R v Lazarus - [2017] NSWCCA 279

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Lazarus [2017] NSWCCA 279
Hearing dates: 1 September 2017
Date of orders: 27 November 2017
Decision date: 27 November 2017
Before: Hoeben CJ at CL at [1]
Davies J at [4]
Bellew J at [5]
Decision:
(1) The Crown appeal is dismissed.
(2) Upon publication of these reasons, the order made on 1 September 2017 pursuant to s. 111(2) of the Crimes (Appeal and Review) Act 2001 (NSW) prohibiting the publication of anything which might identify the respondent, will cease to have effect pursuant to s. 111(5) of that Act.
Catchwords:
PRACTICE AND PROCEDURE – Judges – Revision and amendment of reasons delivered orally – Where reasons were revised by the trial judge and provided to the parties – Where one party drew the trial judge’s attention to what was said to be a further typographical error in the revised reasons – Where trial judge further revised those reasons by inserting an additional word – Where the word which was inserted was not said by the trial judge when the reasons were delivered orally – Whether the further revision was permissible – Necessity to consider the entirety of the reasons given

CRIMINAL LAW – Offences – Appeal – Where respondent was charged with having sexual intercourse without consent – Where respondent was tried before a judge alone sitting without a jury – Where relevant statutory provisions required the trial judge to have regard, when considering the respondent’s knowledge about consent, to steps taken by the respondent to ascertain whether the complainant consented – Where trial judge made no reference to the relevant statutory provision in her reasons – Whether such matters were considered – Whether the trial judge failed to apply the relevant principles and expose her reasoning process

CRIMINAL LAW – Offences – Appeal – Where respondent charged with having sexual intercourse without consent – Where respondent was tried before a judge alone sitting without a jury – Where relevant statutory provisions required the trial judge to have regard, when considering the respondent’s knowledge about consent, to steps taken by the respondent to ascertain whether the complainant consented – Whether the subjective perceptions of an accused can amount to “steps” for the purposes of that provision

CRIMINAL LAW – Appeal – Where error made out – Whether an order should be made that the respondent be tried for a third time – Consideration of factors to be taken into account in determining whether the interests of justice required an order that there be a further trial – Where the circumstances leading to this appeal and a previous appeal were not the fault of the respondent or those acting for him – Where any re-trial would take place more than 5 years after the event – Where respondent had served 10 months of a custodial sentence – Oppressive to require that the respondent be tried for a third time

PRACTICE AND PROCEDURE – Legal Practitioners – Where correspondence passed between the solicitor for the respondent/accused and those responsible for the provision of transcription services regarding a suggested error in the reasons of the trial judge – Where the circumstances where such that the solicitor must have known that the correspondence would be sent to the trial judge in support of his application for access to the electronic recording of the judgment – Where the solicitor knew that the issue of whether there was a typographical error went directly to one of the Crown’s proposed grounds of appeal of which he was on notice – Where the solicitor did not notify the Crown of any of his correspondence in which he raised the suggested error – Necessity for legal practitioners to observe the fundamental principle that a judge not receive representations from one party behind the back of the other
WORDS AND PHRASES – “steps” – “steps taken by the person to ascertain whether the other person consents to the sexual intercourse”
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW)
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015
Cases Cited: Adams v R [2017] NSWCCA 215
Bar-Mordecai v Rotman [2000] NSWCA 123
Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; [1984] HCA 48
Filippou v R (2015) 256 CLR 47; [2015] HCA 29 Fleming v R (1998) 197 CLR 250; [1998] HCA 68
Gilbert v R (2000) 201 CLR 414; [2000] HCA 15
Gilham v R [2012] NSWCCA 131
Lazarus v R [2016] NSWCCA 52
Lam v Beesley (1992) 7 WAR 88
Markou v R [2012] NSWCCA 64
Melville v Phillips (1899) 9 QLJ 114
Palmer v Clarke (1989) 19 NSWLR 158
Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39
R v Casey; ex parte Lodge (1887) 13 VLR 37
R v PL (2009) 261 ALR 365; [2009] NSWCCA 256
R v PL [2012] NSWCCA 31
R v Thomas (No.3) (2006) 14 VR 512; [2006] VSCA 300
R v XHR [2012] NSWCCA 247
Reid v R (1980) AC 343
Spies v R (2000) 201 CLR 603; [2000] HCA 43
Spencer v Bamber [2012] NSWCA 274
Talbot-Price v Jacobs [2008] NSWCA 189
Todorovic v Moussa (2001) 53 NSWLR 463; [2001] NSWCA 419
W v R [2014] NSWCCA 110
Category: Principal judgment
Parties: Regina – Appellant
Luke Lazarus – Respondent
Representation:
Counsel:
S Dowling SC and T Smith – Appellant
P Boulten SC and D Barrow – Respondent
Solicitors:
Director of Public Prosecutions (NSW) - Appellant
Blair Criminal Lawyers – Respondent

File Number(s): 2013/242040
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

4 May 2017

Before:

Tupman DCJ

Judgment

HOEBEN CJ AT CL: I agree with the orders proposed by Bellew J and with his Honour’s reasons with one qualification.
In relation to Ground of Appeal 1, I am of the opinion that it was not permissible for her Honour to insert the word “not” by way of revision. Such an amendment was not in accordance with the authorities comprehensively examined by Bellew J. Effectively, therefore, this Court when considering this Ground of Appeal should ignore that amendment. That, however, does not end the matter. It is clear from a full examination of the submissions made to her Honour and her Honour’s statements of principle in her judgment that her failure to insert the word “not” at p 13.8 was in fact a slip and unintentional. It did not involve an error of law such as would cause her Honour’s judgment to be set aside.
As set out in the analysis by Bellew J, her Honour on a number of occasions independently correctly noted the impermissibility of taking into account the respondent’s self-induced intoxication when considering the issue of consent. Her failure to insert the word “not” at p 13.8 of the judgment was inconsistent with every other statement of that principle in her Honour’s reasons. Those statements of principle occurred both before and after the impugned passage. I have concluded for those reasons and the reasons identified by Bellew J that notwithstanding what her Honour said at p 13.8 of the judgment, she was well aware of the provisions of s 61HA(3)(e) of the Crimes Act 1900 (NSW) and applied the section correctly.
DAVIES J: I have read in draft the judgments of Hoeben CJ at CL and Bellew J. I agree with what Bellew J has written and with the orders he proposes. In particular, I agree that it was permissible for the trial judge to revise her judgment as she did for the reasons Bellew J has given.
BELLEW J: Luke Lazarus (“the respondent”) was charged with an offence contrary to s. 61I of the Crimes Act 1900 (NSW) (“the Act”) alleging that on 12 May 2013 he had sexual intercourse with a person to whom I shall refer as the complainant, without the complainant’s consent. At the time of the alleged offence the respondent was 21 years of age.
On 19 February 2015, following a trial before her Honour Judge Huggett and a jury in the District Court, the respondent was found guilty. On 27 March 2015, he was sentenced to a non-parole period of 3 years imprisonment, with an additional term of 2 years imprisonment.
On 19 February 2016 this Court quashed the respondent’s conviction and ordered that he be re-tried: Lazarus v R [2016] NSWCCA 52. Following that decision the respondent was released from custody and he has been at liberty on bail since that time.
After the matter was remitted to the District Court for re-trial, an order was made in that Court pursuant to s. 132 of the Criminal Procedure Act 1986 (NSW) (“the CPA”) that the trial proceed before a judge alone. The respondent’s trial commenced before her Honour Judge Tupman in the District Court on 3 April 2017. On 4 May 2017 her Honour found the respondent not guilty.
By notice filed on 31 May 2017 the Crown has appealed against that finding pursuant to s. 107 of the Crimes (Appeal and Review) Act 2001 (“the CAR Act”) on two grounds, namely:

Whether the trial judge erred in taking into account the respondent’s self-induced intoxication for the purpose of determining whether the respondent had no reasonable grounds for believing that the complainant consented to the sexual intercourse contrary to s. 61HA(3)(e) of the Crimes Act 1900 NSW; and

Whether the trial judge in erred in failing to direct herself that in relation to making a finding about the respondent’s knowledge of consent pursuant s. 61HA(3) of the Crimes Act 1900, she must have regard to any steps taken by the respondent to ascertain whether the complainant was consenting, as required by s. 61HA(3)(d)

AN OVERVIEW OF THE RESPECTIVE CASES

The following summaries of the respective cases have been drawn from the material filed in these proceedings by the Crown.

The Crown case

On Saturday 11 May 2013 the complainant and a friend, BW, travelled by train from Gosford to Sydney. They had planned to go out to Kings Cross that evening with friends to celebrate the birthday of another friend, TP. At that time, the complainant was 18 years old. She had arranged to stay in Sydney with her sister, AM.
The complainant and BW arrived at AM’s premises on the afternoon of 11 May 2013. At about 10.00pm that evening, they caught a train to Kings Cross where they met up with friends. Prior to leaving for Kings Cross they partly filled two Coca-Cola bottles with bourbon which they then took with them. The complainant said that each of the bottles was half-filled with bourbon and that there was a “tiny little bit” of bourbon left after it had been poured into the bottles. She was not sure of the size of the bourbon bottle. She was also not sure of the size of the bottles into which the bourbon was poured. However, she thought that they were medium size, approximately 30 cms tall, and that they had a capacity of about 330mls or 350mls. She could not recall whether all of the alcohol was consumed before she and BW arrived at Kings Cross but she did not think so. She said that she and BW drank the bottles at McDonalds Kings Cross. She thought they finished a bottle each.
When asked to describe her state of sobriety after she had consumed the bourbon the complainant said:

I would say I was quite tipsy. I was jelly I guess. Yes, pretty tipsy I would say.

After the complainant’s friends arrived at McDonalds, she and BW talked with them for a while before they all walked to World Bar. After they arrived at World Bar, BW and the complainant became separated from the rest of the group. They then consumed a “Teapot” between them, which is a spirit-based alcoholic mixture served in a teapot and then poured into shot glasses. After speaking to some people and dancing at World Bar, they walked to the Soho Nightclub (“Soho”). When asked to describe the effect that this further alcohol had on her, the complainant said:

I was I guess a bit drunker than what I had been when we got there and I was, yeah a bit drunker I guess how you would describe it … I was kind of out of it like.

At Soho, BW and the complainant each consumed a vodka and cranberry cocktail and danced, before walking back to World Bar. The complainant said in her evidence that by this time she was:

… drunk. I was slurring my words and I was kind of a bit uneasy on my feet I guess you would say.

Back at World Bar, the complainant and BW each consumed a vodka and orange cocktail and danced again. The complainant said that by that time she was:

… well, drunk yes and more I guess just amplified the affect (sic) that was already there. So just slurring words and dancing funny and that kind of thing.

