Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Abdel-Hady ("SA") v R [2011] NSWCCA 196 Hearing dates: 8 August 2011 Decision date: 28 October 2011 Before: McClellan CJ at CL at [1] Adams J at [2] Fullerton J at [2] Decision: 1. Appeal allowed. 2. Convictions quashed. 3. New trial ordered in respect of each count. Catchwords: CRIMINAL LAW - appeal against conviction - causing another to take a stupefying drug with attempt to commit an indictable offence - indecent assault - whether trial judge's summing up was unbalanced - whether trial judge erred in failing to direct jury to consider each count on indictment separately - whether trial judge erred in failing to give Markuleski direction Legislation Cited: Crimes Act 1900 Cases Cited: R v Inamata [2003] NSWCCA 19; 137 A Crim R 510 R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 R v Zorad (1990) 19 NSWLR 91 RPS v R [2000] HCA 3; 199 CLR 620 Category: Principal judgment Parties: Safwat Abdel-Hady (Appellant) The Crown Representation: P Hamill SC / G Brady (Appellant) S Dowling (Crown) Conaghan Hunter Solicitors (Appellant) Solicitor for Public Prosecutions File Number(s): 2008/6943 Publication restriction: Complainants to be referred to by pseudonyms AW and MD Decision under appeal Date of Decision: 2009-02-19 00:00:00 Before: King DCJ File Number(s): 2008/6943 Judgment Introduction 1McCLELLAN CJ at CL : I agree with Adams and Fullerton JJ. 2ADAMS and FULLERTON JJ : The appellant was convicted on 19 February 2009 of two counts, each in respect of a different complainant (AW and MD) but committed on the same occasion, of causing another to take a stupefying drug with attempt to commit an indictable offence, contrary to s 38 of the Crimes Act 1900 and one count of indecent assault on AW contrary to s 61L of the Crimes Act . On the first count the appellant was sentenced to a non-parole period of 5 years commencing on 19 November 2009 with a balance of term of 1 year and 8 months, on the second count to imprisonment for a fixed term of 5 years commencing 19 May 2009 and on the third count to imprisonment for a fixed term of 6 months commencing 19 February 2009. 3Very briefly, the Crown case was that the appellant, having invited the complainants to his apartment after they had been out drinking together, gave them some zolpidem (sold as Stilnox) in a drink he mixed for them and, while AW was semiconscious and MD was asleep in another bedroom, placed his hand down AW's underpants and touched her vagina. 4The appellant appeals from his convictions on the following grounds: 1. The learned trial judge's summing up to the jury gave rise to a miscarriage of justice in that he failed to present a balanced account of the conflicting cases. 2. The trial judge erred in failing to direct the jury to consider each of the three counts on the indictment separately. 3. The trial judge erred in failing to give a direction in accordance with R v Markuleski [2001] NSWCCA 290 when requested to do so by defence counsel. 5The appellant also seeks leave to appeal against his sentence but, having regard to the view we have formed as to the appeal against conviction, it is not necessary to consider this question. Particulars of the offences 6Before dealing with the evidence, having regard to certain matters argued in support of grounds 2 and 3, it is convenient to set out the way in which the prosecution particularised the offences. 7After briefly setting out the events up to the alleged administration of the stupefying drug the Crown opened as follows: It is alleged by the Crown that the intention of the accused, in mixing the stupefying drug into the drinks, was to enable himself to indecently assault [AW]. ... so it is alleged that the accused committed the first two crimes in the indictment ... with the guilty intention that I have mentioned and once that happened those two crimes were complete, whatever happened later. 8The Crown then briefly described what he called the "third crime in the indictment", namely the indecent assault, describing it as occurring when the appellant "put his hand on [AW's] vagina and stroked it or made some such movement". He briefly set out the alleged ensuing events and, when he had completed that account and referred to the evidence he expected to adduce from Dr Perl, completed his opening in the following way: ... I think you've had the charges read out to you a number of times and I will just conclude my address by reminding you about the charges. The first charge is that the accused unlawfully caused [MD] to take a stupefying drug with the intent to enable himself to commit an indictable offence, namely to indecently assault [ AW]. The second charge is in similar terms in relation to causing [AW] to take a stupefying drug. Just looking at those two charges which relate in effect to spiking the drinks, you'll see immediately that there are at least two ingredients or elements in those charges. The first element is that the accused caused the person to take the stupefying drug. That would be the physical action of mixing the drug in with the drink when the accused was in the kitchen with the cocktail shaker. Another element of the offence concerns the mind of the accused. It's not just the action in mixing the drug in with the drink, there was a purpose or intention behind that, and the element or ingredients of the offence relates to the intention of the accused when he did what he did, if you find that to have been what he did, and that was an intention to enable himself to indecently assault [AW] . In order to achieve that objective the accused, of course, had to cause the resistance or consciousness of not only [AW] but also her boyfriend to be overcome. The third crime may be conveniently called indecent assault and that was the act of the accused touching the vagina of the complainant, [AW] in the way that he did. That was an assault. It was an indecent assault. (emphasis added) 9Of course it was theoretically possible that, on the assumption that the appellant administered the drug, he would have been liable to conviction if he had the intention to commit any indictable offence, not necessarily one that had a sexual component or AW as the victim. Proof that the appellant had spiked the complainants' drinks certainly strongly supported the inference that he contemplated some serious wrongdoing (in all likelihood amounting to an indictable offence), however it was necessary that specific intent be specified in the indictment so that the accused knew the case alleged against him. 10Here, the allegation was that the appellant intended to indecently assault AW. While the mode of that assault need not have been specified, the only evidence of intent relied on by the Crown was the indecent assault allegedly committed on AW when the appellant put his hand down her pants. If the jury were satisfied that the appellant committed that particular indecent assault, then it would have been open to infer that he spiked the drinks intending to commit an indecent assault on AW, even though it might be that he had not at that time intended to commit that particular indecent assault on her. However, in the absence of proof that the appellant committed the indecent assault on AW which was, the subject of the third count there being no other material relied on or pointed to by the Crown, the jury could not conclude that he intended to commit the indictable offence particularised by the prosecution in counts 1 and 2 on the indictment (namely the indecent assault of AW), even accepting that he had spiked the complainants' drinks. Accordingly, in order to prove the appellant's guilt of the first and second counts, the prosecution confined its case in respect of the element of intention to that which had been evidenced by the indecent assault alleged in the third count. Furthermore, since it was a vital step in reasoning to a conclusion as to the mental element alleged in the first and second counts, the indecent assault had to be proved beyond reasonable doubt. Thus, in the circumstances of this case, all three counts on the indictment were inextricably linked necessitating careful directions from the trial judge. 11This argument was not put quite in this form by Mr Brady, counsel for the appellant, at trial but it was implicit in his address to the jury and in his application for redirections. In this Court, however, it follows from the way in which grounds 2 and 3 were argued that the connection between the three counts is as we have identified. It is mentioned at this point as explaining why we have focussed on particular parts of the summing up in the discussion which follows. It will be considered in detail later (see [59] - [62] and [125] - [133]). The evidence 12AW and her boyfriend MD, who was a trader in the financial market, came to Sydney in late 2006 on a working holiday and stayed with friends. On 29 November 2006 they met three friends at a bar and shared two bottles of wine over the course of about an hour. At about 7.30pm the group left the bar and went to a restaurant nearby where they were joined by other friends. Over the next three hours they ate a three-course meal and had more alcohol to drink. After dinner AW and MD, with three of their friends, returned to the bar where they had commenced to drink earlier in the evening. One of the friends left soon after and AW, MD and the remaining two friends, Shane McNally and Leila Marcos, remained until closing time, drinking. They then went to another bar where AW and MD struck up a conversation with the appellant. The appellant purchased a bottle of champagne and returned with three glasses as well as drinks for MD and himself. They continued their conversation. The appellant purchased a second bottle of champagne for the group and, when Ms Marcos and Mr McNally left at about 2.30am, a third bottle. In cross-examination AW agreed that the appellant had introduced himself, had told them where he worked and where he lived and had given MD his mobile number. 13The appellant invited the complainants back to his apartment for a drink and to look at the view. This was at about 3.00am. (There was some disagreement in the evidence as to when and to whom the invitation was made but this does not matter for present purposes.) At about 4.00am AW and MD decided it was time to leave and the appellant pressed them to go back to his apartment for a drink. AW's level of intoxication was relatively high at about this time but she said that "I had all my wits about me" and claimed her speech, movements and memory were unimpaired. She denied that she had consumed any drugs to that point. 14The complainants and the appellant caught a taxi to the latter's apartment in Mosman. In the taxi, AW agreed with MD that they would go for an hour, have a drink, and then go home. She said that when they got to the apartment it was just starting to get light. They walked through the kitchen and sat at a table on the balcony. The appellant was in the kitchen making them a drink and AW saw him using a cocktail shaker. This took some time and AW asked, "what are you doing in there?". She thought it was just short of ten minutes before he brought the drinks out. When the appellant returned to the balcony with their drinks and some candles they continued to speak about business. On sipping her drink, AW commented on how strong it was, as did MD. She said she did not feel any particular effect from the drink. She thought that there was approximately 250ml of liquid and that it was a vodka-based drink tasting of lemon. She said she did not drink all of hers. She said the appellant drank a brown spirit in a brandy balloon glass. AW only recalled MD having one drink at the apartment. In cross-examination AW denied that she had more than one drink at the apartment, that MD had started mixing drinks, that she had looked in the refrigerator or had poured herself a drink (as had been alleged by the appellant in his interview with police). She agreed that she had looked at the refrigerator because of its design. 15The complainants said that, some ten minutes into their conversation, the appellant left the balcony and returned a few minutes later with a white dinner plate containing white powder, which he cut into lines. (The appellant denied providing any cocaine.) This was done without any prior conversation about drugs; AW and MD simply assumed that the powder was cocaine, which they had taken on prior occasions. Each snorted four or five lines over a period of ten minutes. In cross-examination she estimated the cocaine on the plate was between one and two grams. She denied ingesting cocaine earlier that night. 16The sun started to rise whilst they were talking on the balcony at which time AW's recollection of events became hazy. She recalled that they were smoking cigarettes and, at the appellant's suggestion, they looked through the apartment. There was a discussion about the appellant having a Maserati and the appellant looking for keys as he and MD were going to go out and get cigarettes (but this did not, in the result, occur). At this time AW recalled feeling more intoxicated than she expected; she said she "wasn't feeling myself, I wasn't feeling very good at all ... confused and uncertain of what was actually going on". She said that she felt drugged, affected by something other than alcohol and cocaine, the effects of which she was familiar with. She said that cocaine made her more alert, assertive, sometimes bossy, clear of mind, in control of herself and talkative but on this occasion she felt that she did not have her wits about her, things had become hazy and she felt a sense of confusion as they moved around the apartment. 17During the tour of the apartment, AW took photographs and agreed that in one of them MD could be seen holding a dark coloured drink. She stated that she did not see MD helping himself to drinks and that as far as she was aware he had only drunk the lemon coloured drink the appellant gave them. There was a 48 minute time lapse between the first and last photograph. 18AW recalled calling her friend Catriona Gilchrist in Melbourne to tell her that they were having a great time and were in a great house overlooking the heads at Balmoral. Telephone records showed that this call took place at about 7.00am. Ms Gilchrist and Jacqueline Mahoney gave evidence that they took AW's call on the speaker of their mobile phone. AW told them she had been out to dinner with friends, that they had met a guy and had gone back to a "fantastic pad", and talked about the view and how beautiful it all was. Ms Gilchrist said that AW sounded elated, a bit repetitive, but seemed to be having fun. Her speech was slightly slurred. Ms Gilchrist asked AW where MD was and she replied that he had gone to get cigarettes. She then heard MD's voice in the background as well as that of another man and AW ask why they had been gone so long and MD say that they could not find the keys. AW said that she had taken some cocaine. Ms Mahoney said that she had never heard AW sounding so intoxicated before, that AW could "drink her under the table" and could certainly hold her alcohol. She had also heard her slur her words when intoxicated. 