GDD v R - [2010] NSWCCA 62

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
GDD v R; NJC v R [2010] NSWCCA 62

FILE NUMBER(S):
2007/15644
2007/13935

HEARING DATE(S):
11 February 2010

JUDGMENT DATE:
15 April 2010

PARTIES:
GDD - Applicant
NJC - Applicant
Regina - Respondent/Crown

JUDGMENT OF:
Grove J Simpson J RA Hulme J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2007/11/0892, 2007/11/0924

LOWER COURT JUDICIAL OFFICER:
King DCJ

LOWER COURT DATE OF DECISION:
30 January 2009

COUNSEL:
G Brady with E Cowpe - Applicant GDD
T Gartelmann - Applicant NJC
M Grogan - Respondent/Crown

SOLICITORS:
Nyman Gibson Stewart - Applicant GDD
S O'Connor, Legal Aid Commission - Applicant NJC
S Kavanagh, Solicitor for Public Prosecutions -Respondent/Crown

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
Trial
Address by Crown Prosecutor
Alleged misstatements of fact
Departures from the Crown case as presented, inapt submissions to the jury, assertions of personal opinion
HELD - (Grove J and Simpson J
RA Hulme J dissenting)
The cumulative effect of the defects in the Crown Prosecutor's address and the insufficiency of some corrections by the presiding Judge caused a miscarriage

LEGISLATION CITED:
Crimes Act 1900

CATEGORY:
Principal judgment

CASES CITED:
Causevic v R [2008] NSWCCA 238
Gonzales v R [2007] NSWCCA 321
Libke v The Queen (2007) 230 CLR 559; 81 ALJR 1309
Livermore v R [2006] NSWCCA 334; (2006) 67 NSWLR 659
M v The Queen (1995) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
R v KNP [2006] NSWCCA 213; (2006) 66 NSWLR 227
R v Liristis (2004) 146 A Crim R 547
R v McCullough (1982) 6 A Crim R 274
R v Roulston (1976) 2 NZLR 644
R v Rugan (2001) 122 A Crim R 1
Whitehorn v The Queen (1983) 152 CLR 657

TEXTS CITED:

DECISION:
In each appeal, appeal allowed.
Conviction and sentence quashed.
New trial ordered.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/15644
CCA 2007/13935
GROVE J
SIMPSON J
RA HULME J
15 April 2010

