Gorge v The Queen - [2021] NSWCCA 206

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Gorge v R [2021] NSWCCA 206
Hearing dates: 29 March 2021
Date of orders: 27 August 2021
Decision date: 27 August 2021
Before: Hoeben CJ at CL [1]
Hamill J [2]
Wilson J [80]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIMINAL LAW – summing-up – balance – fairness – no allegation that trial Judge became advocate for prosecution – where trial Judge failed to refer to submissions made on behalf of accused person at trial – where no complaint made at trial – requirements of balance and fairness – extent of the need for comment on evidence and arguments – where trial short and issues clear and uncomplicated – summing-up to be considered as a whole

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Crimes Act 1900 (NSW), ss 61J, 61M
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
Castle v The Queen; Bucca v The Queen (2016) 259 CLR 449; [2016] HCA 46
Dixon v R [2017] NSWCCA 299
Domican v R (1992) 173 CLR 555; [1992] HCA 13
El-Jalkh v R [2009] NSWCCA 139
Healey v R [2006] NSWCCA 235
Maraache v R [2013] NSWCCA 199
McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5
R v Davis [1999] NSWCCA 15
R v Meher [2004] NSWCCA 355
R v Zorad (1990) 19 NSWLR 91
RR v R [2011] NSWCCA 235; (2011) 216 A Crim R 489
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
Williams v R [1999] NSWCCA 9; (1999) 104 A Crim R 260
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28

Category: Principal judgment
Parties: Mahir Samy Gorge (Applicant)
Regina (Respondent)
Representation:
Counsel:
P Lange (Applicant)
C Young (Respondent)
Solicitors:
Hardin Lawyers (Applicant)
Office of Director of Public Prosecutions (Respondent)

File Number(s): 2018/00179788
Publication restriction: Statutory non-publication order regarding the identity of the victim and other young persons.
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

15 August 2019

Before:

Judge Ingram SC

File Number(s):

2018/00179788

Judgment

HOEBEN CJ AT CL: I agree with Hamill J and the orders which he proposes.
HAMILL J: Mahir Gorge seeks to appeal against his convictions in relation to one count of aggravated indecent assault contrary to 61M of the Crimes Act 1900 (NSW) (count 1) and one count of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act (count 3). The two offences were allegedly committed on 5 June 2018 and the complainant, Fatima (a pseudonym),[1] was a 17-year-old employee at the applicant’s café in San Souci. Mr Gorge was found guilty on 15 August 2019 following his trial in the District Court before his Honour Judge Ingram SC and a jury. On 22 November 2019 he was sentenced to an aggregate term 4½ years imprisonment with a non-parole period of 3 years. There is no application for leave to appeal against the sentence.
1. Statutory non-publication order pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).
The applicant raises a single ground of appeal against the conviction, namely that “a miscarriage of justice was occasioned by the failure of his Honour to sum up the case for the defence, sufficiently or at all”. Because no complaint or objection was made at the trial, and no re-direction was sought, Mr Gorge requires leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). [2]
2. The Criminal Appeal Rules (NSW) applied at the time of the hearing of this appeal but have since been repealed by the Supreme Court (Criminal Appeal) Rules (r 6.3) which came into force on 1 May 2021.
I have concluded that leave to appeal should be granted but that the appeal must be dismissed. These are my reasons for that decision.

The prosecution case at trial

The Complainant’s evidence

The prosecution case was dependant on the evidence of the complainant although reliance was also placed on her early complaint and some forensic (DNA) evidence.
The complainant gave evidence that the applicant acted inappropriately towards her on a number of occasions between the time she started working at the café (22 April 2018) and the date of the alleged offences (5 June 2018). She said there were several instances of the applicant making inappropriate jokes and unwelcome sexual advances towards her during her shifts at the café. The offences were alleged to be an escalation of that behaviour and the culmination of a course of conduct which commenced during work hours earlier the same day.
The complainant gave evidence that on one occasion the applicant asked her to touch his chest. The complainant refused and the applicant grabbed her hands and put them on his chest, saying, “Oh, now it’s my turn. Let me touch yours”. This was referred to as “the Chest Incident”.
The complainant said on another occasion the applicant asked her which of the café’s male employees she would choose to “smash” (or have sex with) while showing her pictures of circumcised and uncircumcised penises on his computer. This was called “the Laptop Incident”.
On 5 June 2018, the complainant gave evidence that the applicant was holding a sausage in his hand and waving it in her direction. CCTV footage said to depict “the Sausage Incident” was tendered and played to the jury at the trial.
The complainant testified that on the day of the alleged offences, the applicant made lewd comments about oral sex while she was cleaning up in the sink area (“the Sink Incident”). There was a question over whether this incident was captured on CCTV and the complainant was cross-examined on that subject. The complainant gave evidence that the applicant asked her to perform oral sex on him and to “shake on it”. She said:

“Q. What happened in the middle of the day?
A. As I was wiping the rod of the sink, when I was wiping the sink area Marcus came up to me and he said ‘You like wiping rods, don’t you?’ I said ‘What do you mean? Why would I like wiping rods?’ and he said ‘Show me how you wipe the rod?’ so I showed him cause I thought he wanted to know how I clean the actual rod of the sink, you know, him being the owner of the store. I thought that was normal. And then he started smiling, laughing and then I, he was like kind of had a smirk on his face. So he said, so I said ‘Oh, is that what you mean? You’re so dirty minded’ and then he said to me ‘I, like, I really need that head’ and I just, you know, kept wiping the sink cause he’s always, like, talking dirty, so I thought nothing of it.
And then he asked me ‘Are you willing to give me head?’ That’s when I stopped and I said ‘Are you joking?’ and he said ‘No, I’m not joking. Like, I really need that head’ and then I said to him ‘Are you serious? Like, I’m 17 and you’re 31’. And then he said ‘No, I’m not joking, so no one needs to know’. I said ‘What? You do have a wife and you have kids, like, are you joking?’ and he said ‘No, I’m not joking. I really need that head. She doesn’t need to know’ and I was just really shocked.
Q. When you say ‘head’, what was your understanding when he said ‘head’?
What was he talking about?
A. Oral sex.
Q. In that conversation did he use any other words that meant oral sex?
A. In that conversation?
Q. Mm?
A. Sorry?
Q. When you were having that conversation at the sink he was saying the
word ‘head’--
A. Yeah.
Q. --meaning oral sex. Did he use any other expressions or words to
communicate the idea of oral sex to you?
A. Yes.
Q. What were those words?
A. He said ‘I really need that deep throat’ and that obviously meant oral sex.
Q. When he said that he ‘[r]eally needed that deep throat’ did he say anything
else about that?
A. He said ‘I haven’t had a good deep throat since before my wife’. And then I said to him—
Q. You would what, sorry?
A. Sorry?
Q. Say that again? You said something about ‘before my wife’?
A. He said ‘I haven’t had that good deep throat since before my wife’.
Q. So this conversation happened at - you said you were cleaning a sink. Is
that right?
A. Yep. Yeah.
Q. Okay, I understand. So during that day, 5 June, other than this conversation you had with him at the sink, was there any other conversation like that or similar to that in the café?
A. On that day?
Q. Yes. Or were there any - go on?
A. I just remember him begging and begging me to shake on it. He said, ‘Come on, do it for the boys. Shake on it.’ And I just remember saying, ‘No. No, I can’t do it.’
Q. What do you mean by ‘shake on it’? What does that mean?
A. So he put his hand out to shake hands on, on me agreeing to giving him head.” [3]
3. Trial Tcpt, 2/08/19, pp 269-270.

