Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hewitt v R [2021] NSWCCA 227 Hearing dates: 23 August 2021 Date of orders: 24 September 2021 Decision date: 24 September 2021 Before: Payne JA at [1]; Garling J at [82]; Wright J at [83] Decision: (1) Leave to appeal on ground 1 refused under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021; (2) Leave to appeal on ground 2 granted under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021; (3) Appeal allowed; (4) The applicant's conviction on count 2 in the indictment is quashed; (5) The proceedings are remitted to the District Court arraignment list at Gosford on 30 September 2021. Catchwords: CRIME — appeals — appeal against conviction — miscarriage of justice — whether trial judge failed to put defence case fairly before the jury CRIME — appeals — appeal against conviction — miscarriage of justice — whether trial judge failed to give the jury a full Liberato direction Legislation Cited: Crimes Act 1900 (NSW), ss 61I, 61L, 578A Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1) Criminal Procedure Act 1986 (NSW), s 161 Supreme Court (Criminal Appeal) Rules 2021, r 4.15 Cases Cited: ARS v R [2011] NSWCCA 266 BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47 Burns v The Queen (1975) 132 CLR 258; [1975] HCA 21 Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46 Cotic v The Queen [2000] WASCA 414; (2000) 118 A Crim R 393 De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 Dixon v R [2017] NSWCCA 299 Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13 Flood-Smith v R [2018] NSWCCA 103 Greenhalgh v R [2017] NSWCCA 94 Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44 Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 Magill v The Queen (2013) 42 VR 616; [2013] VSCA 259 McKey v R [2012] NSWCCA 1; (2012) 219 A Crim R 227 OKS v Western Australia (2019) 265 CLR 268; [2019] HCA 10 R v Baker [2001] QCA 326 R v D'Orta‐Ekenaike [1998] 2 VR 140; (1997) 99 A Crim R 454 R v Davis [1999] NSWCCA 15 R v Eastman (No 50) [2018] ACTSC 321 R v Green (2002) 4 VR 471; [2002] VSCA 34 R v Koeleman (2000) 2 VR 20; [2000] VSCA 141 R v Perera [1986] 1 Qd R 211 R v Russo (No 2) [2006] VSCA 297 R v Schaeffer (2005) 13 VR 337; [2005] VSCA 306 R v Williams [1999] NSWCCA 9; (1999) 104 A Crim R 260 RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36 The Queen v Getachew (2012) 248 CLR 22; [2012] HCA 10 Texts Cited: Judicial Commission of New South Wales, Criminal Trial Courts Bench Book Category: Principal judgment Parties: Mitchell Lenox Hewitt (Applicant) Crown (Respondent) Representation: Counsel: R Pontello SC with M Smith (Applicant) M Millward (Crown) Solicitors: Hunter Flood Lawyers (Applicant) Solicitor for Public Prosecutions (NSW) (Crown) File Number(s): 2017/83256 Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW), the publication of information or material that identifies or is likely to lead to the identification of the complainant is prohibited. Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 1 October 2019 Before: Wilson SC DCJ File Number(s): 2017/83256 HEADNOTE [This headnote is not to be read as part of the judgment] Between 23 September 2019 and 1 October 2019 the applicant, Mr Hewitt, stood trial in the District Court of New South Wales on an indictment containing two counts of indecent assault contrary to s 61L of the Crimes Act 1900 (NSW) (counts 1 and 3) and one count of sexual intercourse without consent contrary to s 61I of the Crimes Act (count 2). The applicant and complainant were part of a close group of friends. On 21 November 2016, they attended a 21st birthday party at a house in Pearl Beach. The Crown case was that on the morning of 22 November 2016 the applicant grazed the complainant's inner thigh near her vagina with his fingers as they stood in the spa (count 1). It was further alleged that, later the same morning, after the complainant had fallen asleep on a couch in the lounge room, she was woken by the applicant digitally penetrating her vagina (count 2). It was alleged that the applicant then kissed the back of the complainant's neck (count 3). The applicant's case was that he did not indecently assault the complainant in the spa; the complainant agreed to allow him to lay next to her on the couch; the applicant placed his hand into the waistband of her pants in response to her "grinding" against him; and he did not digitally penetrate her vagina or touch her genitals or breasts with his fingers. On 1 October 2019, the applicant was found guilty of count 2 and acquitted on counts 1 and 3. The applicant sought leave to appeal against his conviction on the following grounds 1 and 2 (leave not being required for ground 3): 1. The trial judge erred in failing to direct the jury about how they could use evidence of: (i) a text message sent by the applicant to the complainant; and (ii) the applicant's statements to the complainant in a recorded telephone call as admissions of guilt. 2. A miscarriage of justice was occasioned as a result of the trial judge's failure to put the applicant's case fairly before the jury. 3. A miscarriage of justice was occasioned by the trial judge's failure to give the jury a full Liberato direction. The Court (Payne JA, Garling and Wright JJ agreeing) held, allowing the appeal, quashing the conviction and remitting the proceedings to the District Court: As to ground 2: 1. A trial judge is required to analyse the main evidential matters that were adduced during the trial and accurately and fairly summarise for the jury the arguments made by both parties. That obligation is not overridden by s 161 of the Criminal Procedure Act 1986 (NSW). It is fundamental that the trial judge fairly direct the consideration of the jury to the matters raised by an accused in his or her defence: [33]-[39] (Payne JA); [82] (Garling J); [83] (Wright J). RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 at [41]; Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13 at 561; Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44 at [42]; The Queen v Getachew (2012) 248 CLR 22; [2012] HCA 10 at [29]; Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46 at [59], applied. 1. The duty upon a trial judge accurately and fairly to put to the jury the respective cases for the prosecution and the accused is not limited to complex or lengthy cases: [45] (Payne JA); [82] (Garling J); [83] (Wright J). R v Williams [1999] NSWCCA 9; (1999) 104 A Crim R 260 at [42]-[44]; R v Davis [1999] NSWCCA 15 at [24], considered and distinguished. 1. The trial judge did not, in any real or meaningful way, summarise the applicant's case for the jury. The trial judge also gave a clear and material misdirection about the use the jury could make of certain context evidence. There was a miscarriage of justice: [32], [46]-[49] (Payne JA); [82] (Garling J); [83] (Wright J). 2. As the defence case was not fairly put to the jury, it would be inappropriate to apply the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW), despite the apparent strength of the Crown case: [52] (Payne JA); [82] (Garling J); [83] (Wright J). As to ground 3: 1. The trial judge did not give a full Liberato direction. There was a miscarriage of justice: [56], [62]-[64] (Payne JA); [82] (Garling J); [83] (Wright J). Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 at 515; De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [12], considered and applied. As to ground 1: 1. The trial judge did not err in failing to direct the jury as to how they could use evidence of the admissions the applicant made in the text message and in the call. The applicant's counsel did not seek such a direction at trial. On appeal, the applicant did not expressly formulate the direction which he asserted ought to have been given. The absence of a request for the direction was an indication that no miscarriage of justice was occasioned in the atmosphere of the trial: [78] (Payne JA); [82] (Garling J); [83] (Wright J). Burns v The Queen (1975) 132 CLR 258; [1975] HCA 21 at 261, considered. Flood-Smith v R [2018] NSWCCA 103 at [119]-[121]; The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36 at [37]-[39]; ARS v R [2011] NSWCCA 266 at [148]; Greenhalgh v R [2017] NSWCCA 94 at [42], applied. Judgment 1. PAYNE JA: Between 23 September 2019 and 1 October 2019 the applicant, Mr Hewitt, stood trial before Wilson SC DCJ and a jury in the District Court of New South Wales on an indictment containing the following three counts: 1. indecent assault contrary to s 61L of the Crimes Act 1900 (NSW) (count 1); 2. sexual intercourse without consent contrary to s 61I of the Crimes Act (count 2); and 3. indecent assault contrary to s 61L of the Crimes Act (count 3). 