Miles v R - [2014] NSWCCA 72

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Miles v R [2014] NSWCCA 72
Hearing dates: 12 April 2013
Decision date: 09 May 2014
Before: Simpson J at [1]
Harrison J at [31]
Button J at [32]
Decision:
An extension of time to appeal should be refused.

Catchwords: CRIMINAL LAW - appeal against conviction - application for extension of time years after conviction entered - applicable principles - Criminal Appeal Act 1912 (NSW) s 6 - consideration of the prospects of success of the grounds of appeal - whether directions of the trial judge in relation to complaint violated the principle in Palmer v The Queen - whether evidence of flight should have been admitted at first instance - whether trial judge erred in his directions regarding evidence of flight - application of considerations analogous to the proviso
Legislation Cited: Crimes Act 1900 (NSW), s 61I
Criminal Appeal Act 1912 (NSW), ss 6, 10
Evidence Act 1995 (NSW), ss 110, 137
Cases Cited: Abdul v R [2013] NSWCCA 247
Alpha v R [2013] NSWCCA 292
Darwiche v R [2011] NSWCCA 62
DJV v R [2008] NSWCCA 272; 200 A Crim R 206
Edwards v The Queen [1993] HCA 63; 178 CLR 193
Etchell v R [2010] NSWCCA 262; 205 A Crim R 138
Kuehne v R; Humphries M v R; Humphries A v R [2012] NSWCCA 270
Mackenzie v The Queen [1996] HCA 35; 190 CLR 348
McCall v R [2010] NSWCCA 174
MFA v The Queen [2002] HCA 53; 213 CLR 606
Outram v R [2013] NSWCCA 329
Palmer v The Queen [1998] HCA 2; 193 CLR 1
Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463
R v Beattie [2000] NSWCCA 201
R v Birks (1990) 19 NSWLR 677
R v Cook [2004] NSWCCA 52
R v F (1995) 83 A Crim R 502
R v Lane [2011] NSWCCA 157
R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
R v Unger [1977] NSWLR 990
R v Young [1999] NSWCCA 275
RWB v R; R v RWB [2010] NSWCCA 147; 202 A Crim R 209
Wood v R [2012] NSWCCA 21
Category: Principal judgment
Parties: Keith Ian Miles (Applicant)
Regina (Respondent)
Representation: Counsel:
P Segal (Applicant)
T Smith (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2006/8527
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2007-07-05 00:00:00

Before:

Judge Conlon SC

File Number(s):

06/41/0062

Judgment

SIMPSON J: I have read in draft the judgment of Button J. I adopt his Honour's account of the relevant facts and his statement of the relevant principles of law concerning the grant of an extension of time to appeal. I agree that grounds 1, 2 and 5 are without substance.

I wish to record my own approach to grounds 3 and 4.

Ground 3

The direction the subject of this ground of appeal was given in the context of a relatively brief recital of the evidence concerning each count, interspersed with reference to counsel's arguments. The direction was:

"Concerning the allegation by [the complainant] that the accused sexually assaulted her on 1 July 2005, that is at the hotel in Bundanoon and the fact that she did not initially make any complaint about that, the accused through [his counsel] has argued that the absence of such complaint to anyone to whom she might reasonably be expected to complain, is inconsistent with the conduct of a truthful person who has been sexually assaulted and through [counsel] is saying that you should therefore regard her evidence that she was sexually assaulted without her consent on that occasion as false, that is by virtue of the fact that she did not immediately complain to anybody.

... [His Honour then gave conventional directions about the absence of complaint, and made reference to relevant evidence and continued.]

... So in the light of her not having made a complaint at the time in respect of this assault at the hotel, it is then a matter for you to determine what weight you should give to her evidence in respect to this first count. Now in respect to the second and third counts, that is on 5 July you have heard evidence that she complained immediately, she told friends that took her to the police station where she made her statement about what occurred on 5 July 2005 and she was then taken to the Wollongong Hospital.

The Crown says that the fact that she complained in those circumstances shows a consistency of conduct on the part of [the complainant], in that she complained to people whom she might reasonably be expected to complain if she had been sexually assaulted and she did so the Crown says almost immediately. The Crown says in relation to that complaint concerning those two assaults that such is the conduct of a truthful person who had been sexually assaulted, in other words the evidence is relevant to the credit of the complainant as a witness, in that it may increase the weight that you give to her evidence in respect to these assaults alleged to have occurred on 5 July. Implicit in the Crown's argument is that you should also look at this complaint being made by [the complainant] against the background of the suggestions that were made to her that for a period of what must have been in excess of six months there had been continual consensual sexual intercourse between the two of them. Now if that was the case why did she go to complain on this occasion if it was just another act of consensual sexual intercourse." (italics added)

It is the italicised last sentence that provides the foundation for this ground of the proposed appeal. Almost immediately after that direction, the short adjournment was taken. Counsel for the applicant took the opportunity to raise with his Honour the direction. The transcript records the following exchange in the absence of the jury:

"[Counsel for the applicant]: Before the jury returns your Honour may I just clarify a point? The last thing your Honour mentioned was expressed in these terms, why would she complain on this occasion if --

His Honour: No, I said the Crown's case is that you look at the background of the consensual intercourse and if that be the case why would she complain following the events of the 5th, is that right, Ms Crown?

Crown prosecutor: I didn't actually make that submission to the jury your Honour for the reason I was concerned that any such submission might raise the question of motive to lie and breaching the authorities that say it's improper for the Crown to make that suggestion to the jury.

His Honour: On the question of complaint though. You see the question of complaint on this second occasion, you say this goes to the credibility, don't you?

Crown prosecutor: I didn't actually make a submission about that.

His Honour: No, but the Crown's case would be, would it not? See, what is complaint?

Crown prosecutor: Yes, in terms of the immediate complaint to the police and creditability, yes that's implicit in my argument but I didn't raise the question of why would she lie.

His Honour: What direction do you seek [counsel for the applicant]?

[Counsel for the applicant]: I didn't seek a direction. I didn't hear that the Crown made that submission. I hear the Crown now saying it's implicit in her submissions, so I don't suppose there's any damage done. But I think it needed clarifying.

His Honour: Do you want me to clarify that in any way?

[Counsel for the applicant]: No, I think 'least said, soonest mended' your Honour. If there is any issue that arises out of that I think it's fairly small but I could not be said that the Crown made that submission and for the reason that Madam Crown actually states.

His Honour: This is quite a different situation where the authorities indicate that the Crown or anybody else can't make a submission of you know why would a person lie. This goes to the creditability of this witness in that she made a complaint to those persons that she might have expected to make the complaint. She did so on this day and that could be viewed against the background of the suggestions that were made to her that there was this six months consensual sexual relationship. And as a result of that, if that was the case, you have a situation of her nevertheless complaining about those acts that took place on 5 July and those are matters which go to her credit.

[Counsel for the applicant]: Yes, I accept they do go to her credit your Honour. I think I'll say nothing further now.

His Honour: Just think about it.

[Counsel for the applicant]: Yes, I will, yes.

His Honour: And if there is some type of redirection you want me to give I would."

The jury then returned to the court and the summing up continued.

The following morning, having apparently listened to the sound recording of the summing up, the trial judge raised the matter again. He told counsel that his view was that the direction did not "even remotely suggest any reversal of the onus of proof". He invited counsel to make any submission as to the direction. Counsel disclaimed any submission that the direction reversed the onus of proof. His complaint, he said, was that the direction attributed to the Crown prosecutor a submission that had not been made.

The complaint that is now made is that the emphasised passage contravened the rule stated in Palmer v The Queen [1998] HCA 2; 193 CLR 1. The principle in Palmer arose in the context of a trial of charges of sexual offences. In that case, the accused gave evidence. More than once, in cross-examination, he was asked to explain, or to propose a reason, why the complainant might fabricate the allegations. His short answer was that he had no idea why she had said what she had said. He confirmed that he could think of no reason why she would make up her allegations.

A question had been put to the complainant in cross-examination expressly suggesting "payback" or revenge as her motive. The High Court noted that cross-examination is permissible and evidence is admissible to establish that a complainant has a motive to make and persist in false allegations. The High Court quoted the decision of this Court in R v F (1995) 83 A Crim R 502 at 511-512, where Gleeson CJ said:

"The 'central theme' of the case, according to the trial judge, could be found in the question, 'Why would the complainant lie'? That is a question, often left unspoken, which usually hovers over cases of this nature ... Whilst that question, sometimes spoken, sometimes unspoken, is often of great practical importance, it is never 'the central theme' of a criminal trial. At a criminal trial the critical question is whether the Crown has proved the guilt of the accused person beyond reasonable doubt. Just as the law does not require the Crown to prove a motive for the criminal conduct of the accused, the law does not require the accused to prove a motive for the making of false accusations by a complainant."

Preceding that, the High Court said:

"7 It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross-examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant. A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant's credit, the complainant may be asked about it. And evidence may be given by other witnesses of events from which such a motive may be inferred. But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused's lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts.