19The telephone records also indicated that AW sent Ms Gilchrist a text message at 7.18am, "I cannot concentrate xx". AW said she did not recall sending that message until Ms Gilchrist brought it to her attention the following day. At about 7.45am Ms Gilchrist read the text message from AW and replied in text "are you still awake sistaw [sic]", to which she did not receive a response. 20AW's next recollection was of being in the appellant's bedroom, getting into his bed with MD and thinking that it was quite strange but that she did not have the ability "to stop it or question it or change the situation". She was aware that MD was on one side of her and the appellant on the other moving his body against her. (In cross-examination AW said that she remembered feeling some contact with the appellant behind her but the recollection that he had been moving against her ("gyrating") may have resulted from a conversation she had with MD and was something that she had "pieced together afterwards".) She was under the covers, clothed, apart from shoes. She recollected MD "yelling at me almost", shaking her and saying, "... Is he fucking you, is he fucking you? and I just went 'no' and I didn't really know what was going on and that's the last of my memory for that period". 21AW said that the next thing that she remembered was stirring, her eyes closed, feeling a hand beneath her underwear touching her on her vagina with a "gentle stroking action" for just a few seconds. Her eyes were closed and it took some seconds before she realised she was not in her own bedroom. The appellant was lying on his side facing her with his right hand down her underwear. She jumped out of the bed, asked where MD was and ran out of the room. AW ran down a few steps, saw a door open and MD lying in a bed in his underwear partly covered by a doona. She tried to shake him awake. A few seconds later the appellant came into the room, stood her up and guided her around to the other side of the bed. He lifted up the doona and guided her into the bed. 22Having covered the couple with the doona, the appellant lay down on the floor beside her and held her hand. Trying not to alert the appellant to what she was doing, AW squeezed MD hard until he opened his eyes. She then mouthed "help" and that they had been drugged. This occurred several times until MD apparently registered what she was telling him. 23AW said that she felt "delirious" at this point and did not feel safe. She said they sat up and the appellant got up and walked out of the room without saying anything. AW told MD that she believed that they had been drugged and that she had woken up in the appellant's bed with his hand down her pants. She then walked out of the room and, seeing the appellant sitting on the couch with his laptop, went over to him and asked what he was doing. In the meantime, MD looked for his clothes, found his jeans in the bedroom and came out looking for his shirt. AW commented to MD that it was 10.20am and that the market was open, because normally he would be sitting in front of his computer at 9.50am ready for the market to open. MD then made a call to his trading desk. She then told the appellant to order them a taxi. She said that when MD entered the lounge area he said to the appellant, "What the hell has gone on here in the last three hours ... you spoke about trust and friendship?" (a matter which she had omitted in her statement to police). 24At some stage, when MD was not in the room, AW said the appellant asked for her telephone number which she gave to him although she said she did not know why. Shortly after that she heard the taxi's horn and the couple left. The appellant did not go down with them. In cross-examination AW denied (the appellant's claim) that she or MD had thanked the appellant and told him that he could stay with them if he was ever in Melbourne. 25AW stated that she had no recollection of events from some time after 7.00am when she spoke with Ms Gilchrist and shortly after 10.00am when she woke up in the appellant's bed. 26AW said that in the taxi she still felt groggy and had never felt that way before. She became upset and spoke with MD trying to piece together what had happened after they had the drink given to them by the appellant. They directed the driver to take them to the hospital, where they were examined. They gave Dr Brennan an account of events, and provided urine and blood samples for testing. Both AW and MD told Dr Brennan that each had consumed 15 to 18 standard drinks. AW denied that she and MD had talked about what they would tell the doctor. Dr Brennan considered that AW's and MD's symptoms were consistent with the ingestion of a behaviour altering substance during the morning of the day of presentation. 27The complainants went from the hospital to the Police Station and reported the incident. They were tired and emotionally drained. After speaking to police briefly, they were told to come back the following day to provide formal statements. AW also believed that she had told police that she had felt the appellant's hand stroking her vagina and was unable to explain why this did not appear in the police officer's notes. 28As to previous drug use, AW said that she had previously used Stilnox in 2002 while travelling to enable her to sleep on long bus trips but she had never taken it in combination with any other substance. She agreed that she had used cocaine recreationally in the past as well as ecstasy and speed but had not injected speed. She denied ever having used a sedative to come off cocaine, although she had used sedatives to come off speed some years before. She denied ever using Stilnox to come off speed, ecstasy or cocaine. She agreed that later in the evening on 30 November 2006 and on the following day she and MD had spoken to their friends about what had happened. She denied that she and MD were "trying to work through what had happened" and had "tried to fill in the gaps". She denied that she and MD had discussed how much the appellant was worth and how they might be able to get money from him. AW denied having sent a text message to the appellant at any time and denied any knowledge of that having occurred. 29Broadly speaking, MD's evidence was similar to that of AW and it is not necessary to repeat those matters. MD gave some additional details which are not presently important. 30He agreed in cross-examination that he was drunk when they left the bar to go to the appellant's apartment. He denied in cross-examination mixing any drinks at the appellant's apartment and said he did not help himself to any drinks. The only drink he had was the one given to him by the appellant. He said that, after taking the cocaine, they continued chatting on the balcony for the next hour to hour and a half and at some stage moved into the apartment where there was a conversation about cars. They went back onto the balcony to smoke a cigarette and he noticed for the first time that he had double vision, which he had never experienced before. He went inside. There was a discussion about going to get cigarettes. The appellant could not find his house keys so they did not go out. 31From that point MD's recollection was affected and he felt "woozy". He noticed that AW was taking photographs, he recalled making a telephone call and the appellant showing them the apartment. They ended up in the main bedroom where the appellant guided them to the bed. MD thought that what they were doing was strange. AW got under the covers and he was on the edge of the bed. The appellant also got into the bed under the covers behind AW. He saw a thrusting motion under the covers and asked AW whether the appellant was trying "to fuck" her. She told him that she was fine. He recalled lifting up the covers and seeing the appellant's hand on AW's bottom over her dress. MD then got up and went out onto the balcony, still feeling very "woozy". The appellant came out, put his arm around his shoulder and led him back inside. At this point MD said his "recollection turns off like a switch"; he felt like an observer. He said he was not in a normal state of mind because under the circumstances he would have grabbed AW and left. 32MD next recalled waking up in bed with AW beside him squeezing him hard and mouthing "help" and "we've been drugged". He noticed the appellant beside the bed. MD sat up and the appellant left the room. AW then told him that she had woken up and the appellant's hands were down her pants. MD was only in his underwear, his jeans beside the bed. He put them on and found his shirt crumpled on the kitchen bench. He had no recollection of removing his clothes. Around that time AW told him it was 10.20am. He made a call to his broker. He could not remember his trading positions, which had not happened before. The broking firm recorded calls received from MD at 10.44am, 11.32am and 11.50am. There was a call from the firm to MD at 11.52am and a final call at 1.49pm. The witnesses MD spoke to noted that he sounded slightly incoherent, vague and had forgotten simple things like his client number. In cross-examination, MD agreed that when he spoke to a colleague at 11.00am on 1 December 2006, he had talked about the appellant as having "a $6 million pad" and that he was a high net worth individual. When it was suggested to him that he should "try to get some cash out of him" and that "he would probably want to hush it up", MD replied "exactly". However, MD denied sending a text to the appellant wanting to get some cash out of him and stated that he had not had any contact with the appellant since the incident. In cross-examination MD denied that he offered the appellant to stay with them if he came to Melbourne. 33MD said that he was aware that during the committal proceedings the appellant had alleged that they had sent him a text message but MD asserted that he did not do so and that he had not given the appellant's number to anyone but the police. MD disagreed in cross-examination that he needed to take something after ingesting the cocaine to help him come down so that he could sleep before trading on the financial market at 10.00am. He agreed that he had used cocaine in the past as well as speed in his twenties. He said that he had never taken a sedative to come off a high. 34The taxi driver received a job at 10.45am to pick up two people from Balmoral and take them to Bondi. When he arrived he sounded the horn and waited until two passengers came out. During the trip he noticed that the female was crying. At one point the male asked him to stop somewhere so that they could buy some water. As they were approaching Edgecliff the passengers asked him to take them to St Vincent's Hospital. 35In the taxi, MD noted down the appellant's address as well as the taxi driver's details on a receipt, which was exhibited. He and AW discussed what had happened and decided to go to the hospital to be examined as he was concerned that they had both been molested and drugged. MD had diarrhoea for almost a week, which was not a common occurrence for him. While they were waiting to be seen at the hospital, he felt nauseous and he had trouble standing and walking. MD said in cross-examination that he could not recall what he had told Dr Brennan about what had happened. He did not believe that he and AW had discussed what they would say to Dr Brennan although he agreed that he had told Dr Brennan that he had consumed 15 to 18 drinks and two lines of cocaine. He denied knowing that AW had provided the same information. He agreed that he had told police (on the following day, when his mind was clearer) that he had consumed three to four lines of cocaine. He stated that he did not know that AW had said the same. 36Detectives O'Neil and Munroe spoke to the complainants at about 5.30pm on 30 November 2006. In brief, their presentation was consistent with their accounts of what happened, which were only brief as they were not fit to make formal statements. MD spoke slowly and some of his speech was slurred and at times incoherent, at times he stared and said nothing. He appeared affected by alcohol and/or another drug. Detective O'Neil observed that AW had red glassy eyes and was visibly upset and cried a number of times. AW told Detective Munroe that she believed that she had been drugged and sexually assaulted. Munroe noted that both AW and MD appeared extremely tired and pale, AW shaking and MD distracted and unwell. 37There were some inconsistencies between the statements to police and the evidence but they are not significant for present purposes. MD agreed that he and AW had discussed what had occurred and in effect went through what each of them remembered. He denied that they were "putting together what had happened". 38In cross-examination MD had stated that he had once taken a sedative to enable him to sleep on a plane but had not previously taken Stilnox. MD said that the only drink he consumed at the apartment was that mixed by the appellant and, although he was holding a brown drink in his hand as shown in the photograph taken by AW, that was not the drink that the appellant had made for him. 39The friends with whom the complainants were socialising before going to the appellant's apartment also gave evidence. Mr McNally said he had not seen either AW or MD consume drugs on the evening they had gone out and did not believe they were drunk when he left them. Ms Marcos also stated that she had not seen either AW or MD consume drugs. 