Khoury v R

[2024] NSWCCA 19

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Khoury v R [2024] NSWCCA 19

Hearing dates:

14 February 2024

Decision date:

28 February 2024

Before:

Adamson JA at [1];
Wright J at [74];
Sweeney J at [75]

Decision:

(1)   Grant leave to appeal.

(2)   Dismiss the appeal.

Catchwords:

CRIME — appeals — appeal against convictions for sexual intercourse without consent — miscarriage of justice — alleged risk of prejudice following exchange between Crown witness and accused in courtroom — whether trial judge’s decision not to discharge jury following the exchange resulted in a miscarriage of justice — whether trial judge’s direction to jury was sufficient to overcome potential prejudice

SENTENCING — appeal against sentence — whether sentencing judge erred in calculation of commencement date of sentence — pre-sentence custody period — discretion of sentencing judge to back-date commencement date of sentence

Legislation Cited:

Crimes Act 1900 (NSW), s 61I

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 47

Criminal Appeal Act 1912 (NSW), s 6

Criminal Procedure Act 1986 (NSW), ss 3, 306I

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 14

Mental Health (Forensic Provisions) Act 1990 (NSW), s 32

Cases Cited:

Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145

Cox v R [2022] NSWCCA 66

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

Dries v R [2022] NSWCCA 33

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

R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159

R v TS [2004] NSWCCA 38; (2004) 144 A Crim R 124

Warwick v R [2016] NSWCCA 183

Watson v R [2022] NSWCCA 208

Zheng v R (2021) 104 NSWLR 668; [2021] NSWCCA 78

Category:

Principal judgment

Parties:

Fouad Khoury (Applicant)
Rex (Respondent)

Representation:

Counsel:
K Stares SC (Applicant)
B Hatfield SC (Respondent)

Solicitors:
Pinnacle Legal Group (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2021/7046

Publication restriction:

Publication of names and any information or material that may lead to the identification of the complainant is prohibited: Crimes Act 1900 (NSW), s 578A

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

11 July 2022 (verdict); 12 December 2022 (sentence)

Before:

T Smith SC DCJ

File Number(s):

2021/7046

HEADNOTE

[This headnote is not to be read as part of the judgment]

Fouad Khoury (the applicant) sought leave to appeal against his convictions and his sentence for two counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). The counts arose out of a single incident with the complainant on 8 January 2021, involving digital and penile-vaginal penetration (the subject offences). The applicant was convicted after a trial by jury over which T Smith SC DCJ (the trial judge) presided. On 12 December 2022 the trial judge imposed an aggregate sentence of 4 years’ imprisonment, with a non-parole period of 2 years and 4 months, which was back-dated to commence on 30 March 2022.

Appeal against conviction

CG, a former partner of the complainant, gave evidence in the Crown case that on the evening of 8 January 2021 he received a call from the complainant who told him she had been “raped”. The complainant made the call from Paramatta Police Station, after she had already reported the offending conduct to police.

As CG was leaving the courtroom, having concluded his evidence, he turned to the applicant (with his back to the jury) and put his hand to his mouth with a flicking motion (which the applicant alleged was a signal known in the Arabic tradition as a threat) (the incident). The applicant responded by saying “Fuck your Mum” in Arabic.

The trial judge refused the applicant’s application for a discharge of the jury. Instead her Honour, after consulting with counsel as to the proposed form of direction, directed that the incident was “not relevant to the issues”.

The sole ground of appeal against conviction was that the trial judge erred in failing to discharge the jury following the incident, resulting in a miscarriage of justice. The applicant argued that the incident was potentially prejudicial to his case (based on the alleged safety concern it posed, the applicant’s physical and verbal reaction and that the incident bolstered the complainant’s evidence) and that the trial judge’s direction was insufficient to cure this prejudice.

The Court held (Adamson JA, Wright and Sweeney JJ agreeing) dismissing the appeal:

1. There was no real prospect of the applicant being prejudiced by the incident: [49] (Adamson JA), [74] (Wright J), [75] (Sweeney J).

2. Any prejudice arising from the incident was wholly remedied by the trial judge’s direction. The trial judge addressed each of the matters which was relevant to her determination whether to discharge the jury: [50] (Adamson JA), [74] (Wright J), [75] (Sweeney J).

3. The applicant’s right to a fair trial was not compromised in any way by the incident having regard to the direction which was given: [54] (Adamson JA), [74] (Wright J), [75] (Sweeney J).

Appeal against sentence

The sole ground of appeal against sentence was that the sentencing judge (who was also the trial judge) erred in calculating the commencement date of the sentence.

The trial judge deducted 92 days from the applicant’s total pre-sentence custody which corresponded to the non-parole period for an assault occasioning actual bodily harm offence committed by the applicant on 15 November 2021 (the AOABH offence). The applicant argued that, whilst the applicant was sentenced to a non-parole period of 92 days for the AOABH offence, the applicant had only spent 64 days in custody for that offence, having been arrested on 14 December 2021, and that the deduction should only be 64 days.

The Court held (Adamson JA, Wright and Sweeney JJ agreeing) dismissing the appeal:

1. The 92 days took into account that, prior to being arrested for the AOABH offence on 14 December 2021, the applicant had spent periods in custody on remand in relation to other charges which were either dismissed or which did not result in custodial sentences: [69], [72] (Adamson JA), [74] Wright J, [75] (Sweeney J).

