Tonari v R - [2013] NSWCCA 232

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Tonari v R [2013] NSWCCA 232
Hearing dates: 29 July 2013
Decision date: 18 October 2013
Before: Johnson J at [1];
Price J at [222];
RA Hulme J at [224]
Decision:
1. Appeal against conviction with respect to Counts 2 and 6, the s.61L Crimes Act 1900 counts is dismissed.
2. With respect to Counts 1, 3, 4, 5 and 7, the s.61J(1) Crimes Act 1900 counts, Ground 2A is upheld.
3. Pursuant to s.7(2) Criminal Appeal Act 1912, instead of allowing the appeal with respect to Counts 1, 3, 4, 5 and 7, substitute for the verdict found by the jury on each count, a verdict of guilty under s.61I Crimes Act 1900 of having sexual intercourse without consent.
4. Pursuant to s.12(2) Criminal Appeal Act 1912, remit the proceedings to the District Court so that the Appellant may be sentenced for the five offences under s.61I Crimes Act 1900 and the two offences under s.61L Crimes Act 1900.

Catchwords: CRIMINAL LAW - conviction appeal - convictions for aggravated sexual intercourse without consent under s.61J Crimes Act 1900 (five counts) and indecent assault under s.61L Crimes Act 1900 (two counts) - s.61J counts contained incomplete statement of circumstances of aggravation - counts alleged threats "to inflict actual bodily harm" upon complainant - counts omitted to allege "by means of an offensive instrument" - omission detected after verdicts - unsuccessful Crown application to amend indictment after verdicts - appeal against conviction - appeal heard prior to sentence - claim that indictment a nullity - held indictment not a nullity - claim of misdirection on s.61J counts - ground established given absence of legal and factual directions concerning "offensive instrument" component - claim of erroneous Markuleski direction and good character direction - grounds rejected - claim that verdicts unreasonable - held that s.61L verdicts reasonable - s.61J verdicts cannot stand given established misdirection - whether substitute verdicts of guilty of having sexual intercourse without consent under s.61I Crimes Act 1900 should be returned on s.61J counts - application of s.7(2) Criminal Appeal Act 1912 - verdicts of guilty of s.61I offences returned on s.61J counts - proceedings remitted to District Court for sentence for s.61I and s.61L offences
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Cases Cited:
Abbosh v R [2011] NSWCCA 265
Alseedi v R [2009] NSWCCA 185
Area Concrete Pumping Pty Limited v Inspector Childs [2012] NSWCA 208; 232 IR 86
Boujaoude v R [2008] NSWCCA 35; 72 NSWLR 85
Chanthaboury v R [2007] NSWCCA 290; 176 A Crim R 438
Doja v R [2009] NSWCCA 303; 198 A Crim R 349
Geggo v R [2013] NSWCCA 7
Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; 66 NSWLR 186
Griffiths v The Queen [1977] HCA 44; 137 CLR 293
Kahatapitiye v R [2004] WASCA 189; 146 A Crim R 542
Lodhi v R [2006] NSWCCA 121; 199 FLR 303
M v The Queen [1994] HCA 63; 181 CLR 487
Mackay v The Queen [1977] HCA 22; 136 CLR 465
Melbourne v The Queen [1999] HCA 32; 198 CLR 1
Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
Park v R [2010] NSWCCA 151; 202 A Crim R 133
R v Ayres [1984] 1 AC 447
R v Janceski [2005] NSWCCA 281; 64 NSWLR 10
R v MAJW [2007] NSWCCA 145; 171 A Crim R 407
R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
R v Robinson [1999] NSWCCA 172
R v Smith and Kirton (1990) 47 A Crim R 43
R v Swansson [2007] NSWCCA 67; 69 NSWLR 406
Rajendran v R [2010] NSWCCA 322; 206 A Crim R 316
Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326
Spies v The Queen [2000] HCA 43; 201 CLR 603
Texts Cited: ---
Category: Principal judgment
Parties: Nobutomo Tonari (Appellant)
Regina (Respondent)
Representation: Counsel:
Mr P Hamill SC; Mr CP Taylor (Appellant)
Ms V Lydiard (Respondent)
Solicitors:

File Number(s): 2011/195938
Publication restriction: ---
Decision under appeal

Citation:

---

Before:

Phegan ADCJ

File Number(s):

2011/195398

Judgment

JOHNSON J: The Appellant, Nobutomo Tonari, appeals against his conviction by a jury in the District Court on 27 August 2012 with respect to five counts of aggravated sexual intercourse without consent under s.61J(1) Crimes Act 1900 and two counts of indecent assault under s.61L of that Act.

Hearing of Conviction Appeal Before Sentence is Passed

In the unusual circumstances to be considered shortly, the Appellant has not yet been sentenced for these offences. The presiding Judge adjourned the sentencing proceedings to allow an appeal against conviction to proceed to this Court. The Appellant was granted conditional bail in the District Court in the meantime.

It was common ground between the parties that this Court has jurisdiction to entertain the appeal against conviction notwithstanding that the Appellant has not been sentenced: Griffiths v The Queen [1977] HCA 44; 137 CLR 293 at 301-302, 313, 334; R v MAJW [2007] NSWCCA 145; 171 A Crim R 407 at 411 [14]-[15].

There was discussion before the trial Judge as to whether the mechanism under s.5A Criminal Appeal Act 1912 should be utilised. The Appellant has proceeded with an appeal against conviction under s.5 of that Act. This approach has been adopted in this Court on a prior occasion: Boujaoude v R [2008] NSWCCA 35; 72 NSWLR 85 at 87 [3]-[5].

The fact that the Court has proceeded to hear and determine the present appeal should not serve as any encouragement to adopt this procedure in other cases. The ordinary and appropriate course, where s.5 is relied upon, is to avoid fragmentation of the criminal trial and appellate process and for the primary court to proceed to sentence the convicted person, with any appeal against conviction, or conviction and sentence, proceeding thereafter in the usual way.

In the event that the appeal against conviction is dismissed, it is accepted that this Court should remit the proceedings to the District Court under s.12(2) Criminal Appeal Act 1912 so that the Appellant may be sentenced.

The Indictment

Counts 1, 3, 4, 5 and 7 in the indictment each charged the Appellant with an offence under s.61J(1) in the following terms:

"On 12 May 2011 at Chatswood in the State of New South Wales, [the Appellant] did have sexual intercourse with [the Complainant] without her consent, knowing she was not consenting, in circumstances of aggravation, namely at the time of the commission of the offence the [Appellant] threatened to inflict actual bodily harm upon [the Complainant]."

Counts 2 and 6 charged the Appellant with offences under s.61L in the following terms:

"On 12 May 2011 at Chatswood in the State of New South Wales, [the Appellant] did assault [the Complainant] and at the time of such assault did commit an act of indecency on the said [Complainant]".

An Issue Arises Concerning the Indictment After Verdict

After the Appellant pleaded not guilty to each count on 6 August 2012, the trial proceeded until verdicts of guilty were returned by the jury on all counts on 27 August 2012.

At the beginning of the sentence proceedings on 9 November 2012, the Crown Prosecutor informed the Court that a defect in the indictment had been detected. To bring the counts into line with s.61J(2)(b), application was made to amend the indictment by inserting the words "by means of an offensive instrument" at the end of each of the s.61J(1) counts. The trial Judge refused the application and the proceedings were adjourned until 22 November 2012.

On 22 November 2012, the Crown made a further application to amend the indictment by deleting any reference to the circumstance of aggravation in the s.61J(1) counts, which would have had the effect of converting the charges to counts of sexual intercourse without consent under s.61I Crimes Act 1900. On 11 December 2012, the trial Judge refused leave to amend the indictment in this respect.

No point had been raised concerning the form of the indictment prior to or during the trial. The appeal was conducted in this Court upon the basis that the difficulty with the s.61J(1) counts was not picked up until the Crown detected it after the jury had convicted the Appellant.

Upon the basis that the Appellant would prosecute a conviction appeal in this Court expeditiously, the trial Judge adjourned the sentencing proceedings and granted the Appellant conditional bail.

Grounds of Appeal

With the leave of the Court, the Appellant relied upon the following grounds of appeal at the hearing on 29 July 2013:

(a) Ground 1 - The trial is a nullity because the indictment alleges offences which are not known to the law.

(b) Ground 2 - The convictions in relation to Counts 1, 3, 4, 5 and 7 should be quashed because those counts allege offences which are not known to the law.

(c) Ground 2A - As a result of the defect in the indictment, the learned trial Judge misdirected the jury as to the elements of the offences by failing to direct the jury that conviction on Counts 1, 3, 4, 5 and 7 required proof beyond reasonable doubt that the relevant threat was "by means of an offensive weapon or instrument" and by failing to explain those terms and concepts to the jury.

(d) Ground 3 - The trial miscarried due to the prejudice occasioned by the introduction into the trial of circumstances of aggravation that are not known to the law.

(e) Ground 4 - The trial Judge erred in directions to the jury in relation to the proper approach to multiple counts and multiple allegations.

(f) Ground 5 - The trial Judge erred in his directions as to the relevance of the Appellant's good character.

(g) Ground 6 - The verdicts are unreasonable and cannot be supported having regard to the evidence.

A Brief Summary of the Crown and Defence Cases at Trial

To place the grounds of appeal in context, it is appropriate to set out briefly the nature of the Crown and defence cases at trial. More will be said in this respect when considering the sixth ground of appeal.

The Appellant and the Complainant are both Japanese citizens. In May 2011, the Appellant was aged 28 years and the Complainant was 29 years' old. The Complainant came to Australia in early 2011 on a working holiday. The Appellant had been in Australia for about a month at the time of the relevant events in May 2011.

The Appellant and the Complainant first met through a support agency for Japanese people in Sydney at the beginning of May 2011. They met again on two separate occasions and, on the second occasion, they exchanged telephone numbers.

On 11 May 2011, the Appellant met the Complainant at the Chatswood Westfield shopping centre. They walked back to the Complainant's unit at Chatswood after purchasing groceries together. The Appellant offered to cook dinner.

The Complainant's Account

The Complainant said that the Appellant sat on the sofa next to the Complainant with his arm around her and that she moved away to sit on the opposite side of the sofa. The two then talked until late at night.

