R v Burt - [2003] NSWCCA 248

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Burt [2003] NSWCCA 248

FILE NUMBER(S):
60254/03

HEARING DATE(S): 5/9/03

JUDGMENT DATE: 10/09/2003

PARTIES:
Regina
Jason Burt

JUDGMENT OF: Wood CJ at CL Greg James J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/61/0141

LOWER COURT JUDICIAL OFFICER: Nield DCJ

COUNSEL:
D Frearson (Crown)
H Dhanji

SOLICITORS:
C K Smith
B Sanderland

CATCHWORDS:
CRIMINAL LAW - appeal against conviction - assault with an act of indecency - attempted sexual intercourse without consent - Murray direction - whether adequate directions given to jury.

LEGISLATION CITED:
Crimes Act 1900

DECISION:
1. Leave to argue Grounds 1 to 4 refused
2. Appeal dismissed.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

60254/03
WOOD CJ AT CL
GREG JAMES J
HOWIE J

Regina v Jason Andrew Burt

The appellant was found guilty of five counts of assault with an act of indecency under s61L of the Crimes Act 1900, and one count of attempted sexual intercourse without consent under s61I of the Crimes Act, all of which relate to incidents that took place on 26 October 2001 at the complainant’s house. The appellant now appeals against those convictions.

Directions relating to the Standard of Proof
The appellant accepted that his Honour correctly directed the jury as to the need for the Crown to prove each allegation beyond reasonable doubt, but submitted that this standard was undermined by an implicit suggestion in the directions that if they preferred the complainant’s version over that of the appellant, they should then determine whether they were satisfied beyond reasonable doubt, without regard to the appellant’s evidence. Held, refusing leave to argue the ground, a proper balance was maintained in the summing up and the jury were directed in a way that meant that they would not have fallen into the error of simply choosing one version of events over another, or of assessing the Crown case without reference to the evidence of the appellant.

Murray Direction
In cases of sexual assault, where there is a conflict between the evidence of the complainant and the accused, it is desirable and common practice for a Murray direction to be given, although the need for it depends upon the circumstances of the case – R v Connors. Held, while it may have been desirable in this case for such a direction to be given, there was sound consideration of the , the jury were made aware of the need to examine with great care the complainant’s evidence. Leave to raise this ground refused.

Whether the absence of any instruction in relation to the appellant’s knowledge, or recklessness, as to the complainant’s lack of consent resulted in a miscarriage of justice
It was submitted that the directions given to the jury were insufficient and did not adequately deal with the element of knowledge concerning lack of consent. The primary issue whether the complainant was ‘forced’ by the appellant to carry out or submit to the acts alleged was explained in detail to the jury. The secondary issue whether the appellant had known that the complainant had not been consenting, or had been reckless as to whether he had consented was not addressed in the summing up, nor was any direction in that respect requested on behalf of the appellant.

An appeal is not to be approached as a microscopic examination of everything which was said by a trial judge in an attempt to find a technical omission or error – R v ITA. Moreover, leave should not be given to challenge a conviction, simply by reference to the failure of a trial judge to give a direction, which was not sought at trial, unless that failure has caused a miscarriage of justice, the proof of which lies on the appellant – R v PAH, Saffron v The Queen and R v Button.

Although it may have been desirable for directions, concerning awareness of lack of consent or recklessness in relation thereto, to have been given, the omission did not, in the context of the issue fought at trial, give rise to a miscarriage of justice – Holland v The Queen (1993) 117 ALR 193

Orders:

1. Leave to argue Ground 1 to 4 refused.

2. Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60254/03
WOOD CJ at CL
GREG JAMES J
HOWIE J
Wednesday 10 September 2003