8 If it were permissible generally to cross-examine an accused to show that he has no knowledge of any fact from which to infer that the complainant has a motive to lie, the cross-examination would focus the jury's attention on irrelevancies, especially when the case is 'oath against oath'. In such a case, to ask an accused the question: 'Why would the complainant lie?' is to invite the jury to accept the complainant's evidence unless some positive answer to that question is given by the accused ..."

The passage in the direction of which complaint is now made was not precisely of the kind the subject of the decision in Palmer, although it could be seen as bearing some relationship. However, the impact of the direction needs to be considered in the light of the conduct of the trial.

The applicant was charged with three offences, one allegedly committed on 1 July 2005, two committed on 5 July 2005. The detail of the complainant's allegations are to be found in the judgment of Button J. Put shortly, she alleged:

that she first met the applicant in July 2004 while they were both students at Wollongong University in residence (she as an overseas student);
that she regarded him as a platonic friend and wanted no more intimate relationship;
that he made plain that he sought an intimate and romantic relationship with her;
that he offered her work which she accepted;
that, on 30 June 2005 they travelled together to Canberra to lodge papers concerning her working visa;
that they then visited a friend of the applicant's in Canberra, and left to drive to Wollongong at about 9.00 or 10.00pm;
that the applicant said that he was feeling tired and drove to a hotel in Bundanoon;
that the applicant booked a room, and persuaded the complainant to join him in the room (she having opted to remain in the car);
that, shortly after her entering the room, the applicant sought sexual engagement with her, which she resisted;
that they both fell asleep;
that on their waking the next morning the applicant committed a sexual assault upon her, without her consent, and over her resistance;
that the complainant made no report to any authority of this incident;
that the applicant then drove her to Wollongong;
that she saw the applicant about three days later, when the applicant apologised and promised that there would be no repetition of the incident;
that, on 4 July, the complainant began working for the applicant (who by then was living in an apartment off the university grounds), in his apartment;
that the applicant picked her up to take her to work in his apartment (in his bedroom);
that, on 5 July, the applicant again picked up the complainant from her accommodation at the university to take her to work at his apartment;
that, at about midday that day, the applicant forced her onto the bed and committed sexual offences upon her;
that the complainant made immediate complaint of this event, first to a friend and then to police.

Some corroboration of the complainant's allegations was provided by the applicant's two flatmates.

The complainant was medically examined. Medical evidence supported her account of the non-consensual nature of the intercourse.

The applicant did not give evidence in the trial. His response to the complainant's allegations was put through cross-examination of the complainant. It was clear, from the cross-examination, that the applicant acknowledged that sexual intercourse with the complainant had taken place on both 30 June - 1 July, and 5 July, and that he claimed that it was on each occasion consensual.

The cross-examination was both lengthy and detailed. The cross-examination of the complainant was, in its entirety, to the effect that, for about six months, the complainant and the applicant had had a consensual romantic and sexual relationship. It was put to the complainant that she had, on a number of occasions, willingly engaged sexually with the applicant, in the back of cars, at the beach and at other places. She consistently denied each proposition put to her. By way of support for the applicant's case, a number of photographs of the applicant and the complainant together were tendered. The proposition was that these photographs were consistent with, and evidence of, a relationship of the kind put to the complainant.

In the circumstances, however, that the complainant consistently refuted the suggestions put to her, and that the applicant did not give evidence, there was no evidence of the relationship the applicant claimed to have existed.

Nevertheless, it was quite plain to the jury that that applicant's case was that, over a six month period, the complainant had willingly engaged in sexual activity with him, but that, on 5 July, for some reason, she falsely complained that the sexual intercourse was not consensual, and later made a similar complaint that the sexual activity of 1 July was non-consensual.

In his final submissions, counsel for the applicant repeatedly asserted that the complainant had lied about her relationship with the applicant. He relied upon the photographic evidence to support his repeated assertions that the relationship had been as claimed by the applicant.

The issue for the jury to resolve was whether the Crown had proved to the requisite criminal standard that the complainant had not consented to sexual intercourse with the applicant on each of the two occasions the subject of the charges. Given the manner in which the trial was conducted, that called for some examination of the complainant's conduct. Strictly speaking, counsel's questioning of the complainant could not provide any evidentiary foundation for the jury to accept that she had had a pre-existing sexual relationship with the applicant. But the reality of a jury trial is that such persistent and detailed questioning must have left an impression on the jury. That impression was reinforced by the way counsel for the applicant addressed the jury. The address was premised upon the complainant having been a willing participant. Counsel drew support from the photographs.

The direction given did not contravene the principle stated in Palmer, because it did not (directly) ask the applicant to propose a motive for the complainant to fabricate her allegations. But it was closely allied to the principle, because it did invite the jury to accept the complainant's evidence unless some positive answer could be given to the question, whether proposed by the applicant, or divined, in some way, by the jury.

The task of the jury was to weigh up the competing positions of the parties: on the one hand, that the complainant had never had consensual sexual intercourse with the applicant and on the two occasions of which she had complained, the sexual intercourse had been non-consensual; and, on the other hand, the case put on behalf of the applicant, that, after a long period of willing sexual engagement with him, the complainant had made false allegations. The jury were entitled and obliged to make an assessment of whether there was a reasonable possibility that the latter was the true position. The judge was entitled and obliged to draw to the jury's attention that their task was to consider whether there was such a reasonable possibility. That, no doubt, was why trial counsel agreed that the issue concerned the complainant's credibility.

It was unwise to frame the direction in the form of a question, because to do so had the capacity to cast an onus on the applicant, and invite the jury to accept the complainant's evidence unless some positive answer to the question ("Why did she falsely complain?") could be found. A direction, however, to consider whether there was a reasonable possibility that the complainant had engaged in consensual sexual activity with the applicant over a six month period before making a false complaint, would not have that capacity, and would have been a perfectly proper direction.

The significance of the direction has also to be seen in the context of the entire summing up, and in the light of the discussion that immediately ensued. The comment made by his Honour was but one sentence in a comprehensive summing up. Counsel for the applicant plainly did not see any major problem with it.

Although, as I have concluded, the direction could have been better framed, all it did was to draw attention to the competing positions of the parties, and articulate what must have been in the jury's mind. The directions with respect to the onus and standard of proof made it clear that no onus lay on the applicant. In my opinion, this ground of appeal, if an extension of time were granted, would have little prospect of success.

Ground 4

Although ground 4, as formulated, focuses upon what is called evidence of "flight", the written submissions in support of the ground stray far from that evidence, and draw in a variety of aspects of the evidence of the applicant's conduct on and after 5 July from which the jury might have inferred that the applicant was acting out of a consciousness of guilt.

There was, indeed, a significant body of evidence to support the contention that the applicant behaved as he did because he was conscious that he had committed the offences on 5 July. The evidence showed that he washed the clothes he had been wearing on that day, and the sheets that had been on the bed on which the offence was alleged to have been committed. He left the premises without warning, leaving personal items. He did not return, did not contact his landlady, and abandoned his university course. He attempted to make contact with the complainant. None of this evidence was disputed.

"Flight" is an established category of evidence that comes under the rubric "consciousness of guilt". The first proposition advanced in support of ground 4 is that that evidence (that the applicant left his home and effectively disappeared) ought not to have been admitted. No argument was directed to that proposition. I can think of no sensible argument that could conceivably support it. The second proposition is that the directions in respect of that evidence were inadequate. The directions were:

"Now the Crown has suggested to you by reason of the accused absenting himself from his unit on the 5 July, after [the complainant's] friends came and took her away and she went to the police station, the fact that the accused absents himself from that unit and then is not seen for several months, the Crown invites you to draw an inference as to a consciousness of guilt on the part of the accused by him so doing.

[His Honour then referred to the cross-examination of the complainant to the effect that she and the applicant had had regular consensual sex.]

The Crown says therefore, if that were so why would not the accused have remained in his unit, what was the reason for him in effect taking flight from that unit. The Crown's case is the only rational inference that you could draw from those circumstances is an inference of guilt on the part of the accused, that that demonstrates a consciousness of guilt on the part of the accused. Now that is a matter for you members of the jury whether you accept that that is the only rational inference to be drawn in those circumstances. I have to say to you though, that in considering that scenario, people do not act always rationally. It may be that conduct of this sort can possibly be explained in other ways; there may be reasons for him leaving that unit and not returning, other than a realisation of guilt on his part. Some people may do things out of panic in order to perhaps escape from some unjust accusation. But nevertheless members of the jury, that is a classical matter where it is for you to determine what weight you will give to all of that evidence, it is a matter for you as to whether or not you draw the inference that the Crown seeks."