At closing time during the same shift, the complainant gave evidence that she and the applicant were bringing in tables from outside the café while it was raining. The applicant moved a table so that Fatima got wet. She said “you made me wet. Now I’m wet” and the applicant replied “oh, now you’re all wet” with a smirk on his face. This interaction was recorded on the café’s CCTV cameras.
These incidents were relied upon by the prosecution at trial as background or context evidence and to provide some support for the complainant’s account of the “escalation of conduct” leading up to the offences.
Fatima said she planned to go to the Female Fitness Club gym “around the corner” at the end of her shift on 5 June 2018. It was raining heavily and she decided to book an Uber despite the short distance to the gym. As she was walking back inside, the applicant called out from his vehicle and asked the complainant what she was doing. Fatima told him that she was waiting for an Uber and the applicant offered to drive the complainant to the gym saying, “[d]on’t be silly, like come in”.
Fatima got into the applicant’s car. The applicant said he knew where the gym was, but Fatima put the gym’s location into the Google Maps application on her ‘phone. She noticed the applicant took a wrong turn and stopped the car at an unfamiliar location. The complainant said the applicant put his seat all the way back and asked her to fellate him:

“[…] And then he had said, ‘Come on now, do it. Come on like, come on, I really
need that head, just get it over and done with, come on. Come on, give me
that head, I really need it’ and then I just said—
Q. [Fatima], if you want a break at any time--
A. No. No.
Q. If you want to keep going we can keep going, it’s a matter for you. Do you want to keep going?
A. Yeah. So then he rolled his seat down and basically just begged me to
give him head and I just kept saying, ‘No, no, I don’t want to do it.’ I, I didn’t
know what to do. It was raining really hard. I didn’t even know where I was, so then he just wouldn’t, he wouldn’t drive off.” [4]
4. Trial Tcpt, 2/08/19, p 272.

The complainant said she tried to distract the applicant by pretending another employee of the café was across the road. Fatima gave evidence that she was “really scared” and felt nervous when the applicant unzipped his jeans and exposed his penis saying, “Yeah, you’re going to do it”. The complainant said the applicant then grabbed her hand and made her “rub his penis up and down” until it was erect. Fatima gave evidence that she was not consenting and that she “didn’t know what to do and [she] didn’t want to do it”. This conduct was the subject of count 1.
The applicant then put his hand behind Fatima’s head, pulled her hair and forced her head down towards his genital area, before “slamming” her mouth onto his penis. The applicant kept hold of the complainant’s head and forced her to fellate him. The complainant said the applicant was moaning and saying words like “Oh, yes, baby” and “Come on, baby”. The applicant continued to do this for a period of time; about “two minutes, one minute. I don’t remember exactly”. The applicant tried to touch Fatima’s breasts and began “grabbing and squeezing” her bottom. At one point, the applicant put one of his hands inside Fatima’s jeans. Fatima gave evidence that she had tears in her eyes and “couldn’t really breathe”. The applicant ejaculated into the complainant’s mouth and shortly after she spat the ejaculate into a used coffee cup in the centre console area of the car. The applicant zipped up his jeans, said “I am going to sleep like a baby tonight” and told Fatima “don’t tell a soul”. This allegation was the basis of count 3 of the indictment.
The applicant then drove the complainant to the gym. Fatima had noticed a zip-lock bag of cannabis inside a used coffee cup. The applicant said, “that’s my weed”, to which Fatima replied, “well you’re not getting it back” and took it when she left the car.

Evidence of complaint

Once she was inside the gym, the complainant called her boyfriend, Amir (a pseudonym),[5] and said, “I think Marcus [the applicant] is a paedophile and I have weed from Marcus”.
5. Statutory non-publication order pursuant to s 15A of the Children (Criminal Proceedings) Act.
Amir gave evidence of this conversation and said he advised the complainant to “chuck [the cannabis] in the bin”. She sounded “normal” in that conversation. Later that night they had another conversation in which Fatima told Amir, “my boss is a paedophile” and she sounded sad. Amir gave an account of what Fatima told him about what had happened. The narrative generally, but not precisely, accorded with the evidence Fatima gave at the trial. Amir was cross-examined about a statement in which he told police that Fatima “sounded very weird, she wasn’t herself” in their first telephone conversation.
Fatima also told her mother, Amani (a pseudonym),[6] and two co-workers about the incident. Her mother recalled that Fatima told her the applicant, “pulled her by the hair and he forced her down there and he told her to suck his dick and he forced her”. Two other employees of the café gave evidence of what they were told by the complainant. Rose (a pseudonym)[7] said Fatima called her on the night of the incident and told her that the applicant followed her around all day asking for her “to give him head”, that he “forced her” and “asked her to swallow it”. Rose said the applicant sounded uneasy, distant and agitated. During the conversation, Rose encouraged Fatima to tell an adult about what had happened. Rose messaged Eva Johnstone via Instagram, who was a slightly older female staff member, asking her to call Fatima and said “something happened at work to [Fatima] and I think she needs someone older to talk about it”. Screen shots of the Instagram messages from Rose to Ms Johnstone were tendered at the trial. Ms Johnstone gave evidence that she had a ‘phone conversation with Fatima later that night during which Fatima said the applicant “raped her” and described the events in similar terms to the evidence that Fatima eventually gave at trial. Ms Johnstone sent several follow-up messages to Fatima checking on her well-being and providing advice about how to obtain her pay and resign, which were also tendered as an exhibit at trial.
6. Statutory non-publication order pursuant to s 15A of the Children (Criminal Proceedings) Act.
7. Statutory non-publication order pursuant to s 15A of the Children (Criminal Proceedings) Act.
On 6 June 2018, after some discussion between the Fatima, Amir and others, Fatima reported the matter to police. She made a statement and photographs were taken of bruising on the interior wall of Fatima’s upper lip. Fatima believed this injury was caused during the incident with the applicant.

Police investigation

The applicant attended Kogarah Police Station voluntarily on the morning of 8 June 2018, after he was requested to attend by police, and spoke with detectives. He participated in an electronically recorded interview (“ERISP”), was arrested and charged later that day, and released to bail on 12 June 2018.
Forensic evidence established the presence of semen inside the applicant’s car and a DNA profile consistent, to a very high degree of probability, with that of Fatima on the applicant’s work-shirt. There was also a semen stain on the shirt in the same location. The evidence of the forensic examiner and biologist was not without complication because some of the samples returned presumptively positive results for semen or “sperm cells” but the result could not be confirmed in all cases. In view of the way the case was conducted at trial and on appeal, there is no need to descend into the detail of these complications.