At a later hour, the Appellant asked if he could stay over. The Complainant refused. The Appellant left briefly, but returned to ask to stay again. Reluctantly, the Complainant agreed that he could sleep on the sofa. She slept in her bedroom.

During the course of the night, the Complainant woke and found the Appellant straddling her in bed, threatening to hit her in the face if she screamed and accusing her of stealing money from him. He placed his hand on her neck at one stage. He then forced his penis into the Complainant's mouth (Count 1) and licked her breasts (Count 2). The Appellant inserted his fingers into the Complainant's vagina (Count 3), while putting his penis back in her mouth (Count 4). The Appellant then removed his fingers and placed his penis inside her vagina (Count 5). After removing his penis, he dribbled a string of saliva into her mouth and forced her to swallow (Count 6). The Appellant then put his penis back in the Complainant's mouth and ejaculated into her mouth and on her chin and hair (Count 7).

The Appellant then remained in the bed with the Complainant, until around 6.00 am, when she asked to go to the bathroom. She noticed blood coming from her vagina and thought about running from the unit, but did not do so as she felt the Appellant may prevent her from doing so. The Complainant returned to the bed. The Appellant later accused the Complainant again of having stolen money from him.

The Appellant finally left the unit. The Complainant, in a distressed state, immediately called her mother in Japan, saying that she had been raped. The Complainant also called a friend, Miwako Hishi, whose husband informed the police.

Medical examination of the Complainant revealed bruises to her neck and signs of vaginal trauma, which the medical practitioner testified were consistent with the Complainant's account of sexual assault.

The Appellant's Account

The defence case was that the Appellant and the Complainant had sexual intercourse, but that the acts were consensual. The Appellant denied the event alleged to have constituted Count 6.

The Appellant gave evidence that the Complainant accepted his offer to make dinner at her place. After dinner, the Appellant gave the Complainant a consensual massage after she complained of having stiff shoulders and gave her a kiss on the cheek.

According to the Appellant, a conversation took place between them until 2.00 am, concerning the Appellant's family and the wealthy estate he inherited after his grandfather's death.

The Appellant left the Complainant's home in the middle of the night, but was unable to catch a bus home. He returned and the Complainant was happy for him to stay.

According to the Appellant, the Complainant sat next to him on the sofa and he massaged her again.

According to the Appellant, they then had consensual vaginal and oral sex, after which the Appellant removed his penis from the Complainant's vagina and asked where he should ejaculate. The Complainant said, "In my mouth" and the Appellant did so.

The Appellant fell asleep and was woken by the sound of the Complainant flushing the toilet. He went to the bathroom and, on his way back to the bedroom, he noticed that his wallet had been moved. He asked the Complainant why she would steal money ($50.00) from him and she proceeded to look around the apartment for money. The Appellant said he would report the matter to the police if she did not admit to stealing.

The Appellant left the Complainant's residence and did not contact her again.

The Appellant was arrested by police on 15 June 2011. He took part in an electronically recorded interview in which he admitted sexual activity with the Complainant, but asserted that it was consensual.

Grounds 1, 2, 2A and 3 - Grounds Based Upon the Wording of the s.61J Counts in the Indictment

The provisions in s.61J(1) and (2)(a)-(b) are relevant to these grounds of appeal. They provide:

"61J Aggravated sexual assault

(1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years.

(2) In this section, circumstances of aggravation means circumstances in which:

(a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or

(b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or

..."

The circumstances of aggravation relevant to this case are those contained in s.61J(2)(b), which require that any threat to inflict actual bodily harm be "by means of an offensive weapon or instrument".

The term "offensive weapon or instrument" is defined in s.4(1) Crimes Act 1900 in the following way:

"Offensive weapon or instrument means:

(a) a dangerous weapon, or

(b) any thing that is made or adapted for offensive purposes, or

(c) any thing that, in the circumstances, is used, intended for use or threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm."

It is the fact that neither the Crown Prosecutor nor defence counsel addressed the jury during the trial by reference to any threat being "by means of an offensive weapon or instrument". Nor did the trial Judge direct the jury on this issue. It appears that the trial proceeded without either counsel or the trial Judge detecting the missing words in the s.61J(1) counts.

The Complainant did give evidence of verbal threats made to her by the Appellant, including a threat to use an item (which she could not see in the dark bedroom) to harm her. The Complainant testified that the Appellant had said it was a key, but she did not see it.

The trial was conducted upon the basis that the jury was informed, in the Crown opening and thereafter, of the availability of alternative verdicts of guilty under s.61I, in the event that the jury was not satisfied to the requisite standard that the circumstances of aggravation had been established for Counts 1, 3, 4, 5 and 7: s.61Q(1) Crimes Act 1900.

The offence under s.61I 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."

The Crown application of 9 November 2012 was to amend the s.61J(1) counts under s.20 Criminal Procedure Act 1986 by inserting the words "by means of an offensive instrument". The trial Judge refused the application.

The further Crown application on 22 November 2012 was made under s.21 Criminal Procedure Act 1986, and sought to amend the indictment so as to allege offences under s.61I in place of those under s.61J. The application was based upon the proposition that the verdicts of the jury clearly demonstrated satisfaction to the criminal standard that the Appellant was guilty of five counts under s.61I, with such a conclusion not being affected by the missing words in the s.61J(1) counts. The trial Judge refused this amendment application on 11 December 2012.

The grounds of appeal presently under consideration do not involve any alleged defect in the s.61L counts of indecent assault. However, it is submitted for the Appellant that those convictions ought be quashed by reference to other grounds of appeal.

The Appellant's Submissions

Mr Hamill SC, for the Appellant, submitted that the convictions of the Appellant on Counts 1, 3, 4, 5 and 7 involved offences not known to law so that the trial was a nullity. He submitted that this was not a case of an imperfect formulation of a known offence, but the allegation of an offence not known to the law: Doja v R [2009] NSWCCA 303; 198 A Crim R 349 at 355 [22].

It was submitted for the Appellant that the jury in this case was not called upon to consider the circumstances of aggravation created by s.61J, with the Crown putting to the jury a circumstance of aggravation (a threat to inflict actual bodily harm) which is not contemplated by the statute. In these circumstances, it was submitted that it could not be suggested that the defect in the indictment was cured by the verdicts.

Mr Hamill SC submitted that a conviction based on a defective indictment might be valid, but only where there has been no miscarriage of justice, for example, where the defect is merely technical: Mackay v The Queen [1977] HCA 22; 136 CLR 465. He submitted, however, that even defects of a highly technical nature can render an indictment invalid and a trial a nullity, referring in this respect to R v Janceski [2005] NSWCCA 281; 64 NSWLR 10. In the absence of a valid indictment, it was submitted that the jurisdiction of the Court was not invoked: R v Janceski at 22 [54], 40 [205].

Mr Hamill SC submitted that the defect in the present indictment is to be distinguished from a case where the invalidity or defect is to be found in the particulars of the offence, such as Boujaoude v R.

The submissions referred to so far were made in support of the first and second grounds of appeal.

To the extent that the Crown contended that there could be a valid conviction for the statutory alternative under s.61I of the Act, it was submitted that there is a distinction between cases where the indictment contained mere surplusage (R v Smith and Kirton (1990) 47 A Crim R 43) and the present case where, it was contended, there were no valid s.61J charges laid in the first place. As the District Court's jurisdiction had not been invoked, it was submitted that there could be no valid conviction for s.61I offences or on the other counts alleging indecent assault.

In support of Ground 3, it was submitted that the introduction of circumstances of aggravation that were not known to law unfairly prejudiced the Appellant in a manner which gave rise to a miscarriage of justice: R v Ayres [1984] 1 AC 447 at 460-461.

Ground 2A, added by leave at the hearing before this Court, is based upon an alternative submission that the defect in the indictment led to the jury being misdirected concerning the elements of the s.61J offences, so that the convictions on those counts ought, in any event, be quashed.

Submissions of the Crown

The Crown submitted that the indictment was not a nullity with the charges being, in truth, imperfect formulations of known offences under s.61J.

The Crown submitted that the indictment was incomplete, rather than defective, in light of the manner in which the circumstances of aggravation were charged.

The Crown contended that the absent words concerning an offensive weapon or instrument could be "necessarily implied" for the purpose of s.16(1)(b) Criminal Procedure Act 1986. In circumstances where the Complainant had given evidence that she had been threatened, including threats made by means of what she was later told was a key, it was submitted that this was a feature of the trial, although the indictment did not contain this express averment, and trial counsel did not address the issue, nor did the trial Judge direct the jury on this aspect.

Even if s.16(1)(b) did not apply, the Crown submitted that the paragraphs contained in s.16(1) are not exhaustive of the circumstances in which an imperfect indictment may nonetheless be valid: R v Janceski at 26 [79].

The Crown contended that, the indictment not being a nullity, the proviso contained in s.6(1) Criminal Appeal Act 1912 could be used to affirm the convictions on the s.61J counts. Reliance was placed in this regard upon Chanthaboury v R [2007] NSWCCA 290; 176 A Crim R 438.

The Crown acknowledged that, in the circumstances of the trial, the jury had not been directed properly on the elements of the s.61J counts, so that the convictions on those counts could not stand (Ground 2A).

In light of the meritorious Ground 2A, a submission was not pressed by the Crown that the verdicts of the jury cured any defects in the s.61J counts.

The Crown submitted, however, that an appropriate course for this Court would be to utilise s.7(2) Criminal Appeal Act 1912 and convict the Appellant of the statutory alternatives under s.61I Crimes Act 1900 on each of the five s.61J counts.

It was submitted that the error in the indictment did not in any way prejudice or embarrass the Appellant. The real issue in the trial was the issue of consent. The indictment, as pleaded, contained particulars of offences under s.61I, and the verdicts of the jury were such that this Court can be satisfied that the Appellant had been found guilty by the jury of offences of having sexual intercourse without consent, as lesser alternative counts contained within the parameters of the s.61J counts. That offence is an essential component in the proof of the s.61J offence, and it was a necessary step towards establishing the major offence that the commission of the lesser offence be proven: R v MAJW at 413 [25].

The Crown pointed to the fact that the jury asked a question during their deliberations concerning the circumstances of aggravation, and that it may be inferred readily that, by that time, the jury was satisfied to the requisite standard that the Appellant was guilty of sexual intercourse without consent, knowing that the Complainant was not consenting, so as to render him liable to conviction on s.61I offences.