1. The applicant and complainant were part of a close group of friends. On 21 November 2016, they attended a birthday party at a house in Pearl Beach (the Pearl Beach house). The Crown case was that on the morning of 22 November 2016 the applicant grazed the complainant's inner thigh near her vagina with his fingers as they stood in the spa (count 1). It was further alleged that, later the same morning, after the complainant had fallen asleep on a couch in the lounge room, she was woken by the applicant digitally penetrating her vagina (count 2). It was alleged that the applicant then kissed the back of the complainant's neck (count 3). Both the applicant and complainant were 21 years old in November 2016. 2. The applicant's case was that he did not indecently assault the complainant in the spa; the complainant agreed to allow him to lay next to her on the couch; the applicant placed his hand into the waistband of the complainant's pants in response to her "grinding" against him; and he did not digitally penetrate her vagina or touch her genitals or breasts with his fingers. 3. On 1 October 2019, the applicant was found guilty of count 2 and acquitted on counts 1 and 3. 4. On 6 August 2020, the trial judge sentenced the applicant to a 3-year community correction order commencing on that date, subject to the standard conditions and a number of additional conditions including that he would complete 450 hours of community service. Evidence at trial The complainant's evidence 1. The complainant was 23 years old at the time of giving evidence. She first met the applicant when she was about 13 years old and in Year 8 at school. At that time they were part of the same friendship group but did not attend the same high school. So as not to inadvertently identify the complainant, contrary to s 578A of the Crimes Act, I will refer to relevant members of that friendship group by their initials. The 2013 events 1. Evidence of an incident which occurred in 2013 was relied upon by the Crown, without objection, as background or context evidence. On 11 or 13 November 2013, a group of about 30 people, including the complainant and applicant, attended a party at the Pearl Beach house, which was owned by MC's family. The members of the group had just completed Year 12. The complainant arrived with a girl from school later than everyone else. The complainant had a few drinks "but not a lot". She was 17 years old at the time. 2. After drinking and talking for a period of time, everyone, including the complainant and applicant, got into or sat around the spa. Those in the spa moved around it. The applicant ended up next to the complainant in the spa a few times. The applicant (who was on her right) placed his hand on the complainant's inner thigh, near her vagina, on top of her bikini bottoms. His hand "graze[d]" against that area before moving away. The complainant described the touching as not constant but frequent. It was not as frequent when there were more people in the spa. Later, when the complainant, the applicant and FH were the only ones in the spa, the applicant touched the complainant in that manner over a five-to-ten minute period. The complainant pushed the applicant's hand away a number of times. She talked to FH "a lot" because she felt uncomfortable and did not want FH to get out of the spa. The complainant did not want the applicant to touch her. 3. In cross-examination, the complainant accepted that she could have gotten out of the spa when others did. She said that in hindsight she should have done so but that at the time she was in shock and uncomfortable and "just didn't think to get out". She didn't want to embarrass the applicant. She denied that she put her hand on the applicant's leg and penis while they were in the spa. 4. Sometime after the complainant got out of the spa, she went to a downstairs bedroom by herself and got into bed. The applicant followed her in, unzipped her sleeping bag and zipped his sleeping bag together with hers. The complainant, who was not sexually experienced, felt uncomfortable and awkward. The applicant lay behind the complainant, pressing his body into hers. He put his fingers into her vagina. The complainant said, "don't you have a girlfriend?" multiple times. He responded that they were "on a break". The complainant could feel the applicant's penis pushing into her. Both were still clothed. 5. The bedroom door opened a few minutes later and a few people were standing there holding a flashlight. The applicant got up and left the room. When the complainant went upstairs, everyone was "being really awkward and not saying much". 6. Sometime later, the complainant saw the applicant's then-girlfriend, GW (who she did not know), on a night out. GW approached her and said, "I'm so sorry about the other night". The complainant felt confused and awkward that GW was apologising for something that her boyfriend had done. The incident came to be referred to by others as the applicant's "midnight mistake" or "midnight surprise", which the complainant understood as a reference based on the applicant's explanation to GW that he was asleep and had woken up with his fingers in the complainant's vagina instead of his girlfriend's. 7. The complainant did not then see much of the applicant until the end of 2014 or beginning of 2015. From that time, the complainant and applicant were both members of a close group of friends who saw each other "all the time". The 2016 events 1. In November 2016, the complainant and the applicant went to the Pearl Beach house with a group of friends to celebrate JA's 21st birthday. The complainant drove to the house with her friend DC when she finished work at about 10pm. After arriving and during the course of the night, the complainant consumed alcohol and small quantities of MDMA (as did MC, KD and JA). 2. At about sunrise, the few who remained awake went down to the beach for a swim, including JA, KD, the applicant and the complainant. After they returned from the beach, the complainant and the applicant got into the spa. The complainant was standing in the spa, looking towards the beach and talking to other people who were standing nearby. The applicant was behind her and slightly to her right. 3. The complainant gave evidence that the applicant put his fingers on the complainant's inner thigh next to her vagina, grazing her bikini bottoms. The touching was not aggressive. The complainant felt uncomfortable because the applicant was dating DC who was standing a couple of metres away. The complainant did not consent to the touching. She did not do or say anything to the applicant but called out to DC and MC to persuade them to get into the spa so that the touching would stop. When DC got into the spa, the complainant immediately got out (count 1: indecent assault – not guilty). 4. The complainant went into the house where she immediately told MC what had happened. 5. She then had a shower and put on a pyjama top. She returned to the lounge room, where everyone was standing, and lay on one of the two couches. MC and JA sat on the other couch. The applicant lifted the complainant's legs, sat down and placed her legs on his lap. DC did the same with the complainant's head. The complainant fell asleep. 6. The next thing the complainant remembered was "waking up to [the applicant's] fingers in [her]" (count 2: sexual intercourse without consent – guilty). She described there being one or two seconds of semi-consciousness as she woke up, followed by the feeling of something in her vagina. She then felt a kiss to the back of her neck (count 3: indecent assault – not guilty). The complainant sat up and pushed a hand away from behind her. She looked over her shoulder and saw the applicant lying there. 7. The applicant tried to pull the complainant back down to the couch by gently touching her right shoulder. She resisted and remained sitting. She felt awkward and uncomfortable. The complainant gave evidence that she did not want the applicant to do what he had done. She asked the applicant what the time was but did not know why she had done so, describing it as a "shock reaction" and that she felt like she needed to say something because it was awkward. The complainant then got up and ran for the doors. 