Regina v Jason Andrew Burt

Judgment

WOOD CJ at CL: The appellant stood trial at Bathurst District Court before his Honour Judge Nield and a jury, on five counts of assault with an act of indecency (s 61L Crimes Act 1900) and one count of sexual intercourse without consent (s 61I Crimes Act). The latter count was substituted for the count originally preferred of sexual intercourse without consent, when leave was given to the Crown to amend the indictment, at the conclusion of the evidence called from the complainant.
The appellant was found guilty of all counts, and sentenced in relation to three counts of indecent assault to fixed terms of imprisonment each of 6 months, to date from 4 November 2002. In relation to the two remaining indecent assault counts, fixed terms of 6 months were imposed, cumulative on the first mentioned sentences. For the count of attempted sexual intercourse without consent, a sentence of imprisonment of 2 years and 6 months, with a non-parole period of 1 year, was fixed, and was directed to be served cumulatively upon the first mentioned sentences, and concurrently with the sentences which had been directed to be served cumulatively upon them. The effective sentencing order was accordingly one of 3 years imprisonment with a non parole period of 18 months.
Facts
The complainant gave evidence that on the day of the offences, Friday 26 October 2001, he had been aged 17 years old. He was living in Rankin Street Bathurst by himself. His account of the events that day may be noted.
At about 3.30 that morning he was asleep on the sofa. He had purchased some cannabis the previous day and shared it with three others. The effect of the cannabis had lasted a couple of hours, and he was unaffected when he went to sleep. He heard the phone ring but did not answer it. Instead he pressed “*10#” and found that the call was from a mobile. Shortly afterwards he heard knocking and then bashing on the front door, where he found the appellant, whom he knew. He said that the appellant was carrying a bottle of Bundaberg Rum and Coke mixed in a two litre Coke bottle, a stick of marijuana and a pouch of White Ox tobacco. Together they went into the lounge room where the appellant sat on one lounge and the complainant sat on the other. They smoked some cones.
The appellant then started talking. He came over to the complainant and put his hands on the wall near his shoulders and said “What would you do if I tried to fuck you up the arse?” The complainant said “I’d smash you”.
The appellant sat back down and he and the complainant resumed talking. They smoked some more cones. The appellant then instructed the complainant to come over and sit between his legs and to rub his penis. The complainant said that at this stage he felt a bit scared. The appellant added that he would bash him if he did not do what he told him to do. The complainant described feeling as if adrenalin was going through him and said that he just froze.
The complainant sat between the appellant’s legs and the latter started rubbing his chest and shoulders and sucking his left ear. He removed the complainant’s shirt and started rubbing his chest. He then asked the complainant to take his pants off. The complainant complied because he was scared of what would happen if he refused. The complainant stripped to his boxer shorts but the appellant said, “Take them off as well”. The complainant said that it was too cold and the appellant replied, “Do it or I am just going to bash you”.
At this time the appellant was stroking the complainant’s chest and shoulders. The appellant undid his fly and asked the complainant to rub his penis. The complainant declined, but the appellant took his right hand and put it on his [the appellant’s] penis. The complainant rubbed the appellant’s erect penis up and down (Count 1). The appellant grabbed the complainant’s penis and started to masturbate him (Count 2). Then he instructed the complainant to “wank him”. The complainant did this and the appellant ejaculated onto the top of his pants and leg near his hip (Count 3).
The complainant informed the appellant that he would get some tissue paper to clean himself up. He walked outside to the toilet, which was out the back. He did not run away as he was too scared, although he conceded that he could have done so. The complainant returned with some toilet paper, which the appellant used, and then placed in a ball beside the lounge.
The appellant and the complainant both put their clothes back on. The appellant said that he wanted to go to the Chinese bakery on George Street to get some pies. At this time it was about 5.00 am. They both walked to the bakery and bought some pies. It was the complainant’s account that they walked down Rankin Street and cut across the car park of the RSL club. He drew on Exhibit 2 a route that would have taken them past the Police Station. The complainant conceded that he was near to the Police Station but says that he did not run, as he was too scared to do so. It was his account that during their walk to fetch the pies, the appellant suggested that the complainant was going to “dog” him, that is, tell somebody what had occurred. When the complainant denied having any intention, the appellant, on his account, said that he was going to “hospitalise” him when they got back to his house.
The complainant and the appellant returned to the flat in Rankin Street. The appellant said to the complainant, “Go make a cup of tea for me and I might not flog you”. The complainant started walking to the kitchen when the appellant said, “You can bring everything out here and make [it] in front of me because you might do the runner.” The complainant obtained a teabag, cup, sugar, milk and kettle and the appellant watched him make the tea.
The complainant spilt the sugar and said, “fuck”. The appellant asked, “what did you say that for?” The complainant’s reply, “I accidentally spilt the sugar on the floor” appeared to have annoyed the appellant, who swung his elbow at the complainant. It did not make contact. At this stage the complainant thought, “He’s not playing”.
The appellant then told him to take his pants off, and he complied, although unable to believe what was happening. The appellant started masturbating him. He did not have an erection and the appellant asked him why he “was not getting off”, to which he replied that he was not gay and did not like it (Count 4). The appellant then took his own clothes off and demanded that the complainant suck his penis and “pull him off”.
The complainant placed his mouth over the appellant’s penis for a second only. The penis was on the outside of his mouth only, with the outside of his lips touching it (Count 5). Although in chief, the complainant said that this occurred after they returned from the bakery, in cross examination he appears to have said that this event preceded the bakery trip, and before the occasion of ejaculation. It was not however explained whether there were separate incidents of this kind, nor did the appellant make any mention of such an event occurring consensually.
The complainant and the appellant eventually went to bed. The appellant started hugging and touching him, and playing with his anus with his finger. He then said, “Let me put it in”, to which the complainant said “No”. At that time he could feel the appellant’s erect penis rubbing against the back of his legs (Count 6). The complainant moved towards the end or side of the bed, at which point the appellant went to sleep. At this time the complainant said that he was thinking of killing himself, and of getting up and running away.
The complainant left the bed about an hour later and had a shower. When he came back the appellant was awake and lying in bed. The appellant rang his girlfriend to ask her to pick him up. At about 9.00 am Scott Nicholls, one of the complainant’s friends, arrived, bringing with him a loaf of bread and a cake. Soon after the appellant left with his girlfriend, but not before saying that he was going to come back.
