Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Bourke (a pseudonym) v R [2021] NSWCCA 145 Hearing dates: 19 May 2021; On the papers Date of orders: 07 July 2021 Decision date: 07 July 2021 Before: Garling J at [1] Beech-Jones J at [49] N Adams J at [50] Decision: (1) Grant leave to the applicant to appeal. (2) Quash convictions on Counts 1 to 11 of the Indictment dated 16 September 2019. (3) Quash the other convictions entered on 19 September 2019. (4) Quash the aggregate sentence imposed by Colefax SC DCJ on 14 February 2020. (5) Order a re-trial of the appellant. (6) List the proceedings in the District Court of NSW on Friday 16 July 2021. Catchwords: CRIME – appeals – appeal against conviction – trial by jury – directions to Jury – where the jury was provided with a written document in the form of question trails – where the written document was not spoken to by the trial Judge – necessity for oral directions – written directions do not substitute the need and requirement of oral directions Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 Crimes Act 1900 Criminal Procedure Act 1986 Cases Cited: R v Bourke (a pseudonym) [2020] NSWDC 10 Trevascus v R [2021] NSWCCA 104 Texts Cited: Not Applicable Category: Principal judgment Parties: The Crown Bourke (a pseudonym) Representation: Counsel: S Kluss (Applicant) M Kumar (Respondent) Solicitors: R Hill (Applicant) Director of Public Prosecutions NSW (Respondent) File Number(s): 2017/389374 Publication restriction: Non-publication order made in relation to the appellant and the victims and any other information which might directly or indirectly identify any of them. Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 19 September 2019 Before: Colefax SC DCJ File Number(s): 2017/389374 Judgment 1. GARLING J: The applicant seeking leave to appeal, Mr Bourke, a pseudonym given to him by Colefax SC DCJ, who presided over the trial ("the Judge"), to protect the identity of the victims, was found guilty by a jury on 19 September 2019 of 11 offences. 2. After the return of the verdict, and prior to sentencing, Mr Bourke pleaded guilty to one further count. Two other offences were the subject of guilty findings on a s 166 Certificate by the Judge. As well, one offence was taken into account on a Form 1. 3. The offences and the indicative sentences specified by the Judge are summarised in the following table provided by the Crown in its submissions: Offending against "Ms Jones" – eleven counts – guilty at trial, no discount Count Section [1] Maximum SNPP (if any) Indicative sentence 1 Assault 2 years n/a 6 months 61 2 Threat to use offensive weapon 12 years n/a 7 years 33B(1)(a) Indecent assault 3 (hand on penis/masturbate) 5 years n/a 3 years 61L Sexual assault 4 (penile/vaginal) 14 years 7 years 8 years and 6 months, NPP 6 years 4 months 61I Sexual assault 9 years, 5 (penile/vaginal) 14 years 7 years NPP 6 years and 9 months 61I 6 Intimidate 5 years n/a 3 years 13(1) Sexual assault 7 (penile/vaginal) 14 years 7 years 7 years and 6 months, NPP 5 years 7 months 61I Sexual assault 8 (penile/vaginal) 14 years 7 years 9 years and 6 months, NPP 7 years 1 month 61I Indecent assault 9 (hand on penis/masturbate) 5 years n/a 3 years and 6 months 61L Sexual assault 10 (penile/vaginal) 14 years 7 years 9 years and 6 months, NPP 7 years 1 month 61I Sexual assault 12 years, 11 (penile/vaginal) 14 years 7 years NPP 9 years 61I S 166 Larceny (mobile phone) 117 5 years n/a 6 months S 166 Damage property (snapped car key) 5 years n/a 6 months 195(1)(a) Offending against "Suzanna" – one count plus Form 1 – late plea, 5% discount Count Section Maximum SNPP Indicative term Sexual intercourse—child between 14 and 16 1 (penile/vaginal) 10 years n/a Taking into account the Form 1, 4 years and 9 months 66C(3) Sexual intercourse—child between 14 and 16 Form 1 (Digital/vaginal) 10 years n/a 66C(3) 1. On 14 February 2020, the applicant was sentenced by the Judge to an aggregate non-parole period of 12 years to commence on 24 December 2017 and to expire on 23 December 2029, with an additional term of 4 years and 6 months to expire on 23 June 2034. Grounds of Appeal 1. The applicant's initial Notice of Appeal, which was filed on 16 November 2020, contained three grounds expressed in the following way: "Conviction The jury directions reversed the onus of proof and diminished the burden of proof by utilising a question trail that compelled 'Yes/No' answers to essential questions, imposing a burden on the appellant to positively persuade the jury that the answer to the essential question was "no" to obtain an acquittal. Sentence The indicative sentence, to inform the aggregate sentence, in relation to "Suzanna" was manifestly excessive and caused error in the aggregate sentence. The sentence imposed was manifestly excessive and another sentence is warranted in law in that: his Honour's sentence failed to give effect to his Bugmy findings; failed to consider questions of totality; in all of the circumstances was manifestly excessive." 