GDD v R
NJC v R

Judgment

GROVE J: The appellants GDD (a male) and NJC (a female) were jointly tried and convicted before King DCJ and a jury at Sydney District Court on a count of aggravated sexual assault in company contrary to s 61J (1) of the Crimes Act 1900. They were acquitted by the jury on a count charging the same conduct with an additional ingredient of deprivation of liberty, charged contrary to 61JA (1) of that Act. They were each sentenced to a term of imprisonment.
GDD appeals against his conviction on these grounds:
“1.The Crown Prosecutor’s final address to the jury led to a miscarriage of justice.
2.The trial judge erred in failing to discharge the jury at the close of the Crown Prosecutor’s final address.
3.The trial judge erred in that he failed to give appropriate directions to the jury to cure inappropriate and unfair comments by the Crown Prosecutor in her address to the jury.
4.The verdict was unreasonable or cannot be supported or there was a miscarriage.”
NJC appeals against conviction and, in the alternative, seeks leave to appeal against sentence on these grounds:
“CONVICTION
1.The Crown prosecutor’s closing address to the jury gave rise to a miscarriage of justice.
2.The verdict of the jury is unreasonable or cannot be supported having regard to the evidence.
SENTENCE
1.The imposition of identical sentences on the applicant and the applicant’s co-offender despite the existence of material differences between their respective cases gives the applicant a justified sense of grievance.”
The Crown case, reciting a good deal but not the entirety of detail, was as follows. The complainant LAC was NJC’s sister. NJC lived in a flat at Riverwood and her boyfriend, at the time referred to as her fiancé, often stayed. At the time LAC was eighteen, NJC was twenty one and GDD was twenty seven.
On 24 June 2007 LAC was at Roselands Shopping Centre with two friends, Megan Hendricks and Megan Tangye. At some point of the day NJC had spoken to LAC on the mobile phone and asked her to come to the Riverwood flat. LAC declined. Later NJC came to Roselands. She persisted with her request, saying that if LAC did not come to the flat her boyfriend (then detained in a juvenile institution at Kariong) would be bashed and potentially embarrassing photographs of LAC would be published over the Riverwood District. Later LAC and her friends left the shopping centre and Megan Hendricks separated from them. LAC and Megan Tangye were at Riverwood Station when NJC again approached and ultimately LAC acceded to her repeated requests to go to the flat. Megan Tangye accompanied her. Upon arrival there was a conversation by phone with LAC and NJC’s mother. LAC told her mother she would be home by 8pm and the phone was passed to Megan Tangye who was told she was not to enter NJC’s flat. It is possible that she did enter at some stage but nothing turns on this. Certainly the others did enter. GDD was there. He was listening to music and drinking.
Thereafter NJC escorted Megan Tangye to the station. After she returned GDD asked her to go to the hotel and get some beer, which she did. LAC was watching television during this time.
NJC told LAC that she was going out and that they had to “do it”. In response to enquiry as to what she meant, NJC said that she wanted LAC to “fuck” GDD. LAC said that she did not want to but insistent demands were repeated. From time to time NJC left, locking the door, and when she re-entered she asked whether LAC “had done it yet”. Further reference was made to the vulnerable position of LAC’s then boyfriend and the “pictures”. GDD showed an image of NJC and LAC on the screen of his laptop which depicted them reclining naked on a couch. LAC in her evidence said that she did not know when this photograph was taken but she recognized the location as being within NJC’s flat. Another image was produced. This was of a younger sister KR, who was naked from the waist upwards. (LAC testified that the three sisters shared the same mother but each had a different father).
After declining the multiple importunings about engaging in sex with GDD, LAC went to leave the flat but NJC pushed her back and directed her to sit on one of the two mattresses which lay on the floor. GDD then approached and began to unzip her jacket. LAC resisted and GDD called on NJC to help. She came and, in particular, she removed LAC’s bra. When LAC had been undressed GDD removed his trousers and told NJC to leave. GDD then physically overbore LAC and had sexual intercourse with her. During this act, NJC came in and out of the room on several occasions, closing the door each time when she left. She was silent in response to requests by LAC to make GDD stop.
Once the act of intercourse was finished LAC ran to the bathroom where she vomited. She then retrieved her clothes, dressed and left. She encountered NJC outside, who was at the time securing her bicycle. LAC did not speak but NJC ran after her and said that GDD was deleting the photographs from the computer. LAC simply responded “whatever” and continued to walk home.
This walk took about twenty minutes and she arrived about 11.45 pm. Her mother asked her what took her so long to get home and she said “They gave me something to eat.” No further conversation between them occurred and LAC went straight to her bedroom where she slept. The following morning she rose, took clothing to the bathroom and “jumped in the shower.” Afterwards she sat in the lounge room with her mother but they did not converse. By that time, KR had gone to school.
At about 2.30 pm, LAC called Megan Hendricks and arranged to go to visit her. On arrival, she told her that she had been “raped by my sister’s fiancé.” Ms Hendricks called the police and arranged to meet them nearby at a convenience store. Police and ambulance attended. LAC was taken to St George Hospital where she was examined, after which she was taken to Riverwood Police Station and there made a statement about the events. A police officer telephoned LAC’s mother who came to the police station to collect her.
GDD gave evidence that he generally resided with his sister Katrina at Campbelltown but he stayed about three nights per week with his fiancée NJC at the Riverwood flat. There existed no animosity between LAC and himself and he was acquainted with her mother and her sister KR.
Shortly after LAC’s eighteenth birthday LAC was at the flat and asked NJC and GDD how to do “certain sexual things.” Thereafter, inter alia, NJC fellated GDD after which LAC performed a similar act. On subsequent occasions GDD engaged in demonstrations of sexual activity with LAC from time to time, a total of about four or five occasions. NJC was present on all occasions except one.
On 24 June 2007 GDD was at the Riverwood flat playing on his X Box, a computerised amusement device. He was aware of some telephone contact between NJC and her mother and he understood the latter was concerned about LAC’s activity at Roselands and the company she was keeping there. NJC said she was going to the shopping mall and he told her to keep in touch. As a result he received several telephone calls. He also spoke to LAC and told her that unless she obeyed her mother and sister, he would refrain from getting a solicitor, whom he apparently knew, to represent her boyfriend who, as noted, was in detention at Kariong.
He denied that he said anything about the boyfriend being bashed nor did he hear NJC say anything to that effect. Later in the afternoon he heard some commotion outside the flat. He became aware of the presence of LAC and Megan Tangye in addition to NJC. He was not particularly interested in what was occurring and continued playing his games instrument. He confirmed that NJC later escorted Megan Tangye to the station and that she had also fetched some beer for him.
GDD said that the order of events was that NJC and LAC were in the kitchen cooking when a neighbour called to leave a DVD of a movie (Spiderman III). Subsequently NJC said to him that LAC wanted to have sex. In response he “would say okay”. He continued playing on the X Box. LAC said to him “Are you coming down?” She was lying under the blankets on one of the mattresses and she “flashed herself” and he saw that she was naked except for socks. He said “give me a minute” and he continued his game for three or four minutes.
He then undressed and joined LAC and had sexual intercourse with her. While this was occurring he said NJC was “playing the rest of my racing game.” At the conclusion of the intercourse LAC went to the bathroom for about a minute and then returned, dressed and said that she had to go. GDD said “see you later”, NJC said “Bye” and LAC then left.
As is obvious from the foregoing GDD asserted that what occurred between himself and LAC was consensual.
GDD’s sister gave some evidence relating to conversation with the mother and with KR concerning the circumstances in which the photograph of KR had been taken.
NJC did not give evidence but it can be deduced from cross examination of LAC by counsel that NJC’s stance was that LAC had asked her whether she (LAC) could have sex with GDD and NJC said that she would ask. During the evening consensual intercourse took place between GDD and LAC. NJC was present whilst it occurred.