The complainant then left the house with Mr Nicholls and went to the house of a friend, Steven Raymund. Thereafter he went to the library “to do some thinking”.
After leaving the library the complainant went to Veritas House, a refuge, and spoke to Rob McCallery. He asked if he could ring his mother to see if he could get out of Bathurst.
He spoke by phone to his mother who asked him why he wanted to leave town. He replied that “something bad” had happened, that he could not say what it was, and that he was scared. Later in that phone call he described to her what had happened. She agreed that he should go to her home for a while. She then spoke to Mr McCallery. When the call was finished, Mr McCallery spoke to the complainant and asked whether he was willing to go to the police about this, to which the complainant replied in the affirmative. He and Mr McCallery wrote a statement in Mr McCallery’s office (Exhibit A). Mr McCallery then made arrangements to purchase a ticket for the complainant so that he could go to his mother’s home. At 7.55 pm he left Bathurst.
The complainant’s mother, who lived in Grenfell, gave evidence in which she described receiving a phone call from him. She did not remember the exact date. She recalled him telling her that he wanted to come home but did not want to tell her the reason. She said that he could not come home unless he told her what was going on. He said that he did not want to tell anyone.
Later in that call he said that he had not wanted to tell her because she would think that he was gay. He went on to say that a fellow had come around to his flat the night before, that they were drinking and smoking pot, and that this fellow had made advances to him, which he had resisted. The fellow had threatened to hurt him if he did not do what he wanted, so he complied. He disclosed that this fellow had made the complainant suck him. She asked him where he was ringing from because he sounded frightened. He replied that he was ringing from the refuge. She asked whether there was anyone there and he offered Rob McCallery’s name. She then spoke with Mr McCallery and a bus ticket was organised for the complainant to come home that evening.
Scott Anthony Nicholls gave evidence that at about 9.00 am on the Friday he had attended at the complainant’s home, taking a loaf of bread for him. The complainant was on the veranda and seemed to be very stressed, although not giving any appearance of being stoned or affected by alcohol.
Nicholls said that he had known him for a few years and had never seen him like that before.
He went into the house and saw the appellant lying on a bed under a blanket, without a shirt. About 10 minutes later he saw the appellant had dressed and seemed ready to leave the premises. He left at the same time as the complainant and Nicholls. As he was leaving Nicholls saw a pile of tissues on the lounge. Nicholls stayed with the complainant for approximately an hour.
In cross examination Nicholls agreed that he knew the appellant, and had stayed with him earlier that year before being asked to leave because of “his conduct”.
Robert John McCallery gave evidence that he was a youth worker and manager at Veritas House. At about 2.00-3.00 pm on Friday the complainant had arrived at the office appearing agitated and fearful. He indicated that he wanted to get out of town for a number of weeks. When Mr McCallery asked him what the problem was he replied that it was a secret, that he was fearful, and that if he said anything he would get bashed. The complainant said that he wanted to go to his mother’s home, and Mr McCallery said that he would need to phone her to organise that. Mr McCallery left the office while the complainant made a phone call to his mother. A short time later, when he returned to the room, the complainant indicated that this mother wished to talk to him.
After doing so, Mr McCallery then had a further conversation with the complainant, in the course of which the complainant said that he wanted to leave town because he was fearful. Mr McCallery said to him, “Your mother has indicated that you were sexually assaulted and that you were forced to give a head job to some male, 27 years of age”. He replied “That’s right” and added that it was the appellant who had assaulted him. He said that he was scared and worried about getting bashed and he just wanted to get out of town.
Mr McCallery asked the complainant if he would be willing to tell him what had happened, and he would write it all down. They went into another office and sat down. Mr McCallery asked him to tell him what happened, slowly, so that he could record it. The only thing which Mr McCallery said during this exercise was “can you slow down a little”, and “what happened next?” He acknowledged that he had given the complainant every opportunity to say all that he wanted to say, and that he recorded all that he had said in the document which became Exhibit A.
That document consists of a four page handwritten document in which the complainant outlined the allegations and the telephone call to his mother. The document was signed by the complainant and by Mr McCallery.
Mr McCallery made arrangements for a railway ticket to be issued, for the complainant to return to his mother’s home. Some time later he went with the complainant to his flat. He was shown some tissues sitting on top of a rubbish bin in the kitchen. He was not sure whether they were tissues or toilet paper, but whatever it was appeared to be crumpled up and to have been used on something. They obtained some clothing from the flat and then left. Mr McCallery asked the complainant whether he would report the matter to police and he replied in the affirmative.
Mr McCallery went to the Police Station where he made a verbal report to a Constable who made some notes. A couple of days later, when he spoke to the complainant on the telephone, the latter indicated that he wanted to pursue the matter. Mr McCallery asked for, and obtained, his permission to take the statement (Exhibit A) to the police station.
Detective Senior Constable Terrence James Cosgrove gave evidence that on Tuesday 30 October 2001 he attended Veritas House and spoke to Mr McCallery, who handed to him the original handwritten notes which he had made, as dictated by the complainant. On 12 November he obtained statements from the complainant and from Mr McCallery.
There was no inspection made of the premises at Rankin Street, as the matter was reported 2 weeks later and the premises had been cleaned. The appellant was however charged on 15 February 2002.
The appellant gave evidence in the trial and was cross-examined. He said that, at roughly 2.00 am or 2.30 am on 26 October 2001, he had gone to the flat of the complainant.
Prior to doing so, he said, he had been having a drink at the home of his cousin Peter Cole in Rocket Street. He had been drinking Kentucky Gold Bourbon and Cougar Bourbon. With two other men he drank a bottle of Cougar Bourbon between 6.00 pm on 25 October and 1.30 am to 2.00 am on the following morning. He walked down Rankin Street, on his account, to “say g’day” to the complainant and to have a drink. He had with him a 2 litre bottle of Coke mixed with bourbon, that he had mixed together whilst still at his cousin’s house, and some White Ox tobacco.
He was staying at the Vic Hotel in Bathurst, which was opposite the station and was some distance away.
He denied having any marijuana, or going to Rankin Street to have sexual activity with the complainant. He also denied that he had wanted to get the complainant drunk or stoned so that he could have his way with him.