1. The hearing of the appeal took place on 19 May 2021. 2. In the course of the applicant's submissions, counsel sought an adjournment in order to enable her to supplement the Grounds of Appeal, and to provide further submissions in writing. 3. The Court, without opposition from the Crown, adjourned the hearing of the appeal to enable the applicant to file and serve any amended Grounds of Appeal together with any submissions upon which he wished to rely. The Crown was given an opportunity to file and serve submissions in response. The Court noted that it would consider whether, upon receipt of all of the submissions, it was necessary to restore the matter to the list for further oral argument, or whether it was appropriate to then proceed to judgment. 4. On 27 May 2021, the applicant filed Amended Grounds of Appeal which added a further five grounds to the appeal against his conviction. Those grounds, which I have renumbered to avoid confusion with the existing grounds are as follows: "A2. His [H]onour erred in inviting the jury to retire and consider the question trail in the jury room during the course of the summing up. A3. His [H]onour erred in the way in which he invited use of the question trail and by not identifying the evidence that supported each count on the Indictment. A4. His [H]onour erred by inviting the jury to rely upon the question trail without further explanation or oral directions as to its use in circumstances which diverted the jury from the real issues in the trial. A5. His [H]onour erred by giving a direction inviting the jury to consider that all of the counts on the indictment were based upon the evidence of the complainant and that their verdict should be consistent with one another. A6. His [H]onour failed to sum up the case of the accused in a meaningful way." 1. The Court received the written submissions of both the applicant and the Crown. The Crown's submissions included an express concession that the additional ground A4 was established which constituted an error of law such that leave to appeal ought be granted, the appeal upheld and a re-trial ordered. 2. In those circumstances, the Court determined that it did not need to relist the matter but would proceed to judgment. 3. For the reasons which follow, I am of the view that leave to appeal ought be granted, the appeal be upheld and consequential orders made. An Intervening Decision 1. It will be necessary to briefly review the amended Grounds, but it is convenient to pause and note that a few days after the hearing of the appeal was adjourned, and prior to the time for the filing of any Amended Grounds of Appeal together with submissions, this Court (differently constituted) delivered a decision which was of relevance to the issues raised in this appeal. 2. In Trevascus v R [2021] NSWCCA 104, the Court quashed the convictions and sentences imposed in the District Court after a trial before Colefax SC DCJ. 3. In that case, the Judge had followed a course similar to the course followed in this case with respect to the provisions of written directions to the jury. In Trevascus, Bellew J (with whom Hoeben CJ at CL and Hidden AJ agreed) reviewed the relevant legal authorities and then said: "65. However in my view, there is nothing in the terms of section 55B of the [Jury] Act which provides any support for the conclusion that in enacting that provision, the Parliament intended to abrogate the clear obligation imposed by the common law on a trial judge to give oral directions to the jury. In particular, s 55B does not permit a trial judge, having reduced directions of law to writing, to provide them to the jury, have the jury read them for themselves, and then say nothing more about them. Quite apart from not being sanctioned by statute, that is a course which runs entirely contrary to the proposition, supported by the authorities to which I have referred, that oral directions are always necessary. It follows that the failure on the part of the trial Judge to give oral directions to the jury regarding the contents of each of the question trails was an error … 67. However, for the reasons already explained, and even if written directions are provided, there remains an obligation on the trial judge to give oral directions as well. It is not possible to prescribe the content of such oral directions. That will necessarily be a matter for the determination of the trial judge and will depend upon all of the circumstances in the case, including its nature and complexity. However, in any case where written directions are provided … the obligation of the trial judge to give oral directions will require, at the very least, that such directions be read and explained to the jury in their entirety. The obligation to give oral directions is also likely to encompass the necessity to differentiate, for the jury's assistance, between those elements which are an issue from those which are not. In terms of the element(s) which are in issue, the obligation to give oral directions will generally require the trial judge to identify the evidence which is relevant to such element(s). Finally, and importantly, it will always be necessary, in any case where written directions are provided, for the trial Judge to emphasise to the jury that such directions are not a substitute for the oral directions which are given. A reiteration of that proposition in any written document provided to the jury would be prudent. 