Grounds 1, 2 and 3 in GDD’s Notice of Appeal and ground 1 in NJC’s Notice of Appeal raise complaints which can be dealt with together. The grounds relate to the conduct of the case by the prosecutor. A convenient summary of the applicable law appeared in the judgment of McClellan CJ at CL (Barr and Price JJ agreeing) in Causevic v R [2008] NSWCCA 238:
“3.          The principles which guide a prosecutor’s function when addressing a jury in a criminal trial are well known: see R v McCullough (1982) 6 A Crim R 274; Whitehorn v The Queen (1983) 152 CLR 657; R v Rugari (2001) 122 A Crim R 1; Libke v The Queen (2007) 230 CLR 559; (2007) 81 ALJR 1309; R v Liristis (2004) 146 A Crim R 547; Livermore v R [2006] NSWCCA 334; (2006) 67 NSWLR 659; R v KNP [2006] NSWCCA 213; (2006) 66 NSWLR 227 and Gonzales v R [2007] NSWCCA 321.
4.            The principles relevant to this appeal may be summarised as follows:
A prosecutor is required to act in fairness and detachment and with the objective of establishing the whole truth (Whitehorn at 663).
Although the Crown is entitled to put the Crown case firmly and vigorously this must always be done fairly, temperately and with detachment and restraint, bearing in mind that the prosecutor’s function is to aid the attainment of justice, not the securing of convictions (see Liristis at [94]).
Whether or not the prosecutor has acted with the relevant degree of fairness and detachment may depend upon the atmosphere of a particular trial (see McCullough at 286).
In considering the question of fairness it is necessary to keep in mind that a criminal trial is of an adversarial nature (see Rugari at [52]; Libke [71] and [72]).
When complaint is made it is necessary to consider whether the prosecutor’s conduct was such as to distract the jury from rational consideration of the case of the Crown and the defence (see Gonzales at [100]). It is wrong for a Crown prosecutor to become so much the advocate that he or she is fighting for a conviction and to quite impermissibly embark upon a course of conduct calculated to persuade a jury of a point of view by inspiring prejudice or emotion (see R v Roulston (1976) 2 NZLR 644 at 354).
5.            In Livermore the court identified a number of matters in a Crown prosecutor’s address which could lead to a miscarriage of justice (at [31]):
(i)           A submission to the jury based upon material which is not in evidence.
(ii)          Intemperate or inflammatory comments, tending to arouse prejudice or emotion in the jury.
(iii)         Comments which belittle or ridicule any part of an accused’s case.
(iv)         Impugning the credit of a Crown witness, where the witness was not afforded the opportunity of responding to an attack upon her credit.
(v)          Conveying to the jury the Crown Prosecutor’s personal opinions.
6.            When it is submitted that a trial has miscarried by reason of the prosecutor’s address it is necessary to consider the whole of that address. Each case will depend upon its particular circumstances.”
That statement of principle was recently re-affirmed in Cittadini v R [2009] NSWCCA 302.
In his helpful and candid written submissions Mr Grogan of counsel (who appeared for the Crown in the appeal but did not prosecute at trial) stated:
“The Crown Prosecutor made a number of errors in her address. Some of these concerned matters of fact others concerned expressions of personal opinion. However the relevance of those errors has to be assessed in the context of the trial.”
Insofar as it has frequently been observed that it is difficult for this Court always to be able to gauge the atmosphere of a trial, it is not without significance that there were complaints about the prosecution address immediately upon its conclusion. His Honour in fact expressed agreement with some of the matters raised but observed, understandably, that his own notes may not have kept up with the speed of the address. He said “many of the matters” complained of could be expected to be addressed by counsel.
Addresses by counsel for the accused, as they then were, followed. It is plain that, at their conclusion, it was appreciated that there remained issues about what the prosecutor had said. His Honour told the jury that he would not commence his summing up that afternoon and he dispersed them with a direction that they would not need to reconvene before 11 am on the next day.
Earlier he had informed counsel that he had requested that the addresses be transcribed. After the jury withdrew, discussion took place about when that transcript might be available. Access was had to a transcript overnight and, upon resumption of the hearing, application to discharge the jury by reason of ingredients in the prosecutor’s address was made. The application was refused, his Honour stating:
“The short form gentlemen is that either alone or in combination I do not accept that the matters raised warrant the discharge of the jury. However I will as indicated during the course of the summing-up make the corrections that I have so far indicated I feel are appropriate and which the Crown has conceded.”
It has been noted that, as addresses on behalf of the accused followed the address of the prosecutor, counsel had been invited to advance corrections which they considered ought be made. Their addresses were focussed upon contradictions in the evidence which were submitted to the jury to undermine the credit of LAC whose testimony the jury was required to accept on the central issues beyond reasonable doubt.
It is not necessary for present purposes to recapitulate or analyse the various bases of attack, but it is readily understandable that concern could be harboured that the force of those submissions might be diminished, or even lost, by digressions in address to deal with a variety of complaints on unconnected discrepancies in the Crown Prosecutor’s address.
I turn to matters which were the subject of complaint.
The Crown Prosecutor said:
“We know from the evidence from the other young ladies who came to give evidence that people regularly went to this unit and hung out on these two mattresses. This idea they never had visitors – or sorry, rarely, time to time had visitors doesn’t fit in with the bits and pieces of evidence you’ve heard from these other witnesses.”
There was, as conceded in the appeal, no evidential basis for the Crown’s submission.
His Honour responded to the complaint and the transcript of his summing up reads:
“(Now for counsel’s benefit, p411). The Crown Prosecutor said this to you, at line 6, ‘We know from the evidence from the other young ladies who came to give evidence that people readily went to this unit and hung out on these two mattresses.’ Well the only evidence in this trial of other persons or young ladies hanging out at those premises was from those witnesses called during the trial. At the most you heard some evidence of I think two, it may have been three, but perhaps only two occasions when other persons went to those premises. There was no evidence that people regularly went to the unit and hung out on the two mattresses.”
What the Crown Prosecutor said was effectively designed to contradict testimony by GDD that not many people came to the flat and that for most of the time he and NJC were alone there. An adequate cure of the mis-statement by the prosecutor should have referred to its inability to make that contradiction.
There was no evidence of any injury to GDD which may have occurred as a result of resistance by LAC to his having intercourse with her. The Crown Prosecutor was apparently seeking to counter what she anticipated might be made of the circumstance that the medical examiner found no significant bruises on LAC. An invitation to the jury to speculate about injury to GDD should not have been made. It should be examined in the context where the prosecutor said:
“There is no suggestion that (GDD) was hitting her about the face, or that (GDD) was punching her. He was pinning her down. And I particular ask the females on the jury to – from your life experience appreciate how much stronger men are than women, let alone a 28 year old man and an 18 year old girl. If I guy wants to pin you down he can pin you down. He doesn’t have to give you a black eye or bruises all over you to be pinned down. So, as the doctor said, there can be occasions where people are raped and there are no marks on them. There may be some marks on (GDD) from being kicked. We don’t know about that. Kicked in the struggle. He might’ve got a few bruises from her efforts but he doesn’t have to put much force to pin her down. She’s already sitting on it, he’s pushing her down. And once a guy’s on top of you he’s on top of you. You’ve got Buckley’s of getting away. And I ask you from your own life experience – I’m not suggesting anyone’s been raped or anything, but just mucking around when you’re a kid with boys. They’re impossibly strong and let alone when an 18 year old versus a 28 year old.”