He had been to the complainant’s flat before, knew that he lived on his own, and that there was only one way out of the terrace, which was the front door.
When he was outside the flat he noticed through the glass of the front door that the TV was on. Because of this he knocked on the front door. He had a mobile phone at the time, but had not used it to ring to warn the complainant.
When he knocked on the door the complainant answered and invited him in. The complainant asked him if he had a smoke, and he gave him a smoke of White Ox tobacco. He asked the complainant for a couple of cups. He sat on the lounge. The complainant returned with the cups and sat down on the floor beside the lounge room table. They had a drink, and over the night 4 cups of bourbon and coke or thereabouts were consumed, while they conversed. The complainant smoked some cones, but the appellant did not know how many.
He denied that he assaulted the complainant, but said that there was mutual masturbation between them, which occurred before they went to the bakery.
In that respect he gave evidence that the complainant, who had been staring at him, crawled across the floor to the lounge on which he was lying. While they were talking, he touched the complainant on the outside of his clothing, in the area of his penis. He asked the complainant if he liked that. According to him, the complainant replied in the affirmative and said that his brother used to do it to him.
They each stood up and undressed, and masturbated each other while standing.
The appellant then lay down on the floor and masturbated himself, while the complainant stood over the top of him, masturbating himself. The appellant ejaculated onto his stomach.
He said that the complainant jumped up, put on his shorts and went out the back to get some toilet paper. He came back and gave the toilet paper to the appellant, who cleaned himself up. He then dressed. The complainant had already dressed and had moved into the kitchen. The appellant went to the toilet, out the back door. When he returned he suggested that they go and get some pies.
The appellant said that he borrowed a jumper from the complainant. After he put it on, they left to get the pies.
At approximately 5.00 am he said they went out on to Rankin Street, cut through the RSL car park, and came out next to the pie shop in George Street, between Russell and Howick Streets. He said that they walked past the police station, on the other side of the road. Once at that pie shop, they purchased a couple of pies and some drinks. They then returned to the complainant’s flat, eating the pies and drinking the drinks on the way home.
The appellant agreed that there had been a conversation with the complainant on the way back from the pie shop, in the course of which he had asked him what he was going to do that day. The complainant had replied that he was going to the refuge. He denied saying that the complainant was going to “dog” him, or that he would “hospitalise” him. He denied that the complainant had asked him not to hurt him. He also denied that he had assaulted the complainant when they returned from the bakery.
He agreed that the complainant had made a cup of tea for both of them, but said that he had done this in the lounge room because it was cold. He denied saying “Make me a cup of tea and I might not flog you”. According to him, the complainant had then offered to go to bed. As he was tired, he went to bed. He denied however that he had gone to bed to have sex with the complainant. Each undressed in the lounge room. He had followed the complainant to bed and had “crashed out” in the same room as him.
At approximately 9.00 am he said that he had woken up and found that the complainant was not in the bed. He remained there for a minute and then got dressed and rolled a smoke. The complainant came out of the shower drying his hair. The appellant used the house phone to phone his ex wife, to pick him up. He then walked outside with the complainant, but felt bad, so he went back to lie down on the bed.
He said that when Mr Nicholls arrived he was lying on top of the bed, fully clothed. His ex wife arrived soon after, so he got up and said goodbye to the complainant, and to Nicholls, and left.
The Crown relied on the alleged act of the appellant in forcing the complainant’s hand onto his penis, and making him masturbate him, in forcing the complainant to masturbate him, and in placing his own hand onto the complainant’s penis and attempting to masturbate him, each occurring towards the beginning of the encounter, as the indecent assaults giving rise to counts 1 to 3.
Count 4 related to the alleged repetition of an attempt by the appellant to masturbate the complainant, while the remaining act of indecent assault (Count 6) related to the appellant’s alleged act of rubbing his finger against the complainant’s anus, while placing his erect penis on the legs of the complainant.
Count 5 related to the alleged attempt by the appellant to force the complainant to commit fellatio upon him.
The appellant appeals against the convictions but not against sentence.
Ground 1 – The trial judge erred in the directions to the jury in relation to the way in which they should apply the standard of proof.
The appellant accepted that his Honour correctly directed the jury that the onus was on the Crown to prove each of the allegations beyond reasonable doubt. However, it was submitted that the directions given, as to how they should assess whether the Crown had done so, were erroneous. In this regard attention was drawn to the following passages in the summing up:
“Members of the jury, you have a fact finding exercise. You have been presented with a body of evidentiary material and you were asked to make decisions about the evidentiary material. The decisions that you make about the evidentiary material will lead, almost as night follows day, to your verdict in the trial.”
And:
“You are asked to determine whether what the complainant has said or what the Accused has said should be accepted. Of course, a criminal trial is not the mere weighing up of one version of events against another version of events but, in order to determine the facts within the totality of evidentiary material, there must be a comparison of one version of the events against the other version of the events. There must be the comparison between the people giving the versions of events…
…
Members of the jury, if it should be that, when you compare the versions and you compare the givers of the versions, if it should be that you prefer the versions given by the Crown’s witnesses, then you must ask yourselves this question, ‘Does the evidence that we accept satisfy us beyond reasonable doubt of the guilt of the accused?’ And the reason that you must ask yourselves that question is, as you know, you cannot find the accused to be guilty unless the evidence that you accept satisfies you beyond reasonable doubt of the accused’s guilt. It might be, members of the jury, and only you can decide, that, even if you accept the version given by the Crown witnesses, that version itself might not satisfy you beyond reasonable doubt of the accused’s guilt. Of course, if it is, at the end of your deliberations, that you prefer the version given by the Crown’s witnesses and that version satisfies you beyond reasonable doubt of the accused’s guilt, then you will find the accused to be guilty.”
Later, his Honour said, in relation to the appellant:
“You assess him and his evidence in the same way as, for example, you assess the complainant and his evidence.
And I repeat, members of the jury, I know that I am repeating myself, if, when you consider all of the evidentiary material, you decide that you prefer the evidence given by the Crown’s witnesses, you must ask yourself that question, ‘does the evidence that we accept satisfy us beyond reasonable doubt of the guilt of the accused?’ And you must ask that question because you cannot find the accused to be guilty unless the evidence that you accept satisfies you beyond reasonable doubt of the accused’s guilt.” (The emphasis is added).
It was submitted that the standard of proof was undermined by an implicit suggestion that, if they preferred the version of the complainant over that of the appellant, they should then determine whether they were satisfied beyond reasonable doubt, without regard to the appellant’s evidence.
It was necessary, so it was submitted, for the trial judge to instruct the jury that even if they did not positively believe the evidence for the appellant, they were not entitled to find against him on any issue, if his evidence gave rise to a reasonable doubt on that issue – see Liberato v The Queen (1985) 159 CLR 507 per Brennan J at 515, and Deane J at 519-520.
No complaint was made at the trial in relation to this direction, and leave is required to argue it.
I am not persuaded that there is any merit in this ground, or that the dissenting judgments of Brennan and Deane JJ in Liberato v The Queen compel the giving of a direction in the terms formulated by the appellant. What Brennan J said in Liberato was in fact not altogether dissimilar from the direction given in this case, so far as his Honour observed (at 515):
“When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.”