40Pursuant to a search warrant obtained on 1 December 2006, Detective Munroe and other police officers attended the appellant's apartment. They arrested the appellant and took him to the police station. Once the appellant's solicitor arrived, he was taken back to the apartment where a search warrant was executed. The appellant was co-operative throughout. The apartment appeared neat and well kept. A number of prescription drugs were found in the apartment including two packets of Stilnox in the bedside drawer of his bedroom. One packet was seized. Four out of the ten tablets it contained were missing. The prescription for the drug was sighted. When asked what the Stilnox was for, the appellant replied that it was for his pinched nerve. Some acupuncture needles were found but not seized. No cocaine or evidence of its use was found, nor was a cocktail shaker located or seized. The appellant was later interviewed by police and in substance denied giving the complainants any drink spiked with drugs, or cocaine or having indecently assaulted them. 41Blood samples taken from AW at 3.30pm and MD at 4.00pm on 30 November 2006 contained 0.04g of alcohol per100ml (AW) and 0.02g (MD) of alcohol per 100ml. These readings implied concentrations of alcohol at 7.30am of between 0.10 and 0.22 for MD with a most likely reading of 0.14 and between 0.114 and 0.234 for AW with a most likely reading of 0.154. These are very high readings. Zolpidem and cocaine metabolite were also detected. No DNA was detected on the swabs taken from AW's face and breasts and no semen was found in the swabs from different parts of the complainants' bodies or from their clothing. The evidence of Dr Perl 42Evidence was given by Dr Perl, a clinical and behavioural pharmacologist, as to the effects of alcohol, cocaine and zolpidem. In substance, her analysis showed that a social drinker with the complainants' alcohol readings would experience impaired cognitive and motor function, unsteadiness, slow or slurred speech, increased clumsiness or poor co-ordination, mood changes, feelings of sedation or drowsiness and impairment of social inhibitions. The effects might well be more significant. Such a drinker might or might not experience impaired memory. She said that cocaine is a central nervous system stimulant which produces feelings of euphoria with higher doses frequently causing paranoia, hallucinations and a depressed mood. The consumption of three or four lines of cocaine was considered moderate, with that drug reaching peak effect about 30 minutes after ingestion. It would have slightly moderated the alcohol's depressant effects and resulted in slightly more wakefulness and alertness. Zolpidem is used to treat insomnia. It is a central nervous system depressant and could affect decision making ability, reaction skills and cause confusion. It also impacts on memory and could result in patchy memory storage. It is designed to have a very rapid onset, of between 15 to 30 minutes with its sleep inducing effects lasting about five hours. 43In the context of further questions about degrees of impairment following the ingestion of zolpidem the following evidence was given by Dr Perl: Q. What appears when zolpidem is not taken by itself, but is taken with various other drugs or alcohol? A. Well, obviously the effects of impairment are enhanced as long as the effects of the zolpidem persist, but then other central nervous system depressants that could be taken with it may have longer lasting effects. So you can still have impairment at a later time which some patients attribute to the zolpidem, but it could be related to the other medication, or other recreational drugs such as alcohol. Q. With Stilnox, which is the trade name for zolpidem, are you aware as to whether or not it's medically recommended not to take alcohol with that? A. It is. It advises not to take alcohol with it, very strongly advises not take alcohol with it. Q. Are you able to say whether or not that advice would appear on a prescription? A. It - yes, it would because most pharmacists will put the warning label on zolpidem even though - and I'll just check, but I'm pretty sure that it's not actually a legal requirement. With most central nervous system depressant drugs, there is a legal requirement to put a warning label which advises about possible impairment of driving ability or operation of machinery and interaction with alcohol. Because zolpidem is intended for use at bedtime, they don't expect you to be driving or operating machinery and, therefore, the - initially I'm pretty sure that the warning wasn't required, but I think they may have changed that now." Q. Can you just look that up now? A. Yes I shall. Yes, it does require a warning. 44Dr Perl was then asked about the effects of taking Stilnox with alcohol: Q. Where Stilnox is taken with alcohol, what is the effect or what is the result, firstly, in terms of does it change the normal effects of alcohol taken alone and does it change the normal effects of Stilnox taken alone? A. Right. There are two issues here: one is the effect; and the other is the concentration of the drug or the alcohol. Stilnox and alcohol do not interact metabolically. So that means that Stilnox will not increase the blood alcohol concentration or reduce it in any way and vice versa. So there is no difference in the absorption elimination process of the drugs. The - in terms of the effects, they're both depressant drugs, so they both depress the brain functions. They both have sedating properties, so if they're taken together you would expect, at the least, an additive effect. I am not aware of any studies that have looked very closely as to whether or not there is more than an additive effect, so you'd expect a greater degree of drowsiness, sedation, sleepiness, when both are used. 45Dr Perl was asked about the likely effects on the complainants on the Crown case theory, namely that they ingested Stilnox with alcohol at about 5.30am or so after having consumed significant quantities of alcohol before that time: Q. In those circumstances, assuming that level of intoxication at that time, and then the ingestion of the Stilnox in quantities that I've asked you to assume, what effect, in your view, could be expected on each of the complainants? What effect of drinking that drink would you expect, that drink containing Stilnox? A. I'd expect there to be very significant sedative or sedation of those people and, in all probability, the Stilnox would result in deep sleep, combined with that alcohol. Q. Can you just add into the equation the consumption of cocaine, so assume they had sniffed three or four lines of cocaine 10 or 15 minutes after they commenced drinking their drink. Put that into the equation and indicate what, in those circumstances, you would expect to happen? A. Well, cocaine's very short acting and, therefore, by 7.30 I wouldn't expect the cocaine to have had much of an effect at all given the blood alcohol level and the more or less peak effect of the Stilnox still occurring around that 7 - or it would have peaked around 7, 6.30/7. So the - it would still have been somewhere around its peak effect, so given the effect of alcohol and the Stilnox. I wouldn't expect the cocaine to have had very much effect at all. 46Dr Perl was then taken to the solubility of Stilnox: Q. You then go on to describe zolpidem. What have you said about that? A. "Zolpidem is a white to off-white colourless, crystalline substance which is soluble sparingly in water but more soluble in alcohol." Q. What does that mean, that "it is soluble sparingly in water but more soluble in alcohol"? A. That it's difficult to dissolve in just water, it is much easier to dissolve it in an alcohol based solution. Q. So do you see any difficulty physically for a person in mixing up a drink with a cocktail shaker to bring about a situation where one or two tablets of Stilnox is mixed up into the drink? A. No, I don't see any great difficulty. If there's alcohol contained in that it will dissolve most of the zolpidem and even if there is residue, then depending what else is in the cocktail shaker, if it's something that forms a cloudy solution or if there's ice in it, then any residues would be virtually undetectable by the naked eye. The defence case 47Apart from the cross-examination of the complainants and otherwise by way of submission, the appellant's case comprised his interview with police, expert evidence from Dr Moses, a drug information pharmacist, and extensive character evidence. 48The appellant told police that he met the two complainants at a bar and bought them and their friends champagne which they drank while they chatted. He invited the group to come back to his apartment to watch the sunrise. The two complainants accepted the offer and went with him to his apartment. When they got there MD started mixing drinks and helping himself to bottles of wine. At one point MD disappeared and the appellant found him lying fully clothed on his bed. He told MD that he should leave but that, if he wanted to sleep, he should do so in one of the other bedrooms. AW then entered the bedroom and the appellant told her they should probably leave but she could sleep in the other bedroom if she wanted. He left the room. When he returned both complainants were asleep on his bed. He woke them and called them a taxi and they left. AW gave him her number and told him to contact them if he were ever in Melbourne. 49The appellant denied any wrongdoing. He said that he did not give the complainants any drinks containing a stupefying drug and did not give them any cocaine. Dr Moses' evidence 50Dr Moses is a senior consultant pharmacist in the Drug Information Centre, at the Mater Public Hospital in Brisbane, which operates a call centre for drug information and help. Her doctorate in clinical pharmacy involved a substantial research thesis dealing with adverse drug reactions. A significant finding of her research, undertaken with a team of researchers and continued after she received her doctorate in 2005 up to the time that she gave her evidence, was that by involving consumers in adverse drug reaction reporting, reactions are discovered which are unexpected and not reported by doctors. This was true in respect of zolpidem. The adverse medicine event line (which Dr Moses managed) received thousands of calls about the drug. She had dealt with over a thousand. Dr Moses has presented a number of papers on the results including at the 2007 International Pharmaco-Vigilance Conference. She also presented papers at the Prince Charles Hospital in Brisbane, the Royal Australian College of General Practitioners and the Pharmaceutical Society Meeting. At the time she gave evidence she was in the process of writing a paper dealing with general drug safety in relation to zolpidem and zopiclone, a related drug. 51Dr Moses' research showed that zolpidem is being used recreationally, that is for non-medical purposes. There were many papers describing addiction to zolpidem from recreational use. Reported immediate effects of the drug included hallucinations and double vision. She had also found that the drug had been taken with a stimulant so that the user could remain awake while friends watched them behave uncharacteristically being less inhibited. Some users also experienced sleep walking without any memory of having done so. There are reports of the drug having a calming or euphoric effect, which was a surprise to the medical profession. She referred to several papers reporting case studies of such an effect from zolpidem use. This was also disclosed in her conversations with zolpidem users. She said that zolpidem was commonly used with cocaine to prevent the feelings of depression, agitation and irritability (a "crash") associated with coming down from that drug. She had also received reports that zolpidem enhanced the effect of cocaine. 52Dr Moses said that she had not received reports of zolpidem being used as a drink-spiking drug but she did not disagree with Dr Perl as to how it might work in those circumstances. She said that there are many papers describing people becoming addicted to zolpidem, some taking up to sixty tablets a day without sleep because they develop a tolerance to the drug. Dr Moses pointed out that zolpidem had many effects which would not be expected from a sleeping tablet, one of them being an anti-anxiety and euphoric effect. She said that cocaine always wears off quickly and thus people can experience a sudden feeling of depression and sedatives, typically benzodiazepines, are used that cushion that effect. She said that zolpidem is frequently used as a replacement for benzodiazepines. 53Dr Moses was also asked about dissolving tablets of Stilnox. She said that the drug also contained magnesium stearate filler and hydroxybenzoate preservative which "often present solubility problems". Testing was necessary before she was able to determine the solubility of the drug. She said, "We've encountered this often in the therapeutic setting, that the non-drug bit floats at the top as great big plastic lumps". 54Dr Moses testified that if a person affected by a large amount of alcohol took zolpidem and was a social drinker (meaning someone who drinks on the weekend and once or twice a week) and was not a regular user of sleeping tablets, the time for it to take effect would not change from the usual period of 15 to 20 minutes. 55In cross-examination, she was asked about the effects of zolpidem on the complainants, assuming they consumed (as stated by them) 15 to 18 standard drinks, bearing in mind that AW said her level of intoxication was relatively high but she was not impaired in speech or physically, that she recalled the sequence of events without memory loss, and had her wits about her up to the time she left the bar to go to the appellant's apartment and that her friends said she had a relatively high tolerance for drinking alcohol. Dr Moses said that AW's alcohol ingestion "suggests ... a very high tolerance to the sedative/hypnotic effect" of zolpidem "because they can take a lot of alcohol they can take a lot of zolpidem as well, or any zolpidem". She went on to say that cocaine is a stimulant and would "help keep them awake ... [S]o any sleep inducing effect [of the zolpidem] would also be delayed". She pointed out that, considering the time of day (about 7am), the physiological effects of the body wanting to sleep in any event needed to be taken into account. As to whether alcohol magnified the effects of zolpidem she said that it depended on the quantity but, following 15 to18 standard drinks, "I think one zolpidem tablet would be just like another drink" and two tablets "... [W]ould be just like taking two more drinks... [as]... they would be very tolerant to it." She added: However, the thing that one needs to consider is that the extra special pharmacology of zolpidem is that the combination of alcohol and zolpidem is not that the combination makes you extra sleepy. The manufacturer's warnings have been placed there because of the risk of sleep walking. This odd drug stimulates behaviour, changed behaviours, so it can also make some people appear more awake or do things. 