The applicant’s case at trial

The applicant’s case at trial largely accorded with the narrative he provided to police in his ERISP on 8 June 2018. He relied on what he had told police and did not give evidence at the trial. However, the applicant called evidence from his wife and another employee of the café, Mittiporn Wuttirat (“Tong”).
There was no substantial dispute about the complainant’s timeline of events on the afternoon of 5 June 2018. The applicant agreed that the complainant travelled with him in his vehicle to the Female Fitness Club shortly after work finished, and that the applicant pulled the car over for a period of time. However, the applicant’s case was that the complainant initiated the intimate conduct the subject of count 1 and denied that the conduct alleged in count 3 occurred at all. He said whatever happened between he and the complainant took place when he stopped the car to locate his cigarettes.
The applicant disputed the complainant’s characterisation of the “background evidence” (the “Chest”, “Laptop”, “Sausage”, “Sink” and “Table” incidents). He adduced evidence from Tong to rebut parts of the prosecution’s case. Tong said she had never seen the applicant do anything inappropriate towards the complainant. She said the applicant was “friendly” and would “make a joke with us all”. She gave evidence that he made jokes about his “boobies” with her. This conflicted with the complainant’s evidence in which she denied that the applicant would frequently make jokes with staff members about his chest muscles. Trial counsel relied on this evidence to undermine the complainant’s evidence that the applicant’s conduct was sinister and directed to her specifically. It was submitted the conduct was merely part of the applicant’s friendly and jocular interaction with the staff at the café.
The applicant’s wife gave evidence relating to “date nights” during which the couple had sex in his car and occasions when the applicant wore his work shirts during sexual activity. She also gave evidence that she and the applicant had sex “most mornings” while the applicant wore his work shirts. This evidence was adduced to explain the DNA evidence led by the prosecution concerning forensic samples of semen obtained from the applicant’s clothing and car shortly after the complaint was made.
The applicant’s case as to the presence of Fatima’s DNA was simply that the finding was uncontroversial given that there was no issue that she had travelled in the applicant’s car.

The ground of appeal: A miscarriage of justice was occasioned by the failure of his Honour to sum up the case for the defence, sufficiently or at all.

The applicant’s submissions

The applicant submitted that the summing-up lacked balance and was “deficient, in that it failed sufficiently or, indeed, entirely, to refer to the arguments, which had been advanced on the [applicant’s] behalf”. Reference was made to cases such as R v Zorad (1990) 19 NSWLR 91 at 105 and El-Jalkh v R [2009] NSWCCA 139 at [147] (James J). The submissions focussed on various failures to discuss the defence case at different stages of the summing-up. Specifically, the applicant complained about the directions and the lack of reference to the defence case in respect of four categories of evidence: the “complaint” evidence, the ERISP, the CCTV evidence and the DNA evidence.

Complaint Evidence

Fatima’s various accounts of the incident to her mother, boyfriend and two co-workers after the incident and the days following was referred to as “complaint evidence”. At the hearing of the appeal, the applicant conceded that the defence case on the complaint evidence was addressed in the summing-up but submitted that it was “perhaps unsatisfactory”. [8]
8. Appeal Tcpt, 29/08/21, p 2.

The applicant submitted that the trial Judge failed to “discuss the differences” in the accounts of the incident the complainant provided to various witnesses. [9] The applicant contended that the “only substantial” reference to the defence case in this part of the summing-up was to contextualise the direction which followed; which was to the effect that contradictions in recollection or recounting might be expected in the aftermath of a traumatic incident. [10] The applicant took the Court to the following part the summing-up:
9. Applicant’s written submissions at [35].
10. Applicant’s written submissions at [35].

“There are four witnesses that the Crown has relied on. There is [Amir], and you will remember that [Amir] was described as the then boyfriend of the complainant at the time of these events on 5 June 2018. There was the evidence of [Rose] who was a co-worker at the café. Then there was the evidence of Ms Eva Johnstone who was another worker at the café, but a person who was somewhat older than both the complainant and [Rose]. Then there was the complaint to the complainant's mother [Amani]. The Crown case relies on the evidence of each of those witnesses, and you will recall [Amir] and [Rose] and Ms Eva Johnstone told you about conversations that they had with the complainant at various times in the late afternoon and evening of 5 June 2018. That is to say, in the period following the complainant arriving at the gym and then in the hours that followed that. Whereas [Amani], the mother of the complainant, was telling you about a conversation, more particularly a telephone conversation that she had with her daughter the following day on 6 June 2018, in brief, at a time where the complainant was apparently at or near the police station at Kogarah.
It is for you to decide whether a complaint was made to any of these individuals, [Amir], [Rose], Ms Johnstone or [Amani] and it is also a matter for you to decide what the contents of any such conversation actually were. If you find that a complaint was made substantially to the effect that the evidence of the complainant disclosed, or the other witnesses disclosed, then you can use that evidence of what was said in the complaint as some evidence that such an assault or assaults did in fact occur or take place. That is, you can use the evidence of complaint as some evidence independent of the evidence given to you of the incident, or incidents in this case, by the complainant in the witness box. Here, when I say incidents I am separating out and distinguishing the incident giving rise to counts 1 and 2, and counts 3 and 4, that is to say the taking of the complainant's hand by the accused and placing it on his penis, and the second incident is the taking of the complainant's head or hair and forcing her mouth down onto his penis.
The law says that because of the circumstances in which the complaint or complaints were made, you are entitled to use what was said in that complaint or those complaints as evidence of the truth of what the complainant alleged against the accused. You are entitled to find that the complaint was made at a time and in a manner that would indicate that the allegations were reliable, that is that the allegation is less likely to have been fabricated by the complainant, and more likely to be accurate. There may be also other matters that you take into account in relation to the circumstances of the making of the complaints. You will recall that each of the witnesses, or a number of witnesses in this category, gave some evidence of their impressions of the demeanour or presentation of the complainant at the time.
You might remember in relation to [Amani], in particular, she spoke about the sound of her daughter's voice on the phone, whether she sounded as though there was some issue or the like. Similar evidence was given by [Rose] and those are matters which I will describe as factors that you could potentially take into account as indicative that there was some form of distress on the part of the complainant at the time of the complaint, or if not distress in the usual meaning, then there was something about her voice and her presentation which was out of the ordinary at that time.
It is a matter for you whether you draw the conclusion that I have referred to above in this case and so treat the complaint as evidence of the alleged assaults by the accused. In addition to the evidence that has been given about those assaults during the trial by the complainant, if you do use this evidence as some evidence of the assaults that is the subject of one or more of the charges on the indictment, then what weight you give this evidence is again a matter for you.
Secondly, however, the Crown asserts that the evidence of complaint also has another purpose. The Crown contends that the fact that the complainant raised the allegations against the accused at the times and in the manner that she did, would lead you to accept that the evidence she gave in the witness box to you about those assaults, the indecent assault and the sexual assault, that the circumstances are such that it would lead you to accept the evidence that she gave to you regarding those matters. In other words, it makes her account or her evidence more believable than if she had not raised the allegations as she did with one or more of, or indeed each of these people, [Amir], [Rose], Ms Johnstone and her mother [Amani] the following day on 6 June.
Again, it is for you to decide whether this complaint was made, or more correctly, whether these complaints were made. But if you are satisfied that one or more of them was made, then the question you should ask yourself is did the complainant acting in the way that she did in speaking to one or more of these individuals, as she said she did, and as each of them said she did, would her acting in that way be such that it is in fact her acting in a way you would expect her to act if she had indeed been indecently assaulted and sexually assaulted, as she said she had been? Is what the complainant did the sort of conduct you would expect of a person who has been assaulted sexually in those ways? If you think that the complainant has done what you would expect someone in her position to do, that may support the Crown case because you may find that there is a consistency between the complainant's conduct and the allegations that she makes against the accused.
On the other hand, if the complainant has not acted in the way or ways you would have expected someone to act after being assaulted, indecently assaulted and sexually assaulted as she described in her evidence to you, then that may indicate that the allegations are false. But bear in mind when considering this issue there may be good reasons why the complainant did not raise the allegations more fully and more immediately following the alleged assaults, and that a failure to do so more fully and/or more immediately does not mean that the allegations must be false. Of course the fact or circumstance that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasion or occasions.
In response to the Crown case, the accused, through his counsel, has drawn attention to a number of what could be described as gaps or differences or deficiencies in the accounts given by the complainant. Those include that the first telephone call to [Amir] did not in fact include a complaint of the indecent or sexual assaults, and that there were, beyond that, differences between the accounts given by the complainant to the other witnesses, that is to say [Rose], Ms Johnstone and her mother [Amani]. Experience shows that people may not remember all the details of an event, including a sexual offence or offences in the same way each time. The trauma may affect people differently and may affect how they recall events. But sometimes there are differences in an account of a sexual offence or offences, and that both truthful and untruthful accounts of an event or events, including a sexual offence or offences, may contain differences.” [11]