Over an undefined period, the complainant and BW went back and forth between World Bar and Soho. The complainant was unable to recall the precise number of occasions on which this had occurred. The final time at which the complainant and BW arrived at Soho was about 3.30am. Upon arrival they went straight to the dance floor. BW started dancing with a male and the complainant was just dancing beside them.
At that point, the respondent came up to the complainant and asked her whether she had met the DJ. In terms of her state of sobriety at that point, the complainant said:

I, I was drunk yeah, and I was pretty out of it I guess and just very I don’t know, drunk is the only way I can really think to describe it.

The complainant told the respondent that she had not met the DJ. The respondent then told her that he was a part owner of Soho, to which the complainant replied:

Yeah, sure.

At that point, the respondent showed the complainant what she thought was a card and which she assumed showed that the respondent was, in fact, a part owner of Soho. However, she said it was a “quick flash” and that she did not see the card in any detail.
The complainant said that the respondent then took her to meet the DJ. They walked up to where the DJ booth was located, at which time the respondent said:

Actually let’s go to a VIP area.

The complainant said that she and the respondent then left the dance floor and went down some corridors before leaving Soho via a back door. She thought they were holding hands when they went over to the DJ and when they left Soho. Once outside, they turned right and went down Hourigan Lane, a dead-end laneway at the rear of Soho. They walked for about 50 metres, reaching a point possibly 5 to 10 metres from the end where they stopped near a fence and started kissing. The complainant was not sure how long they kissed, and described then wanting to leave. She said in her evidence that she stopped kissing the respondent and that the following conversation took place:

C:   I need to go back to my friend. I have to meet my friend.
R:   No, stay here with me.
C:   No, I really need to go.

The complainant described the respondent’s tone of voice at this point as “conversational”. She said that as she turned around to leave, the respondent put his hands on her hips under her skirt and pulled her stockings down about 3 inches. She pulled them up again and told him that she had to leave. The respondent replied:

Put your fucking hands on the wall.

The complainant described the respondent’s tone of voice at that point as frustrated and impatient, and more aggressive than it had been during the previous conversation. She put her hands on a nearby wooden fence. She explained why she did so, saying:

I was just scared I guess, I didn’t know what to do so I just did what he said.

The respondent then pulled the complainant’s stockings and underwear down to her ankles while she was facing away from him and said:

Just get on your hands and knees and arch your back.

The complainant described the respondent’s tone at that point as “not aggressive but not nice”. Whilst standing probably a metre or two away from the fence, she got down on her hands and knees and arched her back. She described what then occurred:

He put his penis into my butt, bum I guess. I don’t know which correct terminology it is and I said “Ow”. And he said “You’re so tight”. And I said “What do you expect, I’m a fuckin virgin”. And he said “Oh shit, really”. And then I just kept saying “I have to go back to my friend”. And he didn’t say anything to that. I asked him to – I said “Stop”. At the start like at the beginning after – after he said “Oh shit, really”. And then I just kept saying “I need to go back to my friend”.

The complainant said she felt pain and thought that the respondent had anal intercourse with her for roughly 10 minutes, but she was not sure. She said that it ended when the respondent removed his penis and stood up. She said that she did not feel the respondent ejaculate and assumed that he had not. She also said that she did not see a condom, or hear a condom packet being opened, and had therefore assumed that the respondent had not worn one.
The complainant stood up and pulled her stockings and underwear up, at which point the respondent asked her to put her name into his phone. She typed her name into the “notes” section of the respondent’s phone. She could not remember whether the notes section was already open when the respondent handed her the phone. She did not believe that they had exchanged names before this.
The complainant then tried to go back into Soho by opening the door from which she and the respondent had earlier entered Hourigan Lane. However, it would either not open, or it was locked. When she could not get back in, the complainant ran to Kings Cross Railway Station. The respondent remained in Hourigan Lane.
When the complainant reached the station she called BW, who came to meet her. The complainant was crying and told BW what had happened. They waited for the station to open at 5.00am, at which time they caught a train back to AM’s premises. The complainant then reported the incident to the police and underwent a medical examination at Royal North Shore Hospital. The results of that examination were consistent with penile/anal intercourse having taken place.
It was the complainant’s evidence that she did not consent to having sexual intercourse with the respondent. In cross-examination, it was put to her that her version of events was untruthful, and that she had exaggerated her level of intoxication, both in her statements to the police and in her evidence, in order to give her account additional credibility. The complainant denied this. She specifically denied the suggestion that she did not, at any stage, tell the respondent to stop whilst penile/anal intercourse was occurring.

The case for the respondent

It was the respondent’s case that consensual anal intercourse had taken place. He gave evidence that he went to Soho on the night of 11 May 2013 and had his first drink at approximately 8.00 or 8.30pm. He said that he had 2 drinks of spirits, each of which he thought was bourbon combined with a mixer, over a period of approximately 2 hours. He then travelled by taxi to a birthday party at Maroubra, arriving there at approximately 10.00pm. He stayed at the party for about 2 hours and had 2 or 3 drinks of spirits mixed with soft drink, before returning with friends to Soho. He said that he was moderately intoxicated at that time, by which he meant that he was enjoying himself socially with his friends and having fun.
The respondent arrived back at Soho at approximately 12.30am and started to socialise with a number of people. He had 1 or 2 more drinks of spirits mixed with soft drink during the remainder of the night.
The respondent said that his family operated Soho and that he was employed there in a marketing role at that time, although he was not on duty that night. He agreed that the CCTV footage suggested that he had met the complainant around 4.00am, and he said he had not noticed her at any earlier point in time. He said that he had stopped drinking alcohol during the previous 2 hours and did not notice any substantial effect arising from the alcohol he had consumed earlier in the evening. He described himself as being moderately affected, in a way which he said did not impact on his ability to understand what was happening. He said that he was speaking clearly, and walking normally.

The respondent believed that he had made eye contact with the complainant when she was on the dance floor. He said he walked up to her and they had a conversation in which they introduced themselves. He told her that Soho was operated by his family, at which she expressed disbelief. He said that he showed her his staff card and licence and asked her:

Have you met the DJ?

When the complainant said that she had not, the respondent said:

Okay, well let’s go to the VIP area.

They held hands and moved towards the DJ booth which was in the VIP area, a few metres away from where they had been speaking. They kissed briefly before entering the DJ booth where the respondent introduced the complainant to the DJ. They then held hands and walked to the back left hand corner of the DJ booth before dancing very briefly and then kissing. They were in close contact. The respondent’s arms were on the complainant’s waist and her arms were around his shoulders touching his back. The respondent said that the kissing was passionate and he thought that it lasted for some minutes.
The respondent said that at that stage he asked the complainant if she wanted to go somewhere private. She agreed and they held hands, walking out of the DJ booth, across the dance floor and downstairs where the respondent briefly introduced the complainant to a friend, Erin, who was working in a cloak room.
When asked about his assessment of the complainant’s level of intoxication at that point, the respondent said:

I think she was just – I noticed her just enjoying herself, she was having a good time, she was smiling, laughing. I think she was influenced in a way that was helping her enjoy herself.

The respondent said that he and the complainant then walked out the rear exit of Soho into Hourigan Lane. He said that when they were about 8 to 10 metres from the end of Hourigan Lane they started passionately kissing. He said that their groins were touching and he had an erection. He said that they were kissing for more than 5 minutes and that at one stage the following conversation took place:

C: I should probably go back to my friend.
R: No, your friend won’t miss you, stay here with me.

The respondent said that they then resumed kissing and the complainant did not say anything to him to dissuade him from doing so. He then said to her:

Turn around and put your hands on the fence.

The respondent’s case was that he believed that his interactions with the complainant up to that point were leading to sex, and that he believed that the complainant turning around and putting her hands on the fence would facilitate that. When asked what kind of sex he had in mind, the respondent replied:

Vaginal intercourse.

The respondent said that he had told the complainant to turn around and put her hands on the fence in a “conversational tone”, in response to which the complainant did so, bending over and pointing her buttocks towards him. The respondent described this as amounting to what he thought was “really positive body language to suggest to me that she was as happy to be there as (he) was”.
The respondent said that he pulled the complainant’s stockings and underwear down a few inches, and that she said nothing to him when he did so. When asked what he thought of that, the respondent said:

She didn’t say anything I presumed that, that the – well I took that to mean that her – her – she was continuing to feel the same way that she – that I had assessed just a moment ago, that she was happy to be there.

The respondent said that at that point he tried to put his penis in the complainant’s vagina but did not succeed in doing so. He said that he thought that she was pushing back with her buttock towards him to help him “get it in”. He said that he tried this for less than 30 seconds and it “wasn’t working”, at which time the following exchange occurred:

R:   Fuck you’re tight.
C:   What do you expect, I’m a fuckin virgin.
R:   Oh okay, well, get on your hands and knees and arch your back.

The respondent’s evidence was that he told the complainant to get on her hands and knees because he thought that it would “help with penetration …”. According to the respondent, the complainant said nothing to him when he said that, but simply did as he had asked. He said that at that point he tried to put his penis in her vagina again, at which time she again pushed back with her buttocks, which he took to mean that “she was trying to help (him)”. The respondent said that he did not succeed in putting his penis into the complainant’s vagina, and that this was when he put his penis into her anus. He said that as he did so the complainant “moved back in the same way that she had previously” which, he said, made him believe that “she was trying to do as (he) was doing, trying to facilitate penetration”.
The respondent said that penile/anal intercourse continued, during which time the complainant said nothing. The respondent denied that the complainant said “stop”, “don’t”, or anything similar. He said that intercourse continued for “about 5 minutes or so” before he ejaculated, and that when they stood up, the following conversation took place:

C: Oh well, I should go back to my friend.
R: Wait, put your name in my phone? Would you put your name in my phone?

The respondent said that he then gave the complainant his phone, the “notes” section of which was open, showing a list of names. The complainant typed in her name. According to the respondent, the complainant’s demeanour changed at that point. He said that she looked offended and was not smiling at him, and that she said:

Okay, well, I’d better get back to my friend.

The complainant then walked away by herself up Hourigan Lane. When asked why he did not accompany her, the respondent said:

Well, it was – it was then that – it was about that – it was that time when I realised what a selfish – a thoughtless, inconsiderate thing that I had done and we just, you know, we just had sex and I had immediately disregarded her. I didn’t feel good – good about it – I felt – I felt uncomfortable walking with her.