The Crown submitted that this Court should then remit the matter to the District Court so that the Appellant may be sentenced for the s.61I offences and the s.61L offences, for which he had been convicted by the jury.

Decision

If the Crown had sought to amend the indictment at any time prior to the return of verdicts by the jury, ss.20-21 Criminal Procedure Act 1986 would have been called into play. Those sections state relevantly:

"20 Amendment of indictment

(1) An indictment may not be amended after it is presented, except by the prosecutor:

(a) with the leave of the court, or

(b) with the consent of the accused.

(2) This section does not affect the powers of the court under section 21.

(3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment.

21 Orders for amendment of indictment, separate trial and postponement of trial

(1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case.

...

(6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes."

It was ss.20 and 21 which were sought to be utilised by the Crown in an effort to amend the indictment in the course of the sentencing proceedings. In Rajendran v R [2010] NSWCCA 322; 206 A Crim R 316 at 323-325 [35]-[49], Simpson J (Blanch and Garling JJ agreeing) considered the purpose and operation of ss.20 and 21. Her Honour observed that s.20 confers power to amend an indictment, with a typical example being to amend the date of the alleged offence. Section 21, on the other hand, is "more complex", with its underpinning being an opinion by the Court that an indictment is defective.

No challenge is made in this Court to the decisions of the trial Judge in declining to make either of the orders sought by the Crown on 9 and 22 November 2012 and 11 December 2012, after verdicts had been returned. This Court has indicated (without deciding) that s.21 is unlikely to be available to amend an indictment after a jury has returned its verdict: R v MAJW at 413-414 [29]-[39].

Was the Indictment a Nullity?

Section 11 Criminal Procedure Act 1986 provides that the description of any offence in the words of an Act or statutory rule or other document creating the offence, or in similar words, is sufficient in law.

Section 16(1) Criminal Procedure Act 1986 provides (relevantly) for certain defects to not affect an indictment:

"16 Certain defects do not affect indictment

(1) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds:

(a) for the improper insertion or omission of the words 'as appears by the record', 'with force and arms', 'against the peace', 'against the form of the statute' or 'feloniously',

(b) for want of an averment of any matter unnecessary to be proved or necessarily implied,

(c) for want of a proper or perfect venue or a proper or formal conclusion,

(d) for want of any additional accused person or for any imperfection relating to any additional accused person,

(e) for want of any statement of the value or price of any matter or thing, or the amount of damage or injury, if such value, price or amount is not of the essence of the offence,

(f) for designating any person by the name of his or her office, or other descriptive appellation, instead of by his or her proper name,

(g) except where time is an essential ingredient, for omitting to state the time at which an offence was committed, for stating the time wrongly or for stating the time imperfectly,

(h) for stating an offence to have been committed on a day subsequent to the finding of the indictment, on an impossible day or on a day that never happened,

(i) if the indictment was signed by an Australian legal practitioner who has been instructed to prosecute the proceedings to which the indictment relates on behalf of the Director of Public Prosecutions - for failure by the Director to authorise the Australian legal practitioner by order in writing under section 126 (2) to sign indictments for and on behalf of the Director.

... ."

Section 17 provides:

"17 When formal objections to be taken

(1) An objection to an indictment for a formal defect apparent on its face must be taken, by demurrer or motion to quash the indictment, before the jury is sworn.

(2) The court before which the objection is taken may cause the indictment to be amended and, in that case, the trial is to proceed as if there had been no defect.

In R v Janceksi, Spigelman CJ observed (at 26 [79]) that the scope of ss.16 and 17 was so wide that it could not be said that every other defect not mentioned in those provisions, however or whenever occurring, should deprive an indictment of its character.

This is not a case such as R v Janceski, where the indictment was not signed by an authorised person (s.16(1)(i) was enacted to meet this problem), or R v Swansson [2007] NSWCCA 67; 69 NSWLR 406, where two indictments were relied upon before a jury in clear breach of the "one indictment, one jury" rule. In those cases, there were fundamental failures in the trial process which went to the validity of the proceedings. Although there were differing views in R v Swansson as to whether the conviction was a nullity, there was clear acceptance that the proceedings were fatally flawed in law, so that there could be no recourse to the proviso under s.6(1) Criminal Appeal Act 1912.

The true problem in the present case is that there was an incomplete statement of the statutory circumstance of aggravation relied upon under s.61J. Although the s.61J counts alleged as an element that the offences were committed "in circumstances of aggravation", the counts did not set out the complete formula of words contained in s.61J(2)(b).

It may be said that each of the s.61J counts alleged a s.61J(1) offence, but each was imperfect in that the complete s.61J(2) formula was not used.

The requirements for a valid indictment have been considered in a number of cases, to which reference will shortly be made.

The terms of a charge contained in an indictment need not set out, in an exhaustive way, all features of the charge alleged against an accused person. For example, the s.61J(1) charges against the Appellant alleged that he had "sexual intercourse" with the Complainant on five occasions. The definition of "sexual intercourse" in s.61H Crimes Act 1900 extends to a variety of acts. It has not been contended here, or in any other case to my knowledge, that an indictment for a s.61I offence or a s.61J(1) offence must spell out the form of sexual intercourse which is alleged to have taken place. McClellan CJ at CL (Sully J agreeing) made this very point in Lodhi v R [2006] NSWCCA 121; 199 FLR 303 at 327 [107]. Identification of the form of "sexual intercourse" alleged is regarded as a matter of particulars to be communicated in a manner external to the indictment.

Likewise, the s.61J(1) charges against the Appellant allege that he had sexual intercourse with the Complainant "without her consent, knowing that she was not consenting". The concepts of knowledge about consent and negation of consent are explained in s.61HA Crimes Act 1900. No complaint is made here, nor in any other proceedings to my knowledge, that an indictment for a s.61J(1) offence or s.61I offence must identify the manner in which these consent issues are said to apply in a particular case.

During the course of the hearing in this Court, Mr Hamill SC was asked why the indictment was not sufficient as it asserted that the alleged s.61J(1) offences were committed "in circumstances of aggravation". Senior counsel responded that, for the indictment to be valid, it was necessary that the circumstances of aggravation be expressly set out. He submitted that this obligation arose because the circumstances of aggravation were contained in s.61J(2), the section which provides for the s.61J offence itself. He submitted that it was not necessary to identify the form of sexual intercourse involved because that concept arose in a different section (s.61H) and not the offence section itself.

It is difficult to see why this distinction would matter. The offence is contained in s.61J(1). The elements of the offence are further explained in other provisions, including s.61H, s.61HA and s.61J(2).

To my mind, each of these matters involve particulars, and not a statement of the offence which must be set out in full in the indictment.

However, the s.61J(1) counts went further, alleging the incomplete circumstances of aggravation "namely at the time of the commission of the offence the said Nobutomo Tonari threatened to inflict actual bodily harm upon [the Complainant]".

To the extent that the absence of words may be said to constitute a defect, s.16 Criminal Procedure Act 1986 may be called in aid in an appropriate case. For example, s.16(1)(b) operates where there is a failure to aver a matter which is necessarily implied.

Whether the particular matter may be necessarily implied will involve consideration of the conduct of the trial itself. It is at this point that there are difficulties for the Crown in this case. The trial was conducted without any reference to the offensive instrument issue, and the jury was not directed in accordance with the complete statutory formula of the circumstance of aggravation as contained in s.61J(2) of the Act.

This is not a case where the trial was conducted by prosecution, defence and the trial Judge upon the basis that the offensive instrument aspect was to be proved, but with the words being omitted from the indictment. Rather, the trial was conducted upon the basis that the s.61J(1) charges as contained in the indictment correctly reflected the matters to be proved. This aspect has particular significance with respect to Ground 2A.

It is difficult to see how necessary implication under s.16(1)(b) Criminal Procedure Act 1986 can operate to assist the Crown in these circumstances: Doja v R at 356-357 [32]-[36].

Even if the view be formed that the s.61J(1) counts in this case were deficient because of the failure to specify fully the relevant circumstances of aggravation, I am satisfied that this would constitute a mere defect and not a matter rendering those counts (or the indictment) a nullity.

The distinction between a mere defect and a fundamental failure (rendering the indictment a nullity), referred to by Lord Bridge of Harwich in R v Ayres at 460-461, has been adopted and applied in a number of decisions in Australia.

In Kahatapitiye v R [2004] WASCA 189; 146 A Crim R 542, the failure to include the words "without her consent" in sexual assault counts was held not to render the indictment a nullity. After referring to R v Ayres, Templeman J (Wheeler and Miller JJ agreeing) concluded (at 545 [22]-[23]) that it was intended to charge "a known and subsisting criminal offence; that is to say, the offence of sexual penetration without consent, which was pleaded in the indictment in terms which were incomplete or otherwise imperfect". The proviso could be applied in those circumstances.

The decisions in R v Ayres and Kahatapitiye v R were referred to by this Court in Chanthaboury v R, where it was accepted that the relevant Court Attendance Notice contained an error, in that it described an offence of accessory after the fact to robbery, and not attempted robbery. McClellan CJ at CL (Barr and Bergin JJ agreeing) referred, without criticism, to the distinction between nullity and mere defect in R v Ayres, and the application of this principle in Kahatapitiye v R.

In Boujaoude v R, the indictment alleged an offence of supplying not less than a commercial quantity of a prohibited drug (heroin), but the quantity specified fell far below the commercial quantity for that drug. Giles JA (Hislop and Price JJ agreeing), at 92-95 [38]-[49], applied R v Ayres and Kahatapitiye v R. The indictment was held to be valid, "although defectively particularised" (at 94 [45]).

In Doja v R, the appellant was convicted of several offences under s.178BB Crimes Act 1900, two of which failed to allege the relevant mental element, in that they did not include any reference to the "knowledge" of the appellant or his alleged "reckless disregard" of the truth of the statement made. McClellan CJ at CL (Grove J agreeing), observed (at 365-366 [104]-[105]) that the omissions were plainly an oversight which were not appreciated by the Judge or counsel at trial.

The Chief Judge at Common Law concluded (at 372 [130]) that the indictment in that case was not invalid or the proceedings a nullity. The indictment could have been amended during the course of the trial. His Honour held that the verdicts cured the defects in the indictment. In any event, his Honour held (at 372-375 [131]-[144]), referring to R v Ayres and Kahatapitiye v R, that the proviso could be applied in that case.