The directions required with respect to evidence of consciousness of guilt stem from cases in which the Crown has relied upon lies allegedly told by an accused person following the events giving rise to the charge or charges: Edwards v The Queen [1993] HCA 63; 178 CLR 193. They are adaptable to a variety of other forms of conduct also said to have the effect of demonstrating a consciousness of guilt. An important element of the direction is to draw the jury's attention to the need for the conduct in question to demonstrate a consciousness of guilt of the offence charged, and not some other offence or discreditable conduct. The direction given touched only lightly upon that. In some circumstances it may be that such a direction is insufficient. However, the direction given must be seen in the light of the whole of the evidence in the trial, and the conduct of the defence case. On the evidence in this case it is quite impossible to conceive of any other offence or conduct that could have caused the applicant to absent himself. It is not to be forgotten that the applicant's case, put through cross-examination of the complainant, was that he and the complainant had engaged in a long course of consensual sexual contact. It could hardly be inferred that he possibly absented himself out of shame or embarrassment at having had consensual sexual intercourse with the complainant. No other reason for his sudden departure was postulated, and none suggested itself on the evidence. While an accused person bears no onus of proof, the applicant can hardly rely on the absence of a direction that would have not the slightest basis in the evidence. Had the jury been given a more complete direction, it could have led it into speculation about possible alternative reasons for the applicant's sudden departure. An accused person is no more entitled to rely upon speculation than is the Crown.

The written submissions on behalf of the applicant then sought to draw a distinction between the evidence of the applicant's sudden departure and his prolonged absence from the scene of the alleged crime - his home - and his so-called flight from police. This latter was a reference to the applicant's failure to respond to messages left on his mobile telephone by police. The Crown prosecutor made reference to this in her address. Having referred to the applicant failing to respond to messages from his landlady, she then said:

"Did he say that to throw her off the trail in case she might tell the police where he was. She told him that the police were looking for him and she asked him if he'd contacted them. She didn't say that he asked her why the police wanted to speak to him. What did he say. All he said was 'I don't know anything about that'. If somebody told you the police were looking for you wouldn't you want to know why. Wouldn't you ask them why. He knew why. She told him to contact the police and he didn't call the police. Ask yourselves why not ... Detective Rosete left a message for him on 26 July identifying himself, telling him he was wanted by police in relation to the sexual assault allegation and asking him to hand himself in to Ulladulla police station. But he didn't do that. He checked his voicemail three times that day, and Detective Rosete said that that was sometime between 2pm and 5pm that he'd left the message. The accused's voicemail was retrieved at 2.04pm 2.32pm and 5.19pm. And there were a number of phone calls made to other mobiles but no call made to Detective Rosete. And then the phone was switched off for 18 hours. He didn't attend the police station. The police found him where he was on 20 September ..."

The first part of this submission is unexceptionable. It was legitimate to suggest that, if the applicant was not conscious of having committed an offence, he would have asked why the police were attempting to contact him. The second part of the submission, however, concerned with his failure to respond to police messages, is in a different category.

I agree with Button J that such conduct is analogous to the refusal of an accused person, or suspected person, to answer questions put by police. It is a standard and correct direction that, having regard to the right to silence, no adverse inference can be drawn from such a refusal. The Crown prosecutor ought not to have put to the jury what she did. It may have been preferable for the trial judge to have directed the jury accordingly. However, counsel who appeared for the applicant at trial apparently saw no difficulty in what had been said. The evidence of the applicant's failure to return police calls was a small part of the evidence of his post 5 July conduct. This ground of appeal, if leave were granted, also would have little prospect of success.

Conclusion

In order to be granted an extension of time to appeal, it is necessary that an applicant establish some reasonable prospect of mounting a successful appeal. Section 6 of the Criminal Appeal Act (NSW) sets out the basis on which an appeal may succeed. An appeal against conviction is to be allowed if this Court is of the opinion that the verdict of the jury should be set aside on any of the following grounds:

(i) that it is unreasonable; or

(ii) that it cannot be supported; or

(iii) that there has been a wrong decision of any question of law; or

(iv) that on any other ground whatsoever there was a miscarriage of justice.

The applicant has not demonstrated any prospect of establishing any of these. There is no basis for a conclusion that the verdicts were unreasonable, or could not be supported on the evidence; nor that there was any wrong decision of a question of law.

The applicant has sought to show that, for a variety of reasons, there was a miscarriage of justice. I agree with Button J's reasons for concluding that grounds 1, 2 and 5 must fail. The most the applicant has succeeded in doing is to show two minor irregularities in the summing up, neither of which was of sufficient moment to be the subject of complaint by his counsel at trial. In my opinion the applicant has no prospect, if granted an extension of time, of establishing any miscarriage of justice. The conviction was soundly based. An extension of time to appeal should therefore be refused.

HARRISON J: I agree with Simpson J.

BUTTON J: This is an application for an extension of time pursuant to s 10 of the Criminal Appeal Act1912 (NSW) ("the Act") with regard to an appeal against two convictions entered against the applicant by Judge Conlon SC in the District Court of New South Wales after a trial by jury. The convictions relate to two offences of sexual intercourse without consent, knowing that the victim was not consenting, brought pursuant to s 61I of the Crimes Act1900 (NSW). The application for an extension of time is necessary because the application was heard in April 2013 with regard to convictions that were founded upon verdicts of guilty that had been returned by the jury in July 2007.

History

It is convenient at this stage to set out a brief history of the matter.

The indictment upon which the applicant was arraigned alleged three offences. Count one alleged that the applicant had sexual intercourse with the victim, knowing that she was not consenting, at the Southern Highlands township of Bundanoon on 1 July 2005. Penile/vaginal sexual intercourse founded the count. Count two alleged the same offence, said to have occurred at Keiraville (a suburb of Wollongong) on 5 July 2005. Digital/vaginal sexual intercourse was alleged. Count three alleged the same offence, said to have occurred at the latter location on 5 July 2005. Penile/vaginal sexual intercourse founded the count.

The trial commenced with the arraignment of the applicant on those three counts on 25 June 2007. Verdicts were returned on 5 July 2007. The jury acquitted the applicant of the first count, but returned verdicts of guilty on the second and third counts. The applicant was taken into custody on that day.

On 1 November 2007, his Honour sentenced the applicant to imprisonment with regard to counts two and three. The sentence for count two was less than and wholly concurrent with the sentence for count three, and need not be discussed further. With regard to count three, a head sentence of imprisonment for seven years with a non-parole period of five years to date from 30 June 2007 was imposed. That operative non-parole period expired on 29 June 2012. The applicant was released from custody on that date.

I turn now to summarise the evidence of events between the imposition of sentence on 1 November 2007, and the hearing of the appeal on 12 April 2013. These events are recounted in two affidavits of the applicant, one of them hand-written. The applicant also gave oral evidence about the events before this Court. Some parts of the history were amplified by his counsel from the Bar table. Finally, the Crown Prosecutor provided the court, without objection or dispute, with a document summarising events between those two dates.

On 8 September 2008, a notice of intention to appeal was filed on behalf of the applicant in the Registry of this Court. It is noteworthy that that original notice of intention to appeal was over eight months out of time.

On 30 September 2008, the solicitor then acting for the applicant informed the Registry by letter that the applicant wished to withdraw his notice of intention to appeal immediately.

Almost 2 years later, on 31 August 2010, the Registry received a further notice of intention to appeal and an application for extension of time signed by the applicant and dated 26 August 2010.

On 13 September 2010, the Registrar wrote to the applicant confirming receipt of the second notice of intention to appeal; advising him that the previous abandonment did not prevent an application for leave to appeal out of time; and, as the applicant had indicated that he wished to have the assistance of Legal Aid, informing him that the Registrar had asked the appropriate solicitors of that office to contact him.

On 5 December 2011, the Registry received a third notice of appeal dated 11 November 2011, along with an application for an extension of time. The applicant prepared that document.

On 10 May 2012, the Registrar conducted a call-over of the matter. The applicant appeared for himself. The hearing of the application was set down for 26 September 2012.

On 13 September 2012, at another call-over before the Registrar, the applicant appeared for himself again, and the hearing date was confirmed.

On 25 September 2012 (that is, the day before the hearing that had been set down several months previously), counsel who appeared for the applicant filed a notice of appearance on the hearing. The following day, he appeared on behalf of the applicant and applied to have the hearing date vacated, in light of his late involvement. This Court granted that application.

On 26 October 2012, counsel filed amended grounds of appeal and written submissions.

On 8 November 2012, a new hearing date for the appeal was fixed for 12 April 2013. The hearing proceeded on that day.

In his oral and written evidence, the applicant sought to explain the various periods of delay apparent from the above review as follows.

Soon after being taken into custody on the day of the verdicts, the applicant was diagnosed with a mental illness, and, according to him, medicated against his will. The result of the medication was that he lost his ability to think clearly. His position was that it was the adverse effects of the medication that caused him to abandon his appeal in late September 2008, not a considered decision to abide by the convictions.

As for the delay between September 2008 and the reactivation of the matter in August 2010, the applicant explained that he did not cease taking the medication until late 2009. He also stated that it took some time for his mind to clear and for him to return to the view that he should appeal against the two convictions.

As for the delay between October 2010 and December 2011, the applicant explained that the receipt of an advice from counsel organised by Legal Aid with regard to the merit of any appeal took quite some time. After its receipt, he had a falling out with the lawyers whom Legal Aid had arranged for him. Eventually, he dispensed with their services and decided to appear for himself. Again, those logistical steps took quite some time.