The respondent disagreed that he was substantially intoxicated at 4.00am. He was cross-examined in relation to text messages which passed between himself and one or more of his friends on that evening, in the course of which he had described himself as being “loose”. He said that his use of that word did not refer to his state of sobriety. He denied that he had much more than one or two drinks at Soho when he arrived back there after 12.30am. He agreed that he was disinhibited when he had sex with the complainant, but disagreed that his judgment was significantly impaired at the time. He agreed that he had told a friend that what had occurred with the complainant was “gross”.
The respondent also denied that when he first approached the complainant she was well affected by alcohol. He said that she was not slurring her words and he disagreed with the suggestion that he could see that she was very drunk, and that he thought he could take advantage of that situation to fulfil his own sexual needs. He disagreed that CCTV footage of the complainant taken from Soho demonstrated that she was extremely intoxicated. He also disagreed with the proposition that he wanted to lead the complainant from the dance floor into Hourigan Lane as quickly as possible, so that she would not appreciate what was happening.
The respondent accepted that his general approach to the complainant and the things he did and said before going outside to Hourigan Lane were designed to impress her, and to give the impression that he was someone of importance and standing at Soho. He denied (inter alia) that once they were out in Hourigan Lane he had placed his hands up the complainant’s skirt and pulled her stockings down, only to have the complainant pull them back up and say “I really have to go”.
The respondent also denied that he told the complainant in a frustrated, impatient and aggressive tone to “put (her) fucking hands on the wall”. He denied that the complainant had cried out in pain when he first put his penis in her anus and said he had no recollection of saying to the complainant “Oh shit, really” in response to being told that she was a virgin. He agreed that at no stage did he ask the complainant whether she wanted to have sex with him.

The REVISION of the reasons BY the TRIAL Judge

Before considering the individual grounds of appeal, it is necessary to set out the circumstances in which the trial judge revised, and then further revised, the reasons for her decision. These matters bear directly upon the resolution of ground 1.

The evidence

Three affidavits were read without objection in respect of this issue, namely:

Catherine Ann Williams, solicitor, of 31 July 2017 and 14 August 2017 which were read by the Crown; and

Michael Blair, solicitor, of 21 August 2017, which was read by the respondent.

Neither deponent was cross-examined.

The initial revision of the reasons by the trial judge

The trial judge delivered oral reasons for judgment on 4 May 2017, at the conclusion of which she found the respondent not guilty. On the following day, the Director of Public Prosecutions requested a copy of her Honour’s reasons, which were subsequently received at the Director’s office on 22 May 2017 from District Court Transcript Sales (“DCTS”). Those reasons are Annexure “B” to the first of the affidavits of Ms Williams.
The word “DRAFT” appears on page 1 of those reasons. However, the following also appears at the top of that same page:

REVISED BY JUDGE TUPMAN AND RETURNED TO RSB 22.05.2017

It is therefore clear that the reasons provided to the Director had been revised by her Honour.
A further copy of the reasons was received at the Director’s office on 25 May 2017. In that copy of the reasons, the word “REVISED” replaced the word “DRAFT” and the words in [58] above had been removed. As set out below (at [79]-[80]) the further revisions made by the trial judge in those reasons were of little consequence.
Commencing at p. 8 of the reasons (as revised), her Honour identified the elements of the offence with which the respondent was charged, the third of which was that the respondent knew that the complainant was not consenting to sexual intercourse. At p. 11.5 her Honour said:

I accept that if it becomes necessary to determine whether or not the Crown has proved the third element beyond reasonable doubt, the legal principles are as follows. The Crown can succeed in proving the third element if it proves beyond reasonable doubt anyone (sic) of the following states of knowledge namely:
1. That the accused knew that the complainant was not consenting to the act of penile anal sexual intercourse or;
2. That the accused was reckless as to whether the complainant was consenting to the act of penile anal sexual intercourse, either because;
a. He realised there was a possibility she was not consenting to that particular act but went ahead and performed it anyway or;
b. He did not even think about whether the complainant was consenting to penile anal sexual intercourse, in other words he did not care whether she was consenting or;
3. The accused had no reasonable grounds for believing that the complainant was consenting to the act of penile anal sexual intercourse.
In relation to the third possible way of establishing knowledge of lack of consent, I may decide that he might have believed although wrongly that the complainant was consenting to intercourse with him. Whether that belief amounts to a guilty state of mind depends on whether the accused honestly believed it and if so whether he had reasonable grounds for that belief.

At p. 13.1 her Honour said:

In this case there is evidence about the accused’s state of intoxication at the time of sexual intercourse, but in considering his state of mind when determining whether or not the Crown has proved the second of the two ways in which they could prove knowledge of lack of consent, namely recklessness, I cannot take into account the fact that the accused was intoxicated where that intoxication is the result of the voluntary ingestion of alcohol or non-prescribed drugs and the intoxication here was voluntary (my emphasis).

Having noted that it was the belief of the respondent (as opposed to that of some hypothetical person) which was relevant, and having further noted that the reasonableness of the respondent’s belief was to be assessed objectively, her Honour said at p. 13.8:

In assessing this third way of determining the accused’s state of mind and whether or not he has a guilty state of mind as argued by the Crown, I am entitled to take into account his level self-induced intoxication, especially in deciding whether or not it was an honestly held belief, but also whether or not there were reasonable grounds for holding such a belief (my emphasis).

It will be noted that the italicised passages set out in [62] and [63] are diametrically opposed.

The filing of the notice of appeal

Having received the revised reasons, the Director filed a notice of appeal on 31 May 2017 pursuant to s. 107 of the CAR Act. On the same day he advised the respondent’s solicitor, Mr Blair, of the proposed appeal. Bearing in mind the italicised passage of her Honour’s revised reasons set out at [63] above, ground 1 of the notice filed by the Director asserted that her Honour erred in:

… taking into account the respondent’s self-induced intoxication for the purpose of determining whether the respondent had no reasonable grounds for believing that the complainant consented to the sexual intercourse contrary to s 61HA(3)(e) of the Crimes Act 1900.

The correspondence following the filing of the notice of appeal

On 5 June 2017, after he had been served with a copy of the Crown’s notice of appeal, Mr Blair forwarded an email to DCTS requesting a copy of her Honour’s reasons. That email, and indeed the entirety of Mr Blair’s correspondence with DCTS which followed, was conducted without Mr Blair notifying the Director of either the fact of the correspondence, or its content.
Mr Blair received a copy of her Honour’s revised reasons on 5 June 2017, within a short time of making the request. A little over two hours later on the same day, he wrote to DCTS stating (inter alia):

I wonder if you could burn me a copy of the sound recording of the judgement (sic) of Judge Tupman on 4.5.17? We are trying to determine if there has been a typo.

The following day, “Michael” from DCTS wrote to Mr Blair stating (inter alia):

We will have to seek permission from Her Honour as far as having a duplicate sound recording of the Judgment of 4/5/17 made. I will contact Judge Tupman’s Associate this morning in relation to that.
If the Judge’s (sic) grants permission then we will place the order and it should be done within 2 weeks unless you can advise of reasons for urgency. If Her Honour declines permission then we obviously cannot provide it to you. We will advise you either way, thanks again

A short time later Michael again wrote to Mr Blair stating the following:

Before I ask the Judge for permission to produce a duplicate sound recording of the Judgment are you able to set out what you think the errors might be. We will forward that to the Judge along with the request for a sound recording as I think Her Honour might like to know what the typos are before she considers the sound recording request. Thanks

Mr Blair responded:

We think that there is an error on Page 13 of the transcript, in the fourth paragraph, third line. We think that the word “not” is missing before the word “entitled”.

Later that same day Michael responded to Mr Blair stating:

Thank you for that clarification. We will contact Her Honour’s Associate today regarding this issue and also ask whether permission may be granted to provide a sound recording of the Judgment to you.

In light of the correspondence at [68]-[71], Mr Blair must have been aware that his request for a copy of the recording, as well as the basis for that request (namely the assertion that there was a typographical error in the reasons) would be made known to the trial judge.

The correspondence from the trial judge’s Associate

On 16 June 2016 Ms Armstrong, the Associate to her Honour Judge Tupman, forwarded an email to Michael stating the following:

Thank you for your time on the phone earlier. Her Honour has looked at the issued Transcript of the Lazarus Judgment and apologises that she seems to have overlooked a typographical error. Her Honour is of the view that Page 13, paragraph 4, line 3 should read as follows:
‘In assessing this third way of determining the accused’s state of mind and whether or not he has a guilty state of mind as argued by the Crown, I am NOT entitled to take into account his level of self-induced intoxication, especially in deciding whether or not it was an honestly held belief, but also whether or not there were reasonable grounds for holding such a belief’

Her Honour apologises that she did not notice this when she was revising the Transcript which she did on a plane from Europe, on an iPad. She has not listened to the sound recording and will do so if necessary. Her Honour has however looked at the context in which this section of the Judge appears and particularly the following which appears in the first paragraph on Page 13:
‘I cannot take into account the fact that the accused was intoxicated where that intoxication is the result of the voluntary ingestion of alcohol or non-prescribed drugs and the intoxication here was voluntary’.

Her Honour asks that you immediately reissue the Transcript and forward it to those parties who have already received it, bringing this matter to their attention.
Please let me know if you require any further clarification of this matter.

Michael replied to Ms Armstrong as follows:

We are just checking with RSB Revisions Unit to see whether they might issue a further revised copy of the Judgment. However, they may suggest that you make the corrections yourself then forward that to Revisions and copy us into that email on this occasion. We will let you know once Revisions reply to us.
Either way, once the corrected version is ready we will send to whoever had received the previous copy and ask if they might delete that prior version and replace it with the corrected copy. Thanks again

Michael then wrote to Mr Blair stating:

Her Honour has agreed that there is a typographical error in the Judgment provided to you in that the word “not” was omitted (page 13, paragraph 4, line 3).
A corrected copy of the Judgment will be issued and once that is forwarded to both you and counsel we would ask that the prior version of the Judgment be deleted. Thank you for your assistance with this matter.

The further revision of the trial judge’s reasons

A short time after the correspondence in [75] above, an email was forwarded from the Reporting Services Branch (“RSB”) to Ms Arulanandam, a solicitor from the Director’s office. That email was in the following terms:

We are re-issuing the attached judgment on the request of Judge Tupman as it contained the following typographical error:
Page 13, paragraph 4, line 3 has the word ‘not’ inserted and should read as follows:
‘‘In assessing this third way of determining the accused’s state of mind and whether or not he has a guilty state of mind as argued by the Crown, I am NOT entitled to take into account his level of self-induced intoxication, especially in deciding whether or not it was an honestly held belief, but also whether or not there were reasonable grounds for holding such a belief’.

No other changes have been made to the judgment.

This email to Ms Arulanandam was the first indication received by the Director that there was any issue at all arising from her Honour’s reasons. Attached to that email was a further copy her Honour’s reasons headed “REVISED” incorporating the amendment set out in the email which had been sent by Ms Armstrong (at [73] above).