McClellan CJ at CL (Grove J agreeing) said at 377-378 [158]-[159]:

"[158] The 19th century cases which defined the common law response to a defective indictment were decided before the contemporary statutory procedures for the laying of criminal charges and the conduct of criminal trials were enacted. However, the policy evident in the statutory regime is consistent with the common law position. Where the defect deprives the court of jurisdiction a conviction cannot save the indictment and the conviction must be quashed. So much is plain if the indictment was not signed by an authorised person or alleged an offence unknown to the law. However, provided the court has jurisdiction and it may be concluded that the jury has been properly instructed as to the elements of the relevant offence, and the accused has not been prejudiced in his trial a conviction for that offence will not be disturbed.

[159] In my opinion, although defective with respect to counts 13 and 14, the indictment in the present case was not itself invalid so as to deprive the District Court entirely of jurisdiction. The considerations which led to the quashing of the conviction in Janceski are not relevant in the present case. If objection had been taken at the trial the problem could have been dealt with by amendment of the indictment which would have been granted pursuant to s 17 of the Criminal Procedure Act."

In Park v R [2010] NSWCCA 151; 202 A Crim R 133, McClellan CJ at CL (James J agreeing) accepted (at 142 [41]) in the context of a complaint concerning a charge of attempted murder, that at worst, there had been an imperfect formulation of a known offence - it would be "imperfect rather than defective". Even if his Honour had concluded that the indictment was defective, it was not one which deprived the Court of jurisdiction (at 143 [48]).

In Area Concrete Pumping Pty Limited v Inspector Childs [2012] NSWCA 208; 232 IR 86, Bathurst CJ (Basten JA, in separate reasons, and Hoeben JA agreeing), at 103 [49], applied R v Boujaoude in stating that "even an inadequately described offence will not necessarily render the offence unknown to law such that jurisdiction is lost and amendment provisions cannot operate".

I return to the circumstances of this appeal.

In my view, the indictment charged s.61J(1) offences which were known to the law. The wording was incomplete in its description of the circumstances of aggravation under s.61J(2). This was an imperfect formulation of a known offence. The District Court had jurisdiction to proceed with the trial. Had application been made in the course of the trial, it would have been open to the trial Judge, subject to discretionary considerations, to allow an amendment. That did not happen. Had the trial been conducted upon the basis that the threat to inflict actual bodily harm had been by means of an offensive instrument (although the indictment did not so allege), then it would be open to this Court to conclude that the imperfection or defect in the indictment was cured by the verdicts.

Further, in circumstances where it has not been established that the trial was a nullity, it would have been open to the jury to find the Appellant guilty of the alternative offences under s.61I at trial.

Addressing the Grounds of Appeal

By reference to the first and second grounds of appeal, I am not persuaded that the indictment alleged s.61J offences which were "not known to the law". The statement of the charges was, in my view, sufficient to render them lawful. Accordingly, it has not been established that the trial was a nullity because of the inclusion of these charges in the indictment. The first ground of appeal should be rejected.

The second ground of appeal should fail upon the basis that the convictions with respect to Counts 1, 3, 4, 5 and 7 did not arise with respect to alleged offences which are not known to the law.

However, Ground 2A addresses the real difficulty which arose in this trial. In the circumstances, the jury was not directed as to the elements of the relevant circumstance of aggravation, nor were any directions given which sought to relate that direction of law with the factual issues in the trial. This is sufficient, in my view, to warrant the quashing of the convictions on the s.61J(1) charges.

With respect to the third ground of appeal, I am not persuaded that the introduction of the concept of circumstances of aggravation into the trial caused the trial to miscarry due to prejudice to the Appellant. What the Crown relied upon, being the verbal threats and the use of force, was all admissible whether the charge was laid under s.61J or s.61I of the Act. It was relevant to the critical issue in the trial - consent. The references in the s.61J counts to circumstances of aggravation, and the submissions of counsel and directions to the jury, did not serve to distract or deflect the jury. Certainly, no unfairness has been demonstrated by the Appellant.

In my view, the Appellant has failed to make good the third ground of appeal. It has not been established that the trial miscarried due to prejudice occasioned to the Appellant by the introduction into the trial of circumstances of aggravation in the manner which occurred in this case.

The true error in this case is that identified in Ground 2A. The jury was given incomplete directions of law concerning the legal concept of a circumstance of aggravation, and were not directed in a manner which would otherwise have been required concerning the factual application of that legal direction to this case.

However, it is tolerably clear, in my view, that the jury was satisfied beyond reasonable doubt that the Appellant was guilty of each of the five counts of having sexual intercourse without consent with the Complainant, so as to render him liable to conviction under s.61I in each case. So much is clear from the fact that, after extended deliberation, the final question asked by the jury sought clarification on the issue on the circumstances of aggravation. It may be inferred readily that the jury was otherwise satisfied of the elements of each offence to that point.

Subject to the determination of other grounds of appeal, it will be necessary for the Court to consider the application of s.7(2) Criminal Appeal Act 1912 to substitute convictions under s.61I for those under s.61J(1) of the Act.

I would reject Grounds 1, 2 and 3 but would uphold Ground 2A.

Ground 4 - The Trial Judge Erred in Directing the Jury in Relation to the Proper Approach to Multiple Counts and Multiple Allegations

Submissions of the Parties

Mr Hamill SC submitted that the directions given by the trial Judge did not comply with the principles in R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 ("Markuleski"). In the circumstances of this trial, where he submitted the Crown case depended substantially, if not entirely, upon the evidence of the Complainant, more needed to be said to the jury with respect to the reasoning process to be followed where there were several counts contained in the indictment.

It was submitted that the jury's attention was not expressly directed to the proposition that a reasonable doubt in relation to the Complainant's credibility in respect of one count, should or ought be taken into account on the Complainant's credibility generally. As a result, it was submitted that the jury had not been directed on this crucial matter, so that a legitimate process of reasoning was effectively denied to the jury, thereby causing the trial to miscarry.

Mr Hamill SC argued, as well, that the failure of the indictment to allege the complete circumstance of aggravation in the s.61J counts, by reference to an offensive instrument, served to fortify the Appellant's arguments in support of this ground. It was submitted that the Appellant's arguments pointing to discrepancies in the evidence of the Complainant, by reference to a suggested item (a key), would have acquired greater prominence in the minds of the jury if the indictment had charged that aspect properly as an element of the offence.

The Crown traced the directions given by the trial Judge following submissions made at trial by the Crown and defence counsel, and submitted that the jury would have clearly understood that, if it had a reasonable doubt about the Complainant's credibility in relation to one count, it would be difficult to see how the evidence of the Complainant could be accepted in relation to other counts.

The Crown emphasised that there was no fixed wording for a direction in this area, with the precise terminology remaining a matter for the trial Judge in all the circumstances of the particular case: Markuleski at 122 [191].

Decision

It is appropriate to set out the directions given by the trial Judge relevant to this ground. In doing so, it must be said that the directions addressed at some length a topic which was capable of briefer direction, such as that contained in the Criminal Trial Courts Bench Book (to which reference will be made). However, the question for this Court is whether the directions given by the trial Judge, in the context of this trial, caused the trial to miscarry.

The trial Judge directed the jury in the following way (SU25-26):

"Now, there is one other important matter that I need to remind you about and explain a little further than I needed to at the commencement of the trial, with regard to the fact that you have the very difficult task of addressing seven counts, not one, in the indictment.

Each of those counts are independent of each other and therefore they require your consideration on that basis. You must, under no circumstance, say to yourselves, 'Well, we're not satisfied beyond reasonable doubt on the first count, we can assume we'd come to the same conclusion on all the others.' Under no circumstances are you to do anything remotely like that.

You have to take the counts one by one, you have to address the evidence that is relevant to that particular count and reach a conclusion. And it is not beyond your task that you might come up with a mixture of guilty and not guilty verdicts. That is quite consistent with the independence of each of the counts. They are not dependent on each other in any sense at all. However, if you were to come to such a conclusion, that is if you were to reach a verdict of not guilty on some counts and guilty on others, it could only be after a very careful examination of why you have done that.

For example, it would be very difficult to explain a series of verdicts of, let me just take for example, guilty on counts 1 and 3, not guilty on counts 4 and 5. It is possible that you might, because for example of the absence, in your judgment, of the element of aggravation in one and not the other. That might explain a different verdict. But what you have to be very careful about is, as I say, that such different outcomes have to be explicable and they have to be explicable by a sound reason.

What would not be acceptable and nobody is going to know about this, only you, and I am simply ensuring that you go about your deliberations appropriately, what would be quite unacceptable was for, for example, you to say to yourselves, 'Well, yes, we found the complainant with regard to count 1 a comprehensively unreliable witness. We just didn't believe her story.' But when we come to count 4 and 5, 'We believe everything she said.' Now, that would be very difficult to sustain, what would appear to be a quite demonstrable inconsistency in your own assessment of the evidence.

So, I just want to stress that in emphasising the importance of taking it count by count, you must not let yourselves stray into a situation where you are reaching your conclusions for demonstrably contradictory reasons and inconsistent reasons within your own judgment. You have to be able to explain why, in a reasoned and consistent way, you came to a different conclusion about the guilt of the accused in one but not another of the offences. But that is open to you, provided such reasons exist and provided you are satisfied that those reasons apply."

Thereafter, the Crown Prosecutor and defence counsel addressed the trial Judge concerning these directions, seeking further directions (SU32-34).

The following day, the trial Judge returned to this topic, and expanded on it in the following way (SU40-41):

"You will recall that I did spend some time explaining to you the particular care you must exercise in approaching a case of this kind where you have a multiplicity of counts in the indictment, and I stressed in explaining this to you yesterday, as I had explained to you at the beginning of the trial, that every count must be addressed independently, and you must come to a conclusion, if your verdict is to be one of guilty, which is based on your being satisfied beyond reasonable doubt, on the evidence relevant to that particular count, that the Crown has made out a case on every relevant element of that particular offence.

I did, however, go on to explain as a matter of common sense that you cannot decide, on each of the independent counts, in a vacuum, that you will have made decisions about matters of general application, that it would be very difficult to contradict in a subsequent verdict on another count.