56Dr Moses agreed that the blood analysis results were consistent with the complainants having ingested one to two tablets of Stilnox at some time during the previous 12 hours. She disagreed with Dr Perl's opinion that, had the complainants taken the Stilnox at, say, the previous midnight whilst at the bar, she expected they would have slept before they left to go to the appellant's apartment. Dr Moses added: ... They have a very high tolerance to sedatives, especially alcohol, so they could have taken that and remained up standing and just been very fuzzy in the head. Q. So here there is a difference of opinion, is there, between yourself and Dr Perl? A. Yes. Q. So your opinion is that at midnight the previous night when all of the people, when the two complainants were still at Baron's Bar, that they could have somehow got up to two tablets each into their system and remained awake and functioning and so on until at least 7.00am the next morning? A. Yes. Q. And that's in the case of a woman who hadn't had Stilnox since 2002? A. Yes. Q. And in the case of a man who had never had any in his life? A. Yes. Q. In the expression of that opinion by you, with respect, is there room for legitimate differences of opinion between experts? A. Yes. The summing up Preliminary directions 57The summing up commenced with the conventional preliminary directions. He pointed out, as is usual, that it was for the jury to assess the credibility and reliability of the witnesses and that they were able to accept, if they were so minded, all or any part of a witness' testimony. His Honour told the jury to consider counsels' submissions and give them such weight as they thought fit, bearing in mind that they were not evidence in the case. His Honour said that he did not intend to express a view about the evidence but that, if he did so, such a view was to be disregarded unless it happened to agree with the jury's own independent assessment. He added that, in summing up, he would endeavour to focus on the evidence in respect of which counsel appeared to him to have devoted much of their attention but that the jury should consider all the evidence and not only that to which he referred. Following an exhortation to the jury to use their experience, reason, judgment and common sense, the judge referred to the burden of proof. 58The judge said, amongst other things, that, although the appellant did not give evidence, he gave a version of events in a recorded interview to police upon which he was entitled to rely and which they were required to take into consideration. He pointed out that the appellant had also adduced evidence of character and the expert evidence of Dr Moses. His Honour emphasised that the appellant bore no onus and, in particular, no onus to prove that the complainants had motives for lying, although part of the defence case was that the complainants, MD in particular, were motivated to make their allegations by the hope of getting some money from the appellant. Directions concerning the elements of the offences 59His Honour moved to explaining the elements of the offences. In respect of the first two counts he explained the meaning of "stupefying" and pointed out that the intention alleged was that of indecently assaulting AW. In explaining how intention might be inferred, his Honour told the jury: It is frequently the case that a person's acts themselves may provide the most convincing evidence of intention. In this case the Crown relies on the evidence of [AW] as to the placing of a hand down her pants by the accused as something from which you could draw that his intention in administering the stupefying drug was to enable himself to, in fact, commit that indecent assault, and you might otherwise consider what purpose, if you were to find beyond reasonable doubt that the accused did administer a stupefying drug to MD, you might think there could be in the circumstances of these people he had just met, being in his home in the early hours of the morning, perhaps no other intention than something of that nature. It wasn't to assist them perhaps to have some sleep - that is if you find that he did cause MD to take the drug on count 1. 60The judge then defined what is meant by "indictable offence" and explained that indecent assault was such an offence. He instructed the jury that "the indecent assault, the suggestion that that was the intention [in the first two counts] ... also comes up obviously in relation to the third count in the indictment ...", the elements of which he then identified. 61His Honour explained that the element of indecency was proved if the appellant had intentionally touched AW without her consent and that the touching was indecent if it was "contrary to the ordinary standards of respectable people in this community". His Honour added: For an assault to be indecent it must have a sexual connotation or overtone. If he accused touches the complainant's body... in a way which clearly gives rise to a sexual connotation, that is sufficient to establish that the assault was indecent, for example, touching the genitals or anus or breasts of a female. 62His Honour instructed the jury that: ... importantly, in respect of the third count in the indictment, the Crown is not so limited to "stroking of the vagina"... The Crown in opening the matter said this in part in relation to setting out what it said the Crown anticipated the evidence would be, and... the relevant part is this: "He put his hand on her vagina and stroked it or made some such movement." 63His Honour then returned to the first two counts and said: ...[W]hat is charged is that [the appellant] ...caused each of [the complainants] to take the stupefying drug with the intention to enable him to do something. If you found beyond reasonable doubt that he administered the stupefying drug and that he did so with the intention of indecently assaulting [AW], then you in fact do not need to find that he did in fact subsequently indecently assault her, because the thing in question is: What was his intention at the time of causing them to take the stupefying drug? Now of course the Crown relies on what it says happened thereafter in order to show you that that was his intention at the time. That is, in relation to that particular charge it is the intention, whether it is carried out or not, that is relevant. That takes me to one other matter that I think is convenient to deal with at this time, and that is this. When Mr Brady on behalf of the accused commenced his closing address he said this to you at the outset. 'Well, after all that evidence, those submissions from the Crown, going through the evidence, you might think that this matter actually comes down to a single simple question that you can decide this matter even after all that evidence and all the Crown has gone through with a single, simple question. When I say single, simple question, I don't mean to imply that it's not important. It is a hugely important question, hugely important to the accused, the administration of justice but that single simple question is this. Can you be sure beyond any reasonable doubt that [AW] told you the truth? Can you be sure beyond any reasonable doubt that [AW] told you the truth, not the truth that she believes but the actual truth?' Mr Brady went on to say this however. 'I'll put it another way. Can you be sure beyond any reasonable doubt that the accused actually stroked [AW's] vagina? Because that's really the Crown case. All that other stuff, everything that happened, all the things that they put to you, all come down to that. Because what they say happened was the accused did all these things with the intention of stroking her vagina and actually doing it and that's the single simple question you have to ask yourselves. Unbelievably important question. Can you be sure beyond any reasonable doubt that he actually did it?' That was no doubt a dramatic way to commence and get your attention in a closing address. But as I have just pointed out to you, the first count in the indictment is what was the intention, not whether he actually did it, what was the intention at the time if you find that he caused them to take a stupefying drug . It is not simply a matter that if the Crown or if you do not accept beyond reasonable doubt that the accused stroked her vagina, that that is the end of the matter, and the suggestion is implicit in what Mr Brady said. That if you cannot find that there was an actual stroking of the vagina, that that is the end of it. Well, as I have just said, that cannot possibly be correct in respect of either of the first two counts in the indictment and more importantly in respect of the third count in the indictment, the Crown is not so limited to "stroking of the vagina" that you were referred to by Mr Brady. (emphasis added) 64The judge then mentioned that the Crown, in his opening, had referred "to [the appellant's] hand being on [AW's] vagina and 'stroked it or made some such movement'". He then gave the following direction: What the indictment alleges, or what is set out as being the charge, 'did commit an act of indecency' is not limited to proving her vagina was stroked. It is not limited to proving that it was touched. What the Crown has put is that there was an act of indecency. The act of indecency is according to what I have said to you before, indecent means contrary to the ordinary standards of respectable people in this community, and it is up to you to determine those standards..." An act of indecency is inclusive of putting the hand down the underpants, inclusive of touching the vagina, inclusive of stroking it. But it does not all come down to whether you have to find beyond reasonable doubt that the accused actually stroked [AW's] vagina. I have not said that to be critical of Mr Brady's address, but to simply try [to] refocus you on the real issue in this matter and to make sure that you understand that the act of indecency as alleged is not limited to a stroking of the vagina. (In the discussion below, when considering the second ground of appeal, this passage is referred to as his Honour dealing with the "single simple question".) Complaint 65The judge then moved on to deal with the evidence of complaint and explained that it could be used for the purpose of considering whether AW's complaints were consistent with the conduct that she alleged occurred and as evidence supporting the truth of her allegations. His Honour reminded the jury that AW was the only person able to say what happened to her in the bedroom and that a false or inaccurate statement does not become more reliable just because it is repeated. He told the jury that it was also relevant to the question of the complainant's reliability that she had been drinking and was affected by alcohol and had also taken cocaine and was affected by Stilnox, which may have affected the reliability of what she believed to be her recollection. Expert evidence and good character 66His Honour then moved to the expert witnesses, giving conventional directions as to how their evidence should be considered. He pointed out that there was no issue about the relative expertise of Dr Perl or Dr Moses. His Honour then briefly mentioned the other scientific evidence, for example that of drug and alcohol analysis. He reminded the jury that MD had told Dr Brennan that he had 15 to 18 standard drinks, with his last drink before the cocktail in the appellant's apartment at 5.00am. He did not, however, identify the conflict in the evidence of Dr Perl and Dr Moses. In particular there was no mention of their evidence concerning the euphoric effects of zolpidem or the effects it has on experienced drinkers. 67His Honour then took the jury to the evidence of time referring to sunrise at 5.38am and photographs which indicated the time. His Honour pointed out that there was no evidence of DNA which implicated the appellant in the offences. After some further mention of expert evidence, his Honour moved to the evidence of good character and then to the fact that the accused did not give evidence and that it could not be used by the jury to draw an adverse inference. He did not attempt to summarise the appellant's case as it appeared in the police interview. The Crown's submissions 68His Honour then moved to the submissions made by the Crown on the one hand and the defence on the other. He told the jury that he did not intend to simply repeat everything that they had said but to try to give a brief outline of their arguments and merely because he did not address all of the arguments put by either the Crown or the defence did not indicate his view about any submission made but was simply the result of attempting to be brief. Even though he might omit some part of counsel's submission, it should be taken into account. 69The judge commenced with the Crown's closing address. He referred to the Crown's submission that the complainants had been frank and honest and held professional and responsible positions in society and that they admitted to having used some drugs in the past and cocaine on the night in question. His Honour then referred to the sequence of events identified by the Crown and told the jury that he would not go through the times or the sequence of events except to the extent necessary to refer to some of the Crown's submissions as they had the transcript of the evidence. 70His Honour then referred to the Crown's submissions in relation to good character and the possibility that a person of good character may have a "double life". He also referred to a controversy as to whether the invitation to the appellant's apartment was extended to all of the persons present at the club at the time or only to the complainants and pointed out that in a social situation people might well perceive things differently and queried whether it made any real difference. His Honour referred to the Crown's submission that the appellant's invitation was somewhat insistent and that he plied the complainants with liquor. He commented that the character witnesses said the appellant was generous and frequently bought French champagne for people. 71His Honour then dealt with the Crown's submissions as to whether the complainants took cocaine earlier in the evening or at the appellant's apartment and to the submission that as they were out with friends for dinner, and were anticipating that MD would need to carry out his usual trading activities at 10.00am the following day, it was not likely that he would want to be in a condition where he could not function. His Honour briefly referred to the Crown's summary of the complainants' evidence in relation to the cocaine, and the Crown's submission that they readily said that they had voluntarily taken it at the appellant's apartment, they had no reason to deny they had used it earlier if that were the fact, the more so since they also admitted having taken speed or ecstasy in the past. 72The judge then summarised the Crown's arguments as to the complainants' evidence of how they felt while they were at the bar, in particular that, although they were both relatively intoxicated, AW had not felt anything untoward until after she had commenced to drink the cocktail provided by the appellant and that she was aware that she felt something substantially different from the combined effects of alcohol and cocaine. His Honour then referred to the issue as to who had made the drinks, the appellant denying that he had done so and asserting that MD had helped himself to the alcohol. He referred to the Crown's reliance on the fact that the apartment was the appellant's and he would be more likely to offer a drink than for MD to make one himself. The judge referred to MD's hope that the appellant might be able to introduce him to potential clients and that it would be unlikely that he would wish to become so drunk in the manner suggested by the appellant in his interview with police and abuse the appellant's hospitality by making his own drinks. 