On the same day, Ms Armstrong forwarded an email to Ms Arulanandam and Mr Blair. Having noted that the trial judge had now had access to the electronic recording of the delivery of her reasons, the email stated (inter alia):

Her Honour apologises for what in context she believes was simply a slip of the tongue on the day Judgment was delivered in omitting the word “NOT”. She also advises that she seems to have compounded the mistake when revising the Transcript of the Judgment because she did not notice the word “NOT” was missing. Her Honour, as advised, revised this Transcript of an international flight returning from a meeting in the Hague, on her iPad, in circumstances where it had been requested urgently and she was doing her best to comply with that request. ….. Her Honour is of the view that it was, and is, open to her to correct the transcript by adding the word “NOT” where indicated, as she directed RSB on Tuesday this week because, in the context of the overall judgment where there is more than one reference to S61HA(3)(e) of the Crimes Act 1900, and the events in Court that day, it was simply a mistake on her part that the word was omitted, which was noticed either by her nor, it appears, anyone else in Court. There was a lengthy adjournment over lunch on 4th May, 2017 after that part of the Judgment had been delivered. Whilst it may not have been thought possible for Counsel to seek clarification or further direction during the first part of the Judgment, there was opportunity to do so immediately after the lunch adjournment before delivery of the Judgment resumed. In fact the Crown Prosecutor raised an issue at that stage in relation to events which had occurred outside the Court over the lunch adjournment, which was dealt with and which appears in the Judgment. Neither the Crown Prosecutor nor Counsel for the accused sought clarification or correction of that portion of the Judgment where the word “NOT” is missing, which in her Honour’s view simply confirms that it was regarded as a slip of the tongue, not in fact noticed either by her Honour nor anyone else in Court. It is unfortunate that her Honour overlooked this in revising the transcript.
Late yesterday afternoon, after listening to the sound recording and after several attempts to obtain it, her Honour has finally been provided with a copy of the Notice of Appeal apparently filed in the Court of Criminal Appeal on 31st May 2017. Given the fact of and grounds of Appeal, which her Honour repeats she first became aware of late yesterday afternoon, Her Honour does not propose to engage in any further correspondence in relation to this amendment to the Transcript. In due course, if requested, Her Honour will consider making a report to the Court of Criminal Appeal. You are however at liberty to provide this email to the Court of Criminal Appeal if thought appropriate (emphasis in the original in each case).

The electronic recording of the trial judge’s oral reasons

Following receipt of the email from RSB set out in [76] above, the Director requested a copy of the sound recording of the delivery of her Honour’s reasons. That recording is exhibit CW1 to the first of the affidavits of Ms Williams. Upon receipt of the recording, the Director made arrangements for it to be independently transcribed. That transcript is annexure “L” to the first of the affidavits of Ms Williams. Ms Williams stated (at paragraph 20 of her first affidavit) that having received that transcript, she used the “Microsoft Word compare facility” to compare it with the revised reasons which the Director had initially received from her Honour (annexure “B”). What she described as a “merged document”, highlighting the differences between annexures “B” and “L” is annexure “M” to her affidavit.
Ms Williams also used the same program to compare the reasons received on 22 May 2017 with those received on 25 May 2017. That comparison revealed that there were some further amendments made to those latter revised reasons. However, they were of an inconsequential nature.

Observations

Before dealing with the substance of ground 1, three specific observations should be made at this point.
Firstly, the word “not” was not inserted into the passage at T13 of the reasons when they were initially revised. This was in circumstances where, as is obvious from annexure “M” to the first affidavit of Ms Williams, her Honour had revised that paragraph.
Secondly, the word “not” was inserted into the reasons in the circumstances I have outlined, after the suggestion of a “typographical error” had been brought to her Honour’s attention, I infer as a result of Mr Blair’s correspondence with DCTS.
Thirdly, it is clear that the word “not” was not said when the trial judge delivered her oral reasons.
Further, and although it does not bear directly upon either of the grounds of appeal, the correspondence which obviously led to the word “not” being inserted by the trial judge warrants comment.
It was not until receiving the email from RSB on 16 June 2017 that the Director became aware that any correspondence had previously passed between Mr Blair and DCTS. It is to be inferred that the catalyst for Mr Blair’s contact and correspondence with DCTS was, at least in part, the fact that he had been served with the notice of appeal, and had been made aware of the terms of ground 1.
In the course of his correspondence with DCTS Mr Blair suggested that there was an error in the trial judge’s revised reasons, and sought a copy of the sound recording to confirm it. That issue was hardly a peripheral one. It was directly relevant to the first ground of the Crown’s proposed appeal.
Although Mr Blair did not communicate directly with the chambers of the trial judge he must have been aware, given the correspondence at [66]-[71] above, that his assertion that there was an error in the reasons would come to the attention of the trial judge in support of his application for access to the recording. Viewed in that way, Mr Blair engaged in a form of indirect communication with the chambers of the trial judge, about an obviously important issue, without informing the Director that he was doing so.
Part 2 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (“the Rules”) includes the following provisions:

22.5 A solicitor must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent's absence with the court concerning any matter of substance in connection with current
proceedings unless:
22.5.1 the court has first communicated with the solicitor in such a way as to require the solicitor to respond to the court;
22.5.2 the opponent has consented beforehand to the solicitor communicating with the court in a specific manner notified to the opponent by the solicitor.

22.6 A solicitor must promptly tell the opponent what passes between the solicitor and a court in a communication referred to in Rule 22.5.
22.7 A solicitor must not raise any matter with a court in connection with current proceedings on any occasion to which an opponent has consented under Rule 22.5.2 other than the matters specifically notified by the solicitor to the opponent when seeking the opponent's consent.
22.8 A solicitor must take steps to inform the opponent as soon as possible after the solicitor has reasonable grounds to believe that there will be an application on behalf of the client to adjourn any hearing, of that fact and the grounds of the application, and must try, with the opponent’s consent, to inform the court of that application promptly.

For the purposes of those rules the term “court” is defined in the glossary in the following terms:

"court" means:
(a) any body described as such;
(b) any tribunal exercising judicial, or quasi-judicial, functions;
(c) a professional disciplinary tribunal;
(d) an industrial tribunal;
(e) an administrative tribunal;
(f) an investigation or inquiry established or conducted under statute or by a Parliament;
(g) a Royal Commission;
(h) an arbitration or mediation or any other form of dispute resolution.

Plainly, a judge must not receive representations from one party to litigation, behind the back of the other: Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 at 346 per Gibbs CJ. The overwhelming inference is that Mr Blair’s correspondence with DCTS, which was not notified to the Director, set in train a series of events in which the trial judge received, in some form or another, notice of Mr Blair’s assertion that there was a typographical error in her reasons, following which she amended that asserted error.
The practice of a party’s legal representative engaging in correspondence of this kind, without informing the representative of the other party to the proceedings, is one which must be firmly discouraged. In not notifying the Director of his correspondence, Mr Blair contravened the principle to which Gibbs CJ referred in Re JRL. That it may have been, in one sense, an indirect contravention is not to the point. Although, in light of the definition of the word “court” in the rules, Mr Blair did not breach the terms of r. 22.5, in my view he acted clearly contrary to the spirit, and the underlying rationale, of that rule, and in a way which was at odds with the level of candour that is expected of any legal practitioner.

The grounds of appeal

Ground 1: Whether the trial judge erred in taking into account the respondent’s self-induced intoxication for the purpose of determining whether the respondent had no reasonable grounds for believing that the complainant consented to the sexual intercourse contrary to s. 61HA(3)(e) of the Crimes Act 1900 NSW.

The relevant statutory provisions

The respondent was charged with an offence contrary to s. 61I of the Act which is in the following terms:

61I Sexual assault
Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.

Section 61HA(3) of the Act is in the following terms:

61HA Consent in relation to sexual assault offences
(1) Offences to which section applies
This section applies for the purposes of the offences, or attempts to commit the offences, under sections 61I, 61J and 61JA.
(2) Meaning of consent
A person "consents" to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.
(3) Knowledge about consent
A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if:
(a) the person knows that the other person does not consent to the sexual intercourse, or
(b) the person is reckless as to whether the other person consents to the sexual intercourse, or
(c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.
For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case:
(d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but
(e) not including any self-induced intoxication of the person.

(4) Negation of consent
A person does not consent to sexual intercourse:
(a) if the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or
(b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or
(c) if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or
(d) if the person consents to the sexual intercourse because the person is unlawfully detained.

(5) A person who consents to sexual intercourse with another person:
(a) under a mistaken belief as to the identity of the other person, or
(b) under a mistaken belief that the other person is married to the person, or
(c) under a mistaken belief that the sexual intercourse is for health or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means),
does not consent to the sexual intercourse. For the purposes of subsection (3), the other person knows that the person does not consent to sexual intercourse if the other person knows the person consents to sexual intercourse under such a mistaken belief.

(6) The grounds on which it may be established that a person does not consent to sexual intercourse include:
(a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or
(b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or
(c) if the person has sexual intercourse because of the abuse of a position of authority or trust.

(7) A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.
(8) This section does not limit the grounds on which it may be established that a person does not consent to sexual intercourse.

The proceedings before the trial judge

There are various excerpts from the transcript of the proceedings before the trial judge which may bear upon the resolution of this ground.
At T127.17 to 127.23 the following exchange took place between the trial judge and the Crown in the context of an issue of whether the evidence of a particular witness was unfavourable:

CROWN PROSECUTOR: Well’s its unfavourable because a plank of the Crown case is that the accused was very intoxicated on this –
HER HONOUR: Not allowed to have that taken into account in determining what his knowledge of consent was, in any event.
CROWN PROSECUTOR: No, that’s correct (emphasis added).

In the course of final submissions to the trial judge, the Crown said the following (at T308.8–308.14):

She was more sober at that time then she purported to be when she’d made the statement. And that’s simply another dissimilarity that the Crown would point to to support its submission that the evidence lacks significant probative value in circumstances where it’s – it’d be the Crown’s submissions to you that this complainant was very intoxicated and notwithstanding that the accused can’t rely on it as some sort of defence, but so was he (emphasis added).

Later (at T331.25–331.29) the Crown said the following in the course of dealing with the issue of the respondent’s intoxication:

The intoxication of the accused. The Crown submits further that the accused was very intoxicated during the course of the night and into the morning contrary to his evidence before you that he was only moderately intoxicated. As your Honour is well aware self-induced intoxication can’t be taken into account in relation to his knowledge of lack of consent (emphasis added).

At T334.20–334.26, senior counsel for the respondent submitted:

You will need to consider the affect (sic) of alcohol on the accused and did his intoxicated state make him misinterpret or overlook her lack of consent? If so, then, of course, his self-induced intoxication is to be ignored but to go to the first issue about whether or not the prosecution have proved lack of consent, I make these submission and in many respects they will also go to the issue of whether he had an honest believe (sic) that she was consenting and whether or not he had reasonable grounds to hold such a belief (emphasis added).