That is particularly true with regard to the complainant's evidence because of its central importance, and that is a matter that I had something to say about yesterday and about which I will have more to say in a moment.

But for example, if you have reasonable doubt about the evidence of the complainant on, let me say by way of example, count 1, and you accordingly return a verdict of not guilty, then you would have to consider very carefully whether you could come to a different conclusion on any of the other counts, if the reason is that you are not satisfied that the complainant is either a truthful and/or reliable witness. And that goes back to what I was saying, that if there are to be verdicts which might appear on the face of it to be inconsistent, there have to be very good reasons for it. And that is a particular example of what I was talking about yesterday."

His Honour referred to this topic again (SU49):

"Now, can I just conclude that particular aspect of the summing up ... - and that is that on this general question of lying it is a matter ultimately and as part of the task which I have now, I hope, very comprehensively explained to you, you have to undertake with regard to the evidence of the complainant in particular, but it must follow, it must follow from everything that I have said and I doubt whether it is even necessary to say this to you but I still am bound to do so, if you do come to the conclusion that the complainant was lying, then that, of course, would undermine totally the Crown case. As I say, I think that is self-evident, that evidence which you believe has been quite deliberately falsely constructed can be of no assistance at all in proving what the Crown, with regard to the complainant's evidence, must prove.

The other point is that what conclusion you come to, if you do, about lying - and of course you may say, 'Well, in the end, I really don't find anything in the evidence sufficient to satisfy me that the complainant was lying', that is open to you - but if you do say, 'Well, on particular matters I am of the conclusion, on all of the evidence, that she was deliberately lying', then it would be very difficult, for reasons I think I have explained in talking about the various counts in the indictment, to isolate that conclusion.

In other words, if you find that she was lying to you on certain matters, then it becomes very difficult for you to be satisfied that she was not on other matters."

In Markuleski, Spigelman CJ said at 121-122 [186]-[191]:

"[186] In the light of the number of cases it is desirable that the traditional direction as to treating each count separately is supplemented in a word against word case. Some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant's evidence with respect to any count.

[187] Some form of direction assisting the jury in this respect should be given, to employ the terminology found in Kilby and Davies 'as a general rule'. Its absence is not necessarily fatal (as it was not in Davies itself). Furthermore, as the joint judgment in Crofts affirmed, the 'general rule' does not apply 'where the peculiar facts of the case and the conduct of the trial do not suggest the need for a warning to restore a balance of fairness' (at 451).

[188] It is not necessary to specify any precise words for such a direction. That will depend on the circumstances of the case. It will often be appropriate to direct a jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant's evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant's evidence generally.

[189] On other occasions it may be appropriate for a judge to indicate to the jury, whilst making it clear that it remains a matter for the jury, that it might think that there was nothing to distinguish the evidence of the complainant on one count from his or her evidence on another count.

[190] Or it may be appropriate to indicate that, if the jury has a reasonable doubt about the complainant's credibility in relation to one count, it might believe it difficult to see how the evidence of the complainant could be accepted in relation to other counts.

[191] The precise terminology must remain a matter for the trial judge in all the particular circumstances of the specific case. The crucial matter is to indicate to the jury that any doubt they may form with respect to one aspect of the complainant's evidence, ought be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant's evidence with respect to other counts."

The suggested direction in the Criminal Trial Courts Bench Book, derived from Markuleski, is to the following effect (at [5-1590]):

"Giving separate consideration to the individual counts means that you are entitled to bring in verdicts of guilty on some counts and not guilty on some other counts if there is a logical reason for that outcome.

If you were to find the accused not guilty on any count, particularly if that was because you had doubts about the reliability of the complainant's evidence, you would have to consider how that conclusion affected your consideration of the remaining counts."

As Spigelman CJ observed in Markuleski, there is no fixed formula of words to be used in a direction of this type. The question for this Court is whether the jury in this trial would have had communicated to it the concepts which lie at the heart of this direction. Although the directions given to the jury in this trial were lengthy, and extended some way beyond the succinct suggested direction in the Criminal Trial Courts Bench Book, I am not persuaded that error has been demonstrated by the Appellant.

Moreover, I do not accept the further submission of the Appellant (at [108] above). Submissions were made by the Appellant's trial counsel to the jury on this issue and other issues and those arguments stood to be considered on their own merits. I am not persuaded that reference to an offensive instrument in the indictment would have affected the jury's approach in the manner suggested by counsel in support of this ground.

In my view, the jury would have understood the proper approach to an assessment of multiple counts and multiple allegations emanating from a single complainant. Further, this was a trial where the alleged offences were said to have occurred over a short period of time as part of a continuing incident. Apart from Count 6, the commission of the acts was not in dispute. The issue was consent. The purpose of a Markuleski direction was achieved in this case.

I reject this ground of appeal.

Ground 5 - The Trial Judge Erred in his Directions as to the Relevance of the Appellant's Good Character

The Appellant gave evidence that he had never been charged, arrested or convicted of any offence in Japan or elsewhere. Detective Fiennes confirmed that the Appellant had no criminal history in Japan, following enquiries made with Interpol, and that he had no criminal history since his arrival in Australia in April 2011. Defence counsel addressed the jury on the Appellant's good character.

The trial Judge gave the following directions concerning the use of good character (SU53-54):

"Another important matter which arises out of some particular aspects of the evidence is that going to the character of the accused. You have heard - and again you were reminded of this by the counsel for the accused, Mr Taylor - that there is no evidence, the police were unable to find any evidence of any prior criminal record of any sort on the part of the accused or of any investigation of a criminal nature carried out, apart from this particular matter, with regard to the accused. He has, in that sense, a completely criminal-free record. That is, I must explain, regarded as evidence of good character.

Now, you are entitled to take that evidence into account in the accused's favour in generally addressing the questions you have to decide, that it might impact on your overall assessment of the evidence and that is a perfectly legitimate use to make of that evidence.

I have to say, however, that people of good character do commit crimes. In other words, it is not a defence. If somebody is of good character, they cannot simply put forward and say 'Therefore I didn't do it, you must find me not guilty', but it is something which you may nonetheless consider assists you in your overall assessment of the evidence and, in particular, it may have some bearing on your assessment of the accused as a truthful witness. But, please remember, that while it is relevant and while it may offer some assistance to you in those particular respects, it is not of itself a defence to the charges against the accused."

Defence counsel sought further directions from the trial Judge on the issue of character (SU75-76). In particular, counsel sought a direction that the jury could take into account the Appellant's good character by reasoning that such a person was unlikely to have committed the offences charged by the Crown. The trial Judge declined to give any further direction concerning character, expressing the view that the direction given was sufficient.

Submissions of the Parties

Mr Hamill SC submitted that the directions concerning good character were deficient in this case. He submitted that a direction concerning good character had significance in relation to both the Appellant's propensity to commit the crime charged and his credibility: Melbourne v The Queen [1999] HCA 32; 198 CLR 1 at 14 [30]-[31]. It was submitted that what occurred here amounted to no more than a mention that the Appellant had no prior convictions and that this resulted in a miscarriage of justice: R v Robinson [1999] NSWCCA 172 at [24]-[25].

Mr Hamill SC submitted that this was a case where it was appropriate for the trial Judge to direct the jury in an uncomplicated way in relation to the Appellant's character.

Whilst acknowledging that the trial Judge had directed the jury that they could use evidence of the Appellant's good character when "addressing the questions [they] have to decide" and when assessing "the accused as a truthful witness", it was submitted that his Honour did not specifically direct the jury that they could use the evidence when assessing the question of guilt, or whether it was likely that the Appellant committed the offence. Further, it was submitted that the good character direction had been weakened by use of words that the "police were unable to find any evidence of any prior criminal record" and that the Appellant had "in that sense a completely criminal-free record".

The Crown submitted that the directions given were sufficient in the circumstances of the trial, where the evidence of good character involved the absence of criminal record only, with no other evidence called in relation to the Appellant's general character.

Decision

In Melbourne v The Queen, McHugh J said at 14 [30]-[31]:

"[30] The preferable position is that the trial judge must retain a discretion as to whether to direct the jury on evidence of good character after evaluating its probative significance in relation to both:

(a) the accused's propensity to commit the crime charged; and

(b) the accused's credibility.

[31] The judge may conclude that the good character evidence adduced is of probative significance in relation to (a) only, (b) only, both (a) and (b) or neither (a) nor (b), and can direct (or not direct) the jury accordingly. Whether the discretion has miscarried in a particular case will depend upon the facts of that case."

Here, the Appellant's trial counsel sought to rely upon evidence of the Appellant's good character in both respects identified by McHugh J in Melbourne v The Queen. The Criminal Trial Courts Bench Book (at [2-370]) contains a relatively straightforward suggested direction concerning good character. The trial Judge did not follow this suggested direction in this case. Of course, his Honour was not bound to do so.

The issue for this Court, however, is whether the directions actually given involve misdirections to the jury on this issue. I am not persuaded that they do. The jury was reminded of the evidence concerning absence of criminal convictions, and was given directions that the Appellant's good character could be taken into account in addressing the Appellant's guilt, and also in the assessment of his evidence. Nothing said in R v Robinson assists the Appellant in this case.

A direction that good character is not a defence is, of course, an orthodox direction: Abbosh v R [2011] NSWCCA 265 at [100].

Although a simpler formula of words would have been preferable, I am not persuaded that the direction given to the jury failed to communicate the use which the jury could make of evidence of the Appellant's absence of prior convictions and his good character. Nor am I persuaded that the words used by the trial Judge served to weaken the direction.

I would reject this ground of appeal.

Ground 6 - The Verdicts are Unreasonable and Cannot be Supported Having Regard to the Evidence

Some Preliminary Observations

It was submitted for the Appellant that, upon a thorough review of the evidence in the case, the Court would entertain a reasonable doubt as to the Appellant's guilt on all counts. It was submitted, as well, that the concerns of the Court would be exacerbated by the matters complained of by the Appellant, which have given rise to the preceding grounds of appeal.

Of the grounds considered so far, only Ground 2A has been upheld. All other grounds have been rejected. Although the Crown, at one point, sought to advance an argument that the convictions on the s.61J counts could stand by application of the proviso, it is difficult to see how this conclusion could be reached on this appeal. There was a failure to direct the jury upon the correct circumstances of aggravation on the s.61J counts, and an associated failure to link those directions of law with the facts of the case. I do not think that the proviso can be utilised in these circumstances to allow the s.61J convictions to stand.