73He then referred to the issue of the timing including the 7.00am telephone call AW made to Ms Gilchrist and Ms Mahoney, which supported certain aspects (though not controversial) of the complainants' evidence. He invited the jury to infer that their evidence of how AW was speaking was coincident with the onset of the effects of the Stilnox, together with the alcohol. His Honour then referred to the Crown's submission, relying on Dr Perl's evidence, that in the normal course of events someone taking Stilnox, unaffected by any other drug, would fall asleep within 15 minutes to half an hour of taking the drugs. He then referred to the Crown's submission that at about 7.18am AW sent an SMS message that she could not concentrate, a message which she had no recollection of sending, and that this also indicated the Stilnox had started to take effect. His Honour then repeated Dr Perl's evidence that it would take between 15 minutes to half an hour for the Stilnox to have effect, though this might be delayed by the taking of cocaine. 74His Honour then mentioned the Crown's position as to the significance of the search of the premises, including the fact that a cocktail shaker was not found, reminding the jury of the Crown's reference to the evidence of police that no one was particularly looking for it during the search. His Honour pointed out that, since it was alleged that a cocktail shaker was used to mix the drugs into the drink, police ought to have had the common sense to search for it but, in the end, there was no evidence as to whether there was a cocktail shaker in the apartment or not. His Honour then pointed out, after dealing briefly with the search, that no cocaine was found nor were any particular utensils that might have been used to ingest it. 75He then noted that the Crown referred to AW's evidence that although she was suffering from some degree of intoxication from alcohol she felt she had been drugged, that she was not in control and she did not have her wits about her. His Honour referred to the argument of the Crown: ... that the real issue in the case was when the Zolpidem got into [the complainants'] systems and pointed out that it makes you sleep and that although the onset may be delayed by cocaine... although Dr Perl had said... as to the finding in the blood samples of Zolpidem... it could have been taken at any time up to twelve hours before... the Crown said in that respect... that was really unlikely, because if they had taken it twelve hours before... the blood samples were taken at 3pm on, that day, 30 December, you would be back to sometime in the early hours of the morning at Baron's Bar, and that it would be unlikely that they would have taken it then, because the effect of it would have been to send them to sleep, particularly if it had a cumulative effect, together with alcohol. That is, if you have had enough alcohol and you are feeling tired and drowsy from that, if you take Stilnox on top of that, the net result should be that you fall asleep, and if they had taken that while they were at the Baron's Bar, they should have been well under its influence before 7.00am the following morning at the accused's premises. 76His Honour referred to the Crown's criticism of Dr Moses' evidence that because the complainants had a high tolerance to alcohol they might have had a high tolerance to sedatives such as Stilnox, because there was no evidence of a tolerance of that kind. His Honour referred to the fact that AW had said she used a sedative some years in the past and the Crown's submission that the evidence of Dr Moses was inherently improbable, being based on an assumption of tolerance to sedatives which was not supported by any of the evidence and that the jury should prefer the expert evidence of Dr Perl. His Honour also referred to Dr Perl's evidence being at variance with that of Dr Moses as to the recreational use of Stilnox and the Crown's submission that the complainants could not have taken the Stilnox any earlier than when they claimed they were given the drug by the appellant because they would have been suffering from its effects much earlier and in effect, would not have been able to get to the appellant's apartment. 77His Honour then referred to the Crown's submission as to an assertion the appellant made in his interview that no one had taken their clothes off. It was submitted that this statement was volunteered before there had been any suggestion put to the appellant that anyone had their clothes removed. His Honour referred to Mr Brady's submission to the effect that it could be expected one or more police officers had mentioned, before the interview was conducted, the allegation that at least MD had his clothes off or partly off but then reminded the jury that the Crown submitted there was no evidence of any police officer having told the appellant this at any time and that what the appellant said during the interview was volunteered by him before any such suggestion was made by interviewing police. 78His Honour then referred to the Crown's submission concerning AW's evidence as to what happened after she realised the appellant's hands were touching her vagina. His Honour referred to the Crown's argument that AW was not attempting to piece things together but was actually relating a recollection although "there may been fuzzy parts", and the taxi driver witnessing AW's distress and that this was inconsistent with the appellant's assertion in the record of interview that, when the complainants left, they thanked him for his hospitality and his kindness, apologised for having had so much to drink and invited him to visit them in Melbourne. His Honour reminded the jury of the complainants' account of their departure, that MD said "[s]o much for trust, what has been happening in the last three hours", as reflecting that they did not part on good terms. 79His Honour then referred to the Crown's submissions contrasting the statements of the appellant in his interview with the evidence of the complainants as to the meeting in Baron's Bar and the conversation that occurred there. He reminded the jury of what the Crown said about the first of the incidents, pointing out that both complainants gave similar accounts as to what had happened. He commented that the Crown was attempting to answer a potential argument by the defence that what had happened was some sort of hallucination but then quoted Mr Brady's unqualified statement to the jury that it had never been the defence case that the complainants had been hallucinating. 80His Honour referred to the Crown's submission that the jury should accept the truthfulness and reliability of the complainants' evidence and repeated the sequence of events upon which the Crown relied. 81His Honour also mentioned that the Crown ran through "all the significant portions of the evidence in relation to Dr Perl and Dr Moses" to which his Honour had already made some reference. (In fact, the Crown did not cover anything like the significant parts of Dr Moses' evidence and in one important respect misstated it.) His Honour said that the jury had the transcript of their evidence and he did not propose to go back through the material. He mentioned that one of the "final points" made by the Crown was that the appellant claimed that the complainants left around 6.00 or 7.00am which was inconsistent with the evidence of the taxi driver which showed that it is easy to make a mistake about time and that when someone is affected by a combination of drugs (alcohol, zolpidem and cocaine) memory might be patchy. His Honour then repeated the Crown's contention that, at the end of the day, Stilnox was found in the complainants' blood, that the accused had Stilnox with four tablets missing from one of the blister packs and the overwhelming inference was that they had been given Stilnox in the drink prepared by the appellant. Defence counsel's submissions 82The judge then commenced his summary of Mr Brady's closing address. He repeated what he had said at the outset, that he was not attempting to put all counsels' arguments but was endeavouring to summarise them and that if he did not deal with some matters, this did not mean they were unimportant. His Honour added: Now to some extent it may seem from the length of time that it takes me to - hopefully - deal with Mr Brady's address in a shorter manner than it took to get through that of the Crown, that that may appear to you as though I have put more emphasis on the Crown case, but I think you will remember that the Crown, in going through the closing address, took the better part of a day and a half, and Mr Brady's address was about half a day or a bit less. Accordingly, it would naturally follow that you would not expect me to take so long in relation to dealing Mr Brady's address as with the Crown's address. But the important thing is that you have heard what counsel has said, and if their submissions are helpful to you - whether I refer to them or not - you should take them on board and consider them. 83His Honour added shortly after: To some extent, some of the arguments that were raised by Mr Brady I have referred to or dealt with in going through the Crown case, and I don't intend to go over those again unless I deem it necessary to do so. Now, Mr Brady commenced talking to you about the highly important single question, and I will move on from that to what he then said to you, which was about the Crown's repetition [of matters in his address which did not make the Crown's argument any more correct.] 84Thus the jury were reminded of the judge's emphatic dismissal of a major contention of the defence at the commencement of the summing up, namely that a doubt as to whether AW was indecently assaulted would lead inevitably to a doubt as to the appellant's guilt on counts 1 and 2. 85As to the argument about repetition, his Honour said that this was of course so and reminded the jury of what he had said in relation to the complaints, namely, simply because something is said to a number of people does not necessarily give what is said more weight than when it was first said. His Honour then mentioned Mr Brady's arguments concerning the scientific evidence and his submission, in effect, that the Crown's scientific evidence would not be accepted "beyond reasonable doubt", adding the qualification "now I might be slightly misstating that". His Honour then pointed out that the Crown had to prove beyond reasonable doubt the elements of the charge and the jury did not have to accept each part of the expert evidence but that it was "something you take into account in weighing up what you make of all the evidence", pointing out that the experts were not present in the appellant's apartment and the jury could simply talk about their experience or knowledge of the drugs in question. He added: ...and you may have some doubts one way or the other - in relation to Dr Perl [and] in particular of Dr Moses - but its not a question of the Crown having to prove what Dr Perl has said is correct beyond reasonable doubt. 86His Honour summarised Mr Brady's submission in respect of the scientific evidence as being that there was not much difference between what the experts said except that Dr Moses said that zolpidem could be used recreationally for Stilnox parties or coming down or by couples whereas Dr Perl was dismissive of the idea of Stilnox parties because everyone would simply go to sleep. His Honour said, in relation to the use of Stilnox as a recreational drug or to come off other drugs, "whether you think those circumstances apply in this matter is a matter for you". His Honour referred to Mr Brady's contrast of the experience of Dr Perl and Dr Moses, and then Dr Perl's agreement that the conduct outlined in the appellant's record of interview was perfectly consistent with Stilnox having been used. His Honour then commented: Well, of course, there are many things that could be consistent with the use of Stilnox. Neither of the experts can say to you that in terms of what is alleged by [the complainants] that actually happened. They were not there. They can only talk from their expertise about whether something might or might not be consistent with the effects they understand the drug has had. So an entirely different scenario to what is being put here could have been put to either of the experts, and you would have expected that in those circumstances, they would have said, "Yes, well, that's consistent to," particularly if people are saying well, that they have a lack of memory as a result of what occurred. So you need to take that on board in deciding what you make of the submission that Dr Perl was saying, that the version put by the accused in the ERISP was perfectly consistent. 87His Honour then referred to Mr Brady's argument that the accused's DNA was not found in the swabs taken from the complainants and commented: However you need to - as I said when I was taking through the Crown's address - you need to take into account what it was that the experts said... about what was possible to achieve by way of analysis of DNA and the actual tests that were carried out. 88His Honour then quoted Mr Brady reminding the jury that AW's face and dress were swabbed for DNA because that was the sort of area where it might be expected to be found if someone had done what was alleged against the appellant. His Honour then commented as to this: Of course all that is alleged in this matter is touching the vaginal area by the accused. It is not alleged in the Crown case that there was anything more than that ... [b]ut it is wrong to say that you would have expected them to have found some DNA on [AW's] face or breasts if in effect the accused had done what had been alleged, because there is no allegation here of him doing anything to her face or breast. The allegation is a hand down the pants, touching the vagina, and you have heard the expert evidence about the possibilities of DNA being recovered in those circumstances. But importantly in relation to the accused's case, you should remember that there is no evidence of DNA which connects him to having carried out any action. 