It is evident from these passages that both parties addressed her Honour in accordance with s. 61HA(3)(e), and reminded her Honour that the respondent’s self-induced intoxication could not be taken into account in assessing his state of mind. Her Honour herself acknowledged that provision in the passage at [96] above.

The reasons of the trial judge

Having made some introductory observations and stated a number of principles, the trial judge identified (at T8 of her reasons) that the offence with which the respondent had been charged had three essential elements, each of which the Crown was required to prove beyond reasonable doubt. Those elements identified by her Honour were that:

the respondent had sexual intercourse with the complainant;

the complainant did not consent to that sexual intercourse; and

that the respondent knew that the complainant was not consenting.

Her Honour observed that there was no dispute as to the first of those elements. As to the second, her Honour noted (at T10) that the Crown was required to prove that the complainant did not freely and voluntarily agree to have sexual intercourse with the respondent.
In terms of the third element, her Honour said the following (commencing at T10):

I will just now turn to summarise the legal position in relation to the third element which must be proved beyond reasonable doubt. If I come to a finding that the Crown has proved beyond reasonable doubt that the complainant did not consent to the sexual intercourse, the third element necessary for the Crown to prove in relation to this offence is as provided by s 61HA(3).
The Crown and counsel for the accused have usefully provided a draft direction to me which is marked MFI 6 in this trial. I have viewed that draft direction as the judge of the law and in particular in this trial I have looked at the way in which the Court of Criminal Appeal in this case reviewed the authorities in relation to this third element, in the light of their finding that this issue was the basis on which the original conviction was overturned and the new trial ordered.
I accept that if it becomes necessary to determine whether or not the Crown has proved the third element beyond reasonable doubt, the legal principles are as follows. The Crown can succeed in proving the third element if it proves beyond reasonable doubt anyone (sic) of the following states of knowledge namely:
1. That the accused knew that the complainant was not consenting to the act of penile anal sexual intercourse or;
2. That the accused was reckless as to whether the complainant was consenting to the act of penile anal sexual intercourse, either because;
a. He realised there was a possibility she was not consenting to that particular act but went ahead and performed it anyway or;
b. He did not even think about whether the complainant was consenting to penile anal sexual intercourse, in other words he did not care whether she was consenting or;

3. The accused had no reasonable grounds for believing that the complainant was consenting to the act of penile anal sexual intercourse.

In relation to the third possible way of establishing knowledge of lack of consent, I may decide that he might have believed although wrongly that the complainant was consenting to intercourse with him. Whether that belief amounts to a guilty state of mind depends on whether the accused honestly believed it and if so whether he had reasonable grounds for that belief.
Therefore if I am not satisfied that the accused either knew the complainant was not consenting or was reckless as to whether the complainant was consenting, the Crown must prove one of two facts before I could find the accused guilty, either;
a. That the accused did not honestly believe that the complainant was
consenting or;
b. That if he did have an honest belief in consent that he had no reasonable grounds for that belief.

It is for the Crown to prove that the accused had a guilty mind and so if there is a reasonable possibility that the accused did honestly believe on reasonable grounds that the complainant was consenting, then I would have to find that this third element of the offence is not made out and return a verdict of not guilty on this charge.
If any one of the alternate states of knowledge is proved by the Crown beyond reasonable doubt, then the law provides that the accused is taken to have known that the complainant did not consent to the act of penile anal sexual intercourse and the third element will have been established and provided I have already found that the Crown has proved beyond reasonable doubt that the complainant did not consent then I would be obliged to convict the accused of this offence.

In this case there is evidence about the accused's state of intoxication at the time of sexual intercourse, but in considering his state of mind when determining whether or not the Crown has proved the second of the two ways in which they could prove knowledge of lack of consent, namely recklessness, I cannot take into account the fact that the accused was intoxicated where that intoxication is the result of the voluntary ingestion of alcohol or non-prescribed drugs and the intoxication here was voluntary (emphasis added).
It is important also that I do not elide the two propositions contained in the third way in which the Crown is entitled to prove knowledge of lack of consent, that is that the accused had no reasonable grounds for believing that the complainant was consenting to the act of penile anal sexual intercourse.
It is the belief of the actual accused which I must consider not what some other person or hypothetical person faced with the same circumstances might have believed. The consideration of whether or not, even if that belief was honestly held by the accused, it was based on reasonable grounds must be objectively assessed on the basis of the evidence (emphasis added).

Her Honour’s reasons then went on to set out the passage reproduced at [63] above, namely:

In assessing this third way of determining the accused’s state of mind and whether or not he has a guilty state of mind as argued by the Crown I am entitled to take into account his level of self-induced intoxication, especially in deciding whether or not it was an honestly held belief, but also whether or not there were reasonable grounds for holding such a belief (emphasis added).

MFI 6 to which her Honour referred was in the following terms:

Draft direction s61HA(3)
The Crown can succeed in proving the third element if it proves beyond reasonable doubt any one of the following states of knowledge, namely;
1.   That the accused knew that (the complainant) was not consenting to the act of penile-anal sexual intercourse, or
2.   The accused was reckless as to whether (the complainant) was consenting to the act of penile-anal sexual intercourse, either because
i.   he realised there was a possibility she was not consenting to that particular act, but went ahead and performed it anyway, or
ii.   he did not even think about whether the complainant was consenting to penile-anal sexual intercourse (in other words he did not care whether she was consenting), or

3. The accused had no reasonable grounds for believing that the complainant was consenting to the act of penile-anal sexual intercourse."
In this last respect, I may decide that he might have believed, although wrongly, that the complainant was consenting to intercourse with him. Whether that belief amounts to a guilty state of mind depends upon whether the accused honestly held it and, if so, whether he had reasonable grounds for that belief.
Therefore if I am not satisfied that the accused either knew the complainant wasn't consenting or was reckless as to whether the complainant was consenting, the Crown must prove one of two facts before I can find the accused guilty: either (a) that the accused did not honestly believe that the complainant was consenting or (b) that, if he did have an honest belief in consent, that he had no reasonable grounds for that belief.
It is for the Crown to prove that the accused had a guilty mind, and so if there is the reasonable possibility that the accused did honestly believe on reasonable grounds that the complainant was consenting, then I would have to find that this third element of the offence is not made out, and return a verdict of 'not guilty' of this charge.
If any one of these alternate states of knowledge are proved by the Crown beyond reasonable doubt, then the law provides that the accused is taken to have known that the complainant did not consent to the act of penile-anal sexual intercourse and the third element will have been established (emphasis in original).

Immediately above paragraph 3 of MFI 6 there is a handwritten notation, “Intox”. In her affidavit of 31 July 2017 Ms Williams stated (at paragraph 18) that she confirmed with the Crown Prosecutor at the trial that such notation had not been made by her.
Having set out the elements of the offence, her Honour commenced a review of the evidence, including the evidence of the respondent’s intoxication. She found (at T25.3) that the respondent was “at least moderately drunk” when he arrived at Soho and that although he had commenced to sober up by 4.00am he was still affected by alcohol to some extent. She then said (at 25.4):

It is important that I note here that it is not open to take into account the accused’s level of intoxication in determining whether or not his state of mind amounted to recklessness (emphasis added).

There was no issue that sexual intercourse had taken place and in these circumstances her Honour, following a review of the evidence, turned to the remaining two elements, the first being whether or not the Crown had established beyond reasonable doubt that the complainant did not consent to sexual intercourse. Her Honour ultimately concluded (at T70.8):

… the evidence does establish, beyond reasonable doubt that the complainant, in her own mind, did not consent to the anal sexual intercourse that occurred and thus the second element is established.

Having reached that finding, her Honour went on to consider the third element, namely whether the respondent had one of the three applicable states of knowledge of the fact that the complainant was not consenting. Her Honour found that there was no evidence to support the proposition that the respondent knew that the complainant was not consenting to the act of sexual intercourse (at T71.1). She then turned to the issue of recklessness and said (at T71.4):

The evidence from the accused in relation to this issue of recklessness which I note I must take into account without any consideration of his state of intoxication, does not in my view support an assertion that he was reckless. It does not appear to have been a large plank of the Crown’s case that recklessness could be established on the evidence (emphasis added).

Having concluded (at T71.7) that the respondent had a genuine and honest belief that the complainant was consenting to sexual intercourse, her Honour identified her remaining task as determining whether or not that was a reasonable belief. Her Honour found that the complainant, by her actions, did not mean to consent to sexual intercourse and accepted that in the complainant’s own mind, she was not so consenting. Having summarised aspects of the evidence her Honour concluded (at T73.7):

As I have found she did not say "stop" or "no". She did not take any physical action to move away from the intercourse or attempted intercourse, either when they were standing up, or when she was down on the ground on all fours. I stress that by none of that behaviour, in her own mind, was the complainant consenting to sexual intercourse and I have already found that the Crown has proved lack of consent beyond reasonable doubt, but I accept that this series of circumstances on the early morning of 12 May 2013 amounts to reasonable grounds, in the circumstances for the accused to have formed the belief, which I accept was a genuine belief, that in fact the complainant was consenting to what was occurring even though it was quick, unromantic, they had both been drinking and in the case of both of them may not occurred (sic) if each had been sober.
Thus I am not satisfied that the Crown has made out the third element, namely to prove that the accused had no reasonable grounds for believing that the complainant was not consenting to the act of penile/anal sexual intercourse and as such the accused is acquitted on the charge in the indictment.