Further, the evidence that any threat was by means of an offensive instrument was somewhat tenuous. This is not because of any concern with respect to the Complainant's credibility. Rather, her evidence was that this phase of the incident occurred in darkness. She believed there was some sort of weapon involved, but she did not see it. It was her evidence that the Appellant said later that he had a key, but she had not seen it.

The ground of appeal which contends that the verdicts of the jury were unreasonable or cannot be supported by the evidence, ought be considered in this appeal, in respect of the s.61J(1) counts, by reference to the elements of offences under s.61I Crimes Act 1900.

If the Court upheld Ground 6 by reference to the s.61L counts and the alternative verdicts under s.61I, then the Appellant would be entitled to an acquittal on all counts.

If, on the other hand, the Appellant does not make good Ground 6 in this way, then the verdicts of the jury on the s.61L counts will stand and, subject to compliance with s.7(2) Criminal Appeal Act 1912, it would be open to this Court to substitute verdicts of guilty under s.61I, with respect to the s.61J counts.

It is useful to spell out this approach before moving to a consideration of Ground 6 in the particular circumstances of this case.

The Unreasonable Verdicts Ground

The submissions for the Appellant pointed to features of the evidence which, it was contended, would see a conclusion reached by this Court that the verdicts were unreasonable so that the Appellant ought be acquitted on all counts.

The Crown submitted that this was a strong Crown case, based not only upon the evidence of the Complainant, but also strong corroborative evidence in the form of complaint evidence and medical evidence.

Evidence in the Trial

In approaching the evidence, it is necessary to bear in mind that there was no issue at the trial that the sexual acts alleged by the Crown (with the exception of Count 6) took place. The central issue was whether the sexual activity was consensual.

The Complainant

The Complainant, a 29-year old Japanese woman, had come to Australia at the start of 2011 for a working holiday and to improve her English. The Complainant gave evidence through an interpreter. A brief overview of the Complainant's account was given earlier in this judgment. Given her significance as a witness, it is appropriate to recount her evidence in a little greater detail for the purpose of addressing the present ground of appeal.

The Complainant recounted her contact with the Appellant leading to the two of them attending her residence at Chatswood. After dinner, the Appellant was seated on a sofa and the Complainant on a chair. The Appellant commented that they were sitting some distance from each other, and he told her to sit near him on the sofa. She moved to the sofa and the Appellant pulled her over so that she was sitting between his legs. The Complainant said, "What are you doing? Please stop". The Complainant said, "We just met each other. We're not going out together. We're just friends, so this is very strange to do that". At this time, the Appellant was pulling her over and holding her strongly so that she would sit on his lap.

The Appellant was talking about himself and showed the Complainant a photograph of himself on his mobile phone modelling. He spoke about famous people that he knew.

Late in the evening, the Complainant said, "It's a bit late. Maybe you better go home". There was some discussion as to whether buses would be running at that time.

After the Appellant left the Complainant's unit to catch a bus home, he returned and said there was no bus, requesting to stay at the Complainant's place. It appears from the evidence that the Appellant rang the Complainant shortly before returning to her home. The Complainant gave evidence that she was a little bit awkward about the Appellant staying, but that he did not look like a bad person, so she did not say no. She said to the Appellant clearly, "I can let you stay here but don't do anything to me".

The Complainant told the Appellant that she was going to have a shower and she told him, "Please do not come in". After she emerged from the shower, the Complainant saw the Appellant on the couch and he appeared to be asleep. She was relieved and went back to her room. She changed into her pyjamas which consisted of a nightdress, underpants and a sports bra. She went to sleep straight away.

Some time later, the Complainant awoke suddenly and realised the Appellant was on top of her and he was pushing her neck down with one arm. At first, she thought he was playing and she said, "What are you doing?". He pushed her down with real power. He was serious and said, "You steal my $50.00, you took it". The Complainant said that he had so much power that she thought she may be killed. She said to him, "Of course I didn't take - of course I'm not going to do that". The Appellant said, "Don't say anything. Just say it yes or no". He said, "If you scream, I'll rip your ear off".

The Complainant said that the Appellant held "this kind of weapon thing", and said to her, "Do you want me to push hole with this on your body?". He was holding the item on his right-hand side and she could not see what it was. The room was dark. The Complainant said that she was scared and shaking, and she did what he said. The Appellant had his hand around her neck. She screamed and he became angry and punched her in the stomach.

The Appellant started taking his belt off and repeatedly told her to shut up. He pulled his jeans down and put his erect penis near her face. It was very close to her face, almost in her mouth. He said to her, "Lick it". He put his penis in her mouth and she had to lick it. This lasted for less than one minute (Count 1).

The Appellant then moved her pyjamas and bra up and she had to show him her chest. The Appellant then licked her chest. He had previously said to her, "Don't say anything" so she was scared. The Appellant licked her on the breast for a short period (Count 2).

The Appellant then put his finger in her vagina. The Complainant did not know if it was one finger or more, but she felt pain. She said he was moving his finger fast. She said in evidence, "It was so painful, I think maybe that it was so fast moving" (Count 3). This did not last for very long. When this occurred, the Complainant was lying on her bed and he was on top of her.

The Appellant then kissed her and as he was doing that, he was dripping saliva into her mouth. His lips were about five centimetres from hers when he did this (Count 6).

During this time in the bedroom, the Appellant was ordering her to do things such as "lick it" or "drink it". He pulled the Complainant's hair at one stage. He then put his penis in her mouth again. At this time, when her teeth touched his penis, he said, "It's painful" and he slapped her on the head. The slap was to the side of her head above her ear. His penis was in her mouth for about the same time as before, about one minute (Count 4).

The Appellant then put his penis into her vagina and he said, in a threatening manner, "Maybe I'm going to put sperm into your vagina". The Complainant was in the same position on the bed and she said, "No, no". The Appellant did not use a condom. He had his penis in her vagina for less than one minute (Count 5).

After the Appellant took his penis out of her vagina, he put it into her mouth and ejaculated in her mouth. He told her to drink it. The Complainant gave evidence, "When he put his penis in my mouth it was so awful and I didn't want to do it, it was so awful, but he told me to drink or drink it all but I couldn't refuse because he might hit me again so I did". The semen went on to her chin and hair as well (Count 7).

After this had occurred, the Appellant changed his attitude and his tone of voice seemed normal.

In relation to the item that the Appellant had in his hand when the Complainant first woke up, she said that she did not see it, but he later told her it was a key.

The Complainant said that the Appellant fell asleep. After a while, she sought his permission to go to the bathroom. She used the toilet and noticed bleeding from her vagina. She was not menstruating at this time.

The Complainant said that she considered running from the unit, but thought that the Appellant may catch her trying to leave, so she returned to the bed.

Some time later, the conversation again turned to money. The Appellant told her that she had taken his money and she denied this.

The Complainant said, "Why you have to inflict this kind of violence on me just because you thought I stole your money?". He replied, "You asked for it. I cooked dinner for you, I entertained you, you enjoyed last night. So that's what you get. If you were at my place you would have done the same thing". They argued about the money again. The Complainant said, "What would you do then if you are in my place, that you accused for something you didn't do, like stealing money?". He replied, "If people believe what other people say all the time, what's going to happen to society. We don't need a court".

The Complainant told the Appellant that she did not wish to see him again.

After the Appellant left, the Complainant called her mother in Japan on her mobile phone. As the Complainant spoke, she started to cry and she told her mother, "I was raped" and explained what had happened. She asked her mother's advice as to whether she should go to the police and her mother suggested that she should go.

After that, the Complainant called her host mother in Sydney, Miwako Hishi. The Complainant told Ms Hishi that she had been assaulted and asked her advice, and Ms Hishi said that she would call the police.

The Complainant went back to her room and examined herself and realised that she had semen on her chin and hair. She saved some of her hair (bearing semen) and wrapped it in a tissue and placed it on top of a desk. This was later given to police. She undressed and had a shower. When she did this, she noticed a blood stain about the size of a $0.20 piece on the back of her nightie. She washed the sheets and her pyjamas and underpants.

Soon after, Ms Hishi and the police came to her unit. The police took her to hospital where she was examined by Dr Shauna Hayes. The Complainant made a statement to police. The Complainant gave evidence that, before the Appellant arrived that day, she did not have any injuries around her neck or collarbone.

The Complainant did not see or hear from the Appellant again after he left her unit on 12 May 2011.

Soon after, she moved out of the Chatswood unit and stayed for a time with Ms Hishi and her husband. On 7 July 2011, the Complainant returned to Japan.

The Complainant was cross-examined at some length. Amongst other things, it was suggested to her that she had made a false claim of sexual assault against the Appellant, motivated by the prospect of financial gain.

Other Crown Witnesses

The Complainant's mother gave evidence of the telephone call to her on 12 May 2011, in which the Complainant was crying and told her mother, "I was raped". In answer to her mother, the Complainant said that the assailant was "someone acquainted at the place where people get information of Australia". The Complainant said, "I thought this man was kind, and that I could trust".

The Complainant's mother gave the following account of other things said by the Complainant in this telephone conversation:

"I heard she said he wanted to eat something, and he wanted to eat something cooked. She said he wanted to eat something cooked, home cooked at my daughter's place. She wasn't sure, but then she thought she could trust him, so she took him to her place and to eat something. It became too late to catch any public transportation, so he asked if he could stay overnight. 'So I felt sorry for him, so I let him stay overnight. When I woke up during the night, he was in my bedroom,' and he accused her of stealing money. My daughter insisted that she didn't steal money, but he said there are only two people here, and money is missing, and it's obvious that she stole the money.

He said - she said he had something in his hand, and it was too dark and she couldn't see it. But he's threatened her that he will make hole on her. So then she found out later it was a paper. She thought he was going to strangle her and kill her. That's all I heard over the phone. After the phone call we just stayed, waited for her to contact us, because we didn't arouse her and hurt her feeling even more."

The Complainant's mother said that the Complainant was "crying" and "was very emotional" during the telephone call.