In summary it can be seen that, at a hearing in April 2013, this Court was being asked to quash two convictions founded on guilty verdicts that had been returned several months short of six years before the hearing. And the offences of which the applicant was found guilty had been committed several months short of eight years before the hearing.

At the hearing, the Crown Prosecutor opposed an extension of time being granted, whilst accepting that there remains a discretion in this Court to do so.

In light of the passage of so many years, and even accepting that the evidence of the applicant may go some way to explaining it, is clear that the principles with regard to applications for extension of time in this Court require close consideration in this matter.

Principles with regard to extension of time

The time limits on making an appeal against a conviction or sentence contained in s 10 of the Act reflect the principle of finality in litigation: see R v Unger [1977] NSWLR 990 at 994-5.

Bearing that principle firmly in mind, there are a number of factors that the court must consider in deciding whether it is in the interests of justice to grant an extension of time to appeal. These factors were set out by this Court in the recent decision of Abdul v R [2013] NSWCCA 247 at [53] in the context of an application for an extension of time to seek leave to appeal against sentence on the basis of a so-called "Muldrock error". The approach adopted in Abdul v R has been held to extend to all cases in which an extension of time is sought in order to bring an appeal: Alpha v R [2013] NSWCCA 292.

The first factor is the length of the delay, and whether there is any satisfactory explanation for the delay: R v Beattie [2000] NSWCCA 201 at [17]; McCall v R [2010] NSWCCA 174.

The second factor is the interests of all parties involved or affected, including victims and their families, witnesses called in the proceedings, and the Crown (representing the community), as well as the interests of the applicant. In cases in which the delay is considerable, the undesirability of denying the expectation of the community, witnesses, victims, and the families of victims that criminal proceedings have been concluded is a significant consideration to be taken into account: Darwiche v R [2011] NSWCCA 62 at [38]. Regard should also be had to whether the passage of time will detrimentally affect the administration of justice, particularly where there is a proposed retrial: Etchell v R [2010] NSWCCA 262; 205 A Crim R 138 at [23].

The third and final factor is whether a substantial injustice would result if the application for an extension of time to appeal were to be refused. That involves considering the merits or prospects of success of the proposed appeal: R v Young [1999] NSWCCA 275 at [30]. It can be done in a more summary fashion than would be the case on the hearing of the appeal, so as not to defeat the purpose of the time limit: Etchell v R at [25].

In this case the length of the delay, the fact that the applicant had served his non-parole period and been released ten months before the hearing, and the fact that any retrial would almost certainly be impractical, powerfully argue against leave being granted.

I turn to consider in more detail whether a substantial injustice would occur if leave were refused. In order to do so, I shall analyse the prospects of success of each of the grounds more concisely than I would if there were no question of an extension of time. I shall also analyse the considerations that underpin the application of the proviso in s 6 of the Act. That is because I consider that questions of whether a "substantial miscarriage of justice has actually occurred" can inform whether, on an application for extension of time, an applicant can point to a "substantial injustice".

I adopt that approach in general conformity with the approach of Leeming JA (with whom Johnson and Hall JJ agreed) in Outram v R [2013] NSWCCA 329. In that application for an extension of time in a conviction appeal, his Honour regarded the strength of the Crown case as a relevant factor to be taken into account with regard to whether the accused had established that there would be a substantial injustice if the application were refused: at [12]-[18], [49], and [55].

It is also the case that the analogue of the proviso in s 6(1) of the Act with regard to appeals as to sentence, namely s 6(3), is commonly considered with regard to applications for extension of time in the latter setting: see, for example, Abdul v R at [55] - [59].

Crown case

It is convenient to summarise the Crown case in general chronological form.

The victim, a woman aged 24 years at the time of the offences, came to Australia in July 2004 and was studying at a university in Wollongong. She and the applicant met in about November 2004 when they were both residing in student accommodation on campus. He sought a romantic relationship; she wished to remain nothing more than friends.

In April 2005, the applicant contacted the victim and informed her that he had started a business to do with the Internet. She accepted his offer of a job that would, he informed her, found an application for a temporary working visa on her part. On 27 May 2005 they signed a contract of employment.

On 1 July 2005, after a late-night departure by car from Canberra, the two of them ended up sharing a hotel room in the Southern Highlands township of Bundanoon. Whilst in that room, according to the victim, the applicant assaulted her by climbing on top of her whilst she was on the bed. When she resisted and yelled out, she claimed that he placed his hand over her mouth. The struggle came to an end when the applicant fell asleep. The victim fell asleep as well.

When she awoke the next morning a further struggle ensued. Again the applicant placed his hand over the mouth of the victim. He then pulled her pants off and forcibly inserted his penis into her vagina (count one). The victim was struggling continuously.

I interpolate that it is the case, of course, that the applicant was acquitted of the count arising from this alleged incident. It is necessary to recount the allegation, however, in order to understand the first proposed ground of appeal.

After the sexual assault, the applicant drove the victim home. She told no one about what had happened. No injuries were observed to her by any person. She saw the applicant three days later, and he apologised to her. On the same occasion she accepted his offer of employment.

The evidence of the victim was that she commenced work on Monday 4 July 2005 in the applicant's bedroom in the apartment that he shared with two other men. On her first day of work nothing out of the ordinary occurred.

However, her evidence was that on the following day at about lunchtime the applicant entered the room in which she was working. He held her arms, kissed her hard, and put his hand over her mouth to prevent her from crying out. A lengthy struggle ensued between the two of them. Eventually, the applicant manhandled the victim onto the bed and pulled her pants off. The victim was in fear for her life. The applicant inserted one of his fingers into her vagina (count two). Subsequently he inserted his penis into her vagina (count three), causing her pain. Throughout the incident the victim was yelling and shouting, including words that made it clear that she was not consenting.

Two men with whom the applicant shared the apartment gave evidence for the Crown about the events of that day.

Mr Qu gave evidence that he left the apartment around 9 AM and returned at about 12 midday. On his return he did not see the applicant, but noted that his bedroom door was closed. About half an hour later, he heard a female voice say "Please don't do that. I don't want that, please." The speaker sounded agitated, and the words were uttered in a loud tone. He heard those words being said repeatedly and continuously. Mr Qu also heard a noise that sounded to him like that of a person being smacked.

Mr Dale gave evidence that at about 1 PM he saw that the door of the bedroom of the applicant was slightly open. When Mr Dale made some noise to indicate that he was home, the door of the room of the applicant closed. Mr Dale heard some noises coming from the bedroom that he assessed as being of a sexual nature. He also heard a female voice call out from the bedroom "Stop. No, I can't do that." Mr Dale heard those words said twice.

The victim gave evidence that the sexual intercourse ended with what she interpreted as ejaculation. The applicant asked the victim whether she wished to take a shower. She left the bedroom and entered the bathroom. From there she telephoned a friend and asked him to come and collect her. Once she arrived home, she informed her flatmates of what had occurred. They took her to a police station where she was spoken to by police. From there she was conveyed to Wollongong Hospital and medically examined.

The medical examination revealed a large number of injuries to the person of the victim There was a bruise on the left side of her neck; a bruise to the lower side of her left cheek; a graze on the side of her forehead; a laceration to her right lower lip associated with a bruise; a dark red bruise inside the back of her mouth; a reddish white area above a lower wisdom tooth; two red bruises on the top of her left buttock; some bruises on her legs; bruises on her arms; and multiple superficial abrasions on the back of her left shoulder.

The examining doctor gave evidence that the injuries observed were consistent with the history given by the victim. She also gave evidence that, in her opinion, none of the bruises observed showed signs of being more than 18 hours old.

Later in the evening of 5 July 2005, the police executed a search warrant at the apartment. The applicant was not present. It was observed that the bed in the bedroom of the applicant had been stripped. Located in the washing machine of the apartment were wet items that included bed sheets, a pillow case, underwear, pants, and shirts, including a grey shirt. Mr Dale informed the police that the applicant had worn that item earlier in the day.

On 6 July 2005 the victim provided a statement to police in relation to the events of the previous day. The police took photographs of the numerous injuries that I have described.

Meanwhile, on 5 July 2005, the applicant had left his rented room never to return. On 7 July 2005, the lessor changed the locks and stored all of the furniture and personal belongings that the applicant had left behind when he departed.

A large amount of evidence was given of events after 5 July 2005, with particular focus upon the movements and behaviour of the applicant. It included evidence of mobile phone records of the applicant that suggested that he was moving around different parts of New South Wales. It also showed that a large number of calls were made from a mobile phone associated with the applicant to a mobile phone associated with the victim. On 18 July 2005 the applicant failed to attend a meeting that he and the victim had arranged, and at which the police intended to arrest him.

On 26 July 2005, the applicant telephoned his lessor to enquire about the fate of his property and to ask how much rent he owed. She asked the applicant whether he knew that the police were "looking for [him]". His reply was that he "[didn't] know anything about that". The lessor said, in effect, that he should go to the police and clear things up.

On the same day, a police officer telephoned the mobile telephone number of the applicant. He left a voicemail message telling the applicant that he was wanted by police, and asking him to hand himself in at Ulladulla Police Station. The applicant did not return the call, and did not hand himself in.