Submissions of the parties

Submissions of the Crown

The Crown submitted that the power of a judge to revise his or her reasons for judgment does not extend to a power to make a substantive amendment to those reasons after their publication. The Crown submitted that if this Court were to conclude that the amendment made by the trial judge to her reasons went beyond the scope of what was permissible, the proper approach would be to treat the judgment as if the amendment had not been made. The Crown submitted that the test of whether or not a revision is permissible is an objective one, and that it is to be applied having regard to a number of factors, including the submissions made at trial as well as whether or not the amendment in question is consistent with the balance of the reasons for judgment. The Crown submitted that it was also appropriate to consider the oral reasons, and their delivery.
The Crown submitted that in all of the circumstances there was compelling support for the conclusion that the omission of the word “not” was not a slip, but accurately reflected not only what her Honour said, but also the reasoning process which she adopted to reach her conclusions. It was submitted that a consideration of the entirety of her Honour’s reasons made it clear that those reasons had been formulated in a way which was consistent with the misdirection at T13.8, and supported a conclusion that her Honour did, in fact, impermissibly take into account the respondent’s self-induced intoxication in determining whether he had a reasonable belief that the complainant was consenting to the sexual intercourse which had obviously taken place. It was submitted that the addition of the word “not” by the trial judge was clearly a matter of substance, and thus impermissible.
The Crown also placed some emphasis upon the concluding passages of her Honour’s reasons set out at [110] above, and in particular upon her Honour’s reference to the fact that the complainant and the respondent had “both been drinking and in the case of both of them may not occurred (sic) if each had been sober”. It was submitted that this reference was indicative of the fact that her Honour had impermissibly taken into account the respondent’s level of self-induced intoxication.
In addition to the reasons themselves, the Crown pointed to a number of other matters in support of the conclusion that error was made out. It was submitted that the recording made it clear that the word “not” was not said by her Honour, and that her intonation of voice indicated that she had said what she meant, and meant what she said. It was further submitted that the insertion of the word “not” rendered the sentence in question grammatically wrong. The Crown also pointed out that at the time of initially revising her reasons, her Honour had amended other parts of the very same paragraph in into which the word “not” had later been inserted. The effect of the Crown’s submission was that if the matter was truly a “slip”, it would have been discovered at that time. The Crown also relied on the fact that the addition of the word “not” was not made on the initiative of the trial judge but had come about after the ex-parte communications from the respondent’s solicitor which have already been set out, in the course of which the respondent’s solicitor had expressly suggested that an error had been made.
Accepting this to be the case, it was submitted that the direction that her Honour had given herself at T13.8 was clearly contrary to the mandatory direction in s. 61HA(3)(e) and that the balance of the judgment and the annotation on MFI6 were consistent with her Honour having applied the wrong test, such that error was established.

Submissions of the respondent

Senior counsel for the respondent accepted that the trial judge had not, when delivering judgment, said the word “not” in the passage reproduced at T13.8. However, he submitted that the omission was a clear slip and did not reflect what her Honour meant to say. It was submitted that her Honour’s subsequent insertion of the word “not” into the reasons rendered her approach to the respondent’s self-induced intoxication entirely consistent with s. 66HA(3)(e) and that she was entitled to revise her reasons as she did.
Senior counsel submitted that a review of the transcript of the trial made it abundantly clear that the trial judge was aware that the respondent’s self-induced intoxication could not be taken into account. This, it was submitted, was apparent from the submissions of both trial counsel as well as from the reasoning process adopted by her Honour as revealed in the revised judgment.
Senior counsel further submitted that an analysis of the reasons of the trial judge also supported the conclusion that her Honour had not impermissibly taken the respondent’s self-induced intoxication into account. Senior counsel also placed some emphasis on the fact that neither the Crown Prosecutor nor junior counsel for the respondent, at the time of the oral reasons being delivered, raised the possibility that her Honour had misdirected herself. He submitted that the likely reason for that was that neither party had detected the absence of the word “not” when her Honour gave her oral reasons.
Senior counsel took particular issue with the Crown’s reliance upon her Honour’s reference to the fact that intercourse may not have occurred had the complainant and the respondent been sober. He submitted that if the reasons were read as a whole, that passage could not be construed as an indication that her Honour had impermissibly taken the respondent’s intoxication into account. He submitted that it amounted to nothing more than a passing comment about the disinhibiting effects of alcohol, as opposed to a statement about the respondent’s knowledge.
Senior counsel for the respondent also took issue with the proposition that the insertion of the word “not” rendered the paragraph in question grammatically incorrect.

Consideration

Clearly, when delivering her oral reasons, the trial judge did not say the word “not” in the passage at T13.8. That much is clear from the recording. The word was inserted into the judgment by the trial judge in the circumstances outlined previously. These circumstances give rise to the fundamental question whether the revision made by her Honour was permissible in the circumstances. Absent the revision, the passage at T13.8 contains a clear and unequivocal mis-statement of principle.
Whilst a judge has the power to revise his or her reasons for judgment there are necessarily restrictions in his or her doing so. In Lam v Beesley (1992) 7 WAR 88 Owen J (at 93-94) reviewed the authorities before concluding (at 95) that if changes to a judgment were such that they could lead to an appearance of altered substance (as opposed to the alteration of matters of form) in a criminal trial, that would be sufficient to render a conviction unsafe and unsatisfactory. In Bar-Mordecai v Rotman [2000] NSWCA 123 the Court of Appeal (Sheller, Stein and Giles JJA) confirmed (at [193]) the propriety of the process of revision of ex-tempore reasons, but emphasised that altering the substance of the reasons, or the orders that they sustain, in the course of such revision is not permissible. Both of these decisions were referred to by Beazley JA (as her Honour then was) in Todorovic v Moussa (2001) 53 NSWLR 463; [2001] NSWCA 419 where her Honour concluded (at [46]) that the appropriate test in determining whether an alteration to a judgment is permissible is whether the change is one of substance in fact.
In Spencer v Bamber [2012] NSWCA 274 Campbell JA (with whom Basten and Macfarlan JJA agreed) emphasised (at [141]) the need for written reasons to be, in substance, those that the judge had given at the time of making orders. His Honour went on to say (at [142]):

The qualification I have just referred to is that in deciding what is an "impermissible alteration", one must not only consider whether an alteration is one of substance, but also Gleeson CJ's recognition that alteration is permissible "where, because of a slip, the reasons as expressed do not reflect what the judicial officer meant to say". The circumstances in which a mistake or slip could justify corrections in draft reasons were elaborated on in Bell v Veigel at [220], where Mason P said:
"It would in my view be wrong for a judge who has pronounced reasons for final judgment to make a material addition or alteration to those reasons simply because some better idea has come to mind. Sometimes, however, a judge fails to spell out what was in his or her mind referable to a particular argument, simply due to oversight. I see no reason why such an oversight could not be remedied, on application or on the judge's own motion, in a proper case."

Basten JA agreed with Campbell JA and was not prepared to infer that particular propositions were in the mind of a primary judge at the time of delivering oral reasons if statements encompassing those propositions were not made. His Honour went on to explain (at [8]) that the test of whether a revision is permissible is an objective one and that a relevant consideration is the degree of conformity between the revision and the argument presented in court.
In the event that a revision extends beyond the scope of what is permissible, the course commonly taken is for an appellate Court to disregard the additional reasons: Spencer at [13] per Basten JA; Talbot-Price v Jacobs [2008] NSWCA 189 at [12] per Ipp JA (with whom McColl and Basten JJA agreed); Palmer v Clarke (1989) 19 NSWLR 158 at 165 per Kirby P (Samuels and Priestly JJA agreeing) citing Melville v Phillips (1899) 9 QLJ 114 and R v Casey; ex parte Lodge (1887) 13 VLR 37.
The insertion of the word “not” by her Honour prima facie gives the appearance of revision of substance. Absent that revision, the only available conclusion would be that in saying what she did, her Honour erred in law. However, the determination of whether her Honour did err involves going beyond the facts and circumstances of the revision.
Firstly, as Basten JA pointed out in Spencer, a relevant consideration is the conformity between the amendment and the argument presented before the Court. As I have outlined at [95]-[99] above, both the Crown and senior counsel for the respondent reminded her Honour, on more than one occasion, of the impermissibility of taking into account the respondent’s self-induced intoxication when resolving the issue of consent. Moreover, her Honour herself independently acknowledged the impermissibility of that course during submissions. There can be no doubt whatsoever that her Honour was well aware of the provisions of s. 61HA(3)(e). Her Honour’s revision, by the insertion of the word “not”, conformed wholly with what had been put to her in argument. That is an important factor which supports a conclusion that such revision was permissible.
Secondly, and stemming from the first matter, her Honour correctly stated the law on several occasions, both before and after the impugned passage. That fortifies the view that, notwithstanding what her Honour said at T13.8, she was well aware of the law and applied it correctly.
Thirdly, I am not able to discern anything about her Honour’s tone of voice which is suggestive of error. There is no discernible difference in her Honour’s tone when one compares her undoubtedly correct statement of the law (which was made only a matter of moments before and which appears at T13.2) and that which is the subject of this ground (which appears at T13.8).
Fourthly, I am unable to attach any significance to her Honour’s reference (at [108] above) to the fact that intercourse may not have occurred had the complainant and the respondent been sober. In light of the approach of the parties to the issue, and in light of her Honour’s repeatedly correct statements of the law, I am unable to conclude that this passage reflects her Honour having impermissibly taken into account the respondent’s self-induced intoxication. The statement was, in all of the circumstances, surplusage. I am similarly unable to attach any significance to MFI 6, or the handwritten addition which appears in it. Even if it were accepted that such an addition was made by her Honour (a conclusion which is unsupported by the evidence) that would still not weigh in favour of a conclusion that her Honour incorrectly applied the law. The addition is completely equivocal. Whilst it is curious that the error was not discovered by her Honour when she first revised her reasons, it is no more than that. Similarly, and leaving aside the conduct of Mr Blair about which I have already made comment, nothing turns on the fact that the error was brought to her Honour’s attention in the circumstances I have outlined.

Her Honour’s insertion of the word “not” arguably did render the balance of the passage in question grammatically incorrect. However, when viewed objectively, the totality of her Honour’s reasons, as revised by that insertion, were in conformity with the submissions which had been made to her by both parties. They were also in conformity with what her Honour had acknowledged, and thus clearly understood, was the law. In these circumstances, the only logical conclusion in my view is that her Honour correctly applied the law, despite the terms in which she expressed her oral reasons.
For all of these reasons, I am of the view that her Honour’s revision was permissible, and that this ground is not made out.

Ground 2: Whether the trial judge in erred in failing to direct herself that in relation to making a finding about the respondent’s knowledge of consent pursuant s. 61HA(3) of the Crimes Act 1900, she must have regard to any steps taken by the respondent to ascertain whether the complainant was consenting, as required by s. 61HA(3)(d)

The reasons of the trial judge

In the course of final submissions, the Crown Prosecutor submitted to the trial judge (at T330.48 to 330.50):

…. [the respondent] took no steps at all to ascertain whether the complainant consented to anal intercourse with him.