This mis-statement was the subject of express complaint but his Honour’s response was to observe, “I frankly can’t see the jury making anything of it.”
It is true, as was submitted in the appeal, that there was no specific request for a direction. It was submitted that it should be concluded that counsel accepted that there was nothing to be gained from drawing further attention to the matter. That suggestion ignores that a dilemma had been created by the prosecutor by suggesting fact finding by the jury which was not based upon evidence. A correction was required.
I would add a further comment, although it was not the subject of complaint, but I would have some reservation about the propriety of an invitation to a limited group of the jurors, designated by gender, to draw particular inferences in matters pertaining to their fact finding function. Of course, jurors bring their individual characteristics and experiences for use in their task but it is not the role of counsel to urge selective deliberation.
Objection was taken to the Crown Prosecutor’s description of the defence case as portraying LAC as “a sexual aggressor”. The first time the expression was used it was defined as referring to LAC being the one who asked for sex. To the extent that a somewhat strong word was used to mean an initiator, it would not raise a matter for concern. However, references to the defence seeking to paint LAC as an aggressor were repeated. The Crown Prosecutor continued:
“…..and we are meant to accept that she’s somehow sexually attracted to (GDD) and needs to learn all – she’s a sexual aggressor.”
Those remarks do not accurately summarize the evidence. GDD’s evidence was that on the occasion LAC simply asked for sex after “flashing” herself. Insofar as the matter was explored, it was not suggested that she was seeking to satisfy an attraction to GDD but to learn how to do “certain sexual things.”
Further, the appellants contended that the remarks above quoted amounted to a belittling or ridiculing of the defence case. This is precisely a matter recognized in Livermore as capable of leading to miscarriage. Following descriptions of the defence seeking to point to LAC as an “aggressor” the Crown Prosecutor turned to the issue of consent. She said:
“And whether you think she’s the world’s greatest actress or that she really, really was raped and she did not consent.
Not consenting is enough, but she honestly believes that there are going to be photos of her and her little sister distributed on the Net if she doesn’t agree. It’s enough that she believes if she doesn’t consent that James is going to be bashed. If it’s through threats and intimidation that she agreed to sex that would be enough for there being no consent. But in this case we say not only that, on top of those two matters, which we already know about from the two Megans and also the guy from Roselands Shopping Centre, on top of that we have physical force being used and a demand that sex occur.”
The evidence about the threat to the boyfriend in detention and the distribution of embarrassing photographs was not admitted to provide evidence of lack of consent to the act of intercourse and related to demonstrating pressure by NJC for LAC to accompany her to the flat. To suggest that this evidence could be used by the jury in their determination of whether or not there was a lack of consent was impermissible.
His Honour’s direction to the jury about this matter was correct when he said:
“In this matter there is a stark contrast between the Crown case and the case of each of the accused on the issue of consent. (LAC’s) evidence is that at no time did she consent, not matter what coercion, threats or physical violence were directed at her and that at all relevant times she refused, physically resisted, pleaded for (GDD) to stop and sought her sister (NJC’s) assistance to stop GDD, while crying. There is no suggestion in this matter that she was ever overborne by any threat about the bashing of James Keir or the publication of any photograph. (LAC’s) evidence is that she never consented and was physically overcome by (GDD) after he and NJC had forcibly removed her clothes while she resisted.”
Whilst what his Honour cannot be criticised as inaccurate there should have been explicit directions to the jury to negate the misleading statement by the Crown Prosecutor. As the extract from the address shows, there was in what she said, a reference in the final sentence to physical force and it became important to warn the jury against using what amounted to a submission of combined causes by the Crown where there was, on the issue of absence of consent, a need to isolate and exclude consideration of threats as touching upon that issue.
The conveyance of personal opinions by a prosecutor was another specific factor identified in Livermore as a potential trigger for miscarriage.
The transcript records this content of the Crown Prosecutor’s address. I set it out as it appears recorded (subject to inserting initials for the name of NJC):
“You’ve got to remember mum is also mum of (NJC). You know this isn’t a reason to lie over one daughter over the other. She’s told the truth. Her daughter came home in tears. She went to bed. Seemed to make a huge deal of the fact she didn’t have a shower till the morning. I don’t know how you react after you get raped. I probably wouldn’t (?) want to have a shower straight away but she said it was 11 o’clock, got home, she said to her mother ‘they want to bash up James Kear.’ That was said to her mother when she got home and she said she had something to eat. Well I’m sorry, teenagers get home late. What comes out of the mouth is excuses.”
In fact, LAC’s evidence was that she simply said to her mother when she came home, as has already been mentioned, that “they gave me something to eat.” The gravamen of complaint is directed to the prosecutor’s observation about showering. It would seem probable that the transcript is in error and it is likely that she said “I probably would want to have a shower.”
Later, the Crown Prosecutor made another comment conveying her personal views when she said:
“Now it might just be me but I thought he came over as very smug, slightly arrogant and at times he smiled and laughed. Now he is saying this was consensual, we had sex all the time. If you’ve been accused of raping someone and it’s a complete lie do you think he would be smug about it, a bit of a laugh, isn’t this all a bit of – imagine being put in this situation.”
There was no justification for the introduction by the Crown Prosecutor of her personal views about showering. Coincidentally it was an observation by a prosecutor about showering after an alleged rape which arose amongst other things in Livermore, see p 667. I do not accept the Crown submission that the statement about showering did not assist the Crown case. It was plainly an observation of a personal opinion of the prosecutor which, if accepted, would bolster the credibility of the complainant. It was an explanation for a fact in LAC’s evidence which might have been the subject of criticism.
In relation to the second statement concerning the appearance of GDD, his Honour observed in an exchange with counsel that if the prosecutor’s remarks had been couched in terms such as “you might think” there would not be a problem. I agree. However, nothing was said to the jury and the consequence of the injection of personal opinion rather than the making of submissions to the jury was that they were left with statements by counsel, one of which was supportive of the credibility of the complainant and the other which was disparaging of GDD. There was no authoritative warning by the judge that the jury should ignore what was said.
The above does not exhaust the catalogue of complaints made by the appellants.
The Crown Prosecutor invited the jury to consider LAC’s demeanour and determine whether she had concocted the allegation. It was legitimate to invite the jury to consider the demeanour of any witness, including the complainant, and they were appropriately directed as to the onus of proof. I do not consider that the language of the submission trespassed beyond the limits of advocacy.
Reference was made to alleged discrepancy in the summation by the Crown Prosecutor of evidence concerning LAC’s return to the flat on the day following the central events. LAC denied going there but her mother gave evidence of her presence. The point being canvassed was whether the mother’s evidence showed return by LAC on two occasions and a distinction was sought to be drawn between the number of entries LAC was said to have made to the flat. I agree with the Crown submission that what is being debated is, in large part, a matter of semantics.
The Crown Prosecutor made some reference to the medical evidence of genital bruising, and “conceded” that what was found could occur during “normal sex” but she added “I would suggest it would have to be vigorous.” His Honour expressly referred to what the Crown Prosecutor said about this and directed the jury to ignore her remark.
I do not consider that anything of significance turns upon the three matters last mentioned. The preceding matters, however, are of a different character. If any one of them was an isolated matter of complaint, I doubt that a conclusion of miscarriage would follow. Nevertheless, their combined effect leads me to a determination that it would be unsafe to allow these convictions to stand. The immediate complaints by counsel and their multiplicity, and the concessions of validity to a significant number of them, offers a strong implication that, in the atmosphere of the trial, a level of unfairness had been reached as a result of the prosecutor’s address.