8. The complainant was crying as she approached MC, KD and JA who were standing on the beach in front of the house. She said, "I woke up to [the applicant's] fingers in my vagina". KD replied, "That's been happening for a while, we saw that happening". The complainant then broke down further. Sometime later, whilst she was still on the beach, the applicant tried to approach her, but she told him not to and others pushed him away. The applicant left. 9. During cross-examination, the complainant denied telling DC that during the 2013 incident she had given the applicant a "hand job". The complainant disagreed that the applicant had not touched her while they were in the spa in 2016. The complainant denied that when she was later lying on the couch, the applicant had approached her and said, "do you mind if I watch some telly?", that she was awake when they were on the couch and that she had intentionally ground her body against the applicant's as he lay behind her on the couch. The complainant's evidence was that the applicant may have put his hand at the waistband of her bikini bottoms but she was asleep. Other evidence 1. The complainant's evidence (both as to the applicant's behaviour as he lay next to her on the couch and the fact that she was asleep) was supported by the evidence of other persons who were present at the party. A number of witnesses gave evidence about immediate complaint and distress following that complaint. The complainant's evidence was also supported by admissions made by the applicant in a text message sent to the complainant on 24 November 2016 (the text message) and a lawfully intercepted phone call between the applicant and the complainant on 2 December 2016 (the call). 2. A screenshot of the text message was tendered and marked "Exhibit C". It read: "[The complainant's name], I can't imagine what the past few days have been like for you and what I've put you through and I probably never will and I am so unbelievably sorry for that. I know I've fucked Up so badly and that it's on me. You probably don't want to speak/see/hear from me now/anytime soon, so I doubt an apology will even scratch the surface of making amends with you but I gotta start somewhere. I also realise I deserve all the fall out from this. I completely regret what happened and never would have done it if I thought you weren't okay with what was happening, or in a situation where you were unable to. If we could talk sometime to sort out what has happened, that would mean the world to me, but I fully understand if you don't want to. Again, I can't even begin to imagine how youre feeling from this. I have completely betrayed your trust and all of my friends. If there's anything I can do to make you feel any better or to slowly set things right please let me know." 1. On 26 November 2016, the complainant told her mother what had happened. She reported the matter to police later that same day. Between 30 November 2016 and 2 December 2016, she exchanged a number of text messages with the applicant after the police told her that they wanted to record a phone call between them. Screenshots of those messages were tendered and marked "Exhibit D". 2. The audio of the call was tendered and marked "Exhibit E". A transcript of the call was marked "MFI 2". It included the following exchanges: "Complainant: Yeah, I just I, I just really need to know why you did it Mitch because like, you have completely betrayed my trust as a friend, you know. Applicant: No, I know. But like, in all seriousness I, I thought you were awake. I, I honestly did not think there was anyway you were asleep. Complainant: You thought I was awake? Applicant: I thought, yeah. I thought… Complainant: How did you think I was awake if I wasn't saying anything, doing anything? Wasn't… Applicant: You were, you were, I'm sorry, you were grinding on me. I, I… Complainant: …What? Applicant: I, I took that as a sign as, as it was alright. I mean obviously it wasn't, and it's not ok. Complainant: Mitch, I was asleep and I woke up to your fingers in my vagina. How is that alright? Applicant: It's not alright. I know it's not alright. I just said it wasn't alright. But I obviously misread it, I mean… … Complainant: I don't think you understand, that, I don't think you understand how it felt for me to wake up to that Mitch. Applicant: I know, and I don't think I will. Complainant: We have been friends for so long and I woke up to your hands in my fucking vagina. I had no idea what was going on and I woke up to that. Do you know how fucking scarring that is? Applicant: I don't, and I'm so sorry for it. Complainant: (sigh) Applicant: Look, I am so sorry [complainant's name]. Complainant: I just need you to know that it's not alright and you need to get help. You honestly need to get help. You can't go through life thinking that that sort of behaviour is alright. Applicant: Yeah, I know. I genuinely don't think it's alright. Um, I am so sorry for it. I can't imagine how it was for you. I'm sorry about that." 1. Nine other witnesses gave evidence at the trial: MC, KD, GC, FH, GW and JA (friends of the complainant and applicant), DC (the applicant's girlfriend), SW (the complainant's mother) and Constable Craig May (the officer in charge as at the time of the trial). The trial ran for six days. The evidence was concluded on day four. Day five was reserved for closing addresses and the summing-up, which was completed on day six. The applicant's statement 1. The applicant did not give evidence or call any witnesses in the trial. He relied on a prepared statement which he read in an interview with police on 17 March 2017 ("Exhibit Q"). The interview was played in the Crown case. Grounds of appeal 1. The applicant seeks leave to appeal against his conviction under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) and r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 on grounds 1 and 2 (leave is not required for ground 3): "1. The trial judge erred in failing to direct the jury about how they could use evidence of: (i) a text message sent by the applicant to the complainant; and (ii) the applicant's statements to the complainant in a recorded telephone call, as admissions of guilt. 2. A miscarriage of justice was occasioned as a result of the trial judge's failure to put the applicant's case fairly before the jury. 3. A miscarriage of justice was occasioned by the trial judge's failure to give the jury a full Liberato direction." 1. I have concluded that grounds 2 and 3 should be upheld. Accordingly, I will address those grounds first. Ground 2: a miscarriage of justice was occasioned as a result of the trial judge's failure to put the applicant's case fairly before the jury 1. This was a six-day trial. The only thing that the trial judge said to the jury in the summing-up about the applicant's case was the following: "In terms of the Accused's case it is the case for the Accused that what the Complainant said happened on the couch did not happen, and there was no sexual intercourse at all. However, he also says that any activity that did take place on the couch was consensual, and that the Complainant was awake." 1. The trial judge did not, in any real or meaningful way, summarise the applicant's case for the jury. In particular, the trial judge did not explain to the jury any aspect of the case the applicant made about how the jury should view the events of 2013. On the appeal, the Crown sought to defend the trial judge's approach on the basis that whilst his Honour did not summarise the arguments put by counsel, he reminded the jury of the need for them to consider those submissions and that the weight to be afforded to those submissions was a matter for them. I am unable to agree that this was sufficient compliance with his Honour's obligations. 2. It is well settled that a trial judge must fairly put the case for the accused to the jury. In RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, Gaudron A-CJ, Gummow, Kirby and Hayne JJ explained: "Judicial instructions in criminal trials [41] Before parting with the case, it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions. The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence." (Footnotes omitted; emphasis in original.) 1. It is worth reflecting on this passage. The plurality explained that a fundamental requirement of a fair trial was that the trial judge was required "to put fairly before the jury the case which the accused makes." No qualifications to this requirement were identified or expressed. 