Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: FP v R [2012] NSWCCA 182 Hearing dates: 31 January; 1 February 2012 Decision date: 23 August 2012 Before: McClellan CJ at CL at [1] R A Hulme J at [2] Schmidt J at [332] Decision: Conviction appeal: 1. Leave to appeal in respect of grounds 1 to 14 refused. 2. Leave to appeal in respect of ground 15 granted. 3. The appellant's conviction for the offence of conspiracy (count 42) quashed and a verdict of acquittal entered. 4. The appeal otherwise dismissed. Sentence appeal: 1. Leave to appeal against sentence allowed. 2. Aggregate sentence of imprisonment for 9 years with non-parole period of 5 years quashed. 3. In lieu, sentenced to an aggregate term of imprisonment of 8 years 6 months with a non-parole period of 4 years 8 months to date from 29 April 2011. The offender will be eligible for release on parole upon the expiration of the non-parole period on 28 December 2015. 4. Pursuant to s 53A(2)(b) Crimes (Sentencing Procedure) Act 1999, the sentences that would have been imposed for each of the offences against ss 38 and 61J Crimes Act 1900 had separate sentences been imposed are the same as indicated by the District Court. Catchwords: CRIMINAL LAW - appeal - objections or points not raised in court below - Criminal Appeal Rules, Rule 4- leave to appeal granted only where miscarriage or an irregularity going to the root of the trial CRIMINAL LAW - appeal - conviction - misdirection by trial judge - multiple grounds of appeal - evidence not relevant to appellant where multiple accused - tendency and coincidence and context evidence - meaning of 'in company' element of aggravated sexual assault - physical presence during preparatory acts - knowledge of lack of consent - directions on criminal standard - jury note on 'beyond reasonable doubt' - insufficient summing-up - failure to direct on other charge the subject of a directed acquittal - leave to appeal refused CRIMINAL LAW - appeal - conviction - guilty verdict not reasonably open to the jury - insufficient evidence to be satisfied of guilty beyond reasonable doubt CRIMINAL LAW - appeal - sentence - approach to standard non-parole period after Muldrock v The Queen [2011] HCA 39 - no error in application of standard non-parole period CRIMINAL LAW - appeal - sentence - no failure to take into account subjective features CRIMINAL LAW - appeal - sentence - unreasonable or plainly unjust - sentence not manifestly excessive Legislation Cited: Crimes Act 1900 Crimes (Administration of Sentences) Regulation 2008 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Criminal Appeal Rules Cases Cited: ARS v R [2011] NSWCCA 266 Brown v Dunn (1893) 6 R 67\ Clough v R (1992) 28 NSWLR 396 Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 Gilbert v R [2000] HCA 15; (2000) 201 CLR 414 Gilham v R [2012] NSWCCA 131 Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 HML v R [2008] HCA 16; (2008) 235 CLR 334 Green v The Queen (1971) 126 CLR 28 House v The King [1936] HCA 40; (1936) 55 CLR 499 John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; (2004) 61 NSWLR 344 Lowndes v R [1999] HCA 29; 195 CLR 665 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Markou v R [2012] NSWCCA 64 Mendes v R [2012] NSWCCA 103 Mohan V The Queen [1967] 2 AC 187 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Picken v R; R v Picken [2007] NSWCCA 319 Phillips v R [2006] HCA 4; (2006) 225 CLR 303 R v Brougham (1986) 43 SASR 187 R v Button; R v Griffen [2002] NSWCCA 159; (2002) 54 NSWLR 455 R v Crozier (Court of Criminal Appeal, 8 March 1996, unreported) R v Edwards (1996) 90 A Crim R 510 R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166 R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 R v Jacobs and Mehajer [2004] NSWCCA 462; (2004) 151 A Crim R 452 R v Leoni [1999] NSWCCA 14 R v Murray (1987) 11 NSWLR 12 R v Phan [2001] NSWCCA 29; (2001) 53 NSWLR 480 R v Reeves (1992) 29 NSWLR 109 R v Southammavong; R v Sihavong [2003] NSWCCA 312 R v Stokes and Difford (1990) 51 A Crim R 25 R v Tripodina (1988) 35 A Crim R 183 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 R v Webb [2004] NSWCCA 330; (2004) 149 A Crim R 167 RWB v R; R v RWB [2010] NSWCCA 147; (2010) 202 A Crim R 209 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 Stubley v Western Australia [2011] HCA 7; (2011) 242 CLR 374 Tekely v R; Nagle v R [2007] NSWCCA 75 The Queen v Wilson (1986) 42 SASR 203 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 Zreika v R [2012] NSWCCA 44 Category: Principal judgment Parties: Regina FP Representation: Counsel: Mr M Ramage QC with Mr R Evans (Applicant) Ms S Dowling (Respondent) Solicitors: McKells Solicitors Solicitor for Public Prosecutions File Number(s): 2009/80062 Publication restriction: Non-publication of anything likely to lead to identification of complainants Decision under appeal Date of Decision: 2011-05-06 00:00:00 Before: Hock DCJ File Number(s): 2009/80062 Judgment 1McCLELLAN CJ at CL: I agree with R A Hulme J. 2R A HULME J: The applicant, FP, was found guilty by a jury on 15 December 2010 of three counts of administering an intoxicating substance with the intention of enabling another person to commit an indictable offence, namely sexual assault (s 38(a) Crimes Act 1900); three counts of sexual assault in company (s 61J Crimes Act); and one count of conspiracy to commit a sexual assault (common law). 3The maximum penalties prescribed by s 38 and s 61J are imprisonment for 25 years and 20 years respectively. The maximum penalty for the conspiracy offence is at large. A standard non-parole period is prescribed in respect of an offence against s 61J of 10 years. 4On 6 May 2011 her Honour Judge Hock imposed an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 of 9 years with a non-parole period of 5 years. The sentence was specified to commence on 29 April 2011. 