The present case was one where the jury had been given repeated directions concerning both the onus and the standard of proof. Additionally his Honour stressed that the issues were to be decided on the “evidentiary material”, which was identified with some precision, including the evidence of the appellant.
There is no rigid formula to which judges must adhere when dealing with the inevitable and obvious clash between a complainant and accused in a case involving an alleged sexual assault. Indeed, as Deane J also observed in Liberato v The Queen:
“Provided they are accompanied by clear and unequivocal directions, about the criminal onus and standard of proof, express [or] implied references in the summing up to a ‘choice’ between particular witnesses are no doubt unavoidable and commonly unobjectionable.”
I am satisfied that a proper balance was maintained, and that the jury were adequately directed in a way that meant that they would not have fallen into the error of approaching their task as one involving a simple choice between the versions given by the complainant and appellant. The clear direction that the evidence which they accepted left them satisfied beyond reasonable doubt of the appellant’s guilt, necessarily carried with it the message that if the complainant’s evidence gave rise to a reasonable doubt, they must acquit.
Moreover, I am not persuaded that there was a risk of the jury understanding the directions as requiring the two step approach suggested – that is, of deciding whether they preferred the version given by the complainant to that of the appellant; and then determining whether the complainant’s version, standing alone and without reference to that given by the appellant, satisfied the requisite standard of proof. To so read the relevant passages in the summing up would, in my view, require a degree of sophistry, since an initial acceptance of the complainant’s evidence inevitably meant that the jury had considered the appellant’s evidence, and disbelieved it. The line of reasoning now suggested by the appellant involves what I would regard as requiring an exceedingly literal and artificial approach, and contrary to the general tenor of the summing up.
I would refuse leave to argue this ground.
Ground 2 -
There were two issues presented in the trial, namely whether the acts of mutual masturbation, which were the subject of Counts 1 to 3, had been consensual, and secondly whether the second series of acts occurred at all.
The Prosecution case depended upon the word of the complainant, supplemented by the evidence of his prompt complaint and distress, and the evidence of Mr Nicholls as to the state of undress of the appellant when he saw him in the bedroom. The evidence in those first two respects was capable of supporting the complainant’s version, although it depended, for its force, upon his veracity, and upon the genuineness of, and reason for, any distress which he displayed. The evidence of Mr Nicholls otherwise was independent, and the case was not one where the prosecution case depended solely upon the evidence of the complainant.
It was submitted however, that the trial judge should have given a direction of the kind which was discussed by Lee J in R v Murray (1987) 11 NSWLR 12 at 19, following the enactment of s 450C of the Crimes Act, which had abolished the requirement of a warning in relation to corroboration for prescribed sexual offences:
“The fact that a judge does not comment upon the absence of corroboration of the complainant’s evidence cannot, in my view, in the case of those offences to which s 405C applies now be made the basis of a criticism of his summing-up, but again this does not mean that the judge cannot or should not, as is done in all cases of serious crime, stress upon the jury the necessity for the jury to be satisfied beyond reasonable doubt of the truthfulness of the witness who stands alone as proof of the Crown case. In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness’ evidence is unreliable.
There will be cases where the failure to bring home to the jury the position of the uncorroborated witness will undoubtedly lead to the verdict being set aside…”
No request for a Murray direction was made, although that does not necessarily foreclose the issue, since a trial judge is under a duty to give such directions as the case properly requires: BRS v The Queen (1997) 191 CLR 275 per Gaudron J at 302, McHugh J at 306 and Kirby J at 330.
Where an appropriate direction was not given or sought at trial, the question for an appellate Court, in deciding whether to grant leave, will be whether or not the omission resulted in a risk of miscarriage of justice.
While it is obviously desirable, and also common practice, for a Murray direction to be given in cases of sexual assault, where there is a conflict between the evidence of the complainant and the accused, the authorities do not mandate the giving of such a warning. The need for it, and the nature of any warning, depend upon the circumstances of the case: R v Connors [2000] NSWCCA 470.
The clear tenor of the instructions given in this case was to the effect that the jury must carefully evaluate the evidence of the complainant. In that regard attention was drawn not only to the matters of complaint and distress which tended to provide support. Additionally, his Honour drew attention to the appellant’s evidence and to the inconsistencies which existed between the accounts which the complainant had given to Mr McCallery, and to Police, and his evidence at the trial.
While it may have been desirable, for his Honour to have given a Murray direction, there can be little doubt that the jury were made aware of the need for them to examine the complainant’s evidence with great care.
I would refuse leave to raise this ground.
Ground 3 – A miscarriage of justice was occasioned by the failure of the trial judge to instruct the jury in relation to the indecent assault counts, that they must be satisfied that the complainant was not consenting to the physical contact, and that the appellant knew that to be the case or was at least reckless as to whether that was so.
It was submitted that the directions given to the jury were insufficient in so far as his Honour did not adequately deal with the element of consent. Clearly the lack of consent and knowledge thereof, or recklessness in relation thereto, were essential elements in the proof of the relevant counts, as was confirmed in decisions of this Court in R v Bonora (1994) 35 NSWLR 74 per Finlay J (at 75) and Abadee J (at 80); Fitzgerald v Kennard (1995) 38 NSWLR 184; and see also R v Kuckailis [2001] NSWCCA 333 (at para 18).
In summarising the necessary elements of the indecent assault counts his Honour gave an appropriate direction in relation to what constituted an act of indecency, and then gave the following direction as to what was meant by an “assault” in the context of a charge of indecent “assault”:
“And I should tell you that indecent assault does not require necessarily the use of force. It is strange that lawyers use the word assault in relation to indecent assault because assault conjures up the idea of the use of physical force by one person on another. That is not required in relation to indecent assault although, in this case, the Crown alleges, in relation to the first and second counts of the indictment, that there was force in the sense of enforcement or the use of power by the Accused upon the complainant to get the complainant to do something to the Accused.
In relation to [the first] three counts of the indictment the Accused’s case is that it was one episode of consensual mutual masturbation. So, there is the difference, if I may use that word, between what the Crown alleges occurred and what the accused says occurred. The accused is not denying that he – I know the word “initiated” was used in evidence and whether that’s an appropriate word or not only you can determine – but the Accused agrees that he did something towards the complainant which resulted in other things occurring. The Accused denies that it was done with any force. The Accused says that it was not done contrary to the wishes of the complainant. In all sexual relationships between people there has got to be somebody that starts the sexual activity, whether it’s consensual or otherwise. Here, learned counsel for the Accused has put to you that the evidence shows that what occurred was consensual, mutual masturbation. That’s not what the Crown puts to you occurred.” (Emphasis added).
After repeating what was in issue in relation to the first three counts, his Honour said:
“Now, members of the jury, as learned Crown counsel said to you before the trial started in his opening statement, if somebody uses force to obtain another person to do something and that other person does the something then that act was not done with consent, because the use of force vitiates consent. So that, if, as the Crown alleges, the Accused forced the complainant to do the sexual act and the complainant did the sexual act because he felt that he was under force to do so, then that cannot amount in law to consent.” (Emphasis added).
There can be little doubt that the jury understood that the primary issue concerning those counts was whether the complainant had been “forced” by the appellant to carry out or to submit to the acts alleged.