2. There was no basis for inferring that the trial judge did not accept the effect of the sentence imposed for the AOABH offence or that her Honour sought to undermine it by making a deduction of 92 days rather than 64 days: [70] (Adamson JA), [74] Wright J, [75] (Sweeney J).

3. The trial judge was entitled in the exercise of her discretion, to decide by how much the sentence would be back-dated: [71] (Adamson JA), [74] Wright J, [75] (Sweeney J).

Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145, applied.

1. The applicant failed to identify any error in the exercise of the trial judge’s discretion: [72] (Adamson JA), [74] Wright J, [75] (Sweeney J).

JUDGMENT

1. ADAMSON JA: Fouad Khoury (the applicant) seeks leave to appeal against his convictions for two counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW) (the subject offences). The counts arose out of a single incident with the complainant on 8 January 2021, involving digital and penile-vaginal penetration. The applicant was convicted after a trial by jury over which T Smith SC DCJ (the trial judge) presided.

2. On 12 December 2022 the trial judge imposed an aggregate sentence of 4 years’ imprisonment which was back-dated to commence on 30 March 2022. It is due to expire on 29 March 2026. The non-parole period is 2 years and 4 months. The earliest date on which the applicant will be eligible for parole is 29 July 2024.

3. The applicant was granted leave to amend ground 1 of his proposed notice of appeal on 14 February 2024. He sought leave to appeal against his conviction and sentence on the following grounds:

“1.   Her Honour erred in failing to discharge the jury, resulting in a miscarriage of justice, after an incident which occurred in the presence of the Jury on 1 July 2022.

2.   Her Honour erred in calculating the commencement date of the sentence.”

4. For the reasons given below, I consider that leave to appeal ought be granted in respect of each of the two grounds but that as neither has been made out, the appeal ought be dismissed.

Ground 1: Application for leave to appeal against the convictions

The relevant background

5. The jury was empanelled on 29 June 2022. The Crown opened its case to the jury on 30 June 2022, following which the complainant gave evidence.

The complainant’s evidence

6. The complainant’s evidence was, relevantly, that she had previously been in a sexual relationship with the applicant which ended when she commenced a sexual relationship with another man, CG, to whom she became engaged to be married. Following the end of that relationship, the applicant, on 8 January 2021, sent a text message to the complainant, inviting her to his apartment in Burwood. The complainant’s evidence was she told the applicant that it was “not a sexual meet up” and that she would be going from his place to a dinner commitment with a friend that evening. She gave evidence that the applicant asked her whether she was still with CG and she confirmed that she was not as they had broken up. Her evidence was that when she arrived at the applicant’s apartment, he digitally penetrated her vagina and then had penile-vaginal sexual intercourse with her without her consent.

7. The complainant gave evidence that, following the sexual assaults, she left the applicant’s apartment and met her friend, SQ, for dinner. She said that when she told SQ about what the applicant had done, SQ encouraged her to report the matter to police. After dinner with SQ, the complainant went to the Parramatta Police Station to report the offending conduct. While she was there, she called CG and told him that she had been raped. He came to the police station and followed her to Blacktown Hospital, where she underwent tests. The following day she attended Burwood Police Station to make a statement.

8. The complainant’s cross-examination commenced on 30 June 2022 and continued into 1 July 2022, the second day of the trial. It revealed that the defence case was that the complainant had agreed to go to the applicant’s residence where she consented to the penile-vaginal sexual intercourse because she had broken up with CG and wanted to have sex with the applicant and that the digital penetration had not occurred. She denied that this was the case and said that although she had told the applicant that she and CG had broken up, she had also told the applicant that she did not want to have sex with him.

CG’s evidence

9. After the complainant had completed her evidence, CG was called as a witness in the Crown case. He gave evidence that he had been in a sexual relationship with the complainant until about 2020. After their relationship had ended, they had contact from time to time. CG gave evidence that he received a telephone call from the complainant who told him that she was at the police station at Parramatta and that she had been “raped”. He told her that he was on his way and drove to the police station to comfort her. When he arrived, the complainant was “very shaken up … trembling [and in] a very bad way”. Police officers then transported the complainant to Blacktown Hospital. CG drove separately to the hospital where he remained with the complainant and the police officers until early in the morning of 9 January 2021 when he left with the complainant.

10. In cross-examination, CG agreed that, as far as he could recall, the first time he was asked by police to give a statement about the evening of 8 January 2021 was on 22 June 2022, which was over 18 months after the relevant evening. There was no re-examination and the witness was excused.

The incident which led to the application for discharge

11. As CG was leaving the courtroom after the conclusion of his evidence, he initiated an exchange with the applicant, who was seated in the dock. The applicant’s solicitor observed the interchange but it was not seen by the prosecutor, the applicant’s trial counsel or the trial judge. The applicant’s solicitor brought this to the attention of his trial counsel, who rose to his feet to raise it with the trial judge.

12. The applicant’s trial counsel indicated that he wanted to put something on the record before the witness left the courtroom. The trial judge sent the jury out. In the absence of the jury, the applicant’s trial counsel said:

“Your Honour, [CG] made his way from the witness box, turned to the accused Khoury and in a signal common to the Arabic tradition, put his hand to his mouth with a flicking motion and laughed which I understand to be a gesture of threat. Now, that's on the record from his counsel. I understand that was witnessed by Mr Tabchouri and sadly, it has to come evidence in the bar table. In an Arabic context or idiom, that is a clear gesture of threat. I didn't see my client's reaction, but I fear that I was a little bit virulent in my approach, but I wanted him to be silent about it. And can I say this, your Honour, in the course of the cross-examination of [CG], I could feel a tension brewing.”