The intrusion into address of the Crown Prosecutor’s personal views, was, to say the least, particularly unfortunate. It is true that in his introductory remarks his Honour told the jury that it was a tradition more than anything else which led to the prosecutor being referred to as Madam Crown in obvious distinction from the named defence counsel. Even though the jury were so informed, there must remain a risk that a jury would consider a Crown Prosecutor a figure of public authority and whose expressed personal opinions were therefore of particular weight and reliable. It is to avoid that risk that the law requires counsel to make submissions based upon the evidence and proscribes expressions of personal opinion.
The disparagement of the testimony of GDD by reference to the Crown Prosecutor’s assessment of his demeanour was fraught with the risk of diverting the jury from its task when it is recognized that the version of events being advanced on behalf of the accused involved sexual turpitude which the jury may well have found repugnant and it was important that they be cautioned that, even if they so felt, if the version being advanced by the defence was possibly correct, the crime was not proved to have been committed. The Crown Prosecutor’s personal assessment of the appearance of GDD as “smug” etc needed to be balanced by a firm caution that the prosecution case was not proved by rejection of GDD as a witness.
The consequence of my conclusion is that a new trial should be ordered.
Each of the appellants advanced a further ground asserting that the verdicts cannot be supported having regard to the evidence. Upholding such a ground would lead to direction of judgments of acquittal on the indictment.
To determine such a ground the appellate court is required to ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied of guilt: M v The Queen (1995) 181 CLR 487. Different language in subsequent cases does not detract from that fundamental. It is necessary to take into account a special respect and legitimacy to be accorded to fact finding by jurors: MFA v The Queen (2002) 213 CLR 606.
In this particular case there was no contest concerning the facts that GDD had sexual intercourse with LAC in the presence of NJC. Assuming satisfaction of those facts, two further issues required proof. First, that LAC did not consent to that intercourse and second, that both GDD and NJC knew that she was not consenting.
The proof of the firstmentioned involved acceptance to the requisite standard of the testimony on that issue by LAC. In that regard, whilst it is true that LAC gave evidence by videolink in a location remote from the courtroom, accompanied by a support person and in the further presence of a sheriff’s officer, the advantage of the jury in seeing her testify was such that I could not conclude that they ought to have a doubt about her evidence on the critical issue.
The culpable knowledge of GDD and NJC needed to be drawn from an assessment of all of the evidence but, again critically, it would require acceptance of LAC’s recounting of how the intercourse came to take place.
Each of the appellants has made submissions as to why the complainant’s testimony should be not accepted but the challenges demonstrate no more than that there is a fact finding issue for determination. Giving full weight to the accumulation of all the points of argument, they fall short of demonstrating that it was not open to the jury to be satisfied of the essential ingredients of the count in the indictment.
No purpose would now be served by recitation of those arguments. I would not uphold this ground in either case.
NJC sought, in the alternative, to challenge the severity of sentence. In the light of my conclusion that the convictions should be quashed, it is unnecessary to address the question of sentence.
I would, in each appeal, allow the appeal, and order a new trial.
SIMPSON J: I have read in draft the judgments of Grove J and R A Hulme J. Like Grove J I (reluctantly) have come to the view that the accumulation of transgressions in the address of the Crown prosecutor was such as to cause a miscarriage of justice, and that the directions given were inadequate to undo the damage that had been done.
It is appropriate that I express my own route to this conclusion. In what follows I rely on the outline of the evidence set out in the judgment of Grove J. Except where it will help towards an understanding of my approach, I do not propose to re-state the facts. I agree also with the statements of legal principle to be found in the judgment of Grove J, and again do not propose to re-state those.
I agree with Grove J that, in each case, the ground alleging that the verdict was unreasonable ought to be rejected.
Each appellant was charged with two offences, in the alternative. The first was of sexual intercourse without consent in circumstances of aggravation (the circumstance of aggravation being that it was committed in company) and accompanied by deprivation of liberty. The second count in each case was identical with the first, save for the element of deprivation of liberty.
The jury acquitted each appellant on the principal charge, and convicted each on the alternative, lesser, charge. I consider below whether the acquittals have any significance in the resolution of the grounds of the appeal.
There are, as R A Hulme J has shown, six specific instances of misstatement, overstatement or inappropriate comments to the jury said to have been made by the Crown prosecutor. These are:
(i)a factual statement made by the Crown prosecutor about what the evidence showed about visitors (other than GDD and the complainant) to NJC’s unit;
(ii)what the Crown prosecutor said about possible injury to GDD as a result of resistance by the complainant;
(iii)what the Crown prosecutor said of the defence case in allegedly characterising the complainant as “a sexual aggressor”;
(iv)what the Crown prosecutor said about threats or coercion as negativing consent;
(v)the expression of personal opinion by the Crown prosecutor concerning conduct after a sexual assault;
(vi)the expression of personal opinion about the appearance of GDD in giving his evidence.
Although, for the purpose of discussion, it has been necessary to examine each asserted transgression individually, as Grove J and R A Hulme J have done, determination of the appeals depends upon what can be seen to be the overall effect of the Crown prosecutor’s address, and the efficacy of the trial judge’s response to the complaints made at the conclusion of the address by counsel for each appellant.
I do not propose to comment on each asserted transgression. I do, however, wish to comment on some.
(i):the evidence about “people”, other than the complainant, spending time at NJC’s unit
It is, on appeal, as it was when raised in the trial, conceded that the statement made by the Crown prosecutor was factually incorrect and misstated the evidence. At face value, the misstatement may appear to have been inconsequential. When seen, however, in the context of the evidence and expanded portions of the Crown prosecutor’s address, it does not appear to me to be inconsequential. The issue arose as outlined below.
The evidence (both that of the complainant and of Megan Tangye) was that Megan Tangye accompanied the complainant to NJC’s unit and went inside. This followed a considerable degree of pressure exerted by NJC on the complainant, who was reluctant to go, and who insisted on Megan Tangye’s presence. A telephone call between NJC and the mother of NJC and the complainant (to whom I will refer only as J) took place; J spoke to NJC, then to the complainant, and then to Megan Tangye. J told Megan that she had to stay outside the unit.
What GDD said about the frequency of visits by others was given in cross-examination. The Crown prosecutor pressed him about the visits of friends. He maintained that visitors were infrequent.
The Crown prosecutor’s address went somewhat further than appears from the extract contained in the judgment of Grove J (and that referred to in the submissions of counsel).
She turned to what she called “the very important evidence of Megan Tangye”. She then referred to the evidence of the complainant that she had not wanted to go to NJC’s unit, and had been compelled or persuaded to do so. The Crown prosecutor said:
“She [the complainant] goes back reluctantly. Megan Tangye goes with her. She [the complainant] drags Megan Tangye into the unit wanting her to stay. Megan Tangye is told to leave …
[J] got onto the phone to Megan, who she’d never met and said ‘I’m going to call the cops if you don’t leave’. This is a young, fifteen year old girl. I can’t see the major threat she ever was to [NJC]. I’d suggest to you the reason [NJC] didn’t want her there is she wanted [the complainant] alone with her and [GDD] so it’s exactly as [the complainant] has given evidence is, she wanted [the complainant] and [GDD] to have sex. There is no logical reason why Megan is sent away like she’s some pariah. None of them have ever met her before. We know from the evidence from the other young ladies who came to give evidence that people regularly went to this unit and hung out on these two mattresses. This idea they never had visitors – or sorry, rarely, time to time had visitors doesn’t fit in with the bits and pieces of evidence you’ve heard from these other witnesses.” (italics added)
The Crown prosecutor thus sought to paint a picture that showed that it was the practice of the appellants regularly to entertain “people” in the unit; but, that, on this occasion, and for no apparent reason (other than that she then theorised) they excluded Megan Tangye. The Crown prosecutor’s theory, as advanced to the jury, was that Megan Tangye was excluded, contrary to normal practice, in order to permit the planned sexual assault of the complainant to proceed. (The argument also overlooks the acknowledged evidence that it was J, the complainant’s mother, who ordered Megan Tangye from the unit, but since that was not raised on the appeal, it is unnecessary to say more about it.)