5Ultimately the applicant raised 15 grounds of appeal against conviction and 3 grounds of appeal against sentence. My reference to FP as the applicant is because each of the grounds requires leave to appeal. Overview 6At the beginning of her remarks on sentence the judge described the circumstances giving rise to the offences as "extraordinary". I respectfully agree with that description. 7The applicant was tried jointly with Tony Golossian and AP. They were each charged but acquitted by direction of the trial judge in respect of an offence of obtaining property by false pretences. The offences for which the applicant was convicted were alleged to have been committed with either or both of those men and concerned a single complainant, MP. They related to events that occurred between April and June 2008. 8The Crown also alleged that Golossian and AP committed similar offences against another complainant, MM, in 2001 through to 2005. There were 33 counts in the indictment concerned with the offences against MM (some in the alternative) and a further 8 counts concerned with the offences against MP (1 of which was in the alternative). The jury returned verdicts of guilty on all of the primary counts in respect of both men. Golossian was sentenced to a total term of imprisonment for 20 years with a non-parole period of 15 years and AP was sentenced to a total of 16 years with a non-parole period of 12 years. 9The appellant was married to AP. Her brother, GK, was married to MP. AP was indirectly related by marriage to MP (he was a brother-in-law to her brother-in-law). 10Tony Golossian was regarded by some people in the Greek community as a holy man and a man who could communicate with angels. He had a prayer room in the back of his house at Dulwich Hill. He purported to be able to assist people who had been the subject of black magic or curses by praying on them. 11Both MM and MP were of Greek heritage and had strong religious beliefs. They claimed to be in fear of black magic, described as "the evil eye". They claimed to have been sexually assaulted in circumstances where Golossian was praying over them because of their need to be rid of a curse ("mayia") that they believed had befallen them which would result in their death, and/or the death of family members. 12GK was also superstitious and believed that Golossian could help his wife by interceding with the supernatural. They had previously sought assistance from Golossian in 1999 in relation to their financial affairs which they believed were adversely affected by a curse. 13The applicant was a woman of similar ethnic background to the complainants. She was also in fear of "the evil eye", particularly following her marriage to AP in 1993 and her contact with Golossian, who her husband professed was "a holy man", able to help others by praying to angels to remove curses and to create "white magic" to ward off "the evil eye". Evidence review 14It is necessary to review the evidence in some detail to put some of the grounds of appeal in context, particularly because the final ground involves a contention that the verdicts of the jury were unreasonable and not supported by the evidence. The complainant and her husband were cursed 15It was the Crown case that the three accused were parties to an elaborate agreement to frighten MP and GK into believing that they had been cursed and the only remedy was for MP to participate in "prayer sessions" with Golossian. 16In late 2007, MP's father was very ill. He was in his late 80s, suffering from diabetes and dementia, and had broken a hip in a fall. MP was naturally concerned about him. In her sentencing remarks the trial judge said that as a result MP was "emotionally vulnerable". 17In late January 2008, GK found a black object under the front door mat at their home. He showed it to MP. They did not know what it was. MP described it as a black round object wrapped in something like a plastic bag. MP rang her mother who told her to throw it away and go and talk to a priest. GK threw the object in the bin and the next Sunday the pair went to church and spoke to their priest (T97 - 99). The priest confirmed that the item should be thrown away and that they should have faith (T139). This object was subsequently referred to in the evidence as a "mayia". 18GK also gave evidence that earlier on the day the object was found he had seen AP in the front yard. He thought that this was unusual and went out to speak with him. He said AP appeared shocked, claimed that he was in the area to quote on a job for a client, and asked to come in for a drink of water (T452). It was the Crown case that AP had been there for the purpose of leaving the object, a conclusion the jury might readily have come to. 19Around this time there was a family barbecue at the home of GK's mother in Enfield, where AP and the applicant lived. GK received a text message during the course of this gathering. It said that a person had overheard a conversation at the recent wedding of MP's brother to the effect that a curse had been put on "us". It also said, "Did you see the state of her father, sucked in to the bitch". MP was aghast. At the time the message was received the applicant was at the table but AP was not. He returned a few minutes later (T100-101). The Crown suggested that he had sent the message. 20There was a discussion about what to do. The applicant advised that help should be sought from Tony Golossian. That was done and arrangements were made to see Golossian. The next day, GK and MP went with AP to Golossian's home. They were taken through to his "prayer room". Golossian purported to pray to angels in a foreign language. He then informed those present that the angels had advised that there was a curse on MP and GK. In fact there was more than one curse and they needed to be broken. GK and MP believed him. Golossian said there was one at the front of GK and MP's house, the one that had already been found. He said that disposing of it had made it harder to break the curse but he would try (T102 - 104). 