2. In an earlier decision, Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, the High Court (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) envisaged a possible exception, but emphasised that the requirement properly to put the respective cases for the prosecution and the accused accurately and fairly to the jury would "ordinarily" apply (at 561): "[T]he requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. This Court has said that it 'is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities'. Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way." (Footnotes omitted.) 1. The well settled principles explained in RPS and Domican have been confirmed in a number of other High Court cases. In Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said: "[42] As has been repeatedly pointed out, the judge in a criminal trial must accept the responsibility of deciding what are the real issues in the case, must tell the jury what those issues are, and must instruct the jury on so much of the law as the jury needs to know to decide those issues. The trial judge may, but need not, comment on the facts of the case. The trial judge may, but need not, suggest how the jury might evaluate the credibility of evidence that has been given. In some circumstances the common law or statute may require the trial judge to give a particular warning to the jury about factual issues. But informing and underpinning all of these requirements is that the judge's instructions to the jury, whether by way of legal direction or judicial commentary on the facts, must not deflect the jury's attention from the need to be persuaded beyond reasonable doubt of the accused's guilt before returning a verdict of guilty." (Footnotes omitted.) 1. In The Queen v Getachew (2012) 248 CLR 22; [2012] HCA 10, French CJ, Hayne, Crennan, Kiefel and Bell JJ observed: "[29] … As this Court has repeatedly pointed out, the judge in a criminal trial must accept the responsibility of deciding what are the real issues in the case, must tell the jury what those issues are, and must instruct the jury on so much of the law as the jury need to know to decide those issues." 1. In Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46, Kiefel, Bell, Keane and Nettle JJ again confirmed the principles set out in RPS and said: "[59] The essential requirements of the summing-up in a criminal trial were stated in RPS v The Queen and do not need to be restated. Needless to say, they include that the judge must fairly put the accused's case, an obligation which extends to explaining any basis upon which the jury might properly return a verdict in the accused's favour. …" (Footnotes omitted.) 1. This long and consistent line of High Court authority makes clear that a trial judge is required to analyse the main evidential matters that were adduced during the trial and fairly summarise for the jury the arguments made by both parties. It is fundamental that the trial judge fairly direct the consideration of the jury to the matters raised by an accused in his or her defence. Although s 161 of the Criminal Procedure Act 1986 (NSW) relieves a trial judge of the obligation to summarise the evidence if in the opinion of the judge that summary is not necessary, that provision does not override the obligation that the respective cases of the prosecution and the accused be accurately and fairly put to the jury. As the Criminal Trial Courts Bench Book published by the Judicial Commission of New South Wales explains at [7-040], having addressed the suggested outline for the summing-up, including that the trial judge "[s]ummarise arguments of counsel again relating them, if possible, to particular counts and defences and legal issues": "The above suggested directions are given upon the basis that the judge intends to summarise the evidence during the course of the summing-up. However, s 161 Criminal Procedure Act provides that the judge need not summarise the evidence if of the opinion that, in all of the circumstances of the trial, a summary is not necessary. In the case of a short trial with narrow issues and other relevant factors, the trial judge may decide in the exercise of his or her discretion not to summarise the evidence: R v DH [2000] NSWCCA 360; Alharbi v R [2020] NSWCCA 130 at [73]-[77]. Importantly, s 161 does not relieve the judge of the obligation to put the defence case accurately and fairly to the jury and instruct the jury about how the law applies to that case: Wong v R [2009] NSWCCA 101 at [141]; AS v R [2010] NSWCCA 218 at [21]; Condon v R (unrep, 9/10/95, NSWCCA). This does not require that it be done at length but there needs to be sufficient to highlight the evidence most relevant to the defence case: Alharbi v R at [75], [77], [82]. When putting the defence case to the jury, it must be made clear that the onus of proof remains on the prosecution: Wong v R at [141]." 1. In Dixon v R [2017] NSWCCA 299, McCallum J considered the requirement that a trial judge put fairly before the jury the case which the accused makes, citing RPS v R, and observed at [105] that: "[105] The critical task is to determine the content of that requirement in any particular case. The applicant submitted that, in the circumstances of this case, the obligation on the trial judge to provide a fair account of the defence case was 'even higher' owing to its weakness. Reliance was placed in that context on the decision of this Court in Maraache v R [2013] NSWCCA 199, in particular the additional joint reasons of Fullerton and Schmidt JJ at [101]-[102]: 'In R v Meher [2004] NSWCCA 355 Wood CJ at CL referred with approval to the judgment of Isaacs J in R v Tomazos (Court of Criminal Appeal, 6 August 1979, unreported) where his Honour said: "… A trial according to law includes as an essential prerequisite that the trial judge has put fairly, cogently and with clarity to the jury the accused's defence. The weaker the defence the more essential it is for his defence such as it is to be put to the jury so that they can consider it in the light of the Crown case and evaluate it as part of their assessment together with the Crown evidence to see whether the Crown has discharged its onus of proof. It can properly be said that the accused fairly lost a chance of acquittal because his case was never put to the jury by the trial judge. It is completely insufficient for a trial judge simply to say to the jury in effect, 'Well you have heard all that has been said on behalf of the accused by the counsel; it is unnecessary for me to say anything more'. The trial judge must lend the weight of his judicial position and authority to putting before the jury himself the case for the accused." We are of the opinion that even if it might fairly be said that the applicant's case was not compelling, he was entitled to have the trial judge refer to how his defence was advanced in the context of the evidence upon which he relied (particularly since the Crown case and the evidence on which the Crown relied was addressed in the summing up), and that a miscarriage of justice has been occasioned by his failure to do so.'" 1. Two authorities of this Court cited in Dixon, each decided before RPS, need be addressed. Each was relied upon by the Crown here. In R v Williams [1999] NSWCCA 9; (1999) 104 A Crim R 260, Wood CJ at CL (with whom Spigelman CJ and McInerney J agreed) made the following observations about the application of the relevant principles in short, single issue trials: "[42] … In a single issue trial as short as this, when the summing-up concluded within a morning and followed immediately upon the address of defence counsel, I am unconvinced that it was necessary for the trial judge to have undertaken a comprehensive analysis of the kind that the appellant now contends for. His Honour's assessment of the position was made evident by the observation as to the eloquence of the defence submissions concerning the complainant's credibility, which he said would 'still be ringing' in the jury's ears. [43] The common sense and intelligence of the jury requires respect, as does the experience of trial counsel who, in this case, expressly stated that he did not require any further direction or redirection. [44] I am unpersuaded that in a short trial, where the focus was on the complainant's credibility, anything would have been achieved by yet another restatement of that issue or of the points made either by the Crown or by the defence. The position is likely to be otherwise in a complex and lengthy trial, to which the observations in Domican are particularly apposite. It would also have been otherwise had the trial judge here undertaken, for example, a detailed analysis of the Crown case and then dismissed the defence case in short terms. What is required is a fair balance when any excursion into the issues and evidence is undertaken. Again I am of the view that leave should be refused to argue this ground under r 4 of the Criminal Appeal Rules." 