Police also attended the university at which the applicant was studying. University records showed that, after 5 July 2005, the applicant abandoned his studies.

On 21 September 2005 the applicant was arrested. The police saw that his car contained bedding. On arrest the applicant exercised his right to silence. (In fact, he had answered some questions, but their admission was rejected by his Honour, and the matter was left to the jury on that basis.)

It was not until March 2007 that the victim gave the police a statement with regard to the events of 30 June and 1 July 2005.

In short, the Crown case with regard to counts two and three included the direct evidence of the victim; her immediate complaint; the sounds and utterances heard by the two flatmates of the applicant coming from his bedroom at a time when the bedroom door was closed; the multitude of injuries to the person of the victim; the sudden departure of the applicant from his home, where he left a number of personal items; and, finally, his conduct in stripping the bed and seeking to wash the sheets from it, along with the shirt he had been wearing on the day of the sexual contact in question.

Defence case

Counsel who appeared for the applicant in this Court was not counsel who appeared for him at trial. To differentiate between them I shall refer to the latter as "defence counsel".

No evidence was called in the defence case. Nor was the character of the applicant raised in the Crown case by defence counsel, either generally or in a specific respect.

The defence case was that the applicant and the victim indeed had sexual contact on 1 July and 5 July 2005, but that all of it was with the consent of the victim. She firmly denied that suggestion.

In cross-examination of the victim it was put to her that she and the applicant enjoyed a long-standing consensual sexual relationship for many months before July 2005. That proposition was also firmly denied. A number of photographs were tendered in support of the proposition that the two of them were on good terms for quite some time. The victim was brought to the position of accepting that the relationship between the two of them had featured more socialising than she had first detailed. It was also put to the victim that, when she had had consenting sexual intercourse with the applicant, she was in the habit of yelling "No, no, no". Again, that was robustly rejected.

In cross-examination of Mr Qu and Mr Dale, defence counsel demonstrated that, although having heard the noises from the bedroom, neither of them was sufficiently concerned to do anything about them.

In cross-examination of the officer in charge of the investigation, it was suggested that there were sundry deficiencies in their investigation of the matter. Again, that proposition was denied.

In his final address, defence counsel bluntly submitted that the jury would find that the victim had lied about the extent of her relationship with the applicant, and that, as a result, the jury could not accept her as a witness of truth with regard to the allegations.

Grounds

I proceed to analyse, in a concise way, the degree to which each of the grounds supports the proposition that, if the extension of time were not granted, a substantial injustice would occur.

The applicant's proposed grounds of appeal were as follows:

(1) The trial miscarried because tendency evidence, introduced through the ex officio indictment, was not identified and made the subject of direction.

(2) The verdict for count one (not guilty) and the verdicts for counts two and three (guilty) are rationally irreconcilable, rendering the guilty verdicts unsafe.

(3) The Learned Trial Judge's directions were in error in relation to complaint, in that:

(a) Directions in relation to defence counsel's suggestions were misplaced in the circumstances and had the potential to confuse the jury.

(b) The Learned Trial Judge inadvertently invited the jury to speculate upon why the complainant might lie if she was not to be believed.

(4)

(a) Evidence was admitted in relation to flight which ought not to have been, or if admitted should have been accompanied by adequate direction from the Learned Trial Judge.

(b) His Honour erred in his directions as to flight

(i) in not differentiating between flight from the applicant's flat and flight from the police.

(ii) in not giving an adequate "Edwards" direction.

(iii) misapplying the suggestions of counsel in relation to flight.

(5) The trial miscarried because the applicant was not given the benefit of raising his good character in a particular respect, that is that he had no convictions for assault or sexual or indecent assault.

Ground 1 - The trial miscarried because tendency evidence, introduced through the ex officio indictment, was not identified and made the subject of direction.

This ground is founded upon the proposition that the trial judge should have warned the jury that they were not to use the evidence that underpinned count one as tendency evidence in support of the evidence that underpinned counts two and three. It mentions the fact that count one had not been the subject of a committal, but nothing turns on that.

Its prospects of success need to be considered in the context of a number of aspects of the conduct of the trial as a whole.

First, his Honour explicitly directed the jury in the summing up to consider each count separately:

"... in relation to each of these charges you should consider them separately, the evidence separately in relation to each charge. So in each case the crown must prove beyond a reasonable doubt that the complainant did not consent to the particular act of the accused. If the crown fails to do this then the accused is not guilty. If you are however satisfied beyond reasonable doubt that the accused did have sexual intercourse with [the victim] and also that she did not consent in relation to each charge, then you must

go on to consider the third and last element, namely, whether the accused knew that she was not consenting.."

"Well members of the jury, you will recall no doubt that I told you, that you of course have to consider the evidence in relation to each count separately."

Furthermore, in reviewing the evidence in the trial, his Honour said:

"I should say, members of the jury, of course all the evidence that I have read to you in relation to the Bundanoon Hotel, that is all relevant of course to the first charge on the indictment."

Secondly, the transcript of the final addresses records that a portion of the final address of the Crown Prosecutor was "unable to be transcribed" due to the master tape being "no longer available". Nevertheless, I consider that it is established from the final address of defence counsel, the summing up, and the discussions of legal matters in the absence of the jury (all of which are available in their entirety) that the Crown never relied upon the evidence underpinning count one as supporting counts two and three, whether as tendency evidence, coincidence evidence, context evidence, relationship evidence, bad character evidence, or anything else. Counsel for the applicant did not contend to the contrary.

Thirdly, counsel for the applicant invited the attention of this Court to the decisions of Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463 at [80] and DJV v R [2008] NSWCCA 272; 200 A Crim R 206 at [29] - [31]. But I regard those judgments as inapposite. That is because they speak of the need for a warning not to use evidence as tendency evidence when evidence of uncharged acts has been admitted in order to provide a context for charged acts, or to set out the relationship said to surround the charged acts. That may be sharply contrasted with the position that pertained here. As I have said, the evidence underpinning count one was not relied upon by the Crown in any way with regard to counts two and three.

Fourthly, no application was made by defence counsel for any such direction or warning.

Fifthly, a warning in accordance with the requirements of R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 was given by his Honour as follows:

""Well members of the jury, you will recall no doubt that I told you, that you of course have to consider the evidence in relation to each count separately. And consequent upon that I can tell you that if you had a reasonable doubt concerning the credibility of the complainant's evidence in respect of one count, then you can take that into account when assessing her credibility in relation to the other counts"

Counsel for the applicant submitted in this Court that the giving of such a warning by his Honour undermined the direction that the evidence in support of each count needed to be considered separately.

The short answer to that submission is that, whilst it may be true that a "Markuleski direction" conceptually undermines the discrete consideration of each count, it does so in a way that markedly favours the interests of an accused person. One can readily see that, in the circumstances of this trial, an adverse determination about the credibility of the victim with regard to count one could have powerfully assisted the applicant with regard to counts two and three. In any event, if his Honour had not given such a direction, that would have constituted an appellable error. Of course, defence counsel at trial did not resist the giving of the direction.

Sixthly and finally, for his Honour to have directed the jury not to adopt a process of reasoning that had not been mentioned by either party, and that was flatly contradicted by the explicit direction his Honour had given about the separate consideration of the evidence with regard to each count, may well have tempted the jury to embark upon the very process of reasoning prohibited by any such direction. In other words, I consider that any such direction may very well have disadvantaged the applicant.

In short, the direction contended for was not called for by the Crown case that was presented; was adequately dealt with by an explicit direction of his Honour; was not sought by counsel for the applicant; was not supported by authority; and may very well have disadvantaged the applicant.

The prospects of success of ground one do not support an extension of time being granted.

Ground 2 - The verdict for count one (not guilty) and the verdicts for counts two and three (guilty) are rationally irreconcilable, rendering the guilty verdicts unsafe.

This ground focuses upon the acquittal on count one and the verdicts of guilty on counts two and three. Counsel for the applicant submitted that they were rationally irreconcilable and invited the attention of this Court to the judgments in Mackenziev The Queen [1996] HCA 35; 190 CLR 348 at 367 and R v Markuleski at [78].

Whilst accepting that there were differences between the evidence that supported count one and the evidence that supported counts two and three, counsel for the applicant embarked upon a detailed analysis of the evidence in support of the latter two counts in an effort to demonstrate that, on close consideration, the evidence in support of counts two and three was not as strong as it may have appeared at first blush.

The difficulty in that approach is that the exercise that this Court undertakes with regard to such a ground is not to engage in a detailed analysis of the strength or weakness of the Crown case with regard to the count or counts of which an appellant has been convicted. Rather, the test may be stated succinctly as being whether "there is a logical and reasonable basis for sustaining the differentiation that the jury drew": MFA v The Queen [2002] HCA 53; 213 CLR 606 at [89].

I consider that there is a plethora of evidence that provides a rational reconciliation of the fact that the jury was not satisfied beyond reasonable doubt of proof of count one, but was so satisfied with regard to proof of counts two and three. In a number of separate ways, the evidence was markedly stronger with regard to counts two and three than it was with regard to count one.