21Golossian advised that if the curse was not broken, MP would die of cancer, GK would die from a fatal accident, and their children would slowly die as well. MP said she was "totally shattered". Golossian said, "This is just the beginning, look at your father." Both MP and GK were crying. MP and AP were asked to leave the room so that Golossian could speak with GK alone. When they were called back into the room, Golossian told them that GK had done something wrong to someone when he was young and to "get this away" he had to pay this person $50,000. If this was not done, GK would have to leave his family and go away and become a monk. 22Golossian also told them that there were other "mayias", or curses, which had to be retrieved. One was at Rookwood cemetery and he gave detailed directions as to where it could be found. The other was in the front yard of GK and MP's home. After that was done, the only way to get rid of the curse, which was more so on MP, was to do a prayer over her whilst she was naked. Golossian purported to be reluctant to do this, saying that he did not do such things anymore. He suggested that someone else could do it but it would cost $20,000 to $25,000. They became hysterical and begged him to perform the prayer, and he ultimately agreed that he would do it for $3,000. Golossian told them that the prayer session had to be away from their home, near to water, and MP would have to be completely naked. MP said that she was horrified and scared but at the same time felt comfortable because he was a priest (T105 - 107). 23GK's evidence included that when he was alone with Golossian in the prayer room, Golossian told him that the angels had said that he had sinned when he was very young. GK asked, "What have I done?" Golossian replied, "The angels said when you were very young you could have any woman in the world but not this one." If he did not want to have to leave his family and become a monk he would have to pay $50,000 to this woman. GK asked how he could explain this to MP and Golossian suggested he tell her that he had a gambling problem when he was young (T470 - 471). GK well knew what "sin" Golossian was talking about; he had sexually assaulted the applicant when she was about 6 or 7 years of age and he was 12 or 13 (T606 - 607). It was the Crown case that Golossian had derived this information not from "angels" but from the applicant. 24The three left Golossian's home and went back to the applicant's home at Enfield. MP remained there while GK went off with AP to retrieve the "mayias". While they were away, MP spoke with the applicant. She asked her, "How could people do things like this?" The applicant told her that there were evil people out there and that she had been dealing with this for the last 15 years since she became married. GK and AP eventually returned with the mayias that they had found which were subsequently delivered to Golossian's home (T107). 25I interpolate that there was other evidence suggesting that these two mayias were retrieved on different occasions but the point is of no significance. 26GK gave evidence of going with AP to find the two "mayias" that Golossian had told them about. One was in the front yard of their home and the other at Rookwood cemetery. GK said that on both occasions it was AP who managed to find the item (T465; 474-476), suggestive, the Crown contended, of Golossian and AP being participants in an elaborate scheme. 27The following day, after a phone call from Golossian, MP and GK went to his home. In the prayer room they were shown the two mayias which had been opened. One of them contained what appeared to MP to be her hair and her underwear which she identified by the colour and the brand. The other mayia contained small bones with fine writing on them. MP said that she recalled an occasion when the applicant had been to her home and had performed some ironing. All of MP's clothes were nearby in a clothes basket (T396). MP told her to desist from doing her ironing and she recalled that the applicant had walked to her bag and "it looked like she was putting something in the bag". Golossian told them that he would pray over the mayias to break the curse. As for the $50,000, he said that it had to be paid within 3 months and before the prayer session with MP. In relation to the prayer session, he told them that MP had to have finished her periods and had to be completely clean shaven. She was to bring along clippings of her hair, with underarm and pubic hair in separate envelopes (T108 - 109). 28GK began to receive calls and messages on his phone. There was "some sort of a demon-like voice". The messages "were of naked - or penises and so forth". GK and MP had been told by Golossian and AP that they were to write anything unusual in a book, purportedly so that if anything evil came in, Golossian would pray over it and break the evil. The book was given to Golossian but copies were retained by GK and MP (Exhibit F). The notes included that there were calls from a private number on 24 March 2008 with someone whispering the words "Satan", "evil" and "prayer" and there was talk about death for GK and MP. There were subsequent calls and messages with sexual content, for example, "I am King Satan the Evil, I send to you this pussy and put under your pillow when you sleep and I will be with you and your wife when you dream" (T110 - 115). GK recalled that these calls and texts included the caller saying, "I am Evil" and "I am gunna fuck your wife" (T479). The first prayer session (Counts 35 and 36) 29GK contacted Golossian at a time when MP had finished menstruating. Golossian said he would speak to the angels who would decide when would be a good time for the prayer session. He subsequently gave GK instructions which he was to pass on to the applicant about booking a hotel room, buying orange juice, apple juice and some candles (T485). 