1. In understanding this passage, much depends on what the Chief Judge at Common Law meant by "a single issue trial" and the phrase "a comprehensive analysis of the kind that the appellant now contends for". 2. The Chief Judge at Common Law made similar observations in R v Davis [1999] NSWCCA 15 (at [24]): "[24] The need for, and the extent of, any exploration of the evidence and of the issues, in a summing-up, is to be assessed in the context of the trial, its length, its complexity and in the light of the way that it has been run. Where the summing-up in a short trial has followed hard on the heels of a defence address, particularly where the appellant has not offered any evidence, very little is likely to be achieved by a reiteration of the evidence or of the points made by counsel in their closing addresses. To so require would be to credit the jury with little in the way of intelligence or common sense. An exercise of judgment is always required, on the part of the trial judge, to frame the summing-up in a way that is helpful to the jury. To elevate the observations in RJC and Zorad to a requirement that, in every case, regardless of its length or complexity, the trial judge must identify and repeat the points made by defence counsel, the relevant evidence, would be to go too far. Counsel should be expected to contribute in this regard, and to disclose whether they seek more, by way of summary the evidence and of the submissions, than the judge proposes." 1. As was the case in Williams, much depends on the words actually used by the Chief Judge at Common Law. His Honour was explaining that it was not "in every case" necessary to identify and repeat the points made by defence counsel. 2. A number of observations should be made about Williams and Davis. First, each was decided before the decision of the High Court in RPS and must be read in light of the subsequent unqualified expression of the trial judge's obligation fairly to summarise the accused's case in RPS. Secondly, care must be taken to ensure that in collecting cases where this Court has found, on the facts of those cases, that no miscarriage of justice occurred, sight is not lost of the requirements of a summing-up identified by the High Court. Those requirements have never been qualified or doubted and remain binding on this Court. That is, ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. Thirdly, the duty upon a trial judge accurately and fairly to put to the jury the respective cases for the prosecution and the accused is not limited to complex or lengthy cases. No doubt an exercise of judgment on the part of the trial judge is required to frame the summing-up in a way that is helpful to the jury. It may be accepted that decisions of this Court establish that there is no requirement, in every case, regardless of its length or complexity, that the trial judge must "repeat the points made by defence counsel". That does not mean that the clear requirements laid down by the High Court in RPS and Domican can be ignored. 3. Whilst the applicant bears the onus of establishing that the trial was unfair, I have concluded that this is a case where the failure by the trial judge to attempt a fair summary of the defence case, coupled with a clear and material misdirection about the use the jury could make of the 2013 evidence, establishes that there has been a miscarriage of justice. 4. I do not accept the Crown's submission that there was a "single issue" in the trial being the complainant's credibility. This is too simplistic an approach. There were a number of discrete issues in the trial which underline the failure of the trial judge properly to explain to the jury what the real issues were. The trial judge was required to explain to the jury, at least, the following matters relied upon in the defence case: 1. first, that the 2013 incident was relevant to the defence case in two ways: (i) it was relevant to the complainant's asserted motive to fabricate the allegations; and (ii) it was relevant to the jury's assessment of the complainant's credibility; 2. secondly, that the defence case included a denial of any penetration in 2013; that the complainant had initiated the physical contact in the spa in 2013; that the complainant had masturbated the applicant in the bedroom in 2013; and that the complainant continued to have a friendly relationship with the applicant after 2013; 3. thirdly, that the defence case was that the evidence of complaint should be understood as being prompted because MC had demanded to know in a confrontational way, "Oi, what the hell just happened". I do not accept the Crown submission that the applicant's reference to only one part of KD's evidence meant that the failure of the trial judge to address the defence case on this issue should be put to one side; and 4. fourthly, that in relation to count 2, the defence case was that the applicant merely had his hand in the waistband of the complainant's pants. I reject the Crown submission that the jury cannot have been under any misapprehension as to the applicant's case in relation to count 2 because it was before them in the record of interview. The applicant was entitled to have the trial judge explain to the jury the relevant part of the defence case. 1. The trial judge's failure to explain the defence case about the 2013 context evidence led to a miscarriage of justice because the trial judge told the jury that the 2013 incident was only relevant as background evidence. No doubt, the trial judge was seeking to avoid any tendency reasoning by the jury after the Crown said the following in its closing address: "It's the Crown's submission to you that if you accept [the complainant] as a witness of truth and accept her account of what occurred in 2013, then you might find that the accused was attracted to her, and that in 2013 he was attracted to her, and he may well have been attracted to her in 2016." 1. By reason of the failure of the trial judge to sum up the defence case the matter was left to the jury in an unfair way. Defence counsel raised this as an issue and the trial judge agreed to tell the jury about how the 2013 incident impacted upon the complainant's credibility, but ultimately the direction was not given. Application of the proviso 1. In Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7, the High Court considered the operation of a provision that closely resembled the proviso in s 6(1) of the Criminal Appeal Act but which adopted a contemporary style of drafting. The general principle was described in the majority judgment (Kiefel CJ, Bell, Keane and Gordon JJ) thus: "[16] The appellant's invitation to elaborate on the categories of case in which satisfaction of the negative condition will not suffice to enliven the proviso is to be resisted. It is not possible to describe the metes and bounds of those wrong decisions of law or failures of trial process that will occasion a substantial miscarriage of justice notwithstanding the cogency of proof of the accused's guilt. As was established in Weiss, the fundamental question remains whether there has been a substantial miscarriage of justice. That question is not answered by trying to identify some classes of case in which the proviso can be or cannot be applied. Classifications of that kind are distracting and apt to mislead." (Footnote omitted.) 1. More recently, in OKS v Western Australia (2019) 265 CLR 268; [2019] HCA 10, the High Court (Bell, Keane, Nettle and Gordon JJ) explained the application of the proviso as follows: "[31] It is well settled that, in a case that does not involve a fundamental defect, the proviso cannot be applied 'unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict'. And as explained in Weiss v The Queen, there are cases in which the natural limitations of proceeding on the record do not permit the appellate court to attain that satisfaction. This was such a case. The Court of Appeal's only gauge of the sufficiency of S's evidence to prove the appellant's guilt to the criminal standard was the verdict. It cannot be assumed that the misdirection had no effect upon the jury's verdict in circumstances in which the misdirection precluded the jury from adopting a process of reasoning, favourable to the appellant, that was open to it." (Footnotes omitted.) 