89His Honour then referred to Mr Brady's argument that members of the public might think, from television programs, that DNA can be located any time and anywhere but that the appellant was happy to agree to provide a sample of his DNA immediately he was asked, suggesting that this was the action of an innocent man with nothing to hide. 90The judge then reminded the jury of Mr Brady's denial that the defence had alleged any hallucinations, suggesting it was just an "Aunt Sally". His Honour repeated his explanation (given whilst summing up the Crown address) as to why the Crown had raised this matter and therefore "... [w]hy you might expect that was not an unreasonable proposition for the Crown to take you to in the circumstances of this matter". 91His Honour reminded the jury of Mr Brady's summary of the defence case as a "succinct expression of the central issue in terms of the defence's case": It's always been our defence. They were completely off their head on alcohol, drugs. Had no idea what happened. Can't remember, woke up in a state not knowing what they had done. Tried to start piecing it together, so exaggerating in their own minds what had occurred and started to believe their own false memory. That's always been what we put. 92His Honour then reminded the jury of Mr Brady's submission concerning the expert evidence, in particular that Stilnox could result in a flawed memory and people might consciously or unconsciously create false memories to replace what was missing, believing that what they had replaced was a genuine recollection of what had actually occurred. He then reminded the jury of Mr Brady's cross-examination of AW and the differences in her description as to how she found herself on the bed with MD and the accused and their relative positions. He quoted some of Mr Brady's cross-examination of MD and reminded the jury that they had a transcript of what counsel had said and that they could read it for themselves. Then he mentioned Mr Brady's submission that this evidence showed that some of what MD said may really have been the result of later conversation with AW and that it had become incorporated in his memory as a memory of his own because of that. 93The judge then took the jury to Mr Brady's submissions concerning good character and mentioned also that several witnesses had referred to the appellant having two mobile phones, commenting: But of course none of them were with him on the night. So there is actually no evidence in the trial of [the appellant] having two mobile phones on 30 November 2006. There is evidence, as I said before, of him being asked about his mobile phone and providing a single number to the police during the course of the record of interview. 94His Honour referred to Mr Brady's submission contrasting the appellant's good character with the fact that the complainant [AW] had past experience with drugs and had used a sedative some years in the past to come off speed and therefore it was possible she had used zolpidem to come off cocaine on the night in question. His Honour then added: Well, it is a matter for you, what you make of the evidence about past drug use. You have heard the Crown's submissions that their past drug use was illegal, but at least of a relatively minor sort, and that they were not hopeless junkies or poly-drug users or anything of that nature, and that you know that the fact that she might of used a downer some years in the past to come off ecstasy was hardly going to be information that would support the proposition that on this particular night, having taken cocaine together with [MD], they were then going to take Stilnox in order to somehow come down from it. 95His Honour summarised Mr Brady's argument as being, in this respect, that giving Stilnox and cocaine to the complainants was inconsistent with the evidence of the appellant's character and commented: ...but that their taking cocaine and Stilnox of their own accord would be somewhat consistent with their past experience. As I said, that is a matter for you to weigh up. 96His Honour then referred to Mr Brady's appeal to the jury's common sense and the need to assess the reliability and accuracy of the evidence by seeing whether it made sense or not. Mr Brady had enumerated thirteen of the points in support of this submission to which his Honour then referred. 97Firstly, if you were going to give a person a stupefying drug so that you could indecently assault them you would not do it by taking them to your own premises, giving your name, your company name and address and allow them to take a photo of you. Secondly, that it did not make sense that the appellant would go to the effort of drugging the complainants and then wait three hours before putting his hands down AW's pants. His Honour then referred to Mr Brady's third point, that it was unlikely the appellant would prepare the spiked drink whilst the complainants were watching him from the balcony because "you would not want them to potentially see that you were crushing up something to put into a drink, etc". As to this his Honour commented: Well, you would need to take into account, of course, the degree of sobriety of [AW] and [MD] when they are there sitting on the balcony and you also need to take into account whether or not you think they would be sitting there trying to look at the view or trying to look at him or whether they would simply look at him from time to time, if they thought that the delay was too long, and so were both looking at the view and at him, and whether he had any expectation that they were going to be interested enough in what he was doing there in order to notice if he was crushing something up. In fact, you do not know whether in terms of this event he had actually to crush something up. All you know is that, if the allegation is correct, that he placed Stilnox into the drink, then what the evidence is about is about him making the drink. Now whether that involved having to first crush the Stilnox is an entirely separate question. Perhaps it he did, perhaps he did not. 98His Honour then reminded the jury of Mr Brady's fourth point that it was unlikely that, AW having woken and found the appellant with his hand down her pants, would go into the bedroom where MD was sleeping and, after eventually managing to wake him up and after telling him what had happened, then leave the room alone. This was inconsistent, Mr Brady argued, with her evidence that she was terrified. 99The fifth point was AW's reminding MD, after the assault, that since it was about 10.00am, the market would be open and he should make a telephone call. Mr Brady submitted it did not make sense that MD would go to the kitchen to ring his stockbroker in circumstances where he had been told that AW had been indecently assaulted. The sixth point made by Mr Brady was that it would be most unlikely, in the circumstances, that AW would have given the appellant her mobile telephone number and to have waited inside the unit for the taxi rather than leaving as soon as possible and waiting for the taxi outside. 100His Honour then commented as to these matters: But you will also need to take into account the evidence of [AW] and [MD] about the effect of what they say was the effect of the drug which you know was in their systems - Stilnox - the effect of the drug on them at that time, was that something that operated in order to make them do things or let them or allow them to do things in a fashion that you might not necessarily expect if someone was thinking with all their wits about them? 101Mr Brady's seventh point was an argument that it was not necessary for the complainant to have keys to leave the apartment and thus that there was nothing in this issue of significance. His Honour commented: ... [W]ell yes, you might think that. You know there was a conversation... about keys, and obviously the point about the keys is not about being able to use keys to get out. Maybe that you need them to get out, but certainly you would not expect anyone to go off to get cigarettes or perhaps go to examine a car or something of that nature unless they took with them the keys to get back into the unit. And as the Crown said to you, there is support for a conversation about keys, because it is heard by Mahoney and Gilcrest as part of the telephone conversation. 102His Honour then mentioned Mr Brady's eighth point which was that there was some delay between the assault and AW breaking down and crying but, more significantly, it did not seem to make sense that someone in her condition would make a call to check their voice messages some five minutes later. Point nine was the argument, in connection with the last thing MD said to the appellant, namely "[w]here's the trust? What happened here in the last three hours?". Mr Brady added that if they were deliberately drugged by the appellant with the intention of indecently assaulting AW, what MD claimed to have said would make the appellant aware of the potential that they would report what had happened to them and yet he did not make any effort to dispose of the Stilnox. His Honour did not comment upon either of these two points. 103Mr Brady's tenth point had already been referred to by the judge in the course of his summary of the Crown's submissions. It related to comments made by the appellant to police regarding [MD] not wearing clothes and Mr Brady's suggestion "seriously, do you think ... the police are not going to have told [the appellant] one of the allegations is that [MD] woke up in his underpants?". The judge mentioned that Mr Brady referred the jury to the fact that it had been put to the appellant in the record of interview. His Honour commented: ... [B]ut of course, when they put it to them in the record of interview, it was after the point at which he had in fact raised the question of clothes himself, and as I said to you earlier, in trying to summarise the Crown case, there is no evidence of any police officer telling him before he raised it in the interview, anything specifically about the allegation that [MD] awoke with his clothes either off, or partly off. 104The judge then mentioned Mr Brady's eleventh point which dealt with the fact that both MD and AW had said the same thing to Dr Brennan about how much alcohol they had consumed and also that they had two or three lines of cocaine but when they made their statement to the police later, they varied the quantity of cocaine to "three or four lines", quoting Mr Brady's remark, "They say they didn't talk about it - well." His Honour did not comment on this argument. 105The twelfth point was that the jury could think that it was "a bit bizarre" that if the appellant intended to put Stilnox in the complainants' drinks, that he would also give them some cocaine which might, to some extent, counteract the effect of the Stilnox and that this did not make sense. His Honour commented: You have heard the evidence, which has been uncontradicted in effect from [MD], about the - and I think there was some support from Dr Perl about the extent to which cocaine, that is, how long it takes to take effect and how long it is going to provide an effect for, and that evidence was not that it was going to effect them for hours, but for a relatively short period of time. Certainly, comparatively with Stilnox, the cocaine would not have had a lengthy effect. 106His Honour then referred to what he said was Mr Brady's "last point", that AW said she had never looked in the fridge, but in her statement to the police she talked about looking in the fridge and seeing the drawer slide out with all the alcohol, to which he asked rhetorically, if AW had not looked in the fridge how would she know the drawer slid out with alcohol? As to this argument his Honour commented: Well you may recall her evidence that she did not look in the fridge - you might think she was talking in the sense of opening the door to look in the fridge, but she said that she looked at the fridge and it had one of those glass panels in the door through which you could see the drinks compartment. So when she was talking about that, you might think that that is what she was talking about. But that is a matter for you, have a look at the evidence, see what you make of it. Mr Brady was suggesting that she said that she saw the drawer slide out because she did go in the fridge with [MD], because they were helping themselves to drink which is what the accused said in his interview. As I say, have a look at her evidence in respect of that. She did not agree that she ever went into the fridge, or that she looked in the fridge beyond looking in, and realising that it had a glass panel for the drinks compartment. 107His Honour then took the jury to Mr Brady's submissions about the police search to the effect that it would be expected that the police would have been interested in finding the cocktail shaker and "Officer Hunter said that he had [it] in fact in mind" but no cocktail shaker or anything of that nature was taken by police although they seized a number of other items. As to this argument his Honour commented: Mr Brady referred to Mr Hunter as looking for a cocktail shaker, but his evidence was not in fact that he was looking for a cocktail shaker. His evidence was that he was aware from the briefing of the relevance of a cocktail shaker, and he said that if he had seen one he would have noticed it. So it is not quite the same, but you might think, in the circumstances, it was not any gross misrepresentation for Mr Brady to say that Mr Hunter was looking for one. 108His Honour reminded the jury, without comment, of Mr Brady's argument that the police had not investigated the matter well because although a glass was found it was never seized. 109The judge then took the jury to Mr Brady's submission concerning the SMS message from AW at 7.18am and the Crown's suggestion that it was a cry for help, commenting if it were so would it have been likely to have been signed "xx or kiss kiss". His Honour then mentioned Mr Brady's argument that a photograph showed a glass in MD's hand and AW's early response in cross-examination that it looked as though there was a brown liquid in the glass, AW not saying that it must be something else but responding that she did not know if MD had other drinks. His Honour commented: You might think that is a perfectly reasonable suggestion in the circumstances of this matter, where she has [a] failed memory in relation to some parts of the evening, where she says she has difficulty putting some things into chronological order, that it was reasonable for her to concede that he may have had other drinks that she was not aware of, or at least could not remember. But his Honour qualified this comment by adding: What Mr Brady was saying in respect of that was essentially that it was another one of those points of unreliability, in the sense that the evidence-in-chief was that there was just the one drink, yet when tested by looking at the photograph - whether it was a drink or not in the photograph, she was then prepared to concede that she could not actually say that he had not had other drinks. 