First, complaint was delayed by many months with regard to count one. It was immediate with regard to counts two and three.

Secondly, after the incident that gave rise to count one the victim maintained her working relationship with the applicant. That was not the case with regard to counts two and three.

Thirdly, there were no witnesses who could give evidence touching upon the sexual contact that founded count one. In particular, there were no witnesses who could shed any light on whether or not the sexual intercourse that underpinned count one was consented to by the victim. In stark contrast, one witness gave evidence with regard to counts two and three of hearing sounds that were consistent with the infliction of force by the applicant upon the person of the victim during the sexual contact that founded the latter two counts. Furthermore, two witnesses gave evidence of having heard things said by the victim at the same time that were, on any sensible analysis, strongly suggestive of a lack of consent on her part.

Fourthly, no witness gave evidence of having seen the victim injured immediately after the sexual contact that underpinned count one. Again in stark contrast, when the victim was examined by a doctor shortly after the sexual contact that underpinned counts two and three, she was found to have a very large number of injuries to her person. And those injuries were generally consistent with the actions of the applicant of which she had made prompt complaint.

Fifthly, there was no evidence with regard to count one that was suggestive of a consciousness of guilt on the part of the applicant. That was not the case with regard to counts two and three. I shall turn to discuss that proposition in more detail when I come to discuss the fourth proposed ground of appeal.

I reject the proposition that there was no rational basis for the differentiation on the part of the jury between count one and counts two and three.

Again, the prospects of success of this ground do not support granting an extension of time.

Ground 3 - The Learned Trial Judge's directions were in error in relation to complaint, in that:

(a) Directions in relation to defence counsel's suggestions were misplaced in the circumstances and had the potential to confuse the jury.

(b) The Learned Trial Judge inadvertently invited the jury to speculate upon why the complainant might lie if she was not to be believed.

This ground is founded upon things said by his Honour in the summing up when directing the jury about the issue of evidence of complaint.

The background was that, as I have said, defence counsel had put to the victim in cross-examination that, far from the two incidents that founded the counts in the indictment being the only sexual contact that had occurred between the victim and the applicant, there had been numerous consenting sexual encounters between the two of them over the preceding months.

His Honour said to the jury:

Now in respect of the second and third counts, that is on 5 July you have heard evidence that she complained immediately, she told friends that took her to the police station where she made her statement about what occurred on 5 July 2005 and she was then taken to the Wollongong Hospital.

The crown says that the fact that she complained inthose circumstances shows a consistency of conduct on thepart of [the victim], in that she complained to people whomshe might reasonably be expected to complain if she hadbeen sexually assaulted and she did so the crown saysalmost immediately. The crown says in relation to thatcomplaint concerning those two assaults that such is theconduct of a truthful person who had been sexuallyassaulted, in other words the evidence is relevant to the credit of the complainant as a witness, in that it may increase the weight that you give to her evidence in respect to these assaults alleged to have occurred on 5 July. Implicit in the crown's arguments is that you should also look at this complaint being made by [the victim] against the background of the suggestions that were made to her that for a period of what must have been in excess of six months there had been continual consensual sexual intercourse between the two of them. Now if that was the case why did she go to complain on this occasion if it was just another act of consensual sexual intercourse. [Emphasis added]

At a later stage of the summing up his Honour said:

Members of the jury when a question is asked of a witness it is not the question that becomes the evidence. It's not the question that is the evidence. All of the suggestions of prior consensual acts of sexual intercourse were met with firm denials from [the victim]. Therefore there is no evidence before you that there was ever any prior consensual acts of sexual intercourse. See if I wasto say to one of the male members - this is just a hypothetical example, if I was to suggest to one of the male members of the jury, "look you beat your wife don't you?". The person says, "No I don't beat my wife", "I'm suggesting to you that over the last period of six months you've beaten your wife on about five or six occasions?" "No that's not right?" "I'm putting to you that you get angry, you've got a temper problem and you beat your wife?" And he says, "Well I don't know what you are talking about". The mere putting of the question is not evidence that he beats his wife. For you to accept that proposition you'd need to hear some evidence from other quarters in relation to whether the wife was beaten or not.

His Honour also said:

"... the situation here is members of the jury that there is no evidence before you that there were any prior consensual acts of sexual intercourse and you should put those suggestions out of your mind and ignore them."

Defence counsel took issue with the first of the statements that I have extracted in the absence of the jury. At first, his concern seemed to be (the position is not entirely clear) that what his Honour had said could lead the jury to ask themselves why the victim would complain on this occasion if what she was saying was not true.

In extended discussion, the Crown Prosecutor disavowed having made any such argument to the jury, due to her concern to avoid infringing the prohibition contained in Palmer v The Queen [1998] HCA 2; 193 CLR 1 against asking a jury to consider why a prosecution witness would lie.

Eventually, defence counsel adopted the position that his real concern was that, in truth, his Honour had put an argument to the jury that did not emanate from the Crown Prosecutor. He submitted that, if there were any arguments in favour of the applicant that were implicit in his submissions, his Honour should put those to the jury as well. Defence counsel sought neither a discharge of the jury nor a redirection with regard to what his Honour had said.

At the hearing of the application in this Court, counsel for the applicant submitted that, taken together, those portions of the summing up suffer from two deficiencies. The first was said to be that the jury may well have been confused by his Honour informing them that, on the one hand, questions are not evidence; and, on the other hand, purporting to recount an argument of the Crown that was founded on the idea that the credibility of the victim could be bolstered by way of the rejection of the propositions of fact underpinning questions asked of the victim by defence counsel.

Secondly, he submitted that, although what his Honour said could be summarised as "Why would she falsely complain?" as opposed to "Why would she lie?", nevertheless it fell foul of the reasoning in Palmer v The Queen.

The Crown Prosecutor in this Court emphasised that neither basis of the ground had caused defence counsel any concern. She submitted that the argument that was being recounted by his Honour was, on analysis, really nothing more than the unexceptional proposition that one can look to the complaint to see whether it was consistent with the allegation. She further submitted that the extract from pp 62-3 of the summing up that I have provided above would have resolved any confusion in the minds of the jury about the use that could be made of the questions of defence counsel.

I consider that this ground has some merit, and supports an extension of time being granted. That is so for a number of reasons.

First, I consider that it was regrettable that, in summarising the arguments of the Crown, his Honour put to the jury a submission that had not, in fact, been made by the Crown Prosecutor, and that was disavowed by her in the absence of the jury. Apart from anything else, those who appear for accused persons at trial should be in a position in final address to answer the explicit submissions made by the Crown Prosecutor. They should not have to deal pre-emptively with implicit arguments of the Crown that could be put to the jury in the summing up.

Secondly, it is true that juries are routinely directed that questions asked by counsel are not evidence. On the other hand, in very limited circumstances, propositions put to a witness by counsel for a party can be relied upon as being evidence of instructions given by the party to his or her counsel: see, for example, R v Birks (1990) 19 NSWLR 677 at 688-690; RWB v R; R v RWB [2010] NSWCCA 147; 202 A Crim R 209 at [94] - [101]. The most usual case in which that process can occur is when the propositions explicitly "put" by counsel for a party are markedly inconsistent with things previously said or evidence subsequently given by that party. That had no application in this trial, because, as I have said, the evidence was that the applicant exercised his right to silence before trial and he did not give evidence at the trial. Nevertheless, I consider that there is some force in the proposition that the way things were explained in this particular summing up could have confused the jury.

Thirdly, generally speaking, neither a Crown Prosecutor nor a trial judge should ask the jury to consider rhetorical questions that invite answers which are adverse to the accused, in light of the danger of the jury coming to believe that the accused in a criminal trial is required to make answer to the prosecution case: Wood v R [2012] NSWCCA 21 at [605]-[606].

Fourthly, the question left for the consideration of the jury was, in effect, as follows. If it be the case, as the defence case asserts, that the victim had engaged in consenting sexual contact with the accused on many previous occasions, why would she complain of sexual assault with regard to the final two occasions, if they were, as the defence case asserts, consenting as well? That question may be simplified and paraphrased as "Why would the victim make a false complaint in this case if the defence case is to be accepted?" And that question, to my mind, when shorn of its circularity, is not conceptually different from "Why would she lie?"

In other words, I respectfully consider that the implicit question that his Honour asked the jury to consider when purporting to summarise the arguments about complaint of the Crown Prosecutor, whilst not directly contrary to what was said in Palmer v The Queen, had the potential to lead to a line of reasoning that reverses the onus of proof in a way that is prohibited. The reticence of the Crown Prosecutor was well founded.

In short, this ground supports an extension of time being granted.

Ground 4

(a) Evidence was admitted in relation to flight which ought not to have been, or if admitted should have been accompanied by adequate direction from the Learned Trial Judge.

(b) His Honour erred in his directions as to flight

(i) in not differentiating between flight from the applicant's flat and flight from the police.

(ii) in not giving an adequate "Edwards" direction.

(iii) misapplying the suggestions of counsel in relation to flight.

This ground was founded on the proposition that all of the evidence of flight should not have been admitted; in the alternative, that the directions given about it were inadequate.