68. Further in my view, the obligation to give oral directions emphasises that the practice of allowing the jury to retire in the course of the summing-up and read written directions to themselves in the jury room is not one to be encouraged. Such a practice runs contrary to the fundamental obligation on a trial Judge to assist the jury. It also largely deprives a trial judge of the important advantage of assessing whether or not the members of the jury comprehend the directions which are being given. … … 70. A further reason why the practice of allowing the jury to retire and read written directions for themselves as inappropriate stems from the fact that it is a practice which is completely lacking in transparency. Subject obviously to the exercise of any power to close the court, the common law requires that a criminal trial take place in public, and that directions of the trial Judge be given 'in the full light of publicity'." (citations omitted) The Facts at Trial 1. One group of the offences involved one complainant who was known at the trial as "Ms Jones". The applicant and Ms Jones had commenced a relationship which included occasions of sexual intimacy. They went out together on the evening of 23 December 2017. After having a meal and some drinks together at The Bradbury Inn, they returned to Ms Jones' home. That was at about 10.30pm or 11.00pm. 2. The conduct which gave rise to the 11 counts on the Indictment considered by the jury, took place sometime after 11pm that evening and continued until the following morning. At about 11am, the complainant was able to attend on her neighbour and asked him to call the police, which he did. 3. The offences with which the applicant was charged included indecent assaults on a number of occasions and sexual assaults on a number of occasions. Depending upon which occasion of assault it was, the facts varied between each count. It is not necessary in this judgment to set out all of the facts with respect to each of these counts as the Judge did so in his Remarks on Sentence, which were delivered on 14 February 2020 and which are to be found at R v Bourke (a pseudonym) [2020] NSWDC 10. 4. The significance to be drawn from this is that given there were a number of indecent assaults charged and a number of sexual assaults charged, all with respect to sequential events on the same evening, it was critical that the jury be clearly reminded by the Judge during his summing up of what the facts were upon which the Crown relied with respect to each count, and what the issues raised by the applicant were with respect to each count. This was what was necessary as an absolute minimum to enable the jury to consider each count separately. Summing Up 1. The trial commenced on Monday 16 September 2019. Addresses commenced on the morning of the fourth day of the trial, Thursday 19 September 2019. They were relatively brief and concluded at about 11:35am. Counsel for the applicant conceded that the jury ought return verdicts of guilty on Counts 1 and 6 on the Indictment which were constituted by a common assault and intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. 2. At the commencement of his summing up, his Honour said that he had prepared for distribution to the jury a document to which he had made earlier reference in the course of the trial. He then said this: "For each count on the indictment, I have put the count, and then I have listed underneath it a series of questions, and it is the subject matter of those questions which you must be satisfied of beyond reasonable doubt before you could convict. In other words, I have turned what Mr Crown has called the elements into a series of questions. But this document is in fact to be regarded by you as part of my summing up. … The jury question [trail] which is distributed to you is marked for identification 7 [MFI 7], and I will allow you at least 25 minutes to read it. It may be, because of the number of counts, you might need longer. If you need longer, just ask the court officer … and let me know when you are ready for me to resume." 1. The question trail document, MFI 7 was then distributed to the jury. 2. There was then a short discussion about the availability of copies of the transcript and his Honour indicated that a short adjournment would be taken. 