13. The trial judge indicated that she would like to see “the tapes” (CCTV footage of the courtroom) to ascertain what the jury might have observed before deciding what, if anything, needed to be done. The applicant’s trial counsel confirmed that he heard the applicant respond to CG although he did not see it. The trial judge indicated that she would continue with the trial and deal with the incident if the tapes or further information warranted it. At that point the jury was brought back and Detective Senior Constable Ryan Hurley, the officer in charge of the investigation, was called to give evidence.

14. At 12.50pm, the trial judge informed the jury that she was not available to continue the trial that afternoon (as had already been foreshadowed) and sent them away until Monday morning (4 July 2022).

15. The trial judge then adjourned the Court until 2pm in order that the incident could be investigated and its ramifications considered.

16. Over the luncheon adjournment, the trial judge watched a copy of the video recording of the courtroom which was provided by a Sheriff’s Officer and which showed CG giving his evidence, leaving the witness box, moving towards the door at the rear of the courtroom and, on the way, lifting his hand to his face (with the back of his head towards the camera and the jury). It also showed the applicant’s reaction, which is described below. There was no audio recording which shed light on what the applicant had said to CG.

17. When the Court reconvened at 2pm, (in the absence of the jury), her Honour related what she had seen in the following terms:

“… the recording … does show that there was upon passing behind the Crown prosecutor there was a movement of the hand up towards the face area, where it remained for a couple of seconds before a hand movement down, but the nature of [what] was done is not captured by the cameras because of the relevant angle, which is he was actually positioned his back to the camera at that particular point. So far as the recording shows, it doesn't show the nature of the actual action itself, beyond the fact that there was definitely a movement of the hand up to the face area. That's what it shows. I think there's a couple of issues that arise. The first issue is in terms of the witness, whether there's any requirement for any further questioning of the witness on behalf of the accused, that's the first step, secondly, whether there's anything further that needs to be done in relation to addressing the issue with the jury, as well, in terms of anything to be said by me and, in that respect, it's clear that there was a reaction by the accused. He was still seated at the time, but it appears that there were certain words that were said by the accused which were soon after the relevant alleged movement of the hand, the gesture. I'll just put it that way, the alleged gesture.

Obviously, Mr Stanton did place on the record in front of the jury what he, to his observations, saw, or commenced to at least to know that the jury knows that there was something that caused a reaction in the accused. Whilst there was a reaction by the accused, so, whilst there was a reaction by the accused, it was clearly in the context of something that was done, allegedly, by the witness.”

18. The recording was played in this Court at the hearing of the application for leave to appeal. Having viewed the tape, I accept the trial judge’s description of what it depicts.

19. The trial judge arranged for CG to be brought back into the courtroom. She informed him that he was not excused and that the subpoena served on him could still be enforced. The trial judge invited the parties to consider their positions over the weekend.

20. On the third day of the trial, Monday 4 July 2022, the trial judge informed the parties that a note had been received from the jury, which relevantly asked:

“Is there anything of significance the jury should know about the exchange between the accused and witness on Friday?”

21. The applicant’s trial counsel then informed the trial judge that he was instructed to apply for a discharge of the jury on the basis of the incident. The applicant’s trial counsel confirmed that the basis of his application was that:

1. the incident had occurred in the presence of the jury and was the subject of a jury note;

2. CG, by acting in a “threatening” and “confrontational” fashion towards the applicant and gesturing at him, might have the effect of giving CG’s evidence undue significance because the incident showed that he felt very strongly about what the complainant had told him (because, implicitly, he believed her); and

3. CG’s evidence would also tend to bolster the complainant’s evidence because it was the only evidence of complaint (as SQ was not to be called to give evidence).

22. The trial judge pointed out that CG’s evidence had relatively little probative value and was not challenged. The applicant’s trial counsel accepted that the extent of CG’s evidence was that the complainant had told him, “I’ve been raped” and that the complainant had already said as much to a police officer beforehand.

23. The Crown provided the trial judge and the applicant with a statement of a police officer, Nicholas Cantarella, who had asked CG while he was outside the courtroom after the incident what the applicant had said to him. CG responded in Arabic, which he translated for Mr Cantarella to mean, “Fuck your Mum”. The statement was admitted on the voir dire. After the admission of the statement, the following exchange occurred:

“HER HONOUR: The difficulty then is, as you say, we don't need to get into what actually occurred. We've got a different version now of the nature of the action. The recording, as I said, simply shows the hand moving up to the relevant area. Mr Stanton, you've perceived it one way; the police officer's perceived it another. I think, for the moment, I'm willing to say there was some action that was perceived by your client that he reacted to ‑ I think is as far as we need to go.

STANTON: Thank your Honour, and your Honour clearly is seized of my concerns that this doesn't turn into a mini trial.

HER HONOUR: It doesn't need to.

CROWN PROSECUTOR: No, I agree.

STANTON: Thank you.