The ERISP

11. Summing-up, 12/08/19, pp 23 – 27.

The applicant criticised Judge Ingram’s summing-up of the applicant’s ERISP as being little more than “a prelude to a Zoneff[12] direction”. That is, the reference to the ERISP was simply used as an example of how the jury was entitled to use the applicant’s version of events if it formed the view that parts of it were false. It was submitted that it amounted to a direction as to how the jury “could treat lies in his record of interview, if its members concluded that the [applicant] had told lies”. [13] The applicant submitted this was an example of a failure to adequately to address or explain the applicant’s case. The applicant referred to the following part of the summing-up:

“In the course of the proceedings, the electronically recorded interview of the accused was played to you, and in the course of the Crown's address to you Mr Crown invited you to examine the interview and to note, as he submitted, that there was a development or a change in the account given by the accused over time in the interview. In that sense, the Crown is inviting you to consider whether or not, amongst other things, the answers expanded upon, later in the interview, the answers that were given earlier, or whether or not there was something more at play involving an absence of candour or a lack of candour.
The issue of a developing account is one which may give rise in your mind to whether or not the person was being candid, in other words truthful, and if they were not, then your view might be that they were in fact saying something which was untrue, that is lying.” [14]
12. (2000) 200 CLR 234; [2000] HCA 28.
13. Applicant’s written submissions at [43].
14. Summing-up, 12/08/19, pp 35-36.

It was submitted that, “far from explaining the [applicant’s] case, the direction, being one of the few references to the record of interview, had the very real capacity to detract from the importance of that record of interview”. [15] At the hearing of the appeal it was submitted:

“…it was not sufficient for the learned trial judge to simply point out that evidence which was available for consideration by the jury and that really is a major thrust of my learned friend’s arguments, but instead his Honour needs to go one step further and say how that available evidence might be employed in assessing the credit of the complainant. It was not simply sufficient to say that the jury had available to it the record of interview, which of course it did, particularly in circumstances where a Zoneff direction had been given which may to an extent have diminished the weight the jury might have given to the answers. I can’t put it any higher than that, but it was particularly mentioned in that context.” [16]

CCTV evidence

15. Applicant’s written submissions at [43].

16. Appeal Tcpt, 29/08/21, p 1.

The applicant argued that the trial Judge did not explain to the jury how the CCTV footage had the capacity to undermine the credit of the complainant in relation to the evidence she gave as to the background incidents. The applicant argued that the Judge erred in failing to draw the jury’s attention to Fatima’s responses when confronted with the CCTV evidence and that the cross-examination on this issue, and by reference to this objective evidence, had a capacity to undermine the complainant’s credibility.
At the trial, defence counsel (who did not appear on the appeal) used the CCTV footage in cross-examining the complainant in relation to the Sausage Incident and the Sink Incident. It was submitted that the complainant made various concessions and changed her version of events.
In relation to the Sausage Incident, the applicant relied on the following cross-examination:

“Q. I'm going to take you to another incident, one that we've looked at footage of this morning, if I can refer to it as the sausage incident, that is, where Marcus is seen on the footage, to be holding a sausage in his hand? Do you know what footage I'm talking about?
A. Yep.
Q. The Crown showed you that before lunch, I think.
A. Yes.
Q. Now, that footage is from 5 June 2018, at about 9.30am, you agree with that?
A. Yes.
Q. That is, 9.30am real time, not footage time?
A. Yes.
Q. That was all done in good humour, wasn’t it?
A. I don’t think it's appropriate that—
Q. You were laughing, weren’t you?
A. Well I, when I'm nervous, I kind of laugh. I was young. I was 17.
Q. Did you tell the police that you were nervous?
A. Yeah. I told them.” [17]
17. Trial Tcpt, 5/08/19, p 355.

The complainant conceded that other people were present when this incident occurred:

“Q. There was at least three other people present during this incident, you agree with that?
A. Yes.
Q. And they’re all seen to be at various points laughing, aren’t they? Do you agree with that?
A. Yes.
Q. This was generally in line with the playfulness at the café, wasn’t it?
A. Sorry?
Q. Marcus is a bit of a joker isn’t he?
A. Yeah.
Q. And he would make jokes with the kitchen staff and wait staff from time to time about things?
A. Yes.
Q. And that footage that the Crown showed you earlier, the sausage footage, is in line with the general environment at the café?
A. Yes, but I don’t that’s appropriate to do it with a--
Q. I’m not asking you at this point whether you think it’s appropriate or not I’m asking you was that in line with the general environment at the café?
A. Yes.” [18]
18. Trial Tcpt, 5/08/19, p 356.

The prosecution led the following evidence in relation to the CCTV footage said to capture the Sink Incident:

“Q. Just to be sure, the evidence you gave on Friday about Marcus talking to you about wiping a rod, was that conversation that happened at the time that we saw during that video clip then, is that right?
A: I remember it happened on that day. I don’t know if it was at that time.” [19]
19. Trial Tcpt, 5/08/19, p 329.

Defence counsel cross-examined as follows:

“Q. We watched some footage this morning, the Crown showed you some footage of that incident, do you remember that?
A. Yes.
Q. And you were at the sink?
A. Yep.
Q. And Marcus was there?
A. Yep.
Q. And I think the footage went, and the Crown will correct me if I’m wrong about this, for three to four minutes I think it was, do you agree with that?
A. Yep.
Q. Do you agree that at no time in the footage that we’ve seen on that clip, you were touching the rod of the sink?
A. No.
Q. Do you agree with that or you disagree with that?
A. Disagree.
Q. You say that you were touching the rod of the sink? I’m suggesting that you were only seen on the footage cleaning the basin of the sink and by that I mean the tub of the sink, if I can describe it that way?
A. I was cleaning the rod as well.” [20]
20. Trial Tcpt, 5/08/19, pp 357-358.