As I have mentioned, the evidence of GDD that visitors seldom came to the unit was not given in his evidence in chief, but was elicited in cross-examination. Presumably, the Crown prosecutor asked the questions in the hope of laying the foundation for the theory that she was later to advance. The evidence that she sought was not forthcoming from GDD even when pressed; unless there was other evidence to that effect (and it was too late for that issue to be progressed in the Crown case), the theory lacked a factual foundation. In those circumstances, for the Crown prosecutor erroneously to tell the jury that “we know from the evidence … that people regularly went to this unit and hung out on these two mattresses” was a serious misstatement, supporting the Crown prosecution theory.
It may be that the trial judge did not appreciate the significance of the comment. He did not refer to the evidence that Megan Tangye had been ordered to leave the unit, and he did not refer to the Crown prosecutor’s submission to the jury that that was to facilitate the planned assault on the complainant (notwithstanding that the evidence was that it was J who had given the order).
The correction made by the trial judge came at the conclusion at the summing up, at a point when he corrected a number of the factual errors made by the Crown prosecutor. He did not relate any of these corrections to the context in which the errors were made. In respect of this factual error he merely told the jury that there was no evidence that “people” regularly went to the unit and “hung out” on the two mattresses. If the initial submission struck any chord with the jury it is unlikely that its impact would have been mitigated by the subsequent direction.
Although I regard this more seriously than does R A Hulme J, if it stood alone, I would be reluctant to conclude that it caused a miscarriage of justice. But it does not stand alone.
(ii): possible injury to GDD
The Crown prosecutor introduced the words extracted by Grove J ([34]) by saying (as recorded in the transcript):
“Much has also been said about the fact or [I] presume will be said that there were not (sic) bruises that [the] doctor could find upon [the complainant].”
That is, she was responding to what she anticipated would be put in defence closing addresses – that the absence of any injury to the complainant was, at the least, a relevant factor in the consideration of the credibility of her account of the events. The transcript records the Crown prosecutor as making specific reference to the complainant’s evidence as follows:
“I was struggling, I was trying to get it (sic) back up. I was trying to get back up, I was kicking, I was kicking, I was kicking.”
She said:
“Now it kept being put to the doctor a violent, violent sort of rape.”
What she said immediately thereafter was unexceptional. She pointed out that the complainant did not allege any conduct, on the part of GDD in restraining her, of the kind that might be expected to produce bruises or other injury; rather, she alleged the use by GDD of his physical strength to pin her down. That is a legitimate way to explain the absence of bruising or other marks upon the complainant’s body, and to take the sting out of the anticipated submissions that the absence of injury to the complainant tended to contradict her account.
But it was unfair and wrong to invite the jury to speculate about possible injuries to GDD. This was the first time such a possibility was raised. The Crown prosecutor did not suggest to GDD, in the course of cross-examination, that he had bruises or marks on his body. He, of course, did not give evidence in chief on the subject, it never having been an issue.
The Particulars of Trial show that GDD was arrested on 24 July 2007, exactly one month after the alleged events. Any medical or physical examination of him by that time would hardly have produced anything of value. Thus, there was no evidence of the condition of GDD’s body in the immediate aftermath of the events in question. What was put to the jury was pure speculation, and invited the jury to speculate.
I agree with Grove J that the comment called for a direction, in my opinion a clear and strong one.
(iv): threats and coercion as negativing consent
Grove J has set out ([40]) the passage of which complaint is made, and his Honour’s resultant direction to the jury. At the conclusion of the Crown prosecutor’s address counsel for the appellants made a number of complaints, including one of the Crown’s reference to threats and intimidation negativing consent. He observed that he had never understood that to have been the Crown case.
At this point, the Crown prosecutor said:
“I said it in the opening as well.”
Indeed, she had. In the opening she said:
“The combination of her boyfriend being bashed in the juvenile centre if she doesn’t cooperate and the combination of having seen the photos with the threat of being distributed on the Internet, we say the threats and coercion which she was under at this stage to have sex with [GDD]. You cannot consent if what you are doing is not of your own free will. Threats and intimidation negates consent. Even if she said absolutely at that stage, just have sex, we say that is not consent. Things escalate from there. She continues to refuse to have sex.”
However, after the Crown prosecutor’s response to the complaint, counsel for NJC is recorded as saying:
“Yes you did and we actually discussed it with you outside the context (sic - ? court) and we were assured that it wasn’t. Insofar – my friend’s quite right I think she did allude to it in her opening matters which pass I guess between counsel I mean not in open court are matters which I would normally raise (sic - ? normally not raise), it was frankly a matter which was raised with the Crown Prosecutor and we were assured otherwise.”
It is true that this is somewhat garbled. However I interpret it to mean that, following the Crown prosecutor’s opening, defence counsel (outside the court) took issue with the references to threats and intimidation as negativing consent and received assurances that, in respect of the consent issue, the Crown did not rely upon threats or intimidation.
The Crown prosecutor did not contradict counsel’s assertions about the conversations outside the court at the conclusion of the opening. Her response is recorded as:
“Your Honour I did say in respect to those threats and collusion (sic – ? coercion) but in this case we say she was pinned down, her clothes were removed and it was all without consent on that level. I mentioned in my opening exactly the same thing in relation to that but it is the Crown’s case that it was afoot on rape (sic) if I can put it that way and I did say that. I went through the steps and they said but (sic - ? that) in our case she is pinned down, her close (sic – ? clothes) are removed. The coercion is very important to the Crown case to the extent that it flies on (sic) the face of what the defence says in relation to her being there by consent. Those threats and coercion is what get her to the unit. And once she’s at the unit it’s the Crown’s case that the co-accused was – for her to have sex with [GDD] and that when she refused they then pinned her down and had sex.” (AB 730) (italics added)
The reply given by the Crown prosecutor, though also somewhat confused, appears to confirm that the Crown case on absence of consent did rely upon actual absence of consent (evidenced by the complainant’s physical and verbal resistance), and not upon what might be called illusory consent brought about by the complainant’s yielding to threats, intimidation, or coercion. What she said in her reply suggests that the Crown’s reliance on threats and coercion concerned the complainant’s attendance, reluctantly (on the Crown case), at the unit – it did not go to her consenting to sexual activity with GDD. And it is to be observed that the “threats and coercion” referred to in the response to the complaint was the conduct alleged against NJC in persuading the complainant to go to the unit; the threats and coercion referred to in the address were the threats that photographs of the complainant and her sister would be distributed on the Internet, and that her boyfriend, then in a juvenile detention centre, would be bashed if she did not consent. This was also what was said in the opening.
The very different things said by the Crown prosecutor on the subject of threats and coercion and relating them, in the opening, and in the closing address, must have been, at best, confusing. The assurances apparently having been given to counsel after the opening no doubt deflected them from making any more formal complaint at an early stage in the trial.
It was perfectly proper for the Crown prosecutor to refer to the evidence of coercion or threats or intimidation in the context of the overall case. That was relevant to the circumstances in which the complainant came to be at the unit. It was relevant in the light of the evidence given by GDD and of the cross-examination of the complainant. But, as the Crown presented its case, it was not relevant to the issue of absence of consent to sexual intercourse – which, by the time of the Crown address was known (by reason of the cross-examination of the Crown witnesses, especially the complainant, and the evidence of GDD) to be the critical issue for determination.
It is scarcely possible for the Crown to present alternative cases on absence of consent – either actual absence of consent or, if that fails, consent brought about by threats or coercion. The Crown’s case was the former.
To introduce the notion of consent brought about by coercion at that point in the address was liable to confuse and mislead the jury. The direction given (see the judgment of Grove J at [42]) was not adequate to correct the damage.
I make further observations below about what might be perceived as the possible effect of this part of the address.
(v) and (vi): personal opinions of the Crown prosecutor
The Crown prosecutor expressed personal opinions about how she anticipated she might react to rape, and her assessment of the demeanour of GDD when giving his evidence. These are set out in the judgment of Grove J at [45] and [47].
Although with less certainty, I agree with Grove J and R A Hulme J that, from the context, it is probable that the Crown prosecutor said that she would want to have a shower rather than that she would not.
If that is so, then the remark probably did favour the appellants, as suggesting that the complainant’s evidence of how she had in fact behaved was out of the ordinary and might not be accepted, even though the Crown prosecutor’s observation was made in the course of recounting the version given by the complainant, and supporting her credibility. For myself, in the circumstances of this case, I would attach little weight to that passage.
The Crown prosecutor’s observations of GDD’s demeanour in the witness box, and her expression of personal opinion, were an unorthodox way of suggesting a view that might be taken by the jury. There are good reasons for the language conventionally used to make suggestions of that kind: it emphasises that the evaluation is that of the jury, that what is being put is no more than a suggestion which it is open to the jury to accept or reject. It maintains the proper distance between the jury and the advocate, and ensures that the advocate is properly left out of the fact finding, decision making role.
As Grove J has pointed out ([34]), the Crown prosecutor also appealed to the females on the jury to use their own personal experience in their evaluation of the evidence concerning the use of force by GDD. I share his Honour’s reservations about the propriety of such an appeal. It was echoed by counsel for GDD, in a passage extracted by R A Hulme J ([143]).
To introduce notions of how members of the jury would feel in a particular situation, or to invite them to decide issues of contested fact on the basis of their own life experience – in to which was injected how the Crown prosecutor would feel – was to introduce false and misleading elements in the determination. There is a difference between inviting a jury to bring to bear its (collective) “experience in life” in the assessment of witnesses, and evaluation of evidence, and inviting the jury to introduce its own factual experience. The former is traditional and acceptable, the latter is not.
I said earlier that I would consider whether and, if so, what, impact the acquittals on the major charges had on the determination of these issues.
The Crown case on deprivation of liberty, the only element of the principal charges that was not also an element of the alternatives, and which the jury resolved in favour of the appellants, was that NJC, on a number of occasions, left the unit, with the complainant and GDD inside, and on each occasion she did so, locked the door.
In the summing up the judge referred to “variations” in the complainant’s evidence about this. He directed the jury that if they had a reasonable doubt, in the light of those variations, and her failure to mention that to police in her statements, or in her evidence in chief, they must find the appellants not guilty on that charge.
None of the Crown prosecutor’s infelicities in the closing address related directly to the issue of deprivation of liberty. And it was on this issue that the jury verdicts favoured the appellants. On the issues to which those infelicities were directly relevant, the verdicts favoured the Crown and were adverse to the appellants. That is a circumstance which I am unable to discount in maintaining my conclusion that the trial miscarried.
There is a further matter that was not raised in the appeal, but which I am unable to overlook. It concerns the submission about coercion, threats, and intimidation.
After the jury retired, they asked a question. It was:
“The first charge on the indictment mentioned the deprivation of liberty. Does this imply only a physical restraint or will emotional coercion also apply?”
The judge clearly and correctly directed the jury that emotional coercion could not constitute deprivation of liberty, and that physical restraint or confinement was required. Having received that direction, the jury acquitted the appellants on the charge involving the allegation of deprivation of liberty.
This, it seems to me, shows two things: firstly, that the jury was conscious of, and interested in, the issue of coercion; secondly, that when clearly told that “emotional coercion” was not relevant, they resolved the issue in favour of the appellants.
But where possibly misled (by the Crown prosecutor) about the relevance of coercion (to the issue of consent), and not put right, they convicted.
I am satisfied that the trial miscarried, by reason of the manner in which the Crown case was put. It is unfortunate, in my view, that it has been necessary to isolate individual passages from the address, and consider them separately. None, in my opinion, (except perhaps that which raised threats and coercion in relation to consent) would be sufficient to vitiate the verdicts of guilty. It is the overall effect of what were, individually, relatively minor transgressions, that had a cumulative effect. The impression I gain from reading the address is of confusion, misleading factual statements, and, most importantly, an erroneous submission about the absence of consent.
It is the accumulation that satisfies me that the verdicts of guilty ought not be allowed to stand.
As I have said, I share the reservations of Grove J about the propriety of appealing to a gender based section of the jury to decide the facts on the basis of their own personal experiences. This was going much further than appealing to the wisdom of members of the jury. Such an appeal was also made by counsel for GDD in the passage extracted by R A Hulme J. This issue, to my mind, exposes a tension that, so far as I am aware, has not yet been explored. The tension concerns directions that are routinely given to juries. On the one hand, they are traditionally instructed that they bring their own common sense, experience of life and wisdom to the task of fact finding.
On the other hand, and of more recent origin, they are expressly instructed not to conduct their own experiments, researches, or investigations of the scene of an alleged crime.
Counsel inviting juries to examine evidence from a particular point of view will need to exercise caution in expression. That is, in my opinion, a dangerously wrong approach. The question the jury has to decide is whether the participants behaved as they, or other witnesses, said they did. It is wrong to invite juries to determine contested factual issues on the basis of their assessment of how they would feel, how they would react, or what they would do. The task of the jury is to consider and determine the factual issues put before them. It is for the jury to decide whether the conduct did occur (if it is part of the Crown case) or may have occurred (if it is part of the defence case). In doing so the jury must put aside personal prejudices and opinions, and decide rationally, objectively, impartially and dispassionately whether the person in question did or did not behave as alleged. Not infrequently they are asked to consider alleged conduct that is entirely foreign, even alien, to their own experience, and conduct that many would regard as anathema, bizarre, unacceptable.
The present case is, in fact, a good example of the last of these, if not also the first and second.
Finally, I wish to comment on the observation of R A Hulme J at [150] that, after the judge had informed counsel of his decision not to discharge the jury, counsel said nothing further. In my opinion, counsel had, in raising the issue, discharged their obligation. But the point is not whether Pt 4 of the Criminal Appeal Rules applies: it is that, in the atmosphere of the trial, counsel perceived problems in the various respects they raised. It is often said (in the context of trial counsel failing to mention matters later raised on appeal) that counsel (and the judge) are in the best position to assess the impact on a trial of some piece of evidence, or question. The same has to apply where counsel did perceive a difficulty.
I agree with the orders proposed by Grove J.