HER HONOUR: It doesn't need to, but I mean, this highlights, as I was careful to say on Friday, that I'm not making any findings about what happened. The recording doesn't give a definitive answer. And of course, Mr Stanton, you've placed on the record ‑ and I don't question for one moment ‑ that was your perception of what you saw; and I don't question this is the perception of what the police officer saw.

STANTON: Yes, your Honour. Likewise, your Honour.

HER HONOUR: But I think for the purposes of what we need to deal with in this trial, there was some action by the witness that was perceived by your client is sufficient, that he reacted to.

CROWN PROSECUTOR: Correct.”

The refusal of the application for the jury to be discharged and the giving of a direction regarding the incident

24. The trial judge indicated that she did not propose to discharge the jury but that she would give a direction, which was outlined to counsel in the absence of the jury. The applicant’s trial counsel did not wish to be heard further about the crafting of an appropriate direction if the application for discharge was refused.

25. The following exchange then took place:

“HER HONOUR: Mr Stanton, ultimately I've listened carefully to what you've had to say in the application. I'm not going to allow the application only because I am satisfied, in the particular circumstances of this case, that a judicial direction can be effective in terms of overcoming the issues that you've raised.

STANTON: As your Honour pleases.

HER HONOUR: I can provide a more detailed judgment in that respect, but if that's sufficient for the moment, I think we can move on.

STANTON: I don't ask your Honour to give judgment in a formal sense at this point in time.

HER HONOUR: And the matters that I've raised are clear from the discussion that we've had, and you've both had an opportunity in terms of what I was looking to craft in terms of my directions.

STANTON: And, not that it carries any weight, I've endorsed your Honour's initial indication and we don't require a judgment at this stage, your Honour.”

26. The jury was brought back in and the judge gave the following direction:

“There is really no need for any witness to be having any interactions with the accused in the proceedings, and it may be that some or all of you saw that when [CG] left the witness box, that he was walking towards the exit of the Court and that there was something done in terms of a hand going into a particular location. I'm unsure as to the exact details, but it doesn't really matter. There was something done by [CG], and as a consequence of what he did there was a reaction by the accused to the conduct of [CG]. In relation to [CG] having any interaction with the accused, as I said, there was absolutely no need for that to occur at all. In terms of the accused reacting, well, it was a reaction on his behalf to what he perceived of [CG].

So, there's two important things that I want to say to you as a result of all of that. The first issue is, in terms of [CG]'s evidence, it needs to be put in perspective in terms of its significance to the issues that you need to determine. [CG] came along here only to give evidence that he'd received a telephone call from the complainant on the night of the alleged incident, where she had already been to the police station and made a complaint, she was in the police station when she made the call. His evidence was no more than what she said to him during that call was that she reported that she was raped. He gave evidence of simply what he observed when he arrived at the police station.

…

What I'm saying to you is essentially, you need to put it to one side, in terms of the exchange. It doesn't give [CG]'s any more significance at all because overall, his evidence has a very limited use in the issues that you have to determine. So far as there was a reaction by the accused, it needs to be put in the context of it being a reaction to what he perceived to be conduct on behalf of [CG]. That is important. You can completely put that to one side because it is not relevant to the issues that you are going to be called on to determine in this matter.”

27. In the course of the summing up, while the trial judge was referring to the evidence of CG, her Honour reminded the jury of the direction she had given in relation to the incident.

Consideration

The applicable principles

28. A challenge to a trial judge’s refusal to discharge a jury amounts to a challenge to conviction and, accordingly, the court’s powers to intervene are limited by s 6(1) of the Criminal Appeal Act 1912 (NSW): R v TS [2004] NSWCCA 38; (2004) 144 A Crim R 124 (Sully J) at [116]. The applicant requires leave to appeal because the proposed ground does not relate to a question of law alone but to the exercise of a judicial discretion: Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219 at [77]-[78].

29. Whether the trial judge’s discretion ought be exercised to discharge a jury for a potentially prejudicial event in the trial depends on a number of factors which include: the seriousness of the event in the context of the real issues; when the event occurs in the course of the trial; whether the prejudicial conduct was deliberate; and whether a direction to the jury is likely to be effective to overcome any prejudicial impact of the event: Zheng v R (2021) 104 NSWLR 668; [2021] NSWCCA 78 at [92]-[96]; see also Dries v R [2022] NSWCCA 33 at [37] (Macfarlan JA). Ultimately, the discretion to discharge the jury ought only be exercised “when that course is necessary to prevent a miscarriage of justice”: Watson v R [2022] NSWCCA 208 at [25], [34], [36].

30. In Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 (Crofts), the plurality (Toohey, Gaudron, Gummow and Kirby JJ) said at 440–441:

“No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.

Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. …”

31. Thus, when determining an appeal against a conviction on the basis of a failure to discharge the jury, the question for this Court is whether the refusal to discharge the jury occasioned a risk of a substantial miscarriage of justice.

32. In these circumstances, it is necessary to identify the alleged risk of prejudice to the applicant and whether the trial judge’s direction was sufficient to ameliorate that prejudice.