Ms Miwako Hishi gave evidence that she received a telephone call on 12 May 2011 from the Complainant, who said "a terrible thing" had happened and her voice was trembling. The Complainant said that "I was nearly killed". Ms Hishi asked what happened and the Complainant said, "I was nearly strangled'. Ms Hishi did not testify that the Complainant said she had been raped. Ms Hishi asked the Complainant if she could get her husband to contact the police, and the Complainant agreed that this should happen. Ms Hishi said that, during the telephone call, the Complainant "was quiet". Ms Hishi could sense that this was "quite different" to the way the Complainant normally was. Ms Hishi said "she didn't want to tell me exactly what happened on the telephone straight away" but that was "kind of [the] Japanese way".

Thereafter, the police were contacted by Warren Head (Ms Hishi's husband) and Detective Senior Constable Fiennes met Ms Hishi at the Complainant's unit later that day. Ms Hishi acted as interpreter when the police spoke to the Complainant. After then, the Complainant went to live with Ms Hishi and her husband for some time. Ms Hishi noticed that the Complainant was quieter than before and did not want to come out of her room as much.

Dr Shauna Hayes gave evidence that she examined the Complainant on 12 May 2011 at Royal North Shore Hospital. Dr Hayes obtained a history from the Complainant, with the assistance of an interpreter, which was consistent with the Complainant's evidence of events leading up to the alleged sexual assault. The Complainant gave an account of the various acts giving rise to the charges, once again in a manner consistent with the Complainant's evidence at trial.

Having taken a history from the Complainant, Dr Hayes conducted a physical examination. She noticed that the Complainant was very distressed. She had a circular blue mark on the outside of her left arm. The Complainant had four red marks with red lines radiating out, which the doctor determined were bruises on her neck. There was a small area of roughening of the skin above the left clavicle. On genital examination, Dr Hayes observed that the entire inner aspect of the labia minora was abraded and roughed up. The hymen was also abraded.

Dr Hayes expressed the opinion that the bruises on the neck were likely to have been caused by blunt trauma, including pressure. It was the doctor's opinion that the genital abrasions were caused by forceful penetration, pressure combined with movement.

Dr Hayes agreed that the history given by the Complainant of a hand being placed around her throat was possibly consistent with the observations made on examination of the Complainant's neck. Dr Hayes agreed that the genital abrasions she observed were consistent with the history of a finger being inserted roughly and/or a combination of a penis being in her vagina.

Under cross-examination, Dr Hayes said that she was not able to say when the bruises were caused. The doctor agreed that the observations to the vagina were consistent with consensual sex. In re-examination, Dr Hayes said that consensual intercourse does not usually cause vaginal abrasions, though it could. From her observations of the abrasions, she said that the Complainant would have experienced pain.

Michelle Franco of the NSW Forensic and Analytical Science Service, examined various samples. Amongst other findings, the semen on the Complainant's hair, contained in the tissue, was tested for DNA and had the same profile as the Appellant.

Defence Witnesses

The Appellant gave evidence at trial through an interpreter. He maintained that the sexual contact between the Complainant and himself was consensual. A summary of his evidence was provided earlier in this judgment (at [25]-[33]). He was cross-examined on a range of matters, including areas where his account to the police during the recorded interview on 15 June 2011 varied from his evidence at trial.

Takeshi Hagiwara, a Japanese Professor of Law, gave evidence in the Appellant's case by audio-visual link. His evidence related to the crime of rape in Japan. He said that the Japanese system allowed for cash settlements to be made to a Complainant to withdraw the complaint.

Submissions of the Parties

Mr Hamill SC submitted that the Crown case rested almost entirely on the evidence of the Complainant, and that a close analysis of her evidence would cause the Court misgivings as to the Complainant's credibility. Reliance was placed on what were said to be improbabilities, inconsistencies and evidence suggesting a possible motive to make a false allegation of sexual assault.

Submissions advanced for the Appellant included the following:

(a) the Complainant's account of waking up the Appellant, after the acts of sexual assault, was highly improbable;

(b) the Complainant's account of allowing the Appellant back into the apartment, after he had earlier insisted upon her sitting on his lap on the couch, was improbable;

(d) the Complainant may have been motivated to make the allegations of sexual assault in an attempt to extract a cash payment from the Appellant;

(e) there were suggested inconsistencies in the account of the Complainant concerning the Appellant being asleep and snoring after the sexual assault;

(f) there were said to be significant inconsistencies between the account of the Complainant and of the complaint witness, Ms Hishi, with Ms Hishi not mentioning that the Complainant said she had been raped;

(g) there were said to be discrepancies in the evidence of the Complainant concerning the time when she last saw the Appellant before the night in question, and the Complainant's evidence that the Appellant had said to her that she had "asked for it", this not having been said by the Complainant in her statement to the police;

(h) other suggested discrepancies were relied upon including differing periods over which the assaults were said to have taken place, and the Complainant's capacity to see in the bedroom which was said to be dark;

(i) suggested inconsistencies in the Complainant's account as to the holding of a weapon, a key, with the Complainant saying she could not see anything at the time, but that the Appellant later said he had a key.

It was submitted for the Appellant that the medical evidence was equivocal, with the evidence of bruising being inconclusive. The medical evidence, it was submitted, was consistent with consensual sex. It was submitted that the evidence of the Appellant was clear and that the Crown Prosecutor's criticism of his evidence at trial, involving things said in evidence which he had not mentioned during the police interview, was not such as to remove the doubt which arose from a review of the prosecution evidence. It was necessary to take into account, as well, the Appellant's prior good character.

The Crown submitted that this was a strong Crown case and that there was ample evidence to support verdicts adverse to the Appellant.

Decision

The task of the Court in determining a ground of appeal such as this was summarised in Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326 at 332-333 [31]-[34]:

"31 In determining a ground of appeal which asserts, for the purpose of s.6(1) Criminal Appeal Act1912, that the verdict was unreasonable or cannot be supported having regard to the evidence, this Court is required to apply the test set down in M v The Queen [1994] HCA 63; 181 CLR 487 at 493, and restated in MFA v The Queen [2002] HCA 53; 213 CLR 606. The Court is to make an independent assessment of the evidence, both to its sufficiency and quality. This involves a question of fact. The Court is to determine whether the evidence is such that it was open to a jury to conclude beyond reasonable doubt that the Appellant was guilty. The central question is whether this Court is satisfied that the Appellant is guilty of the offence charged in the first count: Morris v The Queen [1987] HCA 50; 163 CLR 454 at 473; SKA v The Queen [2011] HCA 13; 85 ALJR 571 at 575 [11]-[14], 576-577 [20]-[22].

32 In exercising that function, the evidence ought not be considered piecemeal: The Queen v Hillier [2007] HCA 13; 228 CLR 618 at 637-638 [46]-[48]; The Queen v Keenan [2009] HCA 1; 236 CLR 397 at 435 [128]. This Court is required to consider the totality of evidence before the jury. This involves an assessment of direct evidence of witnesses, and inferences to be drawn from a combination of events: Rasic v R at [29].

33 In some cases, the fact that the Court of Criminal Appeal has not seen or heard the witnesses at trial may have a bearing on the outcome of an appeal on an unreasonable verdict ground. In M v The Queen, Mason CJ, Deane, Dawson Toohey JJ said at 494-495:

'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.'

34 The M v The Queen formulation of the task of this Court has been emphasised by the High Court in later cases: The Queen v Nguyen [2010] HCA 38; 85 ALJR 8 at 14 [33]; SKA v The Queen at 575 [13]."

I keep in mind the experience of the criminal courts that victims of sexual assault do not necessarily respond in ways that accord with some mechanical or predetermined view as to how such a victim should respond. Much depends on the evidence in the particular case, including the association between the parties and the duration of that association.

I have undertaken an independent assessment of the entirety of the evidence, both as to its sufficiency and to its quality.

The jury had the significant advantage of seeing and hearing the Complainant and the Appellant give evidence. I have kept in mind that each of the Complainant and the Appellant gave evidence through interpreters. The courts have recognised that, where key witnesses give evidence through an interpreter, it may limit the ability of a tribunal of fact to assess demeanour as an aid to fact finding: Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; 66 NSWLR 186 at 190 [21]-[22].

However, the subject matter of a trial may also affect a jury's ability to make an assessment of the credibility and reliability of individual witnesses, even where evidence is given through interpreters. In Geggo v R [2013] NSWCCA 7, with the agreement of Hoeben JA and Button J, I said at [145]:

"However, the jury observed the witnesses, and in particular the Appellant and the Complainant, giving evidence on matters where sexual conduct was the topic, with an associated question of consent. Even where witnesses are giving evidence through interpreters, a jury will be in a position to make assessments concerning the witnesses and their reactions to questions put to them on topics such as this. The jury had this advantage in this trial."

Those comments are equally pertinent to the present case.

The convictions of the Appellant depend substantially upon the testimony of the Complainant. She and the Appellant had known each other for a short time only. They shared a meal in her unit, but then the Complainant insisted that the Appellant leave to go home. This was not the conduct of a person who (on the Appellant's account) was flirting and being sexually provocative on his return.

Once the Appellant informed her that it was too late for him to catch a bus home, the Complainant was prepared to allow him to stay the night, provided that he stayed on the couch in the lounge room. On the Complainant's account, it was the Appellant who embarked upon a course of conduct involving forced sexual activity. The Complainant's account is credible, and is supported strongly by other evidence.

There was immediate complaint by the Complainant to her mother in which a complaint of rape was made. The complaint to Ms Hishi of the use of violence, without express reference to sexual assault, does not diminish the strength of the early complaint made to the Complainant's mother. Both the mother and Ms Hishi testified of the distress of the Complainant whilst making these early complaints.

A complainant who has been sexually assaulted may display outward signs of distress after the assault, and evidence of distress tends to prove that the complainant was sexually assaulted: Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 ("Papakosmas") at 321 [78] (McHugh J). The recency and spontaneity of the complaint, and its consistency with other aspects of the Complainant's account, bear upon its probative strength: Papakosmas at 311 [41] (Gleeson CJ and Hayne J). In the circumstances of this case, where (as in Papakosmas) the critical issue was consent, the complaint evidence of the Complainant's mother and Ms Hishi was highly probative of the critical issue and was likely to be reliable: Papakosmas at 328 [98] (McHugh J).