3. When the trial resumed, his Honour then informed the jury that he was going to continue the summing up by giving them some oral directions. He then added: "…you should understand that the jury question trail contains written directions. I'm going to come back that document towards the end of the summing-up." 1. His Honour then gave a series of oral directions about which no specific complaint is made as to their content or legal correctness. None of these directions touched on MFI 7 or any of its contents. In the course of giving those directions, his Honour indicated to the jury that he would not be summarising the evidence which had been given in the trial or referring to much of it at all. 2. His Honour later returned to MFI 7 saying: "Let me come back to the jury question trail just briefly, because I do not want to say too much in addition to what I have written there. Hopefully it is clear enough. No doubt if it is not I will get a note. I said I would come back to the jury question trail in relation to counts 1 and 6." 1. His Honour then went on to inform the jury that counsel for the applicant had invited them to convict on those counts, but it was necessary for them to be satisfied of the matters set out with respect to them in the document MFI 7. 2. His Honour did not in fact return in any detail to MFI 7. He informed the jury how they went through the question trail was a matter for them. This was a comment made to emphasise that it was a matter for the jury as to whether it wished to start at the beginning and proceed numerically, or whether they wished to conduct their deliberations in some other way. The Judge informed the jury that the question trail was structured chronologically to match up with the Indictment but that they did not have to work through it in that way. 3. However, his Honour did not read MFI 7 to the jury. He did not in any way attempt to provide the jury with a summary of the facts as they related to the different counts on the Indictment, nor as to the elements of those counts which were set out in MFI 7. He did not enter upon any summary of counsels' addresses, save that he did emphasise to the jury that the principal submission made by counsel for the applicant was that there was a reasonable possibility that the complainant was not telling the truth to the jury. At the conclusion of his summing up, which was before the luncheon adjournment, the jury retired and his Honour asked if there were any exceptions to his summing up. Counsel for the applicant raised a particular matter which his Honour clarified when the jury returned. After that clarification, the jury retired shortly before 1pm. 4. The jury returned with a verdict of guilty to all charges at 2.31pm. 5. After excusing the jury, is Honour went on to deal with two matters, the subject of the s 166 Certificate, and dealt with the other remaining indictment dealing with two offences involving the complainant, Suzanna, to which there would be a plea of guilty with one of the offences taken into account on a Form 1. Discernment 1. Grounds A2, A3 and A4 of the Amended Grounds of Appeal focus upon the way in which the Judge used the question trail and can be considered together. 2. Ground A3 complains that the Judge fell into error in the way in which he invited use of the question trail and did not identify the evidence that supported each count on the Indictment. Although the Crown submits that, in the particular circumstances of this case where the evidence was quite short and the areas in dispute were limited, this did not constitute an error of law, in my view, it did. 3. The document, MFI 7, is part of the material that has been put before this Court. On the Indictment, there were 6 counts which charged different and separate incidents of sexual intercourse without consent. Each count charged an offence against s 61I of the Crimes Act 1900. 4. The question trail for each of these counts was in identical terms. None of the counts had attached to them, in the question trail, any indication of what it was that was said by the Crown to constitute the particular act of sexual intercourse without consent. No reference was made in the question trail as to which incident it was in the course of the overnight period during which the complainant was subject to the conduct of the applicant. Reading the question trail, the jury could not have known from the contents of it, or from anything said to them by the Judge orally, which event of sexual intercourse was covered by which count. The same position applies for the indecent assaults which were charged. 5. Counsel in their addresses did not have MFI 7 in the form in which it was to be given to the jury, and so could not have addressed the jury by reference to it. 6. In all of these circumstances, ground A3 is made out. The summing-up of the Judge, which provided MFI 7 to the jury, on its own, and without any reference either in it, or else, by way of oral directions from the judge, to any of the facts referable to each count fell well short of the requirements for an adequate summing-up by the Judge. 