There still remained a secondary issue concerning whether or not the appellant had known that the complainant had not been consenting, or had been reckless as to whether he had consented. That question however would inevitably have been answered unfavourably to him as a result of the finding as to lack of consent, since it was the Prosecution case that threats or force had been applied, in order to procure the complainant's co operation. Unless the complainant had been believed by the jury in relation to the existence of those threats they would have returned verdicts of not guilty.

These observations were made in relation to the first three counts, which concerned the events occurring before the trip to the bakery.
When his Honour proceeded to deal with the post bakery allegations which gave rise to counts of 5 and 6, he said:
"The Crown says three further acts of sexual misconduct occurred after they returned home from the pie shop. The Accused's case, as I understand his evidence and his counsel's submissions, is that none of those acts of sexual misconduct occurred. So, this is not a case now of considering whether there was consent to the other acts of sexual conduct because the Accused’s case is that these acts of sexual conduct never occurred. So, members of the jury, the issue is whether those acts of sexual conduct occurred - and the Accused's case is that they did not occurred - if you're satisfied that they didn't occur, then consent does not enter into the picture." (Emphasis added).
This final observation was erroneous if read strictly, although not necessarily so, if understood in the context of the way that the case was conducted. Satisfaction by the jury of the commission of the acts alleged was but one of the essential elements. They still needed to be satisfied beyond reasonable doubt that the appellant knew that the complainant had not consented to them or had been reckless in that regard. However, once again the answer to that question was inevitable, in the context of the way that the trial was fought, in the event of the jury accepting the complainant's version of having been “forced”, following threats by the appellant, to submit to these further demands.