Counsel then replayed the CCTV footage and Fatima made some concessions as to whether the footage actually related to the Sink Incident:

“Q. Do you agree that in that footage at no time does your hand make contact with the rod of the sink?
A. Yes.
Q. You agree that it doesn’t?
A. Yes but I remember wiping the sink with rod, I remember wiping that rod and he said that.
Q. And when do you say that happened?
A. In that day, I don’t remember the time.
Q. So on 5 June 2018?
A. Yes.
Q. Now, you’ve said just now that, was I understand it, you’re now saying that that footage is not actually the incident you’re talking about, but it must be at some other point is that what--
A. No, no.
Q. So, are you saying that the footage that we’ve just watched--
A. Yep.
Q. --is the incident that you gave evidence about this morning or is it not?
A. It is about the evidence that I gave this morning.
Q. We’ve watched the footage this morning of that but I think you gave evidence about it on Friday?
A. Yep.
Q. So, when you asked him what he meant and he (as said) said ‘Why would I like wiping rods?’ and he said ‘Show me how you wipe the rod’ and you said to this jury ‘So I showed him because I thought he wanted to know how I clean the actual rod of the sink’?
A. Yes.
Q. So the footage that we’ve just watched, is that what you’re referring to in your evidence?
A. I can’t remember. It was at that exact time and that, yeah, near that sink and I remember him saying that to me.
Q. Well a moment ago I asked you, is the footage we’ve just watched the incident that you’re talking about and you said ‘Yes’?
A. Yes I meant, yes as in when he asked me to give him head.
Q. I’m talking about in relation to the rod of the sink. Is the evidence - if you could just wait for the question. Is the evidence you’ve given about that on Friday, the passage that I just read out to you, is the footage, what you said on Friday is that what we’re looking at in the footage?
A. I don’t know.
Q. So now you don’t know. So a moment ago when I asked you is the footage referable to the incident that you’ve spoken to the jury about, you said ‘Yes’. Then a few answers later it was “No it’s not, that was some other incident also on 5 June and now you’re saying you don’t know. Is that the situation?
A. I don’t know, I, that happened I don’t know if it was in that time stamp. I don’t know.
Q. Do you remember giving a statement to the police on 29 July 2019?
A. Yes I do.
Q. Last week?
A. Yes.
Q. And this footage was played to you?
A. Yes.
Q. That is, if I can call it the sink footage, what we’ve just watched, yes?
A. Yes.
Q. And you told the police ‘I saw myself standing at the sink. I remember this incident. I saw and remember what Marcus walking over to me. I remember him doing that. He started asking me about head jobs’. Do you remember telling the police that on 29 July?
A. Yes.
Q. You were making those comments when you were looking at the footage that we’ve just seen, do you agree with that?
A. Yes.
Q. So that is the incident that you’re talking about isn’t it?
A. Yep.
Q. It is?
A. Yes.” [21]
21. Trial Tcpt, 5/08/19, pp 358-360.

The applicant’s case is that these kinds of inconsistencies in the complainant’s evidence, and the concessions she made during cross-examination when confronted with the CCTV footage, ought to have been brought to the jury’s attention in the course of the summing-up.
The applicant submitted that as the Prosecutor at trial had “at least partly” relied on the DNA evidence, and the trial Judge had at least implicitly referred to the Prosecutor’s argument, that fairness required the Judge to refer to “at least some of the arguments” made by the defence in countering that evidence and those arguments. At the hearing of the appeal, the applicant emphasised the trial Judge’s failure to link the DNA evidence with the applicant’s account of how a mixed DNA profile may have been deposited. [22]
22. Appeal Tcpt, 29/03/21, p 7.
The applicant drew attention to the following part of the summing-up:

“Another matter that the Crown relies on in relation to the drawing of inferences is in respect of the DNA and forensic evidence concerning the presence of DNA material having a profile in common with, or the same as the accused and/or the complainant, and also the presence of other forensic material such as semen or sperm. The DNA and forensic evidence results are part of the material from which the Crown invites you to draw conclusions in relation to, or inferences, in relation to the presence of such material in the locations referred to in the Crown case, including on the shirt or the work shirt of the accused, and in the interior of the accused's motor vehicle. Those forensic samples, you will recall, were referred to in Detective Wong's evidence, and the Crown is inviting you to draw conclusions or inferences as to how that forensic material came to be where the samples were taken from, and more particularly that the Crown case is that those samples came to be where they were located as a consequence of the offences on the indictment. In relation to the DNA evidence and the evidence concerning the presence of semen, you must first consider the primary facts concerning those matters. That is, the locations of where the samples were taken from, when they were taken, how the material may have come to be in those locations, and the periods of time over which they may have remained there, together with all the other matters disclosed to you in relation to the evidence of Detective Wong, and also Ms [Trabuio] who you will recall gave evidence the other day of both the DNA results, but also other matters touching upon the presence and longevity or period of time over which such material might remain in its various places.

Having considered all of the primary evidence in relation to the forensic samples, the DNA and the semen material, then you would need to consider whether there are any inferences other than the guilt of the accused of one or more of the counts on the indictment to be drawn from those facts. Such matters that require your attention include the considerations raised in the evidence of each of the witnesses, whether or not the material was semen, whether it was sperm, the question of secondary transfer and so forth. The Crown's case is that this material came to be found on the shirt as a consequence of the offences on the indictment, that is to say that the semen was found on the shirt in the area you would expect it to be found if indeed there had been ejaculation in the circumstances that the complainant describes, and there is a mixture of DNA material which, on the Crown case, you would be satisfied comes from the complainant and the accused. The other material is the material near the door handle which on the Crown case is semen, and is consistent upon the Crown case with the semen having been deposited there as a result of the complainant using her hand to open the door handle from the inside, the charges in counts 1 to 4 having already taken place. You must examine the primary evidence and all the evidence concerning the forensic samples, including the DNA, sperm and semen evidence, and determine whether or not the inferences the Crown invites you to draw are indeed inferences that you draw in the circumstances, having regard to these directions.” [23]
23. Summing-up,12/08/19, pp 21-22.

It was submitted that these directions, and the other passages of the summing-up, failed to provide any explicit reference to the positive case of the applicant on this issue; that is, the explanation provided by the applicant in his ERISP and the evidence of his wife concerning the couple’s “date nights”, which included sexual intercourse in their car and while the applicant was wearing his work shirt.

The accumulation of these matters in the context of the single issue at the trial

The thrust of the applicant’s case on appeal is that this accumulation of failures to put the applicant’s case led to a mistrial. The applicant suggests the omissions meant that there was “no discussion of the defence case” in the context of the summing-up.

The respondent’s submissions

The respondent submitted that the summing-up, viewed as a whole and in the context of the relatively simple issues that the jury was called on to determine, established no unfairness to the applicant, did not lack balance, and did not give rise to a miscarriage of justice.

Complaint Evidence

The trial Judge directed the jury at length on the nature of “complaint evidence” and the respondent relied on the following directions which were said to be favourable to the applicant:

“In response to the Crown case, the accused, through his counsel, has drawn attention to a number of what could be described as gaps or differences or deficiencies in the accounts given by the complainant. Those include that the first telephone call to [Amir] did not in fact include a complaint of the indecent or sexual assaults, and that there were, beyond that, differences between the accounts given by the complainant to the other witnesses, that is to say [Rose], Ms Johnstone and her mother [Amani].
Experience shows that people may not remember all the details of an event, including a sexual offence or offences in the same way each time. The trauma may affect people differently and may affect how they recall events. But sometimes there are differences in an account of a sexual offence or offences, and that both truthful and untruthful accounts of an event or events, including a sexual offence or offences, may contain differences. It is your task, or your job, and entirely a matter for you as members of the jury, as judges of the facts, to decide whether or not any differences in the complainant's accounts are important in assessing her truthfulness and reliability.
You have also heard evidence, and it will be self-evident to you from his evidence and the complainant's evidence, that the complainant did not in fact complain to [Amir] when she initially spoke with him on the telephone. A delay in making a complaint about an alleged sexual assault or sexual offence does not necessarily indicate that the allegation that the offence was committed is false. There may be good reason or reasons why a person who has been the subject of a sexual assault or assaults may hesitate in making, or may in fact refrain from making a complaint about such an assault.
You have heard some evidence from the complainant in relation to the first call, and then the later call to [Amir], and in relation to the absence of complaint in the first call, some reference by the complainant to her concerns at that time as to what his likely reaction might in fact have been. However, the delay in making the complaint, that is to say the absence of complaint when first speaking to [Amir], is a matter that you may take into account in assessing the credibility of the complainant's evidence as to what she said that the accused did, that is to say in relation to the complainant's accounts of the offences on the indictment being counts 1 to 4.” [24]