30The first prayer session took place on 5 April 2008. The applicant picked up MP. She told the applicant that she was afraid and nervous but the applicant reassured her that she should not be afraid; she should not fight it; "it is going to be like a dream, hundred per cent real, but it is not". She said that this was said to her "constantly". Golossian was picked up and they proceeded to the Marco Polo hotel at Summer Hill. Golossian told the applicant to go out and buy some food and some apple and orange juice, which she did. While she was gone, Golossian spoke with MP about what was to occur. He told her to be strong and not afraid and that it will feel like an angel will be entering her body; if she felt dizzy or unwell, that was a good thing. He also told her that "it's going to feel like it's 100 per cent real but it's not, it's just a dream" (T110; 119 - 120). 31The applicant returned with the food and juice. The food was eaten and then Golossian prayed over the juice. Candles were lit. Golossian told the applicant that if she felt any pain during the prayer session she should go into the bathroom and say the Lord's Prayer 15 times, and continue to do so until the pain left her. He then put MP's hair clippings on a silver tray that she had also been asked to bring and burnt them. He gave MP the apple juice and she started to drink it but then put it down. He told her it did not matter if she did not drink all of that juice, but then gave her the orange juice and told her it was very important that she drink it all. MP drank all the orange juice and then felt light headed. She was then told to go into the bathroom and undress and put a towel around herself. MP said that by this time she was feeling dizzy. She stumbled when she went to the bathroom but undressed and returned with the towel around her. She was told to sit on the edge of the bed and to close her eyes. Golossian put a hand on her head and was praying. She said by now she was feeling very dizzy and very heavy (T120 - 122). 32MP was guided to lie face-up on the bed. She was told to keep her eyes closed and to remove the towel. She said she then felt pricks, like pin needles, over her joints. She also felt some substance being rubbed on her. She felt movement of Golossian's hands and she could hear voices, one saying that it was evil and another saying it was an angel. They asked her who she would want to have sex with, either her neighbour, CP (another brother-in-law) or AP. She replied, "Neither, I want my husband [GK]." The evil voice became angry and demanded that she choose one of the three men and she said, "[AP]". MP said that the voices sounded the same; they had the same accent but just different pitches (T123 - 124). 33At one point she opened her eyes and Golossian threatened to stop the prayer. He put a towel over her head and told her not to look. She felt a hand move towards her thighs, towards her vagina. Fingers then penetrated her vagina. This continued for a few minutes and she then felt Golossian on top of her and his penis penetrating her. She was crying and said, "Can you stop it hurts"; however he continued. He told her to pray to the angels that she not fall pregnant - that was said in an evil voice. He ejaculated in her vagina. She asked if it was over and whether she could lift the towel but he told her to leave it on. He said that in his normal voice. A few minutes later the towel was taken off her and she was asked to put it around her and to go and have a shower. The applicant assisted her into the bathroom where she had a shower. She said there was a discharge, clarified in her later complaint to her friend, HD, as a discharge from her vagina (T124 - 126; 1790). 34The applicant then escorted MP out of the bathroom. She asked Golossian how it went, and he said that he believed that it went okay and that he would pray and let her know. MP said that she felt "really dizzy, heavy and just tired". The applicant then drove MP home, and dropped Golossian near his home along the way. MP said that she slept most of the way and when she arrived home she went straight to bed (T126). In her complaint to HD she said that she told the applicant that she believed that she was raped, but the applicant told her that there was no chance of that happening because the applicant had been in the room the whole time, aside from when she went to the bathroom to say the Lord's Prayer (T1790). 35The next morning MP told GK what had happened. She said that she was reluctant and afraid but did not know who else to turn to. She recalled that what she said included, "If I am not pregnant by the end of the month I will be surprised". GK became very angry and rang the applicant. He subsequently told MP that the applicant had reassured him that she was in the room for the whole time and "that it was going to be the way it was, it felt like it was going to be a hundred percent real but it was just a dream". GK received a text message. MP read it and said that it was "something about the fact that they had taken me, something about having sex with me and I am them now and I am part of the evil". They were both frantic. GK rang Golossian who asked them to come to his house. When they got there, he told them that the evil was still there and that there would have to be another prayer session (T126 - 128). Payment of $50,000 to the applicant 36MP arranged a bank loan of $50,000 and when it was approved she transferred the money to GK's account. He then met with the applicant on 8 and 10 April 2008 when on each occasion he gave her $25,000 in cash. GK informed Golossian of each payment, but not who he was giving the money to. He told the applicant that he had won some money and wanted to help her out. He said that she was shocked and told him he did not have to but he insisted. He subsequently asked Golossian to speak with the angels and find out if he had given the money to the right person. Golossian agreed to do so. He subsequently told GK that everything was fine and that he had given the money to the right person (T499 - 502). In cross-examination GK agreed that the applicant had told him that she did not want the money but he had insisted