That is reinforced by the emphasis, which was given by his Honour in the following passage, to the circumstance that it was the Crown case throughout that the complainant's co operation had been secured by "force". In this regard, his Honour said relevantly for these further counts:
"Now, members of the jury, the Crown's case in relation to the other acts are these - that after returning from the pie shop the Accused forced his hands on the complainant's penis and attempted to masturbate him, the Accused forced the complainant to put his lips against the complainant's penis in an attempt to get the complainant to suck his penis and the Accused rubbed one of his fingers against the anus of the complainant. So, they are the three acts that the Crown says occurred after the return from the pie shop. These are the acts that the Accused denied ever having taken place." (Emphasis added).
It was submitted, on appeal, that the question of the appellant’s awareness of the lack of consent, or recklessness in relation thereto, was important in this case, because of the consumption by the appellant of alcohol and by the complainant of alcohol and cannabis. This does not, however, appear to have been a matter addressed in the summing up, nor to have been a matter, given the silence of defence counsel, that was pressed on behalf of the appellant. There were no doubt good tactical reasons for that not to have been at the forefront of the defence case.

This again was a situation in which the trial counsel saw no fault in the directions given, and leave is required for the ground to be raised.

In R v Chai [2002] 76 ALJR 628, the High Court held (at para 18) that, while it is not necessary for a trial judge to direct the jury as to "principles of law going beyond those which the jurors need to understand to resolve the issues that arrive for decision" it was necessary for the trial judge to:
"explain to the jurors so much of the law as they needed to know in order to decide the issues that arose from the charges, the evidence, the case for the prosecution and the defence case."
Clearly that is correct. However, a summing up always needs to be understood in the context of the trial, and by particular reference to the manner in which issues are raised and contested. As Mason CJ, Brennan, Deane and Toohey JJ said in Holland v The Queen (1993) 117 ALR 193, at 200:
“A failure by a trial judge fully to direct the jury about all the elements of an offence does not automatically mean that, in the event of a conviction, there has been a miscarriage of justice. To determine whether there has been a miscarriage, regard must be had to all the circumstances of the case, including the conduct of the trial.”
See also, BRS v The Queen per Kirby J at 330.
An appeal is not to be approached as a microscopic examination of everything which was said by a trial judge in an attempt to find a technical omission or error. This Court recently had occasion, in R v ITA [2003] NSWCCA 174 to give consideration to Rule 4 of the Criminal Appeal Rules, which is in the following terms:
"No direction, omission to direct, or decision as to the admission or rejection of evidence given by the judge presiding at the trial, shall, without leave of the Court, be allowed as a ground for appeal in an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal".
Ipp JA with whom Buddin and Shaw JJ agreed, cited with approval a consistent line of approach to Rule 4, in passages (Paras 93 to 98) which bear repetition in toto:
"93. In R v DH, Stein JA observed [at 115]:
'Again, rule 4 applies because no point was taken at trial. In Jeffrey (Unreported, Court of Criminal Appeal, NSW, 16 December 1993), Mahoney JA made some pertinent observations about the role of rule 4 where an appellant relies on misdirections or non-directions to which no objection was taken at trial. They bear repeating. His Honour said:
'[It] is proper to emphasise the importance of the principle embodied in r 4.
In my opinion this principle plays an important part in the criminal trial process. It is important that any objection to the summing up or that any defect or omission at the trial which can be cured or mitigated by steps taken at the trial, be raised at the time of the trial. The judge should be asked to, and should have the opportunity to, correct any error or deficiency of this kind.
...
Errors will occur and r 4 provides for them. But unless there be a convincing reason why the matter was not raised at the trial and unless the possibility of real injustice appears, an accused should be held to what was done by or for him at trial level. But infrequently, this Court is asked to act under r 4 when the reason why the defect was not dealt with at the trial has not been established and where it is at least possible that there were tactical reasons why it was not. It is not easy for the Court of Appeal to satisfy itself that the reason why the matter was not raised was error rather than choice. In such circumstances, the court should be slow to act under r 4 ...’”.
94. In R vFuge (2001) 123 A Crim R 310, Wood CJ at CL (with whom Heydon JA and Sully J agreed) said at 319:
“It is timely for this Court to repeat the observations of Hunt CJ at CL in Abusafiah (1991) 24 NSWLR 531 and of Gleeson CJ in Sanderson (unreported, Court of Criminal Appeal, NSW, 18 July 1994), in relation to the positive obligation which rests upon trial counsel to assist the court in the conduct of a trial, and in relation to the need to give meaning to r 4, whose validity was confirmed in Esposito (unreported, Court of Criminal Appeal, NSW, 23 July 1990).
In Abusafiah, Hunt CJ at CL said (at 536; 429-430):