Although the position is not entirely clear from the transcript of the legal discussions at trial, I am prepared to approach the matter on the basis that defence counsel objected to all of the evidence said to support a consciousness of guilt on the part of the applicant.

With regard to the directions about the topic however, although at the end of the summing up he invited the attention of his Honour to a number of matters, defence counsel did not seek any redirections about it.

In submissions in this Court, counsel for the applicant embarked upon a detailed analysis of all the evidence said to constitute flight showing consciousness of guilt. As I understand his submissions, he did not object to the admission of the evidence that the applicant abandoned his home and possessions on the same day as the sexual contact that underpinned counts two and three. But he submitted that a great deal of the other evidence said to show a consciousness of guilt by way of flight was irrelevant; or, in the alternative, should have been excluded pursuant to the "discretion" contained in s 137 of the Evidence Act 1995 (NSW). He further submitted that the directions given about the evidence of flight were inadequate.

In this Court the Crown Prosecutor again focused on the absence of complaint by defence counsel about the directions. She submitted that they were in general conformity with what was said in R v Cook [2004] NSWCCA 52 at [50]-[52] about the requirements for directions with regard to acts other than lies said to show consciousness of guilt. She also submitted that knowledge on the part of the applicant that the police were looking for him could validly inform an assessment of the other evidence said to demonstrate consciousness of guilt.

By way of background, in her final address at trial the Crown Prosecutor relied upon a number of aspects of the evidence in support of the submission that the applicant had shown a consciousness of guilt. I shall discuss them in general chronological order.

First, one could infer that on 5 July 2005 the applicant sought to wash the bedding from the bed on which the sexual contact took place, along with the shirt that he was wearing at the time.

Secondly, on 5 July 2005 the applicant left his room without warning and never returned. He left a number of personal possessions there, including a desktop computer.

Thirdly, after that date the applicant did not complete his university course.

Fourthly, over the next several weeks the applicant repeatedly contacted the victim by telephone and email. The Crown Prosecutor submitted that that could have been in an effort to have her forgive him, as she had seemingly done in some sense after the incident underpinning count one.

Fifthly, up until the date of his arrest, the applicant was moving around New South Wales and the Australian Capital Territory, and arguably sleeping in his car in order to facilitate that.

Sixthly, in the conversation with his lessor, when told that the police were looking for him, the applicant did not ask why. Nor did he contact the police after that conversation.

Seventhly, in the same conversation, when the applicant said that he was "working up the bush", that could well have been a lie, in that he was in truth on the South Coast of New South Wales.

Eighthly, despite the police having left a message informing the applicant that he was "wanted" and asking him to hand himself in to Ulladulla Police Station, he neither returned the call nor attended the Police Station.

No discussion took place before the final address of the Crown Prosecutor to determine whether she was entitled to address the jury in those ways.

The directions that his Honour gave about the topic were as follows:

Now the crown has suggested to you that by reason of the accused absenting himself from his unit on the 5 July, after [the victim's] friends came and took her away and she went to the police station, the fact that the accused absents himself from that unit and then is not seen for several months, the crown invites you to draw an inference as to a consciousness of guilt on the part of the accused by him so doing. The Crown's case in relation to that is, the suggestion and I say the suggestion only being that here was a relationship which had existed for months andmonths and months, indeed as I understand the suggestionwas going back into 2004 and going right through up untilJuly 2005 it was relationship which involved consensualsex. Indeed on the very first night as I understand it,that [the victim] and her friend ... went to the apartmentof the accused where he cooked them a meal, that there wasconsensual sex on that very first night, that there wasconsensual sex in shopping car parks, in the car park of Fox Studios, in the car park at the Bondi Beach and certainly other locations and involved anal sex and that on this occasion at the Bundanoon Hotel again consensual and on this day 5 July in his home, again consensual.

The crown says therefore, if that was so why would not the accused have remained in his unit, what was the reason for him in effect taking flight from that unit. The crown's case is the only rational inference that you could draw from those circumstances is an inference of guilt on the part of the accused, that that demonstrates a consciousness of guilt on the part of the accused. Now that is a matter for you members of the jury whether you accept that that is the only rational inference to be drawn in those circumstances. I have to say to you though, that in considering that scenario, people do not always act rationally. It may be that conduct of this sort can possibly be explained in other ways; there maybe reasons for him leaving that unit and not returning, other than a realisation of guilt on his part. Some people may do things out of panic in order to perhaps escape some unjust accusation. But nevertheless members of the jury, that is a classical matter where it is for you to determine what weight you will give to all of that evidence, it is a matter for you as to whether or not you draw the inference that the crown seeks.

Later, at the request of the Crown Prosecutor, his Honour supplemented those directions as follows:

"You remember members of the jury when I indicated to you that the prosecution was asking you to draw the inference as to a consciousness of guilt on the part of the accused on the basis of the circumstances that on that day, 5 July, he left the unit and did not return. Well of course the evidence of [the lessor] is also something that the crown would ask you to consider on that issue"

When considering the admissibility of evidence said to demonstrate consciousness of guilt (whether it be lies, flight, suborning a witness, or anything else), it is important to recall what was said in R v Lane [2011] NSWCCA 157 at [60] by Simpson J (with whom Howie AJ agreed). In short, the task for a trial judge is to determine whether the evidence has the capability to pass the tests enunciated in Edwards v The Queen [1993] HCA 63; 178 CLR 193 and R v Lane, and not to determine whether it actually does so. The latter question is within the province of the jury.

To my mind, the evidence that, on 5 July 2005, very soon after the sexual contact, the applicant suddenly left his home and belongings, never to return, certainly has that capability.

I take the same view of the evidence that, before his departure, the applicant took steps to wash the bedding upon which the sexual contact took place, and the shirt that he had been wearing that morning.

I also consider that, although less powerful, the evidence that the applicant commenced to move around the state, left university, repeatedly contacted the victim, and possibly lied about his whereabouts, could also have had that capability. (It is difficult to be determinative about the question, in light of the absence of full argument about it.)

Nor do I consider that it can be determined that s 137 of the Evidence Act mandated exclusion of all or any of that evidence.

However, there is a serious question whether the evidence of the applicant declining to return the calls of the police officer and to present himself to the police station shares the requisite capability. If a person has a right to silence when invited to be interviewed by the police from which no inference can be drawn (except in very limited circumstances delineated by statute), it would be anomalous if a failure to assist the enquiries of the police by returning their calls or attending at a police station could be used adversely to an accused as evidence of consciousness of guilt.

In Kuehne v R; Humphries M v R; Humphries A v R [2012] NSWCCA 270, the Crown case was that the three appellants were the aggressors in a brawl at a private house and had discharged a weapon there. The defence case was that the men had not possessed a firearm and were the victims of the violence. Each of the appellants had delayed for five days in providing their version of events to the police by way of recorded interviews, even though they had been, on their case, the victims of serious offences.

Contrary to the submissions of defence counsel at trial, the learned trial judge had given the jury a "consciousness of guilt direction" with regard to that delay.

On appeal to this Court, Fullerton J (with whom McClellan CJ at CL and Latham J agreed on this point) held that the direction should not have been given and that the convictions should be quashed. Fullerton J noted at [48] that at first instance:

Defence counsel submitted that the consciousness of guilt direction sought by the Crown, based as it was upon the five day delay in the appellant giving his account to police, contravened the prohibition on a jury drawing an adverse inference from the exercise of the right of each of them during that period not to speak to police, whether to volunteer their accounts as innocent victims or to answer questions as suspects.

At [69] her Honour said:

The Crown [at first instance] did not identify with any clarity how the delay in presenting to police supported an inference of guilt (of each of the appellants of the offences charged) save as to submit that it was capable of revealing they had each concealed their guilt. The trial judge's directions were to the same effect. The circularity in that reasoning deprived the evidence of the essential requirement that the conduct under consideration, together with other circumstances and events, is capable of rationally supporting an inference of guilt. If the issue of delay in this case had that capacity it would follow that in every case where an accused, knowing or believing that they are suspected of having committed an offence, did not promptly give an exculpatory account to police, the Crown would be entitled to seek a consciousness of guilt direction. The absurdity of that proposition exposes the flaw in the Crown's argument at trial and the Crown's submissions on appeal.

Although the circumstances in that appeal and this application are not identical, I consider that the line of reasoning in the latter part of that paragraph is apposite. It is one thing to infer that evidence of flight from the scene of an alleged crime, or of other actions calculated to evade the police, is capable of demonstrating a consciousness of guilt. It is quite another to say that declining to return telephone calls from police officers, or to attend at locations in accordance with their requests or demands, is capable of doing so.

I consider that the question of the admissibility of some of the evidence said to show a consciousness of guilt supports the application being granted.

Turning to the question of the adequacy of the directions, it can be seen that they do not delineate explicitly the matters that the jury would need to find established before they could use a lie (or other act) said to have been done in consciousness of guilt, in accordance with the pre-conditions for such use set out in Edwards v the Queen and R v Lane. To that extent, I respectfully consider that they are deficient.

