [2002] NSWCCA 60; 54 NSWLR 241 R v Murphy [2000] NSWCCA 297 R v Murray (1987) 11 NSWLR 12 R v Stewart [2001] NSWCCA 260; 52 NSWLR 301 Reg v Henry; Reg v Manning [1968] 50 Cr App R 150 Robinson v The Queen [1999] HCA 42; 197 CLR 162 SKA v The Queen [2011] HCA 13; 243 CLR 400 Tully v The Queen [2006] HCA 56; 230 CLR 234
Texts Cited:	Attorney General’s Department (NSW), Criminal Justice Sexual Offences Taskforce, Responding to Sexual Assault: The Way forward (2006), Ch 6, Jury directions and sexual assault trials Judicial Commission of New South Wales, Criminal Trial Courts Bench Book, [3-610] Victorian Law Reform Commission, Sexual Offences Law and Procedure: Final Report (July 2004) at [7.132]
Category:	Principal judgment
Parties:	Simon Ewen (Appellant) Regina (Respondent)
Representation:	Counsel: M Ramage (Appellant) N Williams (Respondent) Solicitors: Voros Lawyers (Appellant) J Pheils - Solicitor for Public Prosecutions (Respondent)
File Number(s):	2011/132900
Decision under appeal	Court or tribunal: District Court Date of Decision: 5 April 2013 Before: Bennett DCJ File Number(s): 2011/132900