'The requirements of r 4 of the Criminal Appeal Rules do not constitute some mere technicality which may simply be brushed aside. One purpose of the requirement that no misdirection or non-direction may, without leave, be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury. If a summing-up contains some error which could easily have been cured once the judge's attention had been drawn it, and if counsel for the accused to whose detriment the error operates fails to comply with his or her duty to draw the judge's attention to that error ... , any suggestion that such detriment automatically entitles the accused to a new trial does not strike a sympathetic cord (sic) in the hearts of those who see the right to a fair trial as operating in favour not only of the accused but also of the Crown, which prosecutes on behalf of the whole community. The Criminal Appeal Act 1912 (NSW) does not exist to enable an accused who has been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial. There are, of course, cases in which the error made is of such a nature that, notwithstanding the failure of counsel for the accused to comply with a duty leave will be granted to avoid a miscarriage of justice.'
The caution given by Gleeson CJ in Sanderson was to the following effect:
'This case provides a striking and clear illustration of the reason for the presence in the Criminal Appeal Rules of r 4. If trial counsel had apprehended that there was any significant risk that the jury might have misunderstood the true nature of their function in relation to this matter of corroboration then the point was available to be taken by trial counsel. If the point had been taken, and if there really had been a problem, it was a problem that was capable of simple correction. It would ordinarily be quite inappropriate to permit appellants, in such circumstances to come to the Court of Criminal Appeal and complain that a miscarriage of justice has occurred.'"
Wood CJ at CL went on to refer to a number of other authorities where similar sentiments had been expressed.
95. The approach which his Honour indicated should be taken to r 4 accords with that adopted by McHugh J in Papakosmas v R (1999) 196 CLR 297 where his Honour said at 319:
"There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant".
96. See also R v Roberts (2001) 53 NSWLR 138 where Carruthers AJ said at 150-151:
"It is now more than ever imperative that trial counsel recognise and discharge the responsibility which they owe to the trial judge to provide whatever assistance he or she may require in order, so far as possible, to ensure that the directions to the jury are such that it can be said the accused has had a trial according to law.
For years this Court has emphasised in the strongest possible terms the need for trial counsel to take objections to the summing up or the admissibility of the evidence at the trial itself so that, if they are of substance, the judge may correct them and thus avoid appeals to this Court and possible second and sometimes third trials".
These views were reiterated in R v Hokafonu [2002] NSWCCA 92, in R vPearson [2002] NSWCCA 429 and in Giri at 588 to 589.
97. It is disturbing that so often no account is taken of the clear warnings that have been given by this Court. It is not unusual for appellants, without making any application for leave under r 4, to proceed blithely to argue grounds that should have been raised by counsel at trial but were not. There is usually, as in this case, no explanation whatever for the omission to raise the perceived difficulties with the trial judge.
98. The existence of r 4 and s 99 [Criminal Procedure Act] imposes a duty on counsel to inform the trial judge of all points that arise from the summing up that reasonably could give rise to an appeal. It will not lightly be assumed that this duty has been breached. Rather, unless there is good reason to hold the contrary, it will be inferred that decisions not to raise such matters with the trial judge are taken for sound forensic reasons. No more need be said than to repeat and emphasise the remarks of Gleeson CJ in R v Sanderson (unreported, NSWCCA 18 July 1994) that:
‘It would ordinarily be quite inappropriate to permit appellants, in such circumstances, to come to the Court of Criminal Appeal and complain that a miscarriage of justice has occurred’.”
Reference may also be made, in this context, to R v PAH, NSWCCA 10 September 1998, Saffron v The Queen (1988) 17 NSWLR 395 and R v Button (2002) 54 NSWLR 455, each of which confirm a consistent line of authority to the effect that leave should not be given to challenge a conviction, by reference to the failure of a trial judge to give a direction, which was not sought at trial, unless that failure has caused a miscarriage of justice, the proof of which lies on the appellant.
As in the case of R v ITA, the appellant was here represented by competent counsel, and the transcript demonstrates that the defence was conducted in a professional and thorough way. No explanation has been given for the omission to seek the directions, which it is now submitted should have been given, either in relation to this ground or the three other grounds of appeal.

The only inference open is that, in the light of the complainant’s evidence concerning the threats made, his stated resistance and the forced manipulation of his hand or person, and of the issues presented for trial, the outcome would have been no different had the additional directions sought been given. In those circumstances I am not persuaded that the omission to give the directions complained of, concerning awareness of lack of consent or recklessness in relation thereto, although desirable, gave rise to a miscarriage of justice.

I would refuse leave to argue this ground.

Ground 4 - A miscarriage of justice was occasioned by the failure of the trial judge, in relation to the count of attempted sexual intercourse without consent, to instruct the jury that they must be satisfied that the complainant did not consent and that the appellant knew that the complainant did not consent, or was, at least reckless as to whether the complainant was consenting or not.

Precisely the same point arises in relation to Ground 3. Yet again no point was taken at trial, and for the same reasons as those given in relation to that ground, I would refuse leave to raise this ground.

For those reasons I propose that the appeal be dismissed.
GREG JAMES J: I agree.
HOWIE J: I agree that the appeal should be dismissed for the reasons given by Wood CJ at CL.
WOOD CJ at CL: The appeal is dismissed.

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LAST UPDATED: 22/10/2003