7. Ground A2 raises the procedure adopted by the Judge of inviting the jury to retire to the jury room to read MFI 7 during the course of the summing up. It is best understood and considered in combination with the lack of oral directions to which ground A4 is directed. As the decision of this Court in Trevascus shows at [68] and [70], a practice of this kind is to be discouraged because it runs contrary to the fundamental obligation on a trial Judge to assist the jury. The factual circumstances raised by this ground do not touch upon the appropriateness of the jury having a question trail document in the jury room during their deliberations, but rather are concerned with the way in which the Judge's summing up was delivered to the jury in this case by inviting the jury to read the document out of Court, and then, providing no oral explanation, or other directions, to the jury about it.. 8. As the decision in Trevascus and the earlier authorities to which it referred makes plain, a question trail, or any other document of a similar kind used to provide the jury with assistance, does not replace the need for oral directions to be given by the Judge as to the law, the relevant facts and the cases articulated by each party. 9. Ground A4 raises the failure of the Judge to give oral directions with respect to the matters covered in MFI 7. The Crown concedes that this ground has been made out. In my opinion, that concession is soundly based, and error has been demonstrated. 10. Here, following upon essentially the same practice which he followed in Trevascus, the Judge handed the question trail to the jury; he invited them to read it by themselves in the jury room; he did not take the jury through the question trail; he did not attempt to relate the evidence in the trial to each of the counts set out in MFI 7 which were in identical terms; he did not include any reference at all to any of the facts upon which the Crown case relied; he did not give any oral directions as to the elements of the offences, either by reading through the question trail or otherwise; he did not summarise the cases for the Crown or the accused, save that he reminded the jury of the submissions on behalf of the accused as to the truthfulness of the evidence given by the complainant; he did not identify, by reference to MFI 7, which elements of the offences were or were not in dispute; nor did he assist the jury to identify what the evidence was in relation to each disputed element. 11. The content of MFI 7 was legally correct. However, that content, devoid of the facts, meant that it was essential for the Judge to give oral directions that related to the facts which the Crown relied upon to constitute each count and the extent of dispute about these facts. The Judge did not do this. 12. In my view each of grounds A2, A3 and A4 when taken to be understood as raising connected issues are made out. 13. It is unnecessary to consider the remaining grounds of appeal (1,2 3, A5 and A6) because, as the Crown also concedes, errors of the kind demonstrated are sufficient in these circumstances to warrant the quashing of the convictions and sentences and the making of an order for a new trial. Other Offences and Sentences 1. As can be seen from [1] and [2] above, in addition to the counts on the Indictment involving the complainant, Ms Jones, there were other offences involving the complainant, Suzanna. These offences were not dealt with before the jury. Accordingly, they are not directly the subject of grounds of appeal. 2. However, these offences were dealt with by the Judge by taking a plea after the jury returned its verdict and then including one offence, a further offence which was taken into account on a Form 1, and the two offences dealt with under s 166 of the Criminal Procedure Act 1986, as part of the aggregate sentence. 3. In those circumstances, it is appropriate to quash those convictions as well because they were entered in light of, and consequent upon, the taking of the legally flawed verdicts on the counts on the Indictment involving Ms Jones. To do otherwise would be to prejudice the applicant for succeeding on this appeal. It would also unduly constrain the imposition of any sentence in the event that the applicant was to be convicted after a retrial. Orders 1. I propose the following orders: 1. Grant leave to the applicant to appeal. 2. Quash convictions on Counts 1 to 11 of the Indictment dated 16 September 2019. 3. Quash the other convictions entered on 19 September 2019. 4. Quash the aggregate sentence imposed by Colefax SC DCJ on 14 February 2020. 5. Order a re-trial of the appellant. 6. List the proceedings in the District Court of NSW at the Downing Centre in Sydney on Friday 16 July 2021. 1. BEECH-JONES J: I agree with Garling J and with the orders his Honour proposes. 2. N ADAMS J: I agree with the orders proposed by Garling J for the reasons provided. ********** Endnote 1. Offences are against the Crimes Act 1900 except for Count 6 which was against the Crimes (Domestic and Personal Violence) Act 2007. Amendments 06 September 2021 - Amendment made under the slip rule to Coversheet - Order (3), and [48](3) - incorrect date amended. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 September 2021