R A HULME J: Grove J has concluded that the combination of six features of the Crown Prosecutor’s address led to a miscarriage of justice. He is of the view that other matters in the address that are the subject of complaint are of no significance. I agree with his conclusion about the latter but, regrettably, not in relation to the former.

Grove J has referred to the judgment of McClellan CJ at CL in Causevic v R [2008] NSWCCA 238 in which there is a convenient summary of the relevant principles. There are two issues, whether the Crown Prosecutor overstepped the limits of her role, and if so, whether the result was a miscarriage of justice. It is not in every case of a Crown Prosecutor acting beyond the well recognised boundaries of his/her office that a trial will be found to have miscarried. Each case will depend upon its particular circumstances: per McClellan CJ at CL in Causevic v R at [6]. There have been cases in which the excesses of the prosecutor have been, on the face of it, quite egregious and yet it has been held that no miscarriage occurred. An example is Libke v The Queen [2007] HCA 30; 235 ALR 517.

An issue in Libke was the manner of cross-examination of the accused and comments made by the prosecutor in course of it. They included the prosecutor saying, “I put it to you your evidence is just a tissue of lies” and then proceeding to ask another question without waiting for a response. At another point the prosecutor conveyed a personal view about the accused’s credibility by saying, “Look, I’ve heard all of that. I’m trying to convey to you I’m not buying it”. At the end of the cross-examination the prosecutor asked the accused whether he wanted to comment on the proposition that, “wherever you see a situation there that’s a problem you will thrash around to try to make up some explanation for it” and when the accused declined the invitation to comment on the proposition the prosecutor responded, “Hopeless asking a question”. Complaint was also made that the cross-examination was confusing, harassing, oppressive and repetitive.

Hayne J, with whom Gleeson CJ and Heydon J agreed, said (at [80] – [81]) that the comments should not have been made and they represented a departure from the rules that ensure the orderly conduct of a trial. However, he concluded:

[82] The trial prosecutor should not have aligned himself with the prosecution case, which is what he did whenever he conveyed to the jury his own opinion of the appellant's evidence. Would these repeated expressions of alignment with the prosecution case have distracted the jury from their task of assessing whether the evidence that was led at trial established the appellant's guilt beyond reasonable doubt? Would other aspects of the cross-examination have caused or contributed to that consequence?
[83] Both those questions should be answered "no". To discharge their function properly, the jury had to focus upon whether they were persuaded, beyond reasonable doubt, that the evidence established the appellant's guilt of any of the several offences they had to consider. The jury's verdicts, acquitting the appellant of some offences but not others, are consistent with their having paid close attention to their proper task. The comments which the trial prosecutor made were comments about matters in issue in the case. They were not comments that suggested (whether directly, or indirectly, by appealing to prejudice or passion) that the jury should follow some impermissible path of reasoning. The trial prosecutor's alignment with the contention that the jury should be persuaded to that conclusion did not make the underlying prosecution case unfair. The trial prosecutor should not have made the comments he did but their making caused no miscarriage of justice. The appellant's complaint of miscarriage on account of the prosecutor's conduct fails. (Footnotes omitted).

The six features of the prosecutor’s address which have led Grove J to conclude that it would be unsafe to allow the convictions to stand involve misstatements of the evidence, disparagement of the defence cases and intrusion of the prosecutor’s personal opinions. In the light of the authorities it is appropriate to consider these features, both individually and collectively, with a view to determining whether there is a risk that the jury were distracted from their task of considering the cases for the Crown and the defence rationally, objectively and dispassionately in accordance with the directions of the trial judge.

Regularity of visitors to the flat.

As Grove J has noted (at [32]), the trial judge corrected what the Crown Prosecutor had said. Counsel drew this misstatement by the Crown Prosecutor to the judge’s attention during the course of making the jury discharge application. The judge agreed that it was a misstatement that he proposed to correct and he subsequently did so in the passage of his summing up extracted by Grove J at [32]. Counsel did not ask the judge to do more than make the correction. Grove J is of the view that the judge should also have directed the jury that there was no contradiction of the testimony of GDD as the Crown Prosecutor had suggested. It is significant in my view that counsel did not ask the judge to do so.

The correction made by the judge was an adequate remedy. With the misstatement corrected, I cannot see how the jury might still have taken what the Crown Prosecutor had said into account in any fashion, including as being contradictory of GDD’s testimony.

No injury to GDD as a result of resistance by LAC.

Grove J has set out (at [34]) the relevant passage of the Crown Prosecutor’s address. In my view, what the prosecutor was saying in this passage was more directed to the lack of injuries to the complainant. What she said on the issue of injuries to GDD was incidental. I accept that she invited speculation that GDD may have sustained some injury. I fail to see, however, how the jury could have speculated about this in a way that might have formed part of a process of reasoning towards a finding of guilt beyond reasonable doubt.

Counsel for GDD referred to this part of the prosecutor’s address in his submissions on the discharge application and said, “It has no relevance at all”. It was in response to this that the trial judge said, “I frankly can’t see the jury making anything of it”. Nothing further was said about the topic. The judge later indicated he would make a number of corrections. While counsel were concerned to request corrections in relation to other matters they were not, apparently, concerned to ask the judge to make any reference to this matter.

Characterisation of the complainant as a sexual aggressor.

The complaint made at trial about the passage of the prosecutor’s address that included this reference to the complainant was not about her being referred to as a “sexual aggressor” at all. It was concerned with the submission made by the prosecutor that on the defence case the complainant was seeking to learn about sexual techniques. The complaint was about the prosecutor having said in this context:

“This is supposedly to learn about all these things, well her boyfriend’s in a detention centre, I don’t know who she’s learning them for at this time”.

The complaint was twofold. One aspect related to an inability to explore the complainant’s sexual experience. Nothing turns on that for present purposes. The other aspect was that the submission ignored the fact that the complainant’s boyfriend had not been in a detention centre for all of the time that she may have been seeking to acquire this “education” and that there was no evidence as to how soon after the day of the incident he might have been expected to be released.

The defence case was that the complainant was a willing participant in sexual activity on the occasion in question as well as on previous occasions. It was contended that she was the initiator of such activity on 24 June 2007 and that she was the initiator of the activity on the first of the “maybe four or five times” that there had been previous sexual activity.