Commencing at T72, the trial judge summarised her factual findings in the following terms:

I stress that I do not accept that the complainant, by her actions, herself meant to consent to sexual intercourse and in her own mind was not consenting to sexual intercourse. But by way of summary this is what occurred. The complainant accompanied the accused downstairs intending to go somewhere private with him after she had been kissing him passionately in the DJ box. She went outside with him willingly, albeit not knowing at the time where she was going. When she got outside and realised she was in an alleyway she walked towards the end of the laneway and there continued to kiss him passionately. She decided she wanted to stop and told him she wanted to go and see her friend but he persuaded her to stay and she stayed. Just before that, as she was turning to go away, he pulled down her undies, it seems to me clearly indicating what his intentions were and she pulled them up but it was at that time that he persuaded her to stay and she stayed.
The complainant kissed him again after she had turned around and stayed and when he asked her or even told her to put her hands on the fence she turned around and did so and he pulled her undies down and she did not pull then (sic) up. He tried to penetrate her vagina, she did nothing physically to avoid that. When he said that she was tight she told him she was a virgin but it was in the context of being told that she was tight. After that when she was told to get down on the ground on all fours and arch her back, she did so as requested and participated in a further attempt to penetrate her vagina by moving back and forward as the accused attempted to do that. When that did not work and he started to insert his penis into her anus she pushed back towards him and then back and forwards as the anal intercourse took place.
As I have found she did not say "stop" or "no". She did not take any physical action to move away from the intercourse or attempted intercourse, either when they were standing up, or when she was down on the ground on all fours. I stress that by none of that behaviour, in her own mind, was the complainant consenting to sexual intercourse and I have already found that the Crown has proved lack of consent beyond reasonable doubt, but I accept that this series of circumstances on the early morning of 12 May 2013 amounts to reasonable grounds, in the circumstances for the accused to have formed the belief, which I accept was a genuine belief, that in fact the complainant was consenting to what was occurring even though it was quick, unromantic, they had both been drinking and in the case of both of them may not occurred if each had been sober.

Submissions of the Crown

The Crown submitted that the trial judge was under an obligation to include, in her reasons for judgment, her findings of fact and the principles of law which she had applied. In these circumstances, the Crown emphasised that s. 61HA(3)(d) of the Act encompassed a principle of law, in the form of a mandatory direction which the trial judge was obliged to apply. It was submitted that the effect of s. 61HA(3)(d) was to render mandatory the consideration by the trial judge of what steps were actually taken by the respondent to ascertain whether or not the complainant was consenting to sexual intercourse. It was submitted that on reading the reasons as a whole, it was evident that the trial judge had not directed herself in accordance with that principle.
The Crown emphasised the fact that there was no reference, express or implied, to the provisions of s. 61HA(3)(d) at any point in her Honour’s reasons, nor was there anything in the judgment from which it could reasonably be inferred that the principle embodied in that provision had been applied. It was submitted that her Honour’s failure to have regard to that provision was a clear error of law. The Crown further submitted that on the evidence before her Honour, the respondent had in fact taken no steps of the kind contemplated by s. 61HA(3)(d).
To the extent that the respondent relied on those passages of her Honour’s judgment set out at [134] above, the Crown submitted that the factors to which her Honour referred were not properly regarded as “steps”, and that they were really nothing more than a recitation of some of the facts that her Honour had found. The Crown submitted that for the purposes of s. 61HA(3)(d) a “step” must be something more than just a state of mind.

Submissions of the respondent

Senior counsel for the respondent relied on these passages of her Honour’s judgment set out above at [134] as constituting compliance with s. 61HA(3)(d). It was submitted that her Honour’s analysis met the requirement set out in that section, and that the process of reviewing and summarising the evidence in which her Honour had engaged clearly included a consideration of the steps which had been taken by the respondent to ascertain whether the complainant had consented to sexual intercourse.
It was submitted that the statutory use of the word “steps” must necessarily have extended to a consideration of the surrounding events because those events could have been relevant to the respondent’s belief that there was consent. Senior counsel submitted that there was no difference between a physical step which involved asking a question, and a person having subjective regard to, and subjective consideration of, what was happening at the time, including what the complainant had done or said.

Consideration

Section 133 of the CPA is in the following terms:

133 Verdict of a single judge
(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.
(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.

A judge who tries criminal proceedings without a jury is not required to express all of the matters which would necessarily have to be stated to a jury unfamiliar with basic principles of law: Markou v R [2012] NSWCCA 64 per Macfarlan JA (R S Hulme and R A Hulme JJ agreeing) citing R v Winner (1995) 79 A Crim R 528 at 531. However, s. 133(2) requires that the trial judge expose his or her reasoning process by linking the relevant principles of law to the facts as he or she finds them to be: Fleming v R (1998) 197 CLR 250; [1998] HCA 68 cited by Bathurst CJ in W v R [2014] NSWCCA 110 at [108]-[110].
In a prosecution for an offence contrary to s. 61I of the Act, consideration of the matters set out in s. 61HA(3)(d) is mandatory. In R v XHR [2012] NSWCCA 247 Beazley JA (as her Honour then was) concluded (at [51]) that in light of the terms in which the section is cast, a trial judge, when directing a jury, must instruct the jury that they are to consider the reasonable steps taken by an accused person to ascertain whether the complainant was consenting. It follows that s. 61HA(3)(d) embodies a principle of law which the trial judge in the present case was bound to apply. It is sufficient if a trial judge’s reasons demonstrate, either expressly or by implication, that such a principle has been applied: Filippou v R (2015) 256 CLR 47; [2015] HCA 29 at [52]. However, if that is not demonstrated, an appellate court should conclude that the principle was not applied, as opposed to concluding that it was applied but not recorded: Fleming at [30]; see also Adams v R [2017] NSWCCA 215 at [286]; [289]-[292].
As I have outlined, senior counsel for the respondent submitted that the trial judge’s review of the relevant circumstances, set out at [134] above amounted to compliance with s. 61HA(3)(d) and that as a consequence, her Honour’s reasoning process was exposed in a way which complied with s. 133(2) of the CPA. I am unable to accept that submission for two principal reasons.
Firstly, nowhere in her Honour’s reasons is there any reference, express or implied, to s. 61HA(3)(d), and thus no express or implied statement of the relevant principle. Those factors alone support a conclusion that the principle was not applied, and that error is established.
Secondly, whilst I accept that the specific use of the word “steps” is not necessarily required in order to demonstrate compliance with the principle in s. 61HA(3)(d), those passages of her Honour’s reasons set out at [134] above amount to nothing more than a summary of her Honour’s factual findings, in the course of which the word “step” was not used, and where there was no express or implied reference to the relevant statutory provision.
As I have noted, senior counsel for the respondent submitted that those passages of her Honour’s reasons set out above encompassed a consideration of what her Honour found to be the respondent’s subjective perceptions of various things done by the complainant at the time, and that her Honour thus took into account the steps taken by the respondent as was required by s. 61HA(3)(d). The word “steps” is not defined in the Act but in my view there is no warrant to ascribe to it anything other than its natural and ordinary meaning. That meaning connotes doing something positive. The Collins English Dictionary defines the term “take steps” as meaning:

… to undertake measures to do something with a view to the attainment of some end …

It follows that in my view, a “step” for the purposes of s. 61HA(3)(d) must involve the taking of some positive act. However, for that purpose a positive act does not necessarily have to be a physical one. A positive act, and thus a “step” for the purposes of the section, extends to include a person’s consideration of, or reasoning in response to, things or events which he or she hears, observes or perceives.
However, even allowing for that interpretation, it remains the case that those passages of her Honour’s reasons upon which the respondent relied do not comply with s. 61HA(3)(d). As I have said, those passages amount to nothing more than a recitation of factual findings.
It follows that this ground has been made out.

The residual discretion

Submissions of the Crown

In the event that this Court found that either ground of appeal was made out, it was submitted by the Crown that there was a strong public interest in ordering that the respondent be re-tried. In this regard, the Crown pointed to (inter alia):

the seriousness of the alleged offending;

the desirability of having the guilt or otherwise of the respondent finally determined by a Judge or by a jury; and

the significance and materiality of the errors which were asserted;

The Crown further submitted that the exercise of this Court’s discretion not to order a re-trial and to dismiss the appeal would have the effect of usurping the functions of prosecuting authorities entrusted with the responsibility and discretion to initiate and conduct criminal prosecutions in the public interest.

Submissions of the respondent

It was submitted on behalf of the respondent that even if error were found, there were cogent reasons for this Court to exercise its discretion not to order a re-trial. It was submitted that these reasons included the fact that the respondent:

was 21 years of age when the events occurred;

has had to live with the anxiety and stress associated with the proceedings since his arrest in August 2013;

has undergone two trials in the District Court, and two appeals to this Court;

served 10 months imprisonment before being released on bail;

has been the subject of a significant amount of adverse publicity, both in the mainstream media and on social media, which has continued unabated since he was originally convicted; and

would not face any new trial before the latter part of 2018, which would be substantially in excess of 5 years since the relevant events had occurred.

Consideration

Section 104 of the CAR Act is in the following terms:

104 Interests of justice – matters for consideration
(1) This section applies for the purpose of determining under this Division whether it is in the interests of justice for an order to be made for the retrial of an acquitted person.
(2) It is not in the interests of justice to make an order for the retrial of an acquitted person unless the Court of Criminal Appeal is satisfied that a fair retrial is likely in the circumstances.
(3) The Court is to have regard in particular to:
(a) the length of time since the acquitted person allegedly committed the offence, and
(b) whether any police officer or prosecutor has failed to act with reasonable diligence or expedition in connection with the application for the retrial of the acquitted person.

Section 107 is in the following terms:

107 Directed jury acquittals or acquittals in trials without juries
(1) This section applies to the acquittal of a person:
(a) by a jury at the direction of the trial Judge, or
(b) by a Judge of the Supreme Court or District Court in criminal proceedings for an indictable offence tried by the Judge without a jury, or
(c) by the Supreme Court or the Land and Environment Court in its summary jurisdiction in any proceedings in which the Crown was a party.

(2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any such acquittal on any ground that involves a question of law alone.
(3) An appeal may be made within 28 days after the acquittal or, with the leave of the Court of Criminal Appeal, may be made after that period.
(4) The accused person is entitled to be present and heard at the appeal. However, the appeal can be determined even if the person is not present so long as the person has been given a reasonable opportunity to be present.
(5) The Court of Criminal Appeal may affirm or quash the acquittal appealed against.
(6) If the acquittal is quashed, the Court of Criminal Appeal may order a new trial in such manner as the Court thinks fit. For that purpose, the Court may (subject to the Bail Act 2013 ) order the detention or return to custody of the accused person in connection with the new trial.
(7) If the acquittal is quashed, the Court of Criminal Appeal cannot proceed to convict or sentence the accused person for the offence charged nor direct the court conducting the new trial to do so.
(8) This section does not apply to a person who was acquitted before the commencement of this section.
Note : See section 5C of the Criminal Appeal Act 1912 for appeals against the quashing of an indictment.