that she take it (T733 - 736). The second prayer session (Counts 37 and 38) 37The instructions MP received in relation to the second prayer session were the same as for the first; she had to be clean and not be menstruating. She was also told to bring candles, some cotton balls and some material for a blindfold. Golossian had told GK that MP must not open her eyes like she did at the first prayer session or else the evil would burn her eyes (T504). MP was also told to bring what she called her "work bag" (later clarified as being a handbag (T286)) so that it could be blessed or prayed upon. On this occasion she was picked up by the applicant at about 9.00am on a weekday, she thought probably a Tuesday. The conversation in the car was along the same lines as before; she was told not to be afraid, to be brave, and that it would feel real but it would be a dream. After Golossian was picked up they proceeded to a different venue, the Ashfield Motor Inn. The applicant collected the keys from the reception and they went to the room (T140 - 142). 38Golossian instructed the applicant to go and get food and drink. Golossian and MP spoke while the applicant was gone and MP said that he had reassured her. The applicant returned after about 20 or 30 minutes with orange juice and takeaway food. MP was not hungry but she was told to drink the orange juice after Golossian had prayed on it. She said the lid was off the container and that he was making hand movements over it, swilling it and blowing over it. MP struggled to drink all the juice and when she was half way through it, Golossian came over and took the bottle, swilled it around and then told her to drink it all. The applicant was in the room when this was happening (T143 - 144). 39MP said that she felt quite dizzy and heavy but not as bad as the first time. She went to the bathroom, undressed and came out with a towel around her. Golossian put the cotton balls, or pads, over her eyes, tied the material she had brought so as to blindfold her and then started to pray. MP said that she was aware of the applicant being in the room up until she was blindfolded. She was guided to lay down on the bed, similar to the first occasion. She felt fingers entering her vagina. She tried to ask who it was - "Is that you Tony?" She asked if the applicant was there, or if anyone was there, but there was no response. The fingers were then removed and she was told to move onto her side. She then felt a penis in her mouth. She felt sick and it was removed. He then told her, using the evil voice, to take his penis in her mouth. The penis was again forced into her mouth but she started gagging and it was removed. She was told by the evil voice to stay where she was on the bed. Next, Golossian told her to get up and that the applicant would help her go to the shower and clean herself (T144 - 146). 40The applicant helped MP to take a shower with the blindfold still on. She then got dressed and the applicant escorted her back to the room. She said that she felt very heavy and dizzy and needed help to walk. Golossian then removed the blindfold. Once again, MP asked him how it went and he replied that he thought it went okay but would pray and ask the angels. MP was then taken home by the applicant (T148). 41MP said that she was concerned as to why she was required to take her bag to this prayer session. She checked its contents and found that a picture of GK, some of her business cards and a deposit slip from her cheque book were missing. She told GK about this and he rang Golossian who informed him that it was the evil in the room that did this (T149 - 150). 42GK gave evidence that when MP arrived home she complained of being in pain, was tired and dizzy and "she felt again that she was ... sexually assaulted or raped, she was penetrated, she felt someone on top of her and I think for the second prayer session she said she felt holding a penis". He told her that it was probably a dream because that is what Golossian and the applicant had told him after the first prayer session (T505). Other events 43MP said that she had a mobile phone and that she had been provided with another one by her employer. She recalled receiving a text message which said something about doing sexual acts with AP. She deleted it, as she did other messages that "petrified" her. One evening when GK was not home she received a message saying the evil will enter her home and she was to be ready for him. She was "horrified and petrified". She damaged the SIM card for her personal phone so that she could not receive any more messages. 44On another occasion, GK was told by the angel that MP must be available to take a call at a nominated time. The call came in on GK's phone and MP took it. It was the evil, not the angel. She explained that in these calls, the caller announced whether it was either the evil or the angel and there was a difference in the tone of voice. In this particular call there was a reference to MP not having done "the test". There had been sexual references and mention of a "test" in previous messages she had received. In this particular call, after having been asked why she had not done "the test", the voice then spoke of harm to the family, to MP, her children and her father. Arrangements were made for a third prayer session because, as MP said she was told, she had broken the promise and had not done "the test" (T151 - 153). Third prayer session (Counts 39 and 41) 45The third prayer session was on 1 May 2008, again at the Ashfield Motor Inn. MP was required to prepare herself and bring the same materials as before. The applicant picked her up and there was a similar conversation on the way in the car. The applicant told her that she should not be afraid, be strong and she also said that she (the applicant) had been through this before. MP said that she felt comforted by that. After Golossian was picked up they proceeded to the hotel, stopping along the way at a service station where the applicant purchased orange juice (T155 - 156). 