The alleged risk of prejudice

33. Ms Stares SC, who appeared on behalf of the applicant, submitted that the prejudice to the applicant arose from:

1. the “safety concern” posed by the incident which required the jury to be removed from the courtroom “after the perception of a safety risk to them” (the alleged safety concern);

2. the applicant’s physical reaction to CG’s conduct, which would tend to prejudice the jury’s view of him in light of the issues raised in the trial (whether the complainant had consented to penile-vaginal sexual intercourse and whether digital penetration had occurred) (the applicant’s physical reaction);

3. the applicant’s verbal reaction to CG which would tend to prejudice him because his words were “derogatory towards a woman” (the applicant’s verbal reaction); and

4. the fact that CG’s evidence would be bolstered by the incident (because it showed in a dramatic way that he believed the complainant when she said she had been raped), thereby also bolstering the complainant’s evidence that she had not consented to penile-vaginal sexual intercourse, thus having an unwarranted and prejudicial effect on the applicant.

34. Ms Stares further submitted, in relation to the trial judge’s direction, that:

1. The direction tended to downplay the significance of CG’s evidence, which was significant because it established that the complainant had failed to mention digital penetration to CG; and

2. in the context of the trial (including the offences for which the applicant stood to be tried), the factual background of the offences (that he had forced himself on an unwilling complainant), the seriousness of the incident which occurred in the presence of the jury and the applicant’s response to CG’s provocation, the direction was insufficient to cure the prejudice to the applicant; and

3. accordingly, the trial judge’s failure to discharge the jury deprived the applicant of a fair trial and constituted a miscarriage of justice.

35. Although Ms Stares was critical of the trial judge for not giving more detailed reasons for refusing to discharge the jury, I understood her to accept that the trial judge’s reasons were sufficiently revealed by the transcript. It would have been open to the trial judge to provide further reasons for refusing the discharge but given the applicant’s trial counsel indicated that further reasons were not sought, it is understandable that the trial judge did not provide them. While there is some ambiguity in the applicant’s trial counsel’s words “we don’t require a judgment at this stage”, I do not consider that the trial judge ought to have understood that the applicant required reasons to be given, albeit at a later time. In any event, nothing turns on this, having regard to Ms Stares’ acceptance that the basis for the trial judge’s refusal is evident from the transcript.

36. Further, as was set out in the passage extracted above from Crofts, this Court is not confined to the reasons given by the trial judge.

The alleged safety concern

37. Ms Stares submitted that the trial judge’s swift actions in removing the jury from the courtroom and her Honour’s reference to the matter “escalat[ing]” indicated that the trial judge considered that the jury needed to be removed from the courtroom for their own safety.

38. I reject this submission. The tape of the courtroom shows that CG (with his back to the jury) lifted his hand to his face as part of a gesture on his way out of the courtroom. In response, the applicant, who was lounging in the witness box in a relaxed posture with his arms stretched out on either side on the backs of adjacent seats (the dock having been designed for multiple accused), removed the face mask he was wearing (a pandemic precaution which applied to all non-speakers in the courtroom at the time). The applicant’s trial counsel stood up to interject, following which the applicant said (according to Officer Cantarella’s statement) “Fuck your Mum” just before CG left the courtroom. The incident did not pose a safety concern to anyone.

39. The trial judge’s request that the jury leave the courtroom, in response to the applicant’s trial counsel’s statement that he wanted to put something on the record, was a standard means of preventing the jury becoming aware of something which might prejudice its fair deliberation of the issues in the trial.

40. It is significant that the applicant’s trial counsel, who was best placed to gauge the potential prejudicial effect of the incident, did not raise the alleged safety concern in support of his application for discharge of the jury. The matters actually raised by him provide “a sure guide to the true potential prejudice”: Cox v R [2022] NSWCCA 66 at [48] (Beech-Jones CJ at CL, Hamill and Cavanagh JJ agreeing).

The alleged prejudicial effect of the applicant’s physical and verbal reaction to the incident

41. The applicant’s relaxed demeanour in the dock was not such as to indicate to an observer that he was impulsive, violent or quick to anger. The insult he directed to CG, even assuming that the jury had heard and understood it, was derogatory to women (as many such insults are) but was clichéd. The prejudicial effect of the applicant’s reaction to CG’s gesture was also not raised by the applicant’s trial counsel before the trial judge. In these circumstances, I would not infer that it was thought at the time to cause potential prejudice to the applicant.

42. In any event, the trial judge’s direction was ample to address any potential prejudice since her Honour specifically directed the jury to disregard the applicant’s reaction as “not relevant to any of the issues that [the jury] need[s] to determine …”.

The alleged impact on the complainant’s credibility and the weight to be attributed to CG’s evidence

43. Ms Stares submitted that the incident and the consequential direction created a forensic disadvantage to the applicant which amounted to prejudice. She submitted that the applicant’s trial counsel had developed a case through the cross-examination of the complainant that, having broken up with CG, she wanted to resume a sexual relationship with the applicant and was, accordingly, unlikely to be telling CG the truth when she told him that she had been raped. She submitted that the jury might reason that CG’s behaviour was, in effect, so dramatic and so inappropriate in a courtroom that it increased the credibility of the complainant’s account because he would only behave in such a way if he felt strongly that the complainant was telling the truth about having been raped. She submitted that the incident would have thereby increased the complainant’s credibility.

44. I consider that it was open to the trial judge to regard the direction as sufficient to address this potential prejudice. Although the brief reasons given by the trial judge which are recorded on the transcript do not expressly address this aspect of the applicant’s trial counsel’s submissions, I consider her Honour was correct not to regard this potential prejudice as irremediable. Nor do I accept Ms Stares’ submission that the conduct of the two men was extraordinary in a courtroom, where one (CG) was the ex-boyfriend of the complainant and had come at her request to the police station and the other (the applicant) was said to have raped her. Some level of antagonism was to be expected. The way in which it was expressed was relatively confined and was contained by the actions of the applicant’s trial counsel and the trial judge.