1. In this case, as the defence case was not fairly put to the jury, it would be inappropriate to apply the proviso in s 6(1) of the Criminal Appeal Act, despite the apparent strength of the Crown case. I am not satisfied that the applicant did not lose a chance of acquittal fairly open to him. Rule 4.15 1. Finally, turning to r 4.15 of the Supreme Court (Criminal Appeal) Rules, the failure of counsel to seek a summary of the defence case to the jury by the trial judge is not determinative. Whilst it is true that counsel for the applicant did not ask the trial judge to explain the defence case to the jury, I would grant leave to appeal under r 4.15. Whilst the trial judge provided the parties with a written outline of the summing-up prior to it being delivered, that document gave no indication that his Honour proposed not to summarise the respective cases for the jury. The first time that became clear was when the summing-up was completed. Counsel for the applicant was, in the circumstances, in an impossible position. At that stage, an application properly to sum up the respective cases would be to invite the trial judge to in effect start again. Counsel's failure to ask the trial judge to, in effect, start again cannot legitimately be criticised. This is a case where I have concluded that there has been a miscarriage of justice. 2. I would grant leave to appeal on ground 2 and allow the appeal. Ground 3: a miscarriage of justice was occasioned by the trial judge's failure to give the jury a full Liberato direction 1. Although my conclusion in relation to ground 2 is sufficient to dispose of this appeal, I will deal briefly with the remaining grounds. 2. Counsel for the applicant sought at trial a full Liberato direction. The trial judge refused the application. I have concluded that the trial judge in doing so erred and that a miscarriage of justice thereby ensued. 3. In Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 at 515, Brennan J (with whom Deane J agreed) said: "When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make that clear to the jury, and the omission was hardly remedied by acknowledging that the question whom to believe is 'a gross simplification'." 1. In De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48, Kiefel CJ, Bell, Gageler and Gordon JJ considered the content of a Liberato direction at [12] as follows: "[12] In Johnson v Western Australia, Wheeler JA identified one possible shortcoming in using Brennan J's statement in Liberato as a template for the direction: a jury may completely reject the accused's evidence and thus find it confusing to be told that they cannot find an issue against the accused if his or her evidence gives rise to a 'reasonable doubt' on that issue. For that reason, it is preferable that a Liberato direction be framed along the following lines: (i) if you believe the accused's evidence (if you believe the accused's account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused's evidence (if you do not believe the accused's account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?" (Citations omitted.) Events at trial 1. After being provided with the first draft of the summing-up, senior counsel for the applicant sought a "full Liberato direction". The Crown did not oppose the request. The trial judge, however, gave the jury the following direction: "The Accused gave a version of events in the recorded interview with the police, which you will have in the jury room to watch if you wish to. The Accused is entitled to rely upon that account and ask you to take it into consideration with the other evidence called by the Crown. The Accused is not required to prove that his account is true. The Crown, in discharging its obligation to prove guilt, must satisfy you the Accused's version of events could not reasonably be true. Even if you do not accept the Accused's version in the police interview in full or in part you must not immediately allow yourself to accept the version of the Complainant. You must consider all of the evidence and whether it satisfies you as to each element of the charges beyond a reasonable doubt. It is clear that this case largely turns on a conflict in the evidence between the Complainant and the version given by the Accused to the police. No doubt you are asking yourself 'who do we believe?'. If you answer that question and the answer is you believe the Complainant, then that is not taking as finding the Crown has proved beyond reasonable doubt all of the elements of the offence. Even if you prefer the evidence of the Complainant you should not convict the Accused unless you are satisfied, again beyond a reasonable doubt, of the truth of the evidence of the Complainant. Even if you do not positively believe the evidence of the Accused, you cannot use that finding to find that he is guilty. Even if you completely reject what he says to the police as being unbelievable, it does not mean the Crown can then say, having rejected the Accused, you must now find him guilty. That would be a reversal of the onus of proof. The Crown always maintains the onus of proof. Even if you reject what he said to the police, for whatever reason you might do so, and I do not have a view about it, you must then return to square one and consider whether the Crown has on the evidence before you established beyond a reasonable doubt the essential elements of the offence." 1. The summing-up concluded on 30 September 2019. Later that afternoon, the jury sent a further note (having previously sent a note requesting a copy of the trial judge's directions) seeking "further clarification about the assessment of reasonable doubt". Senior counsel for the applicant submitted that a Liberato direction should be given again to assist the jury "in a practical way". The parties agreed that the trial judge should repeat the directions he had given during the summing-up as to the onus and standard of proof, the fact that the applicant had not given evidence and the Liberato direction. His Honour's direction to the jury was as follows: "Of course the Accused gave a version. That is a statement he read out to the police at the police station which you have, and he is entitled to rely upon that and ask you to take it into consideration with all of the other evidence called by the Crown. The Accused is not required to prove that his version is true. The Crown in discharging its obligation to prove guilt must satisfy you that it is a version of events that could not reasonably be true. Even if you do not accept the Accused's version in full or in part, you must not immediately allow yourself to accept the version of the Complainant. You must consider all of the evidence and whether it satisfies you as to each element of the offence beyond a reasonable doubt. It is clear that largely this case turns upon a conflict of versions between the evidence of the Complainant and the version provided by the Accused to police. If you accept what the Accused said to the police as true, then you ought to find him not guilty. If you answer that question, that is as to who is telling the truth, and it is that you believe the Complainant is telling the truth, then that is not taken as a finding that the Crown has proven beyond reasonable doubt all of the elements of the offences. Even if you prefer the Complainant's evidence, you should not convict the Accused unless you are satisfied beyond reasonable doubt of the truth of the Complainant's evidence. Even if you do not positively believe the version of the Accused, you cannot use that finding to prove the Accused's guilt. You can only find the Accused guilty if the Crown has proven the elements of the offences beyond reasonable doubt. I do not know if that assists you at all, but essentially what I have attempted to explain again is that although the Accused did not give evidence here, there is a version of his account that is before you in the form of the police interview. If you accept what he said to the police then you ought to find him not guilty. If you reject what he says to the police, then you do not automatically find him guilty. You then go back to square one and look at the evidence in its entirety again. Similarly, as I have just said, if you believe the Complainant, that does not necessarily mean that the elements of the offence has been proved beyond a reasonable doubt. You should still satisfy yourself based upon your evidence as to the truth of the Complainant's evidence." 