46Similar events as before occurred once they were in the hotel room. The applicant was sent out by Golossian to buy food. When she returned, Golossian prayed over the orange juice and told MP to drink it all. She said that she then felt dizzy. She was then sent to the bathroom to disrobe and returned. She was blindfolded by Golossian whilst the applicant was still in the room. On this occasion she was told that she would hear noises, a door opening and closing and footsteps. She was told not to worry and that this was a normal thing to happen (T157 - 158). 47MP was guided to lie down on the bed. She was asked whether she was feeling dizzy or lightheaded and she replied that it was not as bad as previously. The towel was removed. She felt hand movements and the pricking of a needle through her joints. She then felt a body on top of her. She was told by the evil voice to rub her hands up against the hands of the person who was on top of her. She felt the penis of this man penetrating her. She was crying and sobbing. The evil voice told her to grab the arms of the person and act as if she was enjoying it. She described features of the person as different to what she had felt on the previous occasions (that is, it was not Golossian). The man removed his penis and she heard him masturbating until he ejaculated on her hand. She heard the sound of a phone ticking, "like a text". Golossian then said in his normal voice, "wait, I'll wipe this off you" and she felt her hand being wiped (T158 - 163). 48MP was told to get up, put the towel around herself and go to the bathroom. She said that the applicant was in the room, and the applicant was also sobbing and asking whether her eldest daughter was alright. Golossian told her that she was. The applicant then helped MP into the shower before they returned to the room and there was similar conversation as before about how it went. The applicant rang AP. It was arranged that the applicant would drop MP at the Westfield shopping centre at Burwood where GK would pick her up, whilst AP would come and take Golossian home. As the applicant drove MP away from the hotel, within two to five minutes she saw AP driving in the opposite direction towards the hotel (T164 - 165). It was the Crown case that he was so near to the motel because he had just been there, sexually assaulting MP. 49GK picked MP up at the shopping centre and took her home. They had the usual conversation about how it went and she told him that Golossian would speak to the angels to find out. She also told him that someone had ejaculated in her hand. GK became upset because MP was not supposed to talk about what happened in the prayer sessions; he was afraid the evil would come back harder (T166). GK's evidence was that she said, "I've been raped again, felt someone on top of me" but once again GK thought that it was a dream (T515). Events following the third prayer session 50GK was instructed to go and buy MP another mobile phone because she had destroyed her own phone, or at least its SIM card, so as to avoid the disturbing communications she had been receiving. The new phone was given to Golossian to bless before she started to use it (T170). 51A fourth prayer session was proposed; MP thought this might have been for 5 June 2008. She was told that she would first have to do "the test" and it had to be something sexual with AP. She had been told this in an earlier text message as well. After she received the new phone she started to receive calls and texts. She was scared about the prospect of "the test". She said that she could not talk to GK about it because he was so deep into the belief that he would not listen; he was scared for their safety. MP said that she still had a little bit of belief that all of this was true but she wondered how it was going to stop. She could not tell anyone. She decided to buy a tape recorder to record all the messages in the hope that this would give her the courage to tell someone (T167 - 170). 52At this point in her evidence, MP said that it had been necessary to beg Golossian to perform each prayer session and this was always in the presence of the applicant and AP. Further, Golossian said that he would not do them on his own without the applicant being present. MP said that she and GK thus had to ask the applicant to come along. On the occasion of one of these conversations, the applicant told them that she had a dream that MP's father had died and that it was all MP's fault because "I didn't do this prayer, this fourth prayer, and that I should get out of the church, you know, he stood up from the coffin and said 'get out, get out, it's all her fault' and Tony's response was that it was because I didn't do, if I am not going to do the prayer that is what will happen" (T172 - 173). In cross-examination she said that the applicant had said that in the dream her father blamed MP for him being dead because she did not do the test, and that Golossian added that it was a message from the angels saying that she must do the test (T435-6). 53MP said that she purchased the tape recorder and recorded some calls on her phone (T173). These recordings were before the jury (Exhibit B) and strongly supported her account in a broad sense, in particular as to the following events. 54MP said that she built up the courage to talk to someone just before the fourth prayer session was due to be held. She spoke briefly with her friend, HD, at a family gathering and arranged to meet her the following day, when she told her at some length about what had been happening and played the tape recordings to her. This complaint was largely, although not completely, consistent with the evidence MP gave (T1785 - 1794). Any inconsistencies were readily capable of being regarded by the jury as minor, particularly having regard to the fact that the conversation occurred on 2 June 2008 and HD did not make her statement until 27 August 2008. One example is that there is mention of insistence that MP drink all of the apple juice as opposed to the orange juice; another is that whilst there was mention of digital penetration in the second prayer session there was no mention of a penis penetrating her mouth. 