The medical evidence confirmed physical injuries and bruising consistent with forceful acts being perpetrated against the Complainant. The bruises to the Complainant's neck, observed by Dr Hayes, supported the Complainant's account that the Appellant held her tightly by the throat. The genital injuries also supported the Complainant's account.

Trial counsel for the Appellant pointed to areas of inconsistency and discrepancies in the evidence of the Complainant, and these matters were relied upon again in this Court. It is necessary to keep in mind the observations of McHugh J in M v The Queen [1994] HCA 63; 181 CLR 487 at 534:

"It is the everyday experience of the courts that honest witnesses are frequently in error about the details of events. The more accounts that they are asked to give the greater is the chance that there will be discrepancies about details and even inconsistencies in the various accounts. Of course, it is legitimate to test the honesty or accuracy of a witness's evidence by analysing the discrepancies and inconsistencies in his or her accounts of an incident. In a case where accuracy of recollection is vital - such as the account of a conversation in a fraud case or the description of a person where identity is the issue - discrepancies and inconsistencies in the witness's account may make it impossible to accept that person's evidence, no matter how honest he or she appears to be. But in other cases, discrepancies and inconsistencies may be of far less importance if the honesty of the witness, as opposed to the accuracy of the detail, is the crucial issue. If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness's general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning details are of little moment."

These observations have particular application to the present case. See also the observations to a similar effect of Giles JA (Hidden and McCallum JJ agreeing) in Alseedi v R [2009] NSWCCA 185 at [48].

The jury had an opportunity to observe both the Complainant and the Appellant give evidence over an extended period at the trial. It is clear that the jury was satisfied beyond reasonable doubt that the sexual activity between the two persons was not consensual.

The Appellant's account contained significant implausible aspects. There were notable differences between his account to police on 15 June 2011 and his evidence to the jury at trial. His credibility was damaged in substantial ways at trial.

The suggestion that the Complainant was, in some way, motivated by money to make a false allegation against the Appellant is implausible, when viewed with all the evidence at trial. In reality, the evidence of Professor Hagiwara did not go to any realistic issue in the trial.

The assertion by the Appellant that the Complainant had stolen $50.00 from him, squarely denied by the Complainant, is a curious feature of the case. However, whatever the making of this allegation may say about the thought processes of the Appellant, it does not operate, in any realistic or plausible way, adversely to the Crown in this case.

Like the jury, I am satisfied, to the criminal standard, that the Appellant is guilty of the two s.61L offences charged in the indictment.

It has not been demonstrated that the verdicts of guilty upon the charges under s.61L are unreasonable or cannot be supported by the evidence.

The enquiry with respect to the other counts on the indictment, for reasons explained earlier, will be answered by reference to s.61I Crimes Act 1900. As the jury must have been, I am satisfied, to the criminal standard, that the Appellant is guilty of each of the five offences under s.61I, which were available as alternative verdicts at the trial.

It was open to the jury to convict the Appellant on each of the counts alleging offences under s.61J of the statutory alternative under s.61I of the Act.

I would reject the sixth ground of appeal.

Application of s.7(2) Criminal Appeal Act 1912

Before this Court can return verdicts on lesser charges under s.7(2), the Court must apply the rigorous approach outlined in Spies v The Queen [2000] HCA 43; 201 CLR 603 ("Spies").

Offences under s.61I are wholly included offences by reference to ss.61J and 61Q: Spies at 611-612 [23]-[24].

I am satisfied that the verdicts of the jury demonstrate that the jury was affirmatively satisfied of facts that constitute each of the s.61I offences: Spies at 613 [27].

The power conferred by s.7(2) is a very useful one which, in appropriate cases, will result in the saving of time and expense and avoid the inconvenience and worry of victims and witnesses having to testify once again before a jury: Spies at 620 [47].

The power under s.7(2) is to be exercised with great caution: Spies at 620 [47]. The need for caution is directed to the issue whether it really does appear that the jury was so satisfied of the facts constituting the other offence: Spies at 621 [48].

I am entirely satisfied that it is appropriate to utilise the section in this case.

The appropriate course is for this Court to use s.7(2) Criminal Appeal Act 1912 to convict the Appellant of the alternative charges and to remit those, together with the s.61L convictions, to the District Court for sentence.

The sentencing proceedings should be relisted in the District Court at the earliest available time. Bail was granted by the District Court on 11 December 2012. The Appellant is required to appear in the District Court in accordance with that grant of bail.

Orders

I propose the following orders:

(a) appeal against conviction with respect to Counts 2 and 6, the s.61L Crimes Act 1900 counts, is dismissed;

(b) with respect to Counts 1, 3, 4, 5 and 7, the s.61J(1) Crimes Act 1900 counts, Ground 2A is upheld;

(c) pursuant to s.7(2) Criminal Appeal Act 1912, instead of allowing the appeal with respect to Counts 1, 3, 4, 5 and 7, substitute for the verdict found by the jury on each count, a verdict of guilty under s.61I Crimes Act 1900 of having sexual intercourse without consent;

(d) pursuant to s.12(2) Criminal Appeal Act 1912, remit the proceedings to the District Court so that the Appellant may be sentenced for the five offences under s.61I Crimes Act 1900 and the two offences under s.61L Crimes Act 1900.

PRICE J: I find myself in complete agreement with the judgment of Johnson J. I should add in respect of ground 6 that having considered the totality of the evidence before the jury, I am satisfied beyond reasonable doubt that the appellant is guilty of the offence against s 61L (counts 2 and 6) and, in respect of counts 1, 3, 4, 5 and 7, of offences against s 61l of having sexual intercourse without consent.

I agree with the orders proposed by Johnson J.

RA HULME J: I have had the advantage of reading the judgment of Johnson J in draft.

I agree with his Honour's reasons and conclusions in relation to grounds 1 to 5.

In relation to ground 6, my own assessment of the evidence at trial leads me to conclude beyond reasonable doubt that the appellant is guilty of the offences against s 61L and, in relation to counts 1, 3, 4, 5 and 7, of offences against s 61I.

Accordingly, I agree with the orders proposed by Johnson J.

**********

Decision last updated: 18 October 2013

Medium Neutral Citation:	Tonari v R [2013] NSWCCA 232
Hearing dates:	29 July 2013
Decision date:	18 October 2013
Before:	Johnson J at [1]; Price J at [222]; RA Hulme J at [224]
Decision:	1. Appeal against conviction with respect to Counts 2 and 6, the s.61L Crimes Act 1900 counts is dismissed. 2. With respect to Counts 1, 3, 4, 5 and 7, the s.61J(1) Crimes Act 1900 counts, Ground 2A is upheld. 3. Pursuant to s.7(2) Criminal Appeal Act 1912, instead of allowing the appeal with respect to Counts 1, 3, 4, 5 and 7, substitute for the verdict found by the jury on each count, a verdict of guilty under s.61I Crimes Act 1900 of having sexual intercourse without consent. 4. Pursuant to s.12(2) Criminal Appeal Act 1912, remit the proceedings to the District Court so that the Appellant may be sentenced for the five offences under s.61I Crimes Act 1900 and the two offences under s.61L Crimes Act 1900.
Catchwords:	CRIMINAL LAW - conviction appeal - convictions for aggravated sexual intercourse without consent under s.61J Crimes Act 1900 (five counts) and indecent assault under s.61L Crimes Act 1900 (two counts) - s.61J counts contained incomplete statement of circumstances of aggravation - counts alleged threats "to inflict actual bodily harm" upon complainant - counts omitted to allege "by means of an offensive instrument" - omission detected after verdicts - unsuccessful Crown application to amend indictment after verdicts - appeal against conviction - appeal heard prior to sentence - claim that indictment a nullity - held indictment not a nullity - claim of misdirection on s.61J counts - ground established given absence of legal and factual directions concerning "offensive instrument" component - claim of erroneous Markuleski direction and good character direction - grounds rejected - claim that verdicts unreasonable - held that s.61L verdicts reasonable - s.61J verdicts cannot stand given established misdirection - whether substitute verdicts of guilty of having sexual intercourse without consent under s.61I Crimes Act 1900 should be returned on s.61J counts - application of s.7(2) Criminal Appeal Act 1912 - verdicts of guilty of s.61I offences returned on s.61J counts - proceedings remitted to District Court for sentence for s.61I and s.61L offences
Legislation Cited:	Crimes Act 1900 Criminal Appeal Act 1912 Criminal Procedure Act 1986
Cases Cited:	Abbosh v R [2011] NSWCCA 265 Alseedi v R [2009] NSWCCA 185 Area Concrete Pumping Pty Limited v Inspector Childs [2012] NSWCA 208; 232 IR 86 Boujaoude v R [2008] NSWCCA 35; 72 NSWLR 85 Chanthaboury v R [2007] NSWCCA 290; 176 A Crim R 438 Doja v R [2009] NSWCCA 303; 198 A Crim R 349 Geggo v R [2013] NSWCCA 7 Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; 66 NSWLR 186 Griffiths v The Queen [1977] HCA 44; 137 CLR 293 Kahatapitiye v R [2004] WASCA 189; 146 A Crim R 542 Lodhi v R [2006] NSWCCA 121; 199 FLR 303 M v The Queen [1994] HCA 63; 181 CLR 487 Mackay v The Queen [1977] HCA 22; 136 CLR 465 Melbourne v The Queen [1999] HCA 32; 198 CLR 1 Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 Park v R [2010] NSWCCA 151; 202 A Crim R 133 R v Ayres [1984] 1 AC 447 R v Janceski [2005] NSWCCA 281; 64 NSWLR 10 R v MAJW [2007] NSWCCA 145; 171 A Crim R 407 R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 R v Robinson [1999] NSWCCA 172 R v Smith and Kirton (1990) 47 A Crim R 43 R v Swansson [2007] NSWCCA 67; 69 NSWLR 406 Rajendran v R [2010] NSWCCA 322; 206 A Crim R 316 Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326 Spies v The Queen [2000] HCA 43; 201 CLR 603
Texts Cited:	---
Category:	Principal judgment
Parties:	Nobutomo Tonari (Appellant) Regina (Respondent)
Representation:	Counsel: Mr P Hamill SC; Mr CP Taylor (Appellant) Ms V Lydiard (Respondent) Solicitors:
File Number(s):	2011/195938
Publication restriction:	---
Decision under appeal	Citation: --- Before: Phegan ADCJ File Number(s): 2011/195398