24. Summing-up, 12/08/19, pp 23 – 28.

The ERISP

The respondent submitted that the summing-up adequately addressed the ERISP and, in spite of the Zoneff direction, the jury were directed twice, on two different days, regarding the appropriate use of this evidence. The respondent drew attention to the first direction concerning the use of the ERISP which was in the following terms:

“The accused does not have to prove anything about those accounts, it is material which is before you for your consideration and the Crown has to satisfy you that the account given by the witnesses in this case, Mrs Gorge and the co-worker Tong, should not be accepted by you as providing accounts or aversions of events that could possibly be true. Now in addition to that, the Crown case includes the disc and the transcript of the electronically recorded interview. The accused voluntarily attended the police station, he voluntarily undertook the interview. Now it is important to appreciate some things about those circumstances, ladies and gentlemen. A person may voluntarily go to the police station, on the other hand if they do not, they might be arrested and taken to the police station but in this case the accused voluntarily went there. He also voluntarily undertook the interview. Now even a person who is compelled to go to the police station cannot be compelled to answer any question whatsoever for any reason at any time in relation to a case such as this, so that is a further consideration you should bear in mind. It was an interview that he could have sat there and said, ‘thank you officer, I choose not to answer any question’ and that would have been the end of the interview, there would have been no material placed before you and nothing could be said or done about that. So it is important to understand that when counsel says to you, well it was a voluntarily state of affairs, he voluntarily presented himself to police and he voluntarily participated in the interview, that word ‘voluntarily’ needs to be considered in that context. What you make of the evidence of course is entirely a matter for you, I am just simply drawing to your attention that that is the significance of the word ‘voluntarily’ in that context. So the accused in the course of that interview provided an account in response to questions asked of him by the police in the recorded interview. He is entitled to rely on that account and I ask you to take that account into consideration, along with the other evidence in the trial. That evidence includes the evidence of Ms Gorge and the co-worker Tong, and along with the evidence in the Crown case. The Crown in discharging its obligation to prove the accused’s guilt beyond reasonable doubt must satisfied you that the account, or version if you wish to use that word, given by the accused in the interview of events is one which could not reasonably be true.” [25]
25. Summing-up, 9/08/19, p 4.

The respondent also drew attention to this passage of the summing-up:

“…The accused, as I have said, has called evidence from Ms Gorge and from the cafe worker who I will refer to as Ms Tong, if you do not mind, ladies and gentlemen, I am sure you know who I mean, but her name is a little bit of a tongue-twister. So this is the evidence given by those witnesses as part of the evidence, along with the electronically recorded interview called or relied on by the accused in his response to the Crown case, and it is part of the material that you must consider, along with all the other evidence in the trial.
As I have told you, there is no obligation on the accused to persuade you or satisfy you or prove anything in relation to that material, and it certainly does not have to persuade you to accept that evidence. What is required is that the Crown must satisfy you beyond reasonable doubt that you should reject that evidentiary material as providing a reasonably possible version of the facts. If the evidence that the accused presented and relies on, that is the evidence of, the content rather, of the ERISP, the electronically recorded interview, and/or the evidence of Mrs Gorge, and/or the evidence of Ms Tong, if that evidence leaves you with a reasonable doubt as to whether the Crown has made out its case in respect of any element of the offence or any essential fact that it must prove, then you are bound in law to bring in a verdict of not guilty. In other words, you do not have to actually believe what the accused says in the interview, you do not have to actually believe what Ms Gorge said, you do not have to actually believe what Ms Tong said were truthful answers or responses or evidence before the accused would be entitled to be acquitted or found not guilty. If at the end of your deliberations you find that the Crown has failed to eliminate a reasonable possibility that the accounts or versions given by those witnesses and the accused in the ERISP, in other words, that presented by the defence is true, then the Crown will have failed in its obligation to persuade you of the accused’s guilt beyond reasonable doubt.” [26]
26. Summing-up, 9/08/19, pp 5-6.

The prosecutor at the trial sought a re-direction and the following further direction was provided on the day the jury retired to consider its verdict:

“In addition to that, the accused gave a version of events in the recorded interview with investigating police, and the accused, as I have told you, is entitled to rely upon that account and ask you to take it into consideration with the other evidence that has been called by the Crown. The accused is not required to prove that that account he gave the police in the interview is true. The Crown in discharging its obligation to prove the accused's guilt must satisfy you that the version in the electronically recorded interview given by the accused is a version of events that could not reasonably be true. You will also be aware from your own memory that the accused has called two witnesses in the proceedings, Mrs Nicole Gorge, the wife of the accused, and Ms Tong, the lady who was called last in the trial who is a worker at the café. The fact that the accused has called evidence from these two witnesses does not alter or change the burden of proof which of course rests on the Crown throughout the trial. The accused does not have to prove that the evidence given by Mrs Gorge or the evidence given by Ms Tong is true. In other words, you, the jury, do not have to believe Mrs Gorge or Ms Tong are telling the truth before the accused is entitled to be found not guilty.” [27]

27. Summing-up 12/08/19, p 13.

CCTV

The respondent submitted that the trial Judge’s summary of the background evidence incidents, captured on CCTV, were largely devoid of reference to the arguments made by either counsel. The respondent drew attention to the following directions:

“The Crown case also included, in addition to the complainant's account of what took place in the motorcar, giving rise to counts 1 or 2, and counts 3 or 4, evidence of other incidents which I will refer to, for present purposes, as background evidence. What I mean by that is the incident which I will refer to, in brief, as the chest muscle touching incident - you might remember there is evidence about that which the complainant gave you. There is the sausage incident in the kitchen preparation area of the café, and that is disclosed on part of the closed-circuit television material. There is a third matter, being the evidence of the complainant that the accused showed her pictures or images of circumcised and uncircumcised penises, and that that took place on a laptop computer. There is the fourth incident, which I will refer to as the wiping of the sink rod incident where, on the complainant's account, she was cleaning the area of the sink and, included in that, an activity of cleaning or wiping the rod which, it is a matter for you ladies and gentlemen, but might also be referred to perhaps as the spout of the sink, but nevertheless you are the judges of the facts. In any event the wiping of the rod of the sink, and then the conversation that is alleged to have taken place where the accused approached her and spoke about that matter, that issue. Then the fifth item is the incident in which the tables were said to be being moved back into the café shortly before the closing time. It was raining outside and on the complainant's account, she was assisting the accused and he was paused so that she was compelled to remain in an area where water fell upon her, and she got wet and there was a conversation concerning her being wet.” [28]
28. Summing-up, 12/08/19, pp 21-22.

In any event, the respondent submitted that the key dispute as to the CCTV evidence was not so much whether the incidents occurred but whether they had any “sinister” meaning or were no more than harmless “workplace banter”.