The factors relevant to whether the jury ought be discharged

The stage of the trial when the incident occurred

45. The incident occurred on the third day of the trial after the complainant and CG had given evidence. The only remaining witnesses in the Crown case were police officers. Had the jury been discharged, the prosecutor would have been entitled to play a recording of the complainant’s evidence instead of recalling her: s 306I of the Criminal Procedure Act 1986 (NSW) (which applies because the applicant was charged with offences against s 61I of the Crimes Act, which are prescribed sexual offences within the meaning of s 3 of the Criminal Procedure Act).

The relative importance of CG’s evidence

46. The evidence of CG was relatively inconsequential since he said only that the complainant told him that she had been raped after she had already told police officers. Her demeanour at the police station was something which others witnessed. Thus, the Crown case would not have been weakened, materially or at all, had CG not given evidence.

Whether the conduct was deliberate

47. It can be inferred that CG’s conduct towards the applicant was deliberate. However, it cannot be inferred that he had any intention to derail the trial. The applicant’s response, while deliberate, appears to have been an instinctive response to a provocative act without any thought to the consequences. The interaction between the two males is the sort of interaction which is not, in other settings, atypical between male antagonists wishing to demonstrate bravado. The applicant’s response amounted to no more than a clichéd insult.

Whether the direction was sufficient to cure any potential prejudice

48. Although the applicant maintained his application for a discharge, his trial counsel did not want to be heard as to the content of trial judge’s proposed direction (which was in fact given). This is a significant matter. The matters raised by the applicant’s trial counsel (and her Honour) are a more reliable barometer of potential prejudice than matters raised for the first time on appeal.

49. I do not consider that there was any real prospect of the applicant being prejudiced by the incident, even if the jurors had not only observed it (in so far as they were able) but also understood the applicant’s response. Indeed, the wording of the jury note tends to indicate that the jury was diligent, attentive and objective (by asking “[i]s there anything of significance [we] should know”) and had not formed any view about the conduct itself.

50. Any prejudice arising from the exchange was, in my view, wholly remedied by the trial judge’s direction in answer to the jury question. The trial judge addressed each of the matters which was relevant to her determination whether to discharge the jury. No error has been demonstrated.

Conclusion

51. The criminal justice system in New South Wales requires that persons accused of indictable offences are tried by jury (in the case of Commonwealth offences) or by jury or by judge alone (in the case of offences against the laws of New South Wales). Particularly for lay witnesses, giving evidence in a courtroom may be a new experience with unaccustomed rules and etiquettes. Trial judges endeavour, with the assistance of counsel and solicitors, to ensure that evidence is elicited in a courteous and coherent fashion and that any antagonism, including between witnesses and accused persons, is not evident to the jury. Thus, attempts are made to confine a witness’s contribution to the answers given to questions asked by counsel or the judge. However, the eliciting of oral evidence does not always follow an orderly path. Witnesses, as in the present case, may wish to express their aversion to an accused or the accused’s alleged conduct by their answers or conduct, both within and, as in the present case, outside the witness box but within sight of the jury. As was said in Crofts at 440, “[t]he possibilities of slips occurring are inescapable.”

52. These occurrences happen sufficiently often for trial judges to be alert to any build-up of tension in the courtroom with a view to its being reduced to avoid outbreaks of intemperate language, inappropriate gestures or, worse still, violence. If things have gone too far and a trial judge considers that a direction will be inadequate to remedy a potential prejudice to an accused and thereby deprive the accused of a fair trial, the trial judge will be obliged to discharge the jury. If the trial judge fails to do so in such circumstances, this Court will, unless the proviso in s 6(1) of the Criminal Appeal Act applies, quash the conviction and order a retrial. In making this assessment, latitude needs to be given to the trial judge’s advantage in ascertaining the potential prejudice arising by reference to personal observation and an assessment of the atmosphere of the trial.

53. It is also important that trial judges not be too ready to discharge juries whenever there is any departure from proper conduct or any situation which may require a direction to eliminate the risk of prejudice and bring the jury back to a correct path of reasoning. In many cases, including, in my view, the present, a timely direction is sufficient to address the issue. When a jury is unnecessarily discharged, the administration of justice is affected: the accused may be required to spend more time in custody on remand; jurors may become disgruntled by being discharged for no apparent reason; counsel may become unavailable; trials already listed may lose allocated hearing dates; witnesses may be reluctant to return; the jury in a new trial may have only the pre-recorded evidence of the complainant; and the public cost of trials is increased for no good reason.

51. In the present case, the trial judge addressed the issue in an exemplary way. Her Honour was astute to investigate what had actually occurred and to consult with counsel as to what ought be done. Her Honour crafted a direction to which neither party took exception and which was ample to deal with the issue. I do not consider that the applicant’s right to a fair trial was compromised in any way by the incident having regard to the direction which was given.

52. I would grant leave to appeal on ground 1 but dismiss the appeal.

Ground 2: Application for leave to appeal against sentence

56. As set out above, the sole ground of appeal against the sentence is that the sentencing judge (who was also the trial judge) erred in calculating the commencement date of the sentence.