The power of this Court to order a new trial is discretionary. That discretion is to be exercised having regard to the ultimate question of whether the interests of justice require a new trial to be had: Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; (1984) HCA 48.
In considering where the interests of justice lie, the Court must take into account those factors in ss. 104(2) and (3)(a) of the CAR Act (s. 104(3)(b) having no application). However, those factors are not absolute. The term “interests of justice” encompasses a variety of considerations. In Gilham v R [2012] NSWCCA 131 McClellan CJ at CL said (at [649], citations omitted):

The court determines where the interests of justice lie by considering various factors, including:
the public interest in the due prosecution and conviction of offenders;
the seriousness of the alleged crimes;
the desirability, if possible, of having the guilt or innocence of the accused finally determined by a jury, which, according to the constitutional arrangements applicable in New South Wales, is the appropriate body to make such a decision;
the length of time between the alleged offence and the new trial, and in particular whether the delay will occasion prejudice to the accused;
whether the grant of a new trial would impermissibly give the prosecution an opportunity to supplement or "patch up" a defective case or to present a case significantly different to that presented to the jury in the previous trial;
the interests of the individual accused, and in particular whether it would be unduly oppressive to put the accused to the expense and worry of a further trial;
whether a significant part of the sentence imposed upon conviction has already been served;
the expense and length of a further trial;
whether a successful appellant to the Court of Criminal Appeal has been released from custody; and
whether an acquittal would usurp the functions of the properly constituted prosecutorial authorities, which are entrusted with responsibilities and discretions to act in the public interest in the initiation and conduct of criminal prosecutions.

Determining where the interests of justice lie is not a mathematical exercise, in which the relevant factors are “tallied”, and a determination reached as to the particular side of the line on which the majority of them fall. Rather, it is a balancing exercise which involves assessing each individual factor and ascribing the appropriate weight to it. Importantly, the weight to be ascribed to individual factors in that balancing exercise may vary according to the circumstances of the particular case.
In terms of s. 104(2) of the CAR Act, it must be acknowledged that this case has attracted considerable publicity. There is every reason to think that this would continue to be the case if a re-trial were ordered. However, I am satisfied that such publicity would not, of itself, impact adversely upon the respondent’s right to a fair trial. If the trial proceeded before a jury as opposed to a judge alone, the jury would obviously be directed to ignore any publicity. It is well settled that the system of trial by jury proceeds upon the fundamental premise that juries act in accordance with directions given by a trial judge: Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 at [31] per McHugh J.
In terms of s. 104(3)(a), the events in question occurred in May of 2013. That would mean that the re-trial would take place more than 5 years after the alleged offending. A delay of that magnitude in bringing an accused person to trial is, to say the least, undesirable.
There is an obvious public interest in the prosecution and conviction of offenders charged with serious criminal conduct. It is also desirable that the guilt or otherwise of any offender be determined by the appropriate tribunal of fact. Those factors weigh in favour of an order being made for the respondent to be re-tried.

Equally however, there are other factors which point in the opposite direction. I have already noted the fact that any re-trial would take place more than five years after the event. Further, whilst I recognise that any criminal trial is an ordeal for a complainant, it is also an ordeal for an accused. Moreover, the circumstances which bring about the possibility of a re-trial are not the fault of the respondent, or those acting for him. That is a relevant consideration: Reid v R (1980) AC 343 at 350 per Lord Diplock.
It is also significant that the respondent finds himself in this position for a second occasion, such that an order for a re-trial would see him being tried for a third time. As is the case in the present instance, the circumstances which resulted in the previous order for a re-trial were not the fault of the respondent.
Having regard to all of these circumstances it would, in my view, be oppressive to put the respondent to the expense and worry of a third trial in those circumstances: Spies v R (2000) 201 CLR 603; [2000] HCA 43 at [103]. This is particularly so given the fact that he was sentenced to a term of imprisonment of which he served 10 months before being released following the previous judgment of this Court.
The Crown emphasised the necessity for this Court ensuring that it did not usurp the functions of those authorities entrusted with the responsibility of initiating and conducting criminal prosecutions. That is clearly a relevant consideration. However, like any other individual consideration is it not, of itself, determinative. Intervention by an appellate Court to exercise its discretion not to order a re-trial may nevertheless be justified to ensure that subjecting an individual to the continued operation of the criminal justice system does not, of itself, operate as a source of oppression or unfairness: R v Thomas (No.3) (2006) 14 VR 512; [2006] VSCA 300 at [27] per the Court (Maxwell P, Buchanan and Vincent JJA).
The Crown also pointed to the fact that in R v PL (2009) 261 ALR 365; [2009] NSWCCA this Court ordered that the accused be tried a third time. However, for the reasons I have already expressed, the relevant facts and circumstances must be considered on a case by case basis. The mere fact that an order was made in one case that an accused be tried for a third time obviously does not mean that such a course must be followed in the present case.
In R v PL [2010] NSWCCA 256 Spigelman CJ, when considering the manner in which the discretion should be exercised by this Court, said (at [88]):

In a passage frequently cited by Australian Courts, Black J said in Green v United States 355 US 184 at 187-188 (1957):
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

His Honour went on to observe (at [91]) that notwithstanding its partial abrogation, the principle of double jeopardy remains a fundamental one which is obviously relevant to the exercise of the Court’s discretion.
In my view, in the circumstances of the present case, an order for a re-trial would bring about a conclusion of the kind referred to by the Court in Thomas (No. 3), namely that it would give rise to oppression and unfairness. It follows that a consideration of all the relevant factors weighs in favour of this Court exercising its discretion not to order that the respondent be tried for a third time.

CONCLUSION

At the time of the hearing of this appeal, the Court made an order pursuant to s. 111(1) of the CAR Act prohibiting the publication of anything which might identify the respondent. Pursuant to s. 111(5) the prohibition on publication ceases to have effect, subject to any other order under the section, when there is no longer any step taken that could be taken which would lead to the respondent being retried. Given the conclusions I have reached, the respondent will not be retried. I therefore propose the following orders:

The Crown appeal is dismissed.

Upon publication of these reasons, the order made on 1 September 2017 pursuant to s. 111(2) of the Crimes (Appeal and Review) Act 2001 (NSW) prohibiting the publication of anything which might identify the respondent, will cease to have effect pursuant to s. 111(5) of that Act.

**********

Amendments

12 December 2017 - Correction to paragraph references within judgment

Decision last updated: 12 December 2017

Medium Neutral Citation:	R v Lazarus [2017] NSWCCA 279
Hearing dates:	1 September 2017
Date of orders:	27 November 2017
Decision date:	27 November 2017
Before:	Hoeben CJ at CL at [1] Davies J at [4] Bellew J at [5]
Decision:	(1) The Crown appeal is dismissed. (2) Upon publication of these reasons, the order made on 1 September 2017 pursuant to s. 111(2) of the Crimes (Appeal and Review) Act 2001 (NSW) prohibiting the publication of anything which might identify the respondent, will cease to have effect pursuant to s. 111(5) of that Act.
Catchwords:	PRACTICE AND PROCEDURE – Judges – Revision and amendment of reasons delivered orally – Where reasons were revised by the trial judge and provided to the parties – Where one party drew the trial judge’s attention to what was said to be a further typographical error in the revised reasons – Where trial judge further revised those reasons by inserting an additional word – Where the word which was inserted was not said by the trial judge when the reasons were delivered orally – Whether the further revision was permissible – Necessity to consider the entirety of the reasons given CRIMINAL LAW – Offences – Appeal – Where respondent was charged with having sexual intercourse without consent – Where respondent was tried before a judge alone sitting without a jury – Where relevant statutory provisions required the trial judge to have regard, when considering the respondent’s knowledge about consent, to steps taken by the respondent to ascertain whether the complainant consented – Where trial judge made no reference to the relevant statutory provision in her reasons – Whether such matters were considered – Whether the trial judge failed to apply the relevant principles and expose her reasoning process CRIMINAL LAW – Offences – Appeal – Where respondent charged with having sexual intercourse without consent – Where respondent was tried before a judge alone sitting without a jury – Where relevant statutory provisions required the trial judge to have regard, when considering the respondent’s knowledge about consent, to steps taken by the respondent to ascertain whether the complainant consented – Whether the subjective perceptions of an accused can amount to “steps” for the purposes of that provision CRIMINAL LAW – Appeal – Where error made out – Whether an order should be made that the respondent be tried for a third time – Consideration of factors to be taken into account in determining whether the interests of justice required an order that there be a further trial – Where the circumstances leading to this appeal and a previous appeal were not the fault of the respondent or those acting for him – Where any re-trial would take place more than 5 years after the event – Where respondent had served 10 months of a custodial sentence – Oppressive to require that the respondent be tried for a third time PRACTICE AND PROCEDURE – Legal Practitioners – Where correspondence passed between the solicitor for the respondent/accused and those responsible for the provision of transcription services regarding a suggested error in the reasons of the trial judge – Where the circumstances where such that the solicitor must have known that the correspondence would be sent to the trial judge in support of his application for access to the electronic recording of the judgment – Where the solicitor knew that the issue of whether there was a typographical error went directly to one of the Crown’s proposed grounds of appeal of which he was on notice – Where the solicitor did not notify the Crown of any of his correspondence in which he raised the suggested error – Necessity for legal practitioners to observe the fundamental principle that a judge not receive representations from one party behind the back of the other WORDS AND PHRASES – “steps” – “steps taken by the person to ascertain whether the other person consents to the sexual intercourse”
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW) Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015
Cases Cited:	Adams v R [2017] NSWCCA 215 Bar-Mordecai v Rotman [2000] NSWCA 123 Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; [1984] HCA 48 Filippou v R (2015) 256 CLR 47; [2015] HCA 29 Fleming v R (1998) 197 CLR 250; [1998] HCA 68 Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 Gilham v R [2012] NSWCCA 131 Lazarus v R [2016] NSWCCA 52 Lam v Beesley (1992) 7 WAR 88 Markou v R [2012] NSWCCA 64 Melville v Phillips (1899) 9 QLJ 114 Palmer v Clarke (1989) 19 NSWLR 158 Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 R v Casey; ex parte Lodge (1887) 13 VLR 37 R v PL (2009) 261 ALR 365; [2009] NSWCCA 256 R v PL [2012] NSWCCA 31 R v Thomas (No.3) (2006) 14 VR 512; [2006] VSCA 300 R v XHR [2012] NSWCCA 247 Reid v R (1980) AC 343 Spies v R (2000) 201 CLR 603; [2000] HCA 43 Spencer v Bamber [2012] NSWCA 274 Talbot-Price v Jacobs [2008] NSWCA 189 Todorovic v Moussa (2001) 53 NSWLR 463; [2001] NSWCA 419 W v R [2014] NSWCCA 110
Category:	Principal judgment
Parties:	Regina – Appellant Luke Lazarus – Respondent
Representation:	Counsel: S Dowling SC and T Smith – Appellant P Boulten SC and D Barrow – Respondent Solicitors: Director of Public Prosecutions (NSW) - Appellant Blair Criminal Lawyers – Respondent
File Number(s):	2013/242040
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 4 May 2017 Before: Tupman DCJ