DNA Evidence

The respondent submitted that the trial Judge directed the jury in relation to the inferences which could properly be drawn from the DNA evidence, and referred to the following part of the summing-up to which reference has already been made:

“In relation to the DNA evidence and the evidence concerning the presence of semen, you must first consider the primary facts concerning those matters. That is, the locations of where the samples were taken from, when they were taken, how the material may have come to be in those locations, and the periods of time over which they may have remained there, together with all the other matters disclosed to you in relation to the evidence of Detective Wong, and also Ms [Trabuio] who you will recall gave evidence the other day of both the DNA results, but also other matters touching upon the presence and longevity or period of time over which such material might remain in its various places.
Having considered all of the primary evidence in relation to the forensic samples, the DNA and the semen material, then you would need to consider whether there are any inferences other than the guilt of the accused of one or more of the counts on the indictment to be drawn from those facts. Such matters that require your attention include the considerations raised in the evidence of each of the witnesses, whether or not the material was semen, whether it was sperm, the question of secondary transfer and so forth.” [29]
29. Summing-up, 12/08/19, pp 21-22.

The respondent also drew attention to the directions on alternative inferences given in more general terms later in the summing up:

“What is required in relation to the consideration of expert evidence is that you have careful regard to it, and do not allow yourself to be placed in the position where you cease to look at the evidence in what I will call a critical manner. I am not expressing any view about what you would have about the evidence. You understand critical means critiquing, looking at carefully is all I am speaking about here. For example, if it was in a particular case to be that an accused's DNA was found in a particular situation and the jury in that case, picking for example the break and enter offence, said that the accused's DNA was there, therefore they must have committed the offence. You would need to consider that with some care, would you not, what other explanations might there be for the accused's DNA being in the house? Had he or she ever been there before? Had something been taken into the house that they might have come into contact with and so forth?” [30]

30. Summing-up, 12/08/19, p 35.

Consideration and resolution

There was no dispute as to the applicable legal principles and the parties each provided the Court with helpful references to the relevant case law. There is no doubt that a trial judge is required to put an accused person’s case “fairly and adequately” to the jury. [31] One of the issues is whether the jury might have been left under a misapprehension as to the defence case, such that they could not discharge their function. [32]
31. Healey v R [2006] NSWCCA 235 at [62]; RPS v The Queen (2000) 199 CLR 620 at [41]; [2000] HCA 3; Castle v The Queen; Bucca v The Queen (2016) 259 CLR 449 at [59]; [2016] HCA 46, R v Meher [2004] NSWCCA 355 at [76] and [82]-[86]; Dixon v R [2017] NSWCCA 299 at [14]; R v Roos [2019] NSWCCA 67, Domican v The Queen (1992) 173 CLR 555 at 561; [1992] HCA 13, RR v R [2011] NSWCCA 235; (2011) 216 A Crim R 489 at [86] – [87], Aravena v R [2015] NSWCCA 288 at [109].
32. Maraache v R [2013] NSWCCA 199 at [74], El-Jalkh [2009] NSWCCA 139 at [148] - [149].
In the end, the test is one of fairness in the context of the particular case,[33] and “when any excursion into the issues and evidence is taken”. [34] The “unfairness” which will ground a miscarriage of justice resulting from a summing-up “so lacking in balance as to be seen as an exercise in persuading the jury of the appellant's guilt”. [35] One formulation of the question to be addressed on appeal, as articulated in Maraache,[36] is whether “there was a reasonable possibility that the jury was misled by the summing-up in a significant way or that the jury might not have returned a verdict of guilty had his Honour directed their attention to the version of events advanced” by the defendant at trial.
33. Dixon v R [2017] NSWCCA 299 at [105].
34. Williams v R [1999] NSWCCA 9; (1999) 104 A Crim R 260 at [43] – [44] (Wood CJ at CL).
35. McKell v The Queen (2019) 264 CLR 307 at [4]; [2019] HCA 5.
36. [2013] NSWCCA 199 at [77].
In R v Davis [1999] NSWCCA 15 it was said (at [24]):

“The need for, and extent of, any exploration of the evidence and of the issues, in a summing-up, is to be assessed in the context of the trial, its length, its complexity and in the light of the way that it has been run.”

Similarly, in Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [108]:

“Whether that obligation has been met falls to be assessed in light of the nature of the trial, its length and complexity, and by reference to the way in which the parties have conducted their respective cases.”

In Aravena v R, it was also said at [104] – [106]:

“There is no question that the directions given by the trial judge to the jury during the course of the summing up principally dealt with evidence led in the Crown case. However, that does not of itself bespeak error. Whether or not a party’s case has been adequately put to the jury is not to be measured in minutes spent, or the number of words spoken; nor can it be assessed by direct comparison with the attention given by the trial judge in his or her summary of the case brought by the opposing party. Fairness and balance is not achieved and cannot be gauged by such means. That is particularly the case where the opposing party is the Crown. It is almost axiomatic that, in a criminal trial, the Crown’s case will constitute the vast majority, if not the whole, of the evidence placed before the jury.”

In Domican v R (1992) 173 CLR 555; [1992] HCA 13 the High Court (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) said at 561:

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

In RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 the High Court (Gaudron ACJ, Gummow, Kirby and Hayne JJ) said at [42]:

“… And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge’s other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel”.
(Citations omitted.)

More recently, in McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5, the High Court (Bell, Keane, Gordon and Edelman JJ) said at [35]:

“A trial judge must sum up for the jury the case presented by each of the prosecution and the accused after each side has addressed the jury. In Domican v The Queen, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ observed that ‘the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury’. In carrying out this task, it is no part of the trial judge’s role to don the mantle of prosecution or defence counsel’. As Gibbs CJ said in Cleland v The Queen, ‘[i]t is clear in principle that a trial judge, when directing a jury in a criminal trial, must hold an even balance between the cases of the prosecution and the accused’…”
(Citations and footnotes omitted.)

The majority addressed the permissible scope of judicial comment at [45]:

“In B v The Queen, Brennan J, with whom Deane J agreed, confirmed the ‘broad discretion’ of a trial judge to comment on the facts and to choose the language in which to do so, while emphasising that the ‘comment must stop short of overawing the jury’.”

Their Honour’s also stressed at [30]:

“It was common ground in this Court, as it was in the CCA, that, ‘in order to determine whether a summing up is unfairly balanced, it is necessary for it to be considered in its entirety and in the context of the issues and the evidence led in the trial’”

Finally, at [47] their Honour’s said:

"It is well settled that a trial judge’s discretion to comment on the facts should be exercised with circumspection. The need for circumspection is not merely a matter of prudence or politeness. Recently, in Castle v The Queen, Kiefel, Bell, Keane and Nettle JJ, with whom Gageler J relevantly agreed said, referring to the passages from RPS with which these reasons commenced:
'[U]nless there is a need for comment – as, for example, in dealing with an extravagant submission by counsel – the wise course will often be not to do so. Where the judge chooses to comment, the following statement of Brennan J n B v The Queen is to be kept in mind:
"[The comment] must exhibit a judicial balance so that the jury is not deprived 'of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence.'''"

(Footnotes omitted.)