57. In fixing the commencement date for the sentence for the subject offences, the sentencing judge was required to consider the effect of the following:

1. after committing the subject offences, the applicant was charged with various offences which were dealt with in the Local Court (the Local Court charges);

2. the applicant spent discrete periods in custody on remand following his arrest for the Local Court charges;

3. before the applicant was sentenced for the subject offences, he was convicted and sentenced for the offence of assault occasioning actual bodily harm in a setting of domestic violence (the AOABH offence), which was one of the Local Court charges and was committed on 15 November 2021; and

4. on 14 January 2022, the magistrate at Burwood Local Court imposed a sentence for the AOABH offence of 9 months’ imprisonment, which was back-dated to commence on 15 November 2021, with a non-parole period of 3 months’ imprisonment.

58. At the time the magistrate imposed the sentence for the AOABH offence, 14 January 2022, the applicant had spent a total of 164 days in custody on remand in the following periods:

Period of pre-sentence custody	Number of days	Reason
9 January 2021-14 January 2021	6 days	Arrested and taken into custody for the subject offences; released on bail on 14 January 2021.
16 April 2021-10 June 2021	56 days	Arrested and taken into custody for offences charged; released on bail on 10 June 2021.
25 June 2021-2 September 2021	70 days	Arrested and taken into custody for offences charged; released on bail on 2 September 2021.
14 December 2021-14 January 2022	32 days	Arrested for AOABH offence, for which he was sentenced on 14 January 2022.
Total	164 days

59. Many of the Local Court charges were dismissed pursuant to s 14(1)(a) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCI Act). On 14 January 2022, the magistrate dealt with the Local Court charges as follows:

Date of alleged offence	Charge	Sequence	Result
11 March 2021	Common assault	1	Discharged into care pursuant to s 32(3)(a) of Mental Health (Forensic Provisions) Act 1990 (NSW), repealed on 27 March 2021.
15 March 2021	Common assault	1	Dismissed pursuant to s 14(1)(a) of MHCI Act; discharged into conditional care.
20 March 2021	Assault occasioning actual bodily harm	1	Dismissed pursuant to s 14(1)(a) of MHCI Act; discharged into conditional care.
	Armed with intent to commit indictable offence	2	Dismissed pursuant to s 14(1)(a) of MHCI Act; discharged into conditional care.
6 April 2021	Attempt stalk/intimidate intend fear of harm (personal)	1	Dismissed pursuant to s 14(1)(a) of MHCI Act; discharged into conditional care.
13 April 2021	Destroy or damage property	2	Dismissed pursuant to s 14(1)(a) of MHCI Act; discharged into conditional care.
	Armed with intent to commit indictable offence	3	Dismissed pursuant to s 14(1)(a) of MHCI Act; discharged into conditional care.
	Have custody of offensive implement in public place	4	Dismissed pursuant to s 14(1)(a) of MHCI Act; discharged into conditional care.
15 November 2021	AOABH offence	2	Sentence of imprisonment of 9 months commencing on 15 November 2021 and expiring on 14 August 2022 with a non-parole period of 3 months commencing on 15 November 2021 and expiring on 14 February 2022.
29 November 2021-13 December 2021	Stalk/intimidate intend fear physical harm (domestic)	1	Community Correction Order for 12 months commencing on 14 January 2022 and concluding on 13 January 2023 to be supervised by Community Corrections Service.

60. The transcript of the Local Court hearing (which was available to this Court but was not tendered before the sentencing judge) indicates that the applicant’s counsel submitted that the magistrate could take into account, in setting the commencement date, the actual period of time which had already been spent in custody even if it was also in respect of other offences. The applicant’s counsel referred the magistrate to Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145 at [21]-[23] (Simpson J, James and Hall JJ agreeing), in which this Court held that the sentencing court had a discretion as to the commencement date and could take into account prior custody on remand. The applicant’s counsel submitted that an Intensive Correction Order would not be appropriate because the applicant ought have the benefit of a back-dated commencement date for the sentence to reflect the periods for which he had been in custody on remand.

61. The magistrate said in her reasons (tr 30):

“… while I am not going to take the whole of the 159 days into consideration, I find special circumstances and I will adopt a global approach in these circumstances as [the applicant] has been in and out of custody over a period since 15 March [2021] with respect to all of the matters that were before the Court. So I will be, having found special circumstances, imposing a term of imprisonment with respect to the assault occasioning matter [the AOABH offence] and backdating and therefore having a non-parole period and a longer period on parole.”

The sentencing judge’s reasons for sentence

62. The sentencing judge addressed the period of pre-sentence custody as follows:

“The offender was initially bail refused in respect of this matter alone, following his arrest for six days from 9 January 2021 to 14 January 2021. He had also been in custody, bail refused solely in relation to the current offences, following the jury’s verdict on 11 July 2022.

Because of further offending whilst on bail, the offender was returned to custody on 16 April 2021 with his bail being revoked. He remained in custody until again getting bail on 10 June 2021. This was a period of fifty-six days. He again entered custody on 25 June 2021 where he remained until 2 September 2021 when he was again granted bail. This involved a period of seventy days.

The offender re-entered custody on 14 December 2021 after further offending and was ultimately released on 14 February the following year, after serving a three-month non-parole period for the offence as I referred to earlier of the assault occasioning actual bodily harm. That sentence was actually backdated to commence on 15 November 2021. That three-month non-parole period represents ninety-two days.