55After her meeting with HD, MP went to Wetherill Park police station and spoke with a police officer. She was uncomfortable with the outcome and returned the following day. After spending quite some time speaking with a detective, she returned home where her husband told her that he had been trying to call her. She did not tell him where she had been, apparently on the instructions of the detective. GK told her that the evil or the angel had been calling him because they could not contact her. At his suggestion she called Golossian but the evil answered and said, "Why did you lie to us, you didn't do the test?" She made an excuse and he recommended that she ring AP to arrange a time for the test. She said she had mixed feelings and was scared about doing this but had been reassured that the police were going to help her. There followed a number of communications with AP concerned with setting a time and date for "the test". Ultimately she had to put it back a day in order to allow time for the police to arrange a listening device (T175 - 182). 56The "test" was to occur on 4 June 2008 at AP's home. MP drove there but then parked and waited in the car as "the evil" had instructed her. She received a telephone call and a recording of the conversation was before the jury. The caller said that he was the "red evil" and told her she was "now in the dream test". He related a series of instructions as to what she was to do when she was inside the house with AP. In short, she was told to say certain things that would put him into a trance and she was then to engage in sexual intercourse with him. She was threatened that she must do exactly as she was told "or we will take your father and your daughter". At the conclusion of the call she was instructed by police to knock on the door and that when AP appeared, officers would intervene to arrest him. That is what transpired (Exhibit C). 57At 1.40pm on 4 June 2008, the applicant sent a text to her husband telling him that he had better be on standby for the children, presumably a reference to picking them up from school. The applicant's evidence was that she was in the city that day at a market research exercise. However, at 3.35pm she sent another text to him saying, "I'm feeding the kids, don't know what time coming until I get call" (T1959). 58I do not intend to deal with the evidence of Tony Golossian or AP in any detail but it is appropriate to mention at this point that the latter admitted that he made the calls to MP, including the one recorded by the police, but said that he was "messing with her mind" (T2534). He also admitted having made previous calls and texts, and his explanation was to the effect that he was acting at the behest of GK who wanted to scare MP into becoming a more submissive wife. 59In cross-examination, GK said that it was he who gave instructions to the applicant as to what she was to do in relation to the prayer sessions, including that she was to purchase the juice and that if she did not feel well she was to go to the bathroom, face the mirror and say the Lord's Prayer. GK said that he was relaying these instructions from calls and text messages he received from the angels. He would ring Golossian and let him know and Golossian would say, "You know if the angels said that, you do that" (T721 - 727; 752) Administration of a drug 60There was no direct evidence that a drug was administered to MP at any of the prayer sessions. On each occasion, juice was purchased by the applicant and given to Golossian. The applicant maintained that the bottles were not opened before she gave them to him. The Crown queried this but was in no position to positively assert which of the two put the drug in the juice. 61The fact that a drug was put in the juice was sought to be proved by the following circumstantial evidence. The general practitioner who had treated MP for some 10 years said that he had never prescribed Stilnox or Zolpidem for her, or any member of her family. MP said she had not taken any sleeping medication in 2008. Hair samples taken from her on 17 July 2008 were analysed at the Victorian Institute of Forensic Medicine by an expert in forensic toxicology, Voula Staikos, who gave evidence that Zolpidem was detected. With an assumption made that hair grows at the rate of one centimetre per month, it was determined that there was a significant amount found in hair that had grown in the period of about 17 March to 17 May and trace amounts in hair that had grown approximately 2 months before and 2 months after that period. The peak readings were, of course, in the period when the three prayer sessions had occurred. 62There was evidence that a forensic chemist had advised the police that Stilnox could be dissolved quickly in orange juice without any change in its appearance. Dr William Allender from the Clinical Forensic Medical Unit, who had expertise in the effects of drugs and poisons, gave unchallenged evidence that Zolpidem is eliminated from the body in an average of about 2.5 hours but is remains detectable in the hair. He said that a person who has taken Zolpidem would have a compromised ability to repel any unwanted attention and memory is decreased in respect of events which occur whilst under its effect. MP said that after drinking the juice she felt dizzy and lightheaded. Her memory of events in the subsequent hours was compromised. Although she perceived she was being sexually assaulted, her capacity to repel the attacker was impaired. Telephone evidence 63There was a considerable amount of evidence in the trial about the various phones that were used by the accused, and by GK and MP. It is unnecessary to review this body of evidence as it primarily served, on the Crown case, to inculpate Golossian and AP rather than the applicant by identifying the possible origin of the calls and messages that GK and MP received. The defence cases 64It is also unnecessary to review the evidence given by each accused in the trial. Where necessary, I refer in more detail to aspects of the applicant's evidence below in the context of ground 15. A brief overview of the respective cases will suffice for present purposes. 