110His Honour then dealt with Mr Brady's argument about whether AW actually knew her vagina was being stroked or not. Mr Brady had taken the jury to the evidence of Ms Gilchrist and set out part of the transcript which contrasted AW's evidence about the appellant stroking her vagina as being something she remembered having happened rather than something she feared might have happened with what AW told Ms Gilchrist that she "may have been assaulted", she had feared "something had occurred". Mr Brady reminded the jury of Dr Perl's evidence about people trying to work out what had happened after the consumption of quantities of drugs or alcohol and the possibility of creating false memories in support of the submission that AW had no actual memory of what had happened in the apartment after a certain hour even though she might genuinely have believed that she was indecently touched. 111In relation to this argument his Honour commented that the jury needed to put what was said by Mr Brady within the context of Ms Gilchrist's cross-examination. His Honour then proceeded to read her evidence "... the manner in which it was in part paraphrased by Mr Brady just so that you have that part that he has put to you in context as to whether they were actual words used or not". The passage brought to the jury's attention was: Q. What did she say to you in that phone call? A. She had started to elaborate on that she believed she may have been assaulted and may have been drugged, to which point I got quite upset. I guess I'd never received a phone call like that before and [AW] just refrained from telling me any more because I got a fair bit emotional, and then a work colleague took me home. Q. What words did [AW] use when telling you that she might have been drugged? A. To be honest I can only recall the emotion of the moment, I can't actually recall any of the conversation for example. Q. What words did she use when she said that she may have been assaulted? A. Yeah I actually don't know the specific but yeah but yeah she had feared something had occurred. His Honour concluded "so that is the evidence that was given by Ms Gilchrist on that topic. As I said you have the transcript, you can take that into account when considering the submission made by Mr Brady". 112(We note that it appears that Mr Brady had fairly set out the purport of Ms Gilchrist's evidence and his Honour's comment which was to suggest to the jury that he had not done so was inappropriate.) 113His Honour then reminded the jury of Mr Brady's submissions about MD's evidence in support of the submission that he and AW had no idea as to what had happened in the appellant's apartment because they were so intoxicated and were trying to work out what occurred retrospectively. Mr Brady had taken the jury, and his Honour repeated, to a number of apparent inconsistencies and problems with MD's memory, in particular to the time at which the cocaine was ingested which he had said was 4.00am, which was before the complainants arrived at the appellant's unit. Mr Brady's argument about the times and, in particular, when cocaine was ingested was referred to extensively by his Honour without comment. 114The judge also reminded the jury of Mr Brady's submission that the character evidence called by the appellant was that he had nothing to do with cocaine, the witnesses did not believe that he would be involved with the drug and had never seen him involved with it or saying anything about using it. His Honour concluded this part of the summing up with the following: Now, as I said to you before, I have endeavoured to cover most of the submissions that have been put in a slightly shorter form. In doing so, it has now taken me almost as long to do the defence case as the Crown case, which I did not anticipate. Please, in respect of anything that I have said, if you feel that I have over-emphasised one case or the other, please ignore it. I have simply been trying to put the corresponding arguments to at least remind you of them, particularly since you heard them last week. If what I have said is helpful to you, if it agrees with what the Crown or the defence have said to you, agrees with what you think, then by all means you utilise it in coming to your verdicts. However, if anything that any of us has said about what you might make of the evidence, or in fact what the evidence is, you do not agree with that, then you have to rely on your own view. Anything that we say to you, except for the directions of law that I have given to you, anything else that we have said about - that is myself, the Crown or Mr Brady - have said about the particular circumstances or the evidence and what you might make of it, is purely designed to assist you in understanding how the parties put their cases and assist you in coming to your verdicts. 115His Honour then suggested to the jury as to where they might commence their deliberations, by saying that "a reasonable starting point in relation to any of these charges is to look at the first and common element to the two charges", continuing (by way of restating the Crown case): Now, it is the same element that is in each of these first two counts. And you understand that the Crown's case is that they had no Stilnox knowingly; neither [MD] nor [AW] took any Stilnox, and as far as they are concerned, the only time in which it could have got into their systems was when they were given the strong lemon flavoured drink at [the appellant's] premises. 116His Honour suggested the jury would well understand that if they did not accept beyond reasonable doubt that the appellant had caused the complainants to take the Stilnox then it would be unnecessary to consider the second element, namely that the drug was administered with the intention of indecently assaulting AW. His Honour then added: But remember what I said, that it is the intent at the time of the administration, or causing to be taken the stupefying drug, that is relevant. There need in fact be no indecent assault thereafter occurring, but in the circumstances of this matter, what the Crown relies on is not just the administration of the stupefying drug, but the conduct thereafter. He relies on not simply the allegation that the accused put his hand down [AW's] pants and touched her on the vagina, it also relies on the other conduct of which you heard. That conduct includes what you have heard from both [MD] and [AW] about the three of them somehow ending up on the bed in their somewhat confused mental state, but the accused then being on the bed with them on the other side of [AW] and touching her body. I am not suggesting that that is an indecent assault. I am just suggesting that it is something that you can take into account in terms of whether you find the intention was to commit an indecent assault. 117His Honour then dealt with the indecent assault alleged by the Crown, namely that the appellant "put his hand down the pants of [AW], and that he touched her on the vagina." 118His Honour then said: You might think, if you could not accept [AW] beyond reasonable doubt in respect of [the appellant] having done that, that her reliability in respect of that particular piece of evidence might reflect on what you make of her evidence that is relevant to the other two charges. This direction was apparently given in response to the application by Mr Brady for a Markuleski direction. Submissions on the appeal 119The Crown acknowledged the trial judge's obligation to sum up in a way that is fair, balanced and impartial and submitted that is what occurred here. She submitted that his Honour's comments were appropriate. She pointed to the opening remarks of the trial judge explaining the different functions of judge and jury and the direction given on the second day of the summing up, pointing out to the jury that if he had said anything which overemphasised one case or another they should ignore it unless it was consistent with their thoughts and that if anything had been said either by him or counsel which the jury did not agree with, the jury should rely on its own view. These passages have been set out above. 120So far as the "single simple question" argument is concerned, the Crown submitted that his Honour was correct to point out that the act of indecency relied upon by the Crown encompassed each or any of the appellant's putting his hand down the complainant's underpants, his touching of her vagina or his stroking it. She submitted that the judge was correct to direct the jury that, in relation to counts 1 and 2, the appellant's intention to commit an indecent assault was critical, not whether that intention was ultimately fulfilled. She submitted that Mr Brady's submission to the jury that a doubt about whether the indecent assault occurred meant that the jury should acquit on the first and second counts was another way of stating the proposition, ultimately accepted by his Honour as an appropriate jury direction pursuant to Markuleski , that if the jury rejected AW's evidence on the indecent assault, they could use that finding to assess her reliability on other aspects of her evidence. 121In respect of the trial judge's direction that Mr Brady's submission about this matter "cannot possibly be correct", the Crown submitted that the "extensive and repeated directions as to the role of the jury" and as to the functions of the jury as the ultimate arbiters of fact, rendered the direction "justified and fair". 122It was submitted that a fair reading of the judge's directions as a whole demonstrated that the complaint that it was unbalanced in favour of the Crown was not made out. Counsel pointed to the general and conventional directions given at the commencement of the summing up, the mention of the potential unreliability of the Crown witnesses, the vagueness of the Crown witnesses' evidence as to the chronology of events at the appellant's apartment and the appellant's good character. She submitted that the trial judge did not unfairly counter the defence's arguments in his commentary on some of counsels' points of argument and that a number of the criticisms made by the trial judge were well founded and in respect of many of the arguments his Honour made no comment at all. 123It was submitted by Mr Hamill SC for the appellant that the acceptance of AW's evidence beyond reasonable doubt in proof of the third count was crucial to proof of the other two counts and, generally, a doubt about the reliability or credibility of her evidence in respect of the third count should be considered by the jury when assessing her evidence generally. He focused argument on the trial judge's direction that the jury could convict on the first two counts even if it were not satisfied that AW had been indecently assaulted, that this was a significant departure from the way in which those counts had been particularised and the way in which the Crown opened its case to the jury. For that reason, he submitted it was not open for his Honour to leave those counts to the jury in the way he did in the circumstances of this case. Furthermore, he submitted even if Mr Brady's argument as to the single simple question was limited to whether AW's evidence that the appellant stroked her vagina should be believed and, if it were not, that they must then acquit, this was a submission as to a matter of fact that counsel was entitled to make and the trial judge erred in directing the jury to disregard it. He submitted that if correction were warranted to ensure that the jury understood that, as a matter of law, the submission was wrong in focusing on the issue of stroking as distinct from touching the vagina, his Honour should have corrected that aspect of the argument and then directed the jury that, if the effect of disbelieving AW's evidence of stroking was that the jury did not accept the reliability of her evidence as to any indecency having occurred, then the appellant must be acquitted on all counts. 124Finally, Mr Hamill submitted that the summing up of the respective cases of the prosecution and defence was so imbalanced as to lead to a miscarriage of justice. He emphasised that the judge's summary of the Crown case was subject to only a passing comment as to the defence case in response, whilst his Honour's summation of the defence case was subjected to continuous adverse commentary as to significant points sought to be made by defence counsel. The effect was that, so far from being a summary of the defence case, it was a summary of the reasons for why it should be rejected by his Honour's restatement of the Crown case. The "single simple question" and Markuleski 125As we have already observed, it is theoretically possible that, even if there had been no evidence of any indecent assault having occurred in respect of AW, the jury may have been able to infer, from all the circumstances, that the appellant drugged the complainants, conceivably for the purpose of committing some unspecified and unknown indictable offence, although it may be strongly doubted that a charge in such terms would be valid. However, the Crown case was never put in this way. It was essential (in the circumstances of this case) that before the jury could convict on the first two counts, it was satisfied beyond reasonable doubt that AW had been indecently assaulted in one way or another. The only indecent assault of which there was evidence was that of AW who said the appellant's hand was inside her pants and was touching her vagina when she woke in his bed. If that evidence were not accepted, there being no other evidence relied upon by the Crown as to the appellant's intention the intention of the appellant in administering the zolpidem could not be proved and, accordingly, the appellant could not be convicted of any of the charges. This follows not only from the circumstances but also from the specific way in which the prosecution particularised the charges and ran its case. It was this case which was put by the trial judge to the jury. This also shows, incidentally, that the trial judge's suggestion that the jury should commence its consideration of the charges by dealing first with counts 1 and 2 because it was not an element of those offences that an indecent assault actually occurred, was inappropriate in this case when the very opposite was necessary. 