What I have decided to do in the exercise of my discretion, is to backdate the current sentence for the period that represents the total period that the offender has been in custody since being charged with this offence less the three-month non-parole period which was imposed, given that it relates to a completely separate matter where the offender was serving a sentence. So that three-month period represents 92 days. This involved ninety-two days being taken from 349 days which equals 257 days and the back dating of the current sentence means that the sentence will commence [on] 30 March 2022.”

(Emphasis added.)

63. The sentencing judge’s calculation of total pre-sentence custody and the period of custody referable to the AOABH offence can be summarised as follows:

Period of pre-sentence custody	Number of days
9 January 2021-14 January 2021	6 days
16 April 2021-10 June 2021	56 days
25 June 2021- 2 September 2021	70 days
14 December 2021-14 February 2021	62 days (should be 63 days but no point taken)
11 July 2022-12 December 2022	155 days
Total period in custody	349 days
Deduction for non-parole period for AOABH offence	15 November 2021-14 February 2022	(92 days)
Total deduction	257 days
Commencement date of sentence	30 March 2022 (being 12 December 2022 less 257 days)

The relevant statutory provisions

64. Section 24(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act) requires the sentencing court to take into account “any time for which the offender has been held in custody in relation to the offence.” Section 47(2) of the Act entitles a sentencing judge to back-date a sentence to commence on a day before the date on which the sentence is imposed. Section 47(3) of the Act requires the sentencing judge making an order under s 47(2) to take into account time spent in custody in relation to the offence or any of the offences to which the sentence relates.

Consideration

65. Ms Stares submitted that, according to the applicant’s criminal history, the AOABH offence was committed on 15 November 2021 and that, according to the applicant’s custodial history, he was not arrested for that offence until 14 December 2021, although the magistrate back-dated the sentence to the date of the offence (15 November 2021) rather than to the date of his arrest (14 December 2021). She submitted that there ought only to have been a deduction of 64 days for the AOABH offence, to reflect the actual time in custody referable to that offence, rather than 92 days.

66. Ms Stares also submitted orally that, by not taking into account the period from 15 November 2021 to 14 December 2021 as a period in custody, the sentencing judge had impermissibly purported to “correct” the sentence imposed by the magistrate for the AOABH offence.

67. The sentencing judge expressly stated in her Honour’s reasons, the bases for her calculations of the total number of days which the applicant had spent in custody (349 days) and the total number of days which the applicant had spent in custody referable to the AOABH offence (92 days). As is apparent from the sentence imposed, the magistrate back-dated the commencement of the sentence to 15 November 2021, being the date on which the AOABH offence was committed. The sentencing judge was entitled to infer that the magistrate, in back-dating the commencement date of the sentence for the AOABH offence had taken into account pre-sentence custody on remand. This inference is confirmed by the transcript of the magistrate’s reasons which was not available to the sentencing judge. The magistrate’s reasons indicated that this was designed to take into account periods in custody on remand for matters which were ultimately dismissed under the MHCI Act and the Mental Health (Forensic Provisions) Act or for which no custodial sentence was imposed. There was no error in the sentencing judge’s calculations.

68. I turn to Ms Stares’ submission that the sentencing judge, by taking into account 92 days (the non-parole period for the AOABH offence) rather than 64 days (being the period of the nominated non-parole period which was actually spent in custody) erroneously attempted to “correct” the sentence for the AOABH offence.

69. It is an important aspect of the principle of totality that, where a sentencing judge imposes a sentence on an offender who has already been sentenced by another judicial officer, the sentencing judge must:

1. accept that the first sentence was an appropriate exercise of the first judge's discretion; and

2. determine what overall sentence is appropriate for all offences.

(R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [99] (Spigelman CJ, Whealy and Howie JJ), applied in Warwick v R [2016] NSWCCA 183 at [31] (myself, Payne JA and R A Hulme J agreeing)).

70. There is no basis for inferring that the sentencing judge did not accept the effect of the sentence imposed for the AOABH offence or that her Honour sought to undermine it by making a deduction of 92 days rather than 64 days from the time spent in custody referable to the subject offence. Her Honour was entitled to accumulate the sentence for the AOABH offence with the sentence for the subject offences by 3 months (being the non-parole period for the sentence for the AOABH offence) and to make the whole of the parole period of the AOABH offence concurrent with the sentence for the subject offences.

71. The sentencing judge’s reasons expressly outline what her Honour proposed to do and why. By prefacing the passage dealing with the deduction with the words, “[w]hat I have decided to do in the exercise of my discretion”, her Honour made plain that it was a discretionary judgment, not merely a mathematical calculation which was being undertaken. Her Honour was entitled, in the exercise of her discretion, to decide by how much the sentence would be back-dated. The principles of totality applied: see Callaghan v R at [21]–[23].

72. The applicant has failed to identify any error in the exercise of the sentencing judge’s discretion. Because the matter has been fully argued and considered, I would grant leave. However, I would dismiss the appeal.

Proposed orders

73. For the reasons given above, I propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

74. WRIGHT J: I agree with the orders proposed by Adamson JA for the reasons that her Honour has given.

75. SWEENEY J: I agree with Adamson JA that Judge Smith’s direction to the jury was entirely appropriate to deal with the incident, and her not discharging the jury did not result in a miscarriage of justice for the applicant in the trial.

76. I agree with the orders proposed by Adamson JA.

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Decision last updated: 28 February 2024