1. On 1 October 2019, senior counsel again sought "the full Liberato direction". On appeal, the applicant repeated the submission that the jury should have been told in terms that "if they did not accept the applicant's version, but considered it might be true, they must acquit" and that the omission properly to explain that matter occasioned a miscarriage of justice because the applicant was deprived of a chance fairly open to him of being acquitted. 2. I am unable to accept the Crown's submission that the trial judge's directions, considered fairly and as a whole, left no room for the possibility of any misapprehension by the jury of the matters referred to by Brennan J in Liberato. I do not agree that the trial judge's failure to adopt the specific form of words used in the Criminal Trial Courts Bench Book, drawn from Liberato and De Silva, was permissible. 3. The full Liberato direction has three components: 1. if you believe the accused's evidence (if you believe the accused's account in his or her interview with the police), you must acquit; 2. if you do not accept that evidence (the accused's account) but you consider that it might be true, you must acquit; and 3. if you do not believe the accused's evidence (if you do not believe the accused's account in his or her interview with the police), you should put that evidence (the accused's account) to one side. In that third case, the question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt? 1. The instruction given by the trial judge did not explain those matters sufficiently. There was an error of law with the result that the trial miscarried. 2. As this is purely a question of law and the point was taken at trial leave is not required under s 5(1)(b) of the Criminal Appeal Act or r 4.15 of the Supreme Court (Criminal Appeal) Rules. I would uphold ground 3. Ground 1: the trial judge erred in failing to direct the jury about how they could use evidence of the text message and statements made in the call as admissions of guilt 1. By ground 1, the applicant contended that the trial judge erred in failing to direct the jury as to how they could use evidence of admissions he made in the text message (Exhibit C) and in the call (Exhibit E). 2. The Crown relied upon the text message and the applicant's statements to the complainant in the call as admissions of guilt. As to the text message, the Crown's closing address to the jury proceeded on the following basis: "If you look at that apology to [the complainant] in that text message, do you think it's sound like someone who is just admitting fault following a friend's advice? Effectively just apologising to pat [the complainant] down and so that they can move forward? You might think that a message that was one of those type of messages that was only done because someone told you to do it might be more like, 'Are you okay?', or, 'Sorry for what happened.' This is a very cleverly crafted apology. He's apologising for what he did. Do you think he would do that if he was just going by what [MC] told him to do, just going along with it and just apologising for the sake of it? I suggest to you when you read that message again in the jury room, read it carefully and you'll have no difficulty coming to the conclusion that it's from someone who is apologising for what they did, not apologising because someone else had just told them to admit fault to whatever." 1. As to the call, the Crown submitted: "When he was saying something untrue he just couldn't accept it and he said to [the complainant], 'But the truth is that you were awake.' That's what Mr Brady [senior counsel for the applicant] told you that the accused did in his intercepted telephone conversation that was played in Court that he couldn't accept if [the complainant] said something that wasn't true, he had to tell her the truth. In that call it's that he said you were awake. So when [the complainant] said to him, 'Mitch I was asleep. I woke up to your fingers in my vagina, how is that all right', and he does as Mr Brady says and he says the truth, 'It's not all right, I know it's not all right. I just said it wasn't all right but obviously I misread it. What he doesn't say is this: he doesn't say, 'I never put my fingers in your vagina,' and he doesn't say that, 'I just touched the waistband of your bikini bottom.' He doesn't say wither of those things. [The complainant] asks him again in that telephone conversation, 'We've been friends for so long and I woke up to your hands in my fucking vagina. I had no idea what was going on and I woke up to that. Do you know how fucking scarring that is?' The accused, replied, 'I don't, and I'm so sorry for that.' Again, he does as Mr Brady says who if he had of wanted to correct [the complainant] he would have corrected her with the truth, but yet again he does not say, 'My fingers were not in your vagina and my hand was only on the waist band of your bikini bottoms.' He doesn't mention either of those things by way of correction. He says that he thought she was awake but that he misread it. He must have misread it, but never did he say he did not put his fingers into his vagina and never did he say all I did was put my hand on the waist band of your bikini bottoms. … Again, when [the complainant] says to him, 'I was asleep and I woke up with your fingers inside of me, how is that all right?', and he says 'It's not all right, I know it's not all right. I just said it wasn't all right, but I obviously misread it.' No doubt the defence will tell you that that apology is in line still with [MC] saying, 'you've got to apologise to everything, and just basically cop it and that's how we move forward'. Again, do you really think that someone would go through all of those emotions with a fake apology? You might think when you read it that it's incredulous to think that someone would do that when you're dealing with such a serious allegation. These are allegations of sexual assault. If you were going to apologise just for the sake of it, you might think that's incredulous to think that someone would do that and have that as you apologise for something you didn't do that's a criminal charge. Another excuse for him apologising and then realising that he needs to provide an excuse for that behaviour to date in Court in this trial. As I say, when you read that message and that apology, I submit to you, you would have no problem accepting that it's him apologising for what he did to [the complainant] in November 2016, and that is, putting his fingers in her vagina, kissing her neck and touching her in the spa." 1. The Crown also relied upon the applicant's failure to positively assert his version of events, as provided to police, to the complainant in the call as an implied admission that the version of events was false. 2. The applicant submitted that the trial judge was required to direct the jury that, before they could use the confessional statements in proof of the applicant's guilt, they needed to be satisfied: first, that the applicant intended to acknowledge that he had sexual intercourse with the complainant without her consent; and secondly, that the confessional statements were true. 3. In support of that submission, the applicant relied upon the seminal passage in Burns v The Queen (1975) 132 CLR 258; [1975] HCA 21, where Barwick CJ, Gibbs and Mason JJ (with whom Jacobs J agreed) said at 261: "It is clear and elementary law that once a confessional statement has been admitted into evidence its weight and probative value are matters for the jury. It is for the jury to determine whether the alleged confession was made and whether it was true in whole or in part. Unless the jury are satisfied that so much of the confession as tends to show the guilt of the accused was true they cannot treat it as a proof of guilt. However, a confessional statement may be only one piece of the evidence against the accused and the jury are entitled to consider all the relevant evidence together in deciding upon their verdict. The nature of the direction necessary to be given properly to instruct the jury as to the use of evidence of an alleged confession must depend on all the circumstances of the case. 