The Crown Prosecutor used the expression “sexual aggressor”, it would seem, to highlight the improbability of the “immature 18 year old, somewhat lost in a difficult time in her life” as being the one who would initiate consensual sexual intercourse with the 28 year GDD. I accept that it was a description that overstated what was being advanced in the defence case but the distinction that the Crown Prosecutor was trying to make it was a valid one.

It was contended by counsel in the appeal that the term “sexual aggressor” was inflammatory. The fact that the same counsel did not see it that way at trial and made no complaint about it is significant. I am not of the view that it would have distracted the jury from the valid point the prosecutor was making and thus not of the view that it could have contributed to the trial miscarrying.

Consent not as a result of threats.

Grove J has observed (at [42] – [43]) that the trial judge correctly directed the jury as to the basis upon which the Crown alleged that the sexual intercourse was without the complainant’s consent, that is, that it was a result of being physically overcome by GDD and not a result of coercion by threats. However Grove J is of the view that the jury should have been warned of the need to isolate and exclude consideration of threats on the issue of consent.

The complainant did not say in her evidence that her will was overborne by threats. The jury were provided with the transcript of the complainant’s evidence in its entirety and so it cannot be thought, and it was not suggested, that any jurors could have been under any misapprehension as to what she had said on this subject. I am unable to see that the jury could possibly have reasoned to verdicts of guilty without acceptance of the complainant’s evidence beyond reasonable doubt that the intercourse occurred as a result of her being physically overborne.

Counsel for GDD raised this matter in the course of the application for the discharge of the jury. The judge indicated that he proposed to saying something about the issue and he did in fact say to the jury what Grove J has extracted from the summing up. If there was a risk that the jury may have concluded that the intercourse was without the complainant’s consent because her will was overborne by threats, either alone or in combination with physical force, I would readily agree that the trial miscarried. I am not prepared, however, to conclude that the jury may have acted upon something said by the Crown Prosecutor and to have disregarded the evidence of the complainant and the very clear direction given by the trial judge.

A personal view about showering after a sexual assault.

I note that the transcription error Grove J has referred to (at [46]) was corrected when this matter was the subject of discussion during the discharge application. There was no issue that the Crown Prosecutor had in fact said, “I probably would want to have a shower straight away”. Clearly this was a personal view that should have played no part in an address to a jury by a Crown Prosecutor.

I am of the view, however, that the trial judge was correct in characterising this as something that was more helpful to the defence than anything. With respect, I cannot see how it may have served to bolster the credibility of the complainant. It served to highlight what might have been regarded as an improbability in the account of the complainant that when she arrived home she went straight to bed without showering. The prosecutor correctly anticipated that something about the subject would follow in the addresses of counsel for the then accused. She was right. Counsel for GDD invited the jury to consider:

“(I)f you had been sexually assaulted isn’t that what you would do? If you had actually been sexually assaulted and felt really really dirty when you got home what would you do? You would rip your clothes off, wouldn’t you, and you would hop in a shower, surely that’s what you would do if you felt really really dirty after being sexually assaulted.”

I note that when the judge asked counsel whether what the prosecutor had said was something helpful to the defence, the response was, “If you accept – well I’m not going to cavil with what your Honour said”.

A personal view about GDD appearing “smug”.

The Crown Prosecutor’s statement that she thought that GDD “came over as very smug, slightly arrogant” was most inappropriate and it is unfortunate that the judge did not tell the jury to ignore it. However, it is significant, in my view, that he was not asked to.

It was submitted that the jury may reasonably be expected to look to the Crown Prosecutor as “a source of authority” and that “the expression of a personal opinion may therefore have affected the jury’s attitude to these matters”. I have doubts about whether the jury in this case would have so regarded the prosecutor. She was not referred to by personal name but, as tradition dictates, “Madam Crown”. The Criminal Trials Bench Book published by the Judicial Commission of New South Wales includes in suggested opening remarks that the trial judge inform the jury that the “Crown Prosecutor presents the charge(s) in the name of the State, and on behalf of the community”. The trial judge in the present case did not say anything to that effect. Criminal lawyers are well aware of the office of Crown Prosecutor, its history, traditions, duties and obligations. They know that a Crown Prosecutor is a “minister of justice” (see Libke v The Queen per Hayne J at [71]). It is doubtful that lay jurors know these things. It seems more likely to me that without being told otherwise, jurors would regard the prosecutor as simply a barrister with no more or less standing than defence counsel.

Even if the jury did regard the Crown Prosecutor as a figure of authority, I am unable to see that as a consequence of this they would have regarded her as having any particular expertise in the assessment of the demeanour of a witness. What she said about GDD’s presentation as a witness would have been well understood as her personal opinion. The judge gave to the jury quite standard and adequate directions about their role in assessing witnesses as part of their fact finding function. These directions included:

“It is for you to assess the various witnesses and decide whether they are telling the truth. You have seen each of the witnesses as they have given their evidence. It is a matter for you entirely as to whether you accept that evidence. Your ultimate decision as to what evidence you accept and what evidence you reject may be based on all manner of things, including what the witness had to say, the manner in which the witness said it and the general impression which he or she made upon you when giving evidence”.

The judge also gave directions concerning the fact that GDD had given evidence. In the course of these directions he said:

“The fact that the accused, (GDD), has given evidence does not place his evidence in any special or different category to the evidence of any other witness in this trial. You should approach any assessment of his evidence in the same way that you approach the assessment of any other witness”.

In the light of these directions I am unable to accept that any juror would have been inclined to pay any less regard to the evidence given by GDD because of what the Crown Prosecutor had said to them. Moreover, I am not prepared to conclude that the jury might have ignored the judge’s direction to make their own minds up about the assessment of witnesses, including GDD.

Generally

In relation to all of these matters it must be observed that in the course of hearing submissions in support of the application to discharge the jury, the trial judge indicated that in respect of some of the matters he would correct what the Crown Prosecutor had said. After he indicated the he would not accede to the discharge application he said that he proposed to make the corrections he had indicated. Neither counsel said anything further about the proposed corrections.

Moreover, at the conclusion of the summing up, counsel raised a number of matters but no complaint was raised about what the judge had said, or not said, in relation to any of the six features discussed above. This indicates to me that in the atmosphere of the trial counsel did not perceive any risk of a miscarriage arising from the absence of any further corrective action beyond that which the judge had taken.

An assessment of the significance of these matters in the prosecutor’s address to the jury should, in my view, incorporate an acknowledgment that the judge and counsel at the trial were in the best position to assess the impact they may have had upon the fairness of the trial. Significant weight should be given to the fact that complaint was raised by counsel for both appellants immediately after the prosecutor’s address was concluded. Equally, significant weight should be given to the lack of complaint by either counsel about the corrective action that the judge took concerning some of the matters and the absence of any action taken in respect of other matters. This consideration is not determinative but it is a matter that adds weight to the conclusions I have otherwise reached, although bearing in mind the following in the judgment of Gleeson CJ in Libke v The Queen:

[2] … It is difficult for an appellate court, relying only on the written record, to assess the impact of undisciplined conduct by counsel. It is also difficult, away from the atmosphere of the trial, to measure the significance of the absence of intervention by the trial judge or by opposing counsel. Those difficulties are to be taken into account by way of caution in approaching any attempt to minimise the complaints made on behalf of the appellant.

Conclusion

I have now had the considerable benefit of reading in draft the judgment of Simpson J. I remain of the view that upon an overall view of the complaints raised about the conduct of the Crown Prosecutor there was no miscarriage of justice. I would not uphold grounds 1, 2 and 3 in the appeal by GDD or ground 1 in the appeal of NJC.

I agree with what Grove J has said about ground 4 in the appeal of GDD and ground 2 in the appeal of NJC.

I would dismiss the appeal against conviction.

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LAST UPDATED:
15 April 2010