I have considered the summing-up as a whole and in the context of the issues in dispute at the applicant’s trial. I am comfortably satisfied that the summing-up met the test of fairness and balance demanded by the authorities.
I accept that the trial Judge could have spent more time summarising or reminding the jury of the specific evidence relied on and arguments advanced by the applicant at the trial. By way of example only, it may have been preferable if his Honour had made explicit or more extensive reference to the applicant’s wife’s evidence and its possible relevance to the forensic and DNA evidence relied on by the prosecution. However, the jury could hardly have been under any misunderstanding of the significance of Mrs Gorge’s evidence and the purpose for which it was adduced.
There was nothing in the summing-up that would have hinted to the jury that the Judge held some view of the case adverse to the applicant. No contrary submission was made. The complaint in the present appeal concerns the absence or inadequacy of judicial comment on certain details of the defence case, rather than any suggestion that the trial Judge made comments that were impermissibly favourable to the prosecution.
The case is in stark contrast to cases such as McKell v the Queen [37] where the Judge allowed himself to become an advocate for the prosecution. For the most part, Judge Ingram steered clear of expressing any view of the facts. On more than one occasion his Honour said that he was expressing no view of the facts or evidence when he directed the jury on particular legal principles. One instance of this was when he gave the jury the Zoneff direction. A failure to give such a direction would have undoubtedly led to criticism in circumstances where the jury may well have concluded that the version provided by the applicant should not be accepted.
37. (2019) 264 CLR 307; [2019] HCA 5 at [47].
As to the applicant’s submissions concerning the complaint evidence, the jury was reminded in general terms of the inconsistencies within that evidence and directed that “the absence of complaint when first speaking to [Amir] is a matter that you may take into account in assessing the credibility of the complainant”. [38] This is a reasonably standard direction, as were the other aspects of the summing-up which emphasised that there may be reasons why a person in the complainant’s position may delay in complaining and why they may provide somewhat inconsistent accounts. In any event, this was a case in which the complaint was prompt. It was not an issue upon which the applicant would have benefited from an extensive factual analysis by the trial Judge.
38. Summing-up, 12/08/19, p 28.
As to the ERISP, the jury was reminded that the applicant relied on the version of events he provided to police and directed clearly that he was under no obligation to give evidence or to prove his innocence. Further, for the trial Judge to have dwelled at any length on the applicant’s recorded interview was unlikely, forensically, to have assisted the applicant. There were several aspects of the interview that may not have resonated with the jury. For example, the applicant’s repeated, and non-responsive, assertion that the complainant “was always late to work” or his assertion that “she was having trouble with her boyfriend and throwing it all at me” may have been seen as an attempt to shift the blame and undermine the complainant’s allegation by referring to irrelevant details. Further the jury may have found the applicant’s account to police, that the complainant was the instigator of the sexual contact while he repeatedly tried to stop her, implausible in light of the other evidence. It is unnecessary to go into more detail, but the trial Judge’s comments were as circumspect as the circumstances allowed.
In relation to the context evidence, the Judge referred to the evidence of Tong and the jury was reminded of the defence suggestion that this was “workplace banter and that that type of behaviour occurs from time to time in workplaces”. [39] The jury was directed that it was not a court of morals and that it ought not to project their own views of the appropriateness of such “banter” on to the issues in the trial.
39. Summing-up, 12/08/19, p 31.
As to the DNA and other forensic evidence, the Judge summarised the expert evidence and then provided the jury with a hypothetical example of the DNA of an alleged burglar being found inside a house that was broken into. His Honour told the jury:

“You would need to consider that with some care, would you not, what other explanations might there be for the accused DNA being in the house? Had he or she ever been there before? Had something been taken into the house that they might have come into contact with and so forth?” [40]
40. Summing-up, 12/08/19, p 35.

This was a transparent allusion to the possibility that there may be some alternate explanation for the semen located in the car and the presence of the complainant’s DNA on the applicant’s shirt. Little would have been added by the Judge explaining that which was patently obvious to the jury – that Mrs Gorge’s evidence could provide an innocent explanation for the forensic evidence relied on by the prosecution.
This was a trial in which the evidence was given over the course of four short days (2, 5, 6 and 7 August 2019). It was largely a case of the word against word. The issues were simple and plain. The first issue was whether the complainant initiated the sexual contact that was the subject of count 1 and the second was whether the incident the subject of count 2 occurred at all. In each instance, the jury was directed that the prosecution bore the onus of proof and that it was largely reliant on the evidence of one witness, supported by prompt complaint and some forensic evidence. The inconsistencies in the complaint evidence were patent. The alternative explanation for the DNA and other forensic evidence was also obvious. While these matters do not relieve the trial Judge of his obligations,[41] they illustrate the simplicity of the factual dispute in this trial which, in turn, is relevant to extent to which judicial comment is necessary for a jury properly to understand and assess the defence case. [42]
41. See El-Jalkh [2009] NSWCCA 139 at [152].
42. Maraache v R [2013] NSWCCA 199 at [74].
The summing-up commenced on the same day that both parties had addressed the jury (8 August 2019). The jury retired to consider its verdict the next day.
While the submissions made by counsel for the applicant, both in writing and on the hearing of the appeal were not without merit, the summing-up viewed as a whole was balanced and fair. The jury would have been under no misapprehension as to the evidence they needed to assess in order to resolve the issues which arose for consideration.
I would reject the single ground of appeal advanced on the appeal.

Conclusion and Orders

I would not invoke r 4.15 of the Supreme Court (Criminal Appeal) Rules to prevent the applicant from advancing this ground. However, the appeal must be dismissed. The orders I would make are as follows:

Leave to appeal granted.

Appeal dismissed.

WILSON J: I agree with Hamill J.

Endnotes

Amendments

27 October 2021 - Amendment made to quote at [65].

Decision last updated: 27 October 2021

Medium Neutral Citation:	Gorge v R [2021] NSWCCA 206
Hearing dates:	29 March 2021
Date of orders:	27 August 2021
Decision date:	27 August 2021
Before:	Hoeben CJ at CL [1] Hamill J [2] Wilson J [80]
Decision:	(1) Leave to appeal granted. (2) Appeal dismissed.
Catchwords:	CRIMINAL LAW – summing-up – balance – fairness – no allegation that trial Judge became advocate for prosecution – where trial Judge failed to refer to submissions made on behalf of accused person at trial – where no complaint made at trial – requirements of balance and fairness – extent of the need for comment on evidence and arguments – where trial short and issues clear and uncomplicated – summing-up to be considered as a whole
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW), s 15A Crimes Act 1900 (NSW), ss 61J, 61M Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
Cases Cited:	Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 Castle v The Queen; Bucca v The Queen (2016) 259 CLR 449; [2016] HCA 46 Dixon v R [2017] NSWCCA 299 Domican v R (1992) 173 CLR 555; [1992] HCA 13 El-Jalkh v R [2009] NSWCCA 139 Healey v R [2006] NSWCCA 235 Maraache v R [2013] NSWCCA 199 McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5 R v Davis [1999] NSWCCA 15 R v Meher [2004] NSWCCA 355 R v Zorad (1990) 19 NSWLR 91 RR v R [2011] NSWCCA 235; (2011) 216 A Crim R 489 RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 Williams v R [1999] NSWCCA 9; (1999) 104 A Crim R 260 Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28
Category:	Principal judgment
Parties:	Mahir Samy Gorge (Applicant) Regina (Respondent)
Representation:	Counsel: P Lange (Applicant) C Young (Respondent) Solicitors: Hardin Lawyers (Applicant) Office of Director of Public Prosecutions (Respondent)
File Number(s):	2018/00179788
Publication restriction:	Statutory non-publication order regarding the identity of the victim and other young persons.
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 15 August 2019 Before: Judge Ingram SC File Number(s): 2018/00179788