On the other hand, I consider that Rule 4 of the Criminal Appeal Rules has an important role to play in this context. As I have said, defence counsel did not seek any re-directions. It could well be that that was because defence counsel regarded some of the evidence as very adverse, and took the tactical position that the less detailed discussion in the summing up about it the better. In other words, the tactical view was certainly open that the more the trial judge said about the pre-conditions of use by the jury of the evidence as showing a consciousness of guilt, the more the jury would be inclined to find those pre-conditions fulfilled, and thereafter make use of the evidence against the applicant.

In those circumstances, I consider that the part of the ground focused upon the inadequacy of the directions about consciousness of guilt does not support leave being granted.

Ground 5 - The trial miscarried because the applicant was not given the benefit of raising his good character in a particular respect, that is that he had no convictions for assault or sexual or indecent assault.

This ground is founded upon the fact that, although at the time of the trial the applicant had no criminal convictions, his counsel did not place evidence of that fact before the jury by way of raising his character in a particular respect, pursuant to s 110 of the Evidence Act.

Three affidavits relevant to this ground were read before this Court.

An affidavit of 4 April 2013 of defence counsel deposed that, although he had read material provided to him by the Crown and by his instructing solicitor at the trial, he was "still unable to recall any matter which arose in relation to instructions given to me by Mr Miles in relation to the conduct of his case". As for matters in the trial transcript, counsel deposed that he had "no independent recollection of them".

The clerk who instructed counsel throughout most of the trial deposed on 8 April 2013 that she had been unable to locate the detailed notes that she took during the trial. She also deposed that she recalled a conversation with counsel in which he said words to the effect "our client is a person of good character. He has no convictions".

In an affidavit of 21 March 2013, the solicitor for the applicant at trial deposed that he had been told by his clerk of the conversation between her and counsel about the applicant being of good character. The affidavit does not state when that conversation was reported to the solicitor. The affidavit also describes defence counsel as "a barrister of massive criminal experience having practised in that area nearly all of his life, fairly close to exclusively".

It was established during the hearing of the application that, at the time of the trial, there was evidence that the applicant had used false names on occasions. No doubt the risk of that evidence being placed before the jury in rebuttal of the proposition that the applicant was a person of good character generally informed the approach of counsel for the applicant in this Court. His complaint was not that good character had not been raised generally; rather, it was that good character had not been raised in a particular respect.

It is true that, in any trial, the raising of good character in a general sense powerfully assists the accused, and it may be that in a trial in which sexual offences are alleged it does so with particular force. Raising character in a particular respect is less powerful, and, by its very specificity, has the potential to lead the jury to speculate about why the evidence is circumscribed.

In this case, years after the event, it is not possible to reconstruct all of the considerations that may have led counsel not to raise character in a particular respect. It is possible (though, in light of the undisputed affidavit evidence of the vast experience of defence counsel, very unlikely) that defence counsel simply overlooked the matter. On the other hand, although I accept that there was no evidence of it presented at the hearing of the application almost six years later, it is possible that the Crown Prosecutor at trial informally told defence counsel of some material that would be relied upon in rebuttal of any evidence of good character in a particular respect, pursuant to s 110(3) of the Evidence Act. That kind of exchange does not occur infrequently in criminal trials in my experience, and very often defence counsel decides that character should not be raised either generally or specifically, without seeking a ruling from the trial judge.

On the state of the evidence before this Court, one is unable to reconstruct events sufficiently to determine that the failure of defence counsel to raise the character of the applicant could constitute a substantial injustice.

I do not consider that ground five supports an extension of time being granted.

The proviso and related concepts

I have indicated that I consider that grounds one, two, and five do not support an extension of time being granted. I have also indicated that I consider that ground three and part of ground four support such an extension being granted.

The further and final aspect of the matter that needs to be considered with regard to this preliminary question is the effect that the proviso contained in s 6 of the Act would have upon the ultimate disposition of the matter if the application were granted. That calls for a consideration as to whether or not, if an extension of time were granted, there is some prospect of the applicant not only demonstrating that a miscarriage of justice has occurred, but also resisting the proposition of the Crown that, in this case, "no substantial miscarriage of justice has actually occurred". To express the inquiry in the terms of Abdul v R, I consider that reflection on the proviso must influence whether to refuse leave to appeal out of time could lead to a substantial injustice.

To return to the state of the evidence, the jury acquitted the applicant on count one. That verdict was not surprising, in light of the delay in complaint of many months, the contact with the applicant that the victim engaged in subsequent to the alleged sexual assault, and the absence of supporting evidence.

The evidence in support of counts two and three, however, was very powerful.

As I have said, there was no dispute that sexual intercourse occurred between the applicant and the victim; the question with regard to each count was merely whether she was consenting. In summary, the victim telephoned a friend to pick her up from the bathroom immediately after the sexual contact ended. She complained of having been sexually assaulted once she arrived at her home. Later that day her body was seen to have a multitude of separate injuries to it. There may have been deficiencies with regard to the admission of and directions about the evidence of flight. Still and all, I consider that it was certainly admissible and highly probative that, on the day of the sexual encounter, the applicant suddenly and permanently left his home and belongings, having sought to wash the bedding and his shirt. Most importantly of all, two independent witnesses heard sounds from the bedroom in which the sexual contact was taking place. One of them heard sounds that were powerfully probative of the infliction of force to her body. Both of them heard words said by the victim that were powerfully probative of a lack of consent on her part.

The state of the evidence as a whole leads me to be affirmatively satisfied that, whatever the merits of grounds three and four, the convictions with regard to counts two and three occasioned no substantial miscarriage of justice. In other words, even were counsel for the applicant to establish the errors that he contended underpinned ground three and four, I respectfully consider that, by way of the application of the proviso, an appeal against conviction would be doomed to failure. In those circumstances, it would be otiose to grant an extension of time.

To express my view another way, I do not consider that it has been established that there would be a substantial injustice were the application for extension of time refused.

Conclusion

Returning in summary to the factors to be considered with regard to an application for an extension of time, the delay between the entry of the convictions and the hearing of the application was many years. Although an explanation for that delay was provided, it cannot be denied that much of it was the responsibility of the applicant. There is a clear public interest in favour of the bringing of allegations of serious criminality such as that encompassed in counts two and three to finality, and against reopening the matter after the intervention of almost six years.

Quite apart from those considerations, an analysis of the evidence as a whole leads me to the view that, even were a ground or grounds established, the convictions would not be quashed, and the maintenance of the convictions does not occasion a substantial injustice.

In all of those circumstances, I consider that an extension of time should not be granted.

Orders

I propose the following order:

(1) Leave to appeal out of time refused.

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Decision last updated: 09 May 2014

Medium Neutral Citation:	Miles v R [2014] NSWCCA 72
Hearing dates:	12 April 2013
Decision date:	09 May 2014
Before:	Simpson J at [1] Harrison J at [31] Button J at [32]
Decision:	An extension of time to appeal should be refused.
Catchwords:	CRIMINAL LAW - appeal against conviction - application for extension of time years after conviction entered - applicable principles - Criminal Appeal Act 1912 (NSW) s 6 - consideration of the prospects of success of the grounds of appeal - whether directions of the trial judge in relation to complaint violated the principle in Palmer v The Queen - whether evidence of flight should have been admitted at first instance - whether trial judge erred in his directions regarding evidence of flight - application of considerations analogous to the proviso
Legislation Cited:	Crimes Act 1900 (NSW), s 61I Criminal Appeal Act 1912 (NSW), ss 6, 10 Evidence Act 1995 (NSW), ss 110, 137
Cases Cited:	Abdul v R [2013] NSWCCA 247 Alpha v R [2013] NSWCCA 292 Darwiche v R [2011] NSWCCA 62 DJV v R [2008] NSWCCA 272; 200 A Crim R 206 Edwards v The Queen [1993] HCA 63; 178 CLR 193 Etchell v R [2010] NSWCCA 262; 205 A Crim R 138 Kuehne v R; Humphries M v R; Humphries A v R [2012] NSWCCA 270 Mackenzie v The Queen [1996] HCA 35; 190 CLR 348 McCall v R [2010] NSWCCA 174 MFA v The Queen [2002] HCA 53; 213 CLR 606 Outram v R [2013] NSWCCA 329 Palmer v The Queen [1998] HCA 2; 193 CLR 1 Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463 R v Beattie [2000] NSWCCA 201 R v Birks (1990) 19 NSWLR 677 R v Cook [2004] NSWCCA 52 R v F (1995) 83 A Crim R 502 R v Lane [2011] NSWCCA 157 R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 R v Unger [1977] NSWLR 990 R v Young [1999] NSWCCA 275 RWB v R; R v RWB [2010] NSWCCA 147; 202 A Crim R 209 Wood v R [2012] NSWCCA 21
Category:	Principal judgment
Parties:	Keith Ian Miles (Applicant) Regina (Respondent)
Representation:	Counsel: P Segal (Applicant) T Smith (Respondent) Solicitors: Solicitor for Public Prosecutions (Respondent)
File Number(s):	2006/8527
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2007-07-05 00:00:00 Before: Judge Conlon SC File Number(s): 06/41/0062