126When the trial judge criticised Mr Brady's identification of the "single simple question" by pointing out that "the first count in the indictment is what was the intention [in administering the drug], not whether he actually did it", this was likely to confuse the jury as to what were the real, as distinct from the hypothetical, issues in respect of the first two counts. Mr Brady's argument amounted to the contention that, if the jury had a reasonable doubt whether the appellant actually indecently assaulted AW then (having regard to the way in which the counts were particularised) the appellant must be acquitted. 127It will be evident from the passage in the summing up which is set out in [63] above that there appears to have been some confusion between whether it was necessary that the indecent assault comprised the "actual stroking of the vagina" or an act of indecency which did not involve this act. It is possible, perhaps, that the judge thought that Mr Brady was submitting that, even if there might have been a touching , unless the jury was satisfied that there was a stroking it must acquit. Such a submission required correction lest it be taken as a legal argument, but it was also necessary to make it clear to the jury as a matter of law that, absent satisfaction that some form of indecent assault occurred, the appellant must be acquitted of the first two counts. If, on the other hand, Mr Brady was merely urging the jury to find there was no indecent assault if it did not accept AW's evidence of stroking, since the basis for rejecting the reliability of AW's evidence of this would apply to any other indecent act, then this was a submission of fact which he was entitled to make and it ought not to have been subjected to the emphatic dismissal it received. 128It is perhaps unfortunate that Mr Brady focused on the stroking allegation (though, to be fair to him, that was actually AW's evidence) but it seems to us this was simply an emphatic way of describing the alleged indecent assault. His Honour's direction that Mr Brady was wrong in respect of the first two counts was in general terms and had the very real potential to be understood by the jury as a direction that the argument was to be rejected root and branch, such that the jury would likely have understood his Honour as directing them, as a matter of law which it was bound to apply, that even if no indecent assault of any kind had occurred, the appellant could still be convicted of the first two counts. As we have said, although it is true that commission of an actual indecent assault is not an element of those charges, in the circumstances of this trial, proof of such an assault was essential since there would be otherwise no evidence of the requisite intention. 129The direction that, in respect of the third count, the Crown was not limited to a stroking of the vagina was, of course, correct. 130At the first opportunity to do so, Mr Brady raised the matter with the trial judge. He submitted that the jury were entitled to draw the conclusion that the trial came down to what he described as the "single simple question" for a number of reasons. The first reason was that it was fundamental to the Crown case that the indecent assault occurred, not only in relation to the third count, but also for the first two counts because the evidence of indecent assault was used by the Crown to support the element of intent in counts 1 and 2. The second reason was that, if the jury did not accept AW's evidence on the indecent assault, it also reflected on the reliability of the evidence she gave in respect of counts 1 and 2. These points did not quite cast the question as we have characterised it but, in all events, Mr Brady was entitled to put this submission to the jury even for the relatively limited purposes he identified. In the interests of fairness, the trial judge was, to our mind, duty bound to remind the jury of this submission and it was a significant miscarriage of justice not only not to do so but to direct the jury to disregard it. 131As a separate but linked submission, Mr Brady asked that the trial judge direct the jury in accordance with R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 to the effect that, if they had a doubt in relation to the reliability of AW's evidence in respect of count 3 that doubt could be used in respect of their consideration of her reliability on counts 1 and 2. His Honour indicated that he would consider giving such a submission and his Honour did so. However, it was (for the reasons already given) also necessary to point out to the jury that a doubt about the reliability of AW's evidence as to whether any indecent assault occurred (however characterised) must have the consequence that there was no evidence capable of proving an essential element of the first two counts. (It should be noted that the error in respect of the necessity to prove the indecent assault as a factual grounding for the first and second counts was rather more potential than real in light of the jury's conviction of the appellant on the third count.) 132These matters can also be considered as aspects of the complaint that the learned trial judge did not adequately put the defence case to the jury. 133Mr Hamill's submissions concerning the judge's direction as to the "single, simple question" and insofar as the inadequacy of the Markuleski direction is concerned should be accepted. The balance in the summing up Applicable principles 134It is evident from what we have observed thus far that it is beyond question that a summing up must be fair, balanced and impartial. As the majority said in RPS v R [2000] HCA 3; 199 CLR 620 (per Gaudron ACJ, Gummow, Kirby and Hayne JJ): [41] ... 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. [42] But none of this must be permitted to obscure the division of functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues... 135In R v Inamata [2003] NSWCCA 19; 137 A Crim R 510 Buddin J (with whom Handley JA and Sully J agreed), citing R v Zorad (1990) 19 NSWLR 91, said: [28] ... as this Court said in R v Zorad (1990) 19 NSWLR 91: "[a] judge is always entitled to express his view of the facts, provided that he does so with moderation and provided always that he makes it clear that it is the jury's function (and not his) to decide the facts and that it is their duty to disregard the view which he has expressed (or which he may appear to hold) if it does not agree with their own independent assessment of the facts "(at 106-7). [29] In R v Courtney-Smith (1990) 48 A Crim R 49 this Court said: The assessment of the overall balance requires a consideration of the whole of the summing up. Isolated phrases taken from here and there are no substitute for a consideration of the entire charge, looked at as a whole and in its context in the trial. In many cases the summary of the Crown's case on the facts will necessarily take somewhat longer than the summary of the case for the accused. Often, the accused may give no evidence or may call only character evidence. The Crown's case being circumstantial may require some little elaboration. It is not the length of time devoted to the case of the Crown or the accused which is in issue. It is the fairness, balance and impartiality of the summing up which the appellate court must review and safeguard. (at p 56) [30] Also of relevance in the present context is the following passage from the decision of this Court in R v Ali (1981) 6 A Crim R 161 in which it was said that: It is frequently said that a summing up must present a balanced account of the conflicting cases. But when one case is strong and the other is weak it does not follow that a balanced summing up will be achieved by under-weighting the strong case and over-weighting the weak case. If one case is strong and the other is weak, then a balanced account inevitably will reflect the strength of the one and the weakness of the other. (at p 165) [31] The judge told the jury on a number of occasions that the facts were for them alone and that they were not bound to accept any opinion which he may have expressed. In those circumstances, and in the light of the authorities to which I have referred, it does not seem to me that upon a fair reading of the entire summing-up, that there is any substance in the appellant's submissions. 136The requirement of balance in a summing up, namely the fair summation of both the prosecution and the defence case, also means that the trial judge should assist the jury by reminding them of the significant parts of the evidence that pertain to each side of the case. Ordinarily, he or she will be assisted in this task by the approach taken by counsel in their submissions. However, it is not appropriate to defer to counsel's view of how this should be done or as to which matters are important. The trial judge has an overriding and independent duty to bring to the jury's attention those parts of the evidence that reflect significantly on the factual issues in the case and to explain how the evidence impinges on them. This has a particular application to complex or unusual evidence outside the ordinary experience of lay persons. The expert evidence of Dr Perl and Dr Moses in this trial is in that category. 137It is often difficult for jurors to assess the relative weight of expert evidence and, where it is an important part of the case, it will usually be necessary for a judge to take the jury through the evidence with some care to ensure that it is understood and its relationship to the issues in the case made clear. A general reference to differences between experts will usually not be sufficient to ensure the jury is adequately assisted in its task, especially in a case of this kind, where evidence from both experts was capable of shedding significant light on the respective cases. It seems to us that the jury should have been given assistance to understand, with some precision, how the opinions of Dr Perl and Dr Moses differed (and where there was agreement) and how those opinions might bear upon their consideration of the issues. In this case, that required a summary of the relevant opinions and the basis of experience or expertise that justified them. Having regard to the respective cases on the timing of possible reasons for and possible reaction to both the Stilnox and the cocaine, it was particularly unfair to the defence not to do so. 138A further matter concerns the complainants' prior use of drugs, which (because of Dr Moses' evidence as to varying levels of tolerance) was capable of being a most significant matter. The Crown relied on the complainants' evidence of their very limited consumption of sedatives and submitted that there was no contrary evidence. Their evidence in this respect was summarised by the judge in apparent acceptance of the Crown's contention. The interests of fairness required his Honour to point out that, though the Crown's submission that there was no contrary evidence was correct as far as it went, that did not mean that the jury was bound to accept it and the jury needed to consider whether it accepted that part of the complainants' testimony. The jury should also have been reminded that Dr Moses' evidence as to tolerance of the sedative effects of zolpidem was not based solely on an assumption about prior sedative use but on the evidence of their tolerance to alcohol evidenced by the very significant quantity of alcohol consumed by both of the complainants that night. 139Towards the end of his Honour's summing up, Mr Brady objected to the way in which his Honour had dealt with the defence case. Mr Brady conceded that the judge was entitled to express an opinion about the evidence but pointed out that: Your Honour is spending almost if not the same amount of time effectively re-putting what the Crown may say in answer to the defence's submissions throughout your summary of the defence's submissions, effectively, with respect, descending into the arena in answering what the defence say are things that the jury should take into account in determining the guilt or innocence of the accused. 140Mr Brady elaborated somewhat further on this point. The trial judge responded, "Yes well there is not particularly much left to go Mr Brady, so I will try and refrain", adding "I don't propose to go back over what I've said". In fact, as is clear from the summary of his Honour's summing up which is set out above, his Honour did put arguments to the jury in respect of the defence case. 141In order to assess whether the summing up was fairly balanced, it is necessary to consider it as a whole and, for this reason, it has been extensively set out above. We are persuaded that the submission made on behalf of the appellant is correct that there was a marked lack of balance in the way the jury was directed as to the respective cases both in his Honour's summary of the evidence and the submissions of counsel. At virtually the outset of his directions on the elements of the offences, his Honour instructed the jury in language that reflected on the style as well as the substance of Mr Brady's argument put at the forefront of his closing submissions. His Honour went on to subject many of Mr Brady's points of argument to adverse comment, often in terms that suggested they were the judge's personal views rather than arguments that had been advanced by the Crown. In this way they had the potential to undermine the defence case in a most material way. Quite apart from the persuasiveness of his Honour's comments, the overall effect was to impermissibly undermine the defence case. Conclusion 142In some respects, the Crown case was a strong one but there were significant matters appearing in the evidence, particularly arising from the expert evidence, that weakened it. Submissions were legitimately put by Mr Brady which the jury should have been invited to consider without the repetitious adverse comment from the judge to which reference has been made. The general directions about the differing functions of judge and jury and the importance of the jury considering for themselves what they made of the evidence and the arguments did not outweigh the powerful impression that the jury were likely to have formed concerning the weakness of the defence case and the personal opinion of the judge as to its insubstantial character. 143In our view this is not a case for the proviso. Firstly, the jury's consideration of the appellant's guilt may well have been affected by the lack of balance in the trial judge's summing up; secondly, the nature of the evidence, in particular its crucial reliance on the credibility of the complainants cannot be adequately judged on the papers; and we are not satisfied that the verdicts were inevitable. 144Accordingly, we would allow the appeal, quash the convictions and order a new trial in respect of each count. ********** 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: 17 November 2011