'There is no rule of law or of practice which requires the Judge to caution the jury against acting on such evidence or which prescribes any measure of the comment which it is his duty to make upon it.' (Ross v The King). In some cases it may be clear or undisputed that a confession was made and the crucial question may be whether it has any probative value: for example, it may be suggested that the confession had no weight because it was extracted by force or given under a mistake or because the accused when making it was ill in body or disturbed in mind. In a case such as the present, where the accused person alleges that the confession which he is said to have made is a complete concoction, a reasonable jury, once satisfied that the confession was made, might readily be satisfied also that it was true. In such a case the absence of a specific warning to the jury that they should not act upon the confession unless they were satisfied of its truth might be of less significance than in a case where it was not in issue that the statement was made, but it was claimed that it was untrue." (Footnote omitted.) 1. The applicant submitted that the High Court's statement of the law relating to confessions in Burns applies equally to admissions: R v Russo (No 2) [2006] VSCA 297 at [11] (Nettle JA, with whom Neave JA and King AJA agreed). It was submitted that, since Burns was decided, superior and intermediate appellate courts across Australia have repeatedly emphasised the need for juries to be directed that, before they can rely on confessional statements, they must be satisfied as to the truth and accuracy of those statements: R v Green (2002) 4 VR 471; [2002] VSCA 34 at [31]; R v Schaeffer (2005) 13 VR 337; [2005] VSCA 306 at [13] and [65]; R v Koeleman (2000) 2 VR 20; [2000] VSCA 141 at [21]; R v Baker [2001] QCA 326; Cotic v The Queen [2000] WASCA 414; (2000) 118 A Crim R 393 at [11]‐[18]; R v Eastman (No 50) [2018] ACTSC 321 at [13]; R v Perera [1986] 1 Qd R 211; R v D'Orta‐Ekenaike [1998] 2 VR 140; (1997) 99 A Crim R 454; Magill v The Queen (2013) 42 VR 616; [2013] VSCA 259; McKey v R [2012] NSWCCA 1; (2012) 219 A Crim R 227. 2. The applicant submitted that the jury should have been directed that: 1. before they could infer that the applicant did not tell the complainant that he merely placed his hand into her waistband because he was conscious of his guilt, they were required to exclude any alternative inference inconsistent with guilt; and 2. they could not act on the applicant's statements in the text message and the call as proof of his guilt, unless satisfied that he intended to acknowledge by those statements that he had sexual intercourse with the complainant without her consent, and that the statements were true, and were not said merely to maintain harmony within the group of friends or complainant or to stop the matter being taken any further. 1. The applicant put forward five reasons as to why directions should have been given in this case: 1. first, evidence of the admissions formed a central plank of the Crown case; 2. secondly, there was an increased need to give the direction because the applicant disputed the truth of the admissions (Burns; Green at [31]); 3. thirdly, the text message was inherently ambiguous and did not suggest that the applicant was admitting to digitally penetrating the complainant's vagina, and there was cogent evidence that it had only been sent at MC's suggestion; 4. fourthly, without the direction, the jury may have reasoned that the applicant in the call was admitting to digital penetration when he did not expressly do so. There was a reasonable possibility that the applicant and complainant were at cross purposes as to what was "not alright", and for what the applicant was "sorry". There was a danger that the jury would reason that, because the applicant said those things, they must be truthful; and 5. fifthly, it was necessary for the trial judge to give the jury a direction which would guard against the unjustified drawing of an adverse inference concerning the applicant's failure to state his case with respect to count 2 in circumstances where the trial judge did not give the standard direction as to drawing inferences. 1. The applicant's ultimate submission was that the jury were left entirely without instruction as to the way they should approach the Crown's argument that the text message and the call established that the applicant was guilty of count 2. It was submitted that the trial judge was under a duty to give proper directions if there was a serious risk of injustice, even if those directions were not sought by defence counsel: BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47 at 302 (Gaudron J), 310 (McHugh J) and 330 (Kirby J). 2. Although I have wavered about the correct answer to this issue, I have concluded that the Crown is correct that the cases relied upon by the applicant do not establish that a direction of the kind sought is required as a matter of law in every case in which there is a dispute about whether a confession or admission was truthful and accurate. 3. In Flood-Smith v R [2018] NSWCCA 103, it was alleged that the applicant had recklessly inflicted grievous bodily harm upon her two-year-old child. The Crown relied on three admissions: "I didn't mean for none of this to happen", "I don't know what happened, I don't know what I've done" and "I don't know what I've done". The applicant did not give evidence, but gave accounts recorded in two statements she had made to police in which she denied assaulting the child. In those statements she said that she did not know how the injuries were occasioned but she thought that the dog may have attacked the victim, or that she may have fallen from a chest of drawers. The applicant's case was that each of the asserted admissions was readily explicable on the basis that she did not inflict the injuries but nonetheless felt responsible because the child was injured while in her care. Hoeben CJ at CL (with whom Walton and Button JJ agreed) observed at [119]-[121] that: "[119] … [N]o submission was made at trial that his Honour should direct the jury in the terms now said to have been called for by ground 1(b). [120] Secondly, and in any event, the direction now said to have been necessary is really a matter of common sense: if the jury does not regard a statement said to be an admission as indeed an acceptance of guilt by the speaker, then self-evidently they will not use it as such. [121] In light of the clear competing submissions in the final addresses at trial about that topic, there is no risk that the jury misunderstood this aspect of its task of assessment." 1. I have reached essentially the same conclusion here. First, no submission was made by the applicant's counsel at trial that his Honour should direct the jury in the terms now said to have been called for. Secondly, I can envisage a tactical reason why counsel for the applicant would not have sought such a direction: a Burns direction may have highlighted the applicant's statements as confessions and/or admissions. Thirdly, the Crown is correct that even now the applicant did not expressly formulate the direction which he now asserted, on appeal, ought to have been given. The fact that such a direction was not sought at trial by experienced senior counsel who appeared on behalf of the applicant is significant. Finally, the absence of a request for the direction now sought is an indication that no miscarriage of justice was occasioned in the atmosphere of the trial: The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36 at [37]-[39] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ); ARS v R [2011] NSWCCA 266 at [148] (Bathurst CJ, with whom James and Johnson JJ agreed); Greenhalgh v R [2017] NSWCCA 94 at [42] (Basten JA, with whom Button and N Adams JJ agreed). 2. I would refuse leave to appeal on ground 1 under r 4.15 of the Supreme Court (Criminal Appeal) Rules. Conclusion and proposed orders 1. In accordance with the usual practice of the Court in a case such as this, these reasons will be distributed to the parties but only published on the restricted "JIRS" database. The parties are directed to inform the Registrar of the Court of Criminal Appeal when the proceedings have been completed and this judgment is able to be published without restriction. 2. For the foregoing reasons I propose the following orders: 1. Leave to appeal on ground 1 refused under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021; 2. Leave to appeal on ground 2 granted under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021; 3. Appeal allowed; 4. The applicant's conviction on count 2 in the indictment is quashed; 5. The proceedings are remitted to the District Court arraignment list at Gosford on 30 September 2021. 1. GARLING J: I agree with the orders proposed by Payne JA and with his reasons. 2. WRIGHT J: I agree with the orders proposed by Payne JA for the reasons his Honour has given. ********** 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: 23 February 2023