65Golossian denied that he had administered any intoxicating substance or had sexual intercourse with the complainant. AP also denied having sexual intercourse at the third "prayer session". 66The applicant denied that she was part of an agreement to administer anything to MP and said that during each of the "prayer sessions" she was present in the room, but had gone to the bathroom to say the Lord's Prayer a number of times when Golossian was praying over the complainant. She never saw or heard anything to suggest that a sexual assault had occurred. Otherwise, she claimed that she did what she was told by Golossian and GK. She denied knowledge of any plan for MP to be sexually assaulted in any of the "prayer sessions" or in "the test". Evidence was called as to the applicant's good character. The hotel/motel rooms 67It is appropriate to say something about the nature of the accommodation at the Marco Polo hotel and the Ashfield Motor Inn. It is relevant to the submissions to which I will refer later concerning the "in company" element and the possibility that the applicant may have been in the bathroom at the time sexual assaults occurred. Photographs of rooms at each place were before the jury (Exhibits M and N). It is clear that the rooms were modest in both size and furnishings in relatively inexpensive establishments. They were hardly suites in a five star hotel. The requirement for leave to appeal 68There were 13 grounds of appeal initially notified in respect of conviction but after leave was granted during the course of the hearing they were expanded to 15 and re-numbered. They each require leave, in the most part because they raise points not taken at trial: Criminal Appeal Rules, rule 4. Where that rule does not apply, the requirement for leave arises under s 5(1)(b) of the Criminal Appeal Act 1912 because questions of fact are involved. Rule 4 69Before turning to the grounds of appeal it is appropriate to say something about rule 4. There are a great many cases in this Court in which authoritative statements as to the purpose and effect of the rule may be found. There has been constant criticism of points being raised on appeal, often unmeritorious, which were not raised at trial. A useful recent summary was provided by the Chief Justice in ARS v R [2011] NSWCCA 266: [146] Because the Crown submitted that r 4 applied in relation to these grounds and the subsequent grounds in which it was submitted there was no evidence fit to go to the jury or that there was latent duplicity, it is convenient at this stage to deal with the scope of r 4. Rule 4 provides as follows: "No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal." [147] The effect of the rule was summarised by McHugh J in Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 as follows (at [72]): "There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant. Where the evidence was admissible, but the trial judge had a discretion to limit its use, the burden on the appellant is greater: the appeal can succeed only if the Court of Criminal Appeal is satisfied that the discretion would have been exercised in favour of the appellant and that, if it had, it is more likely than not that the appellant would have been acquitted ... " [148] Subsequent cases have established that the following matters are important in considering the operation of r 4: The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170]. The appellant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]-[21]. A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]-[61]. An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130]. 70In the present case the applicant was represented at trial by counsel who appeared in this Court as junior to Mr Ramage QC. Somewhat surprisingly, the written submissions on behalf of the applicant made no mention of r 4 at all; it was only acknowledged by Mr Ramage at the outset of the hearing after it had been seen that the obvious point was being taken in the written submissions filed for the respondent. 71Another surprising point is that, notwithstanding junior counsel on the application was counsel for the applicant at trial, no attempt was made to explain why the many points now sought to be argued were not raised by him before the trial judge. He is certainly not an inexperienced barrister and his conduct of the case at trial does not suggest that incompetence can be an explanation. 72As will be seen, the proposed grounds of appeal contain many contentions as to the conduct of the Crown Prosecutor and as to the legal correctness of the summing up by the trial judge. This may well be an indication that counsel "saw no injustice or error in what was done": Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [12], referring to R v Tripodina (1988) 35 A Crim R 183 at 191. A failure to take objections or request redirections to matters in the summing up is "usually a reasonably reliable indicator of its fairness and adequacy": Tekely v R; Nagle v R [2007] NSWCCA 75 at [89], drawing from R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at 354. I would add that the lack of objection to cross-examination of an accused by the Crown Prosecutor, or to the content of the Crown Prosecutor's closing address, would also tend to suggest that there was not the unfairness which is now contended in this Court. 73The critical issue for the applicant to establish, as she bears the onus of showing that leave should be granted, is that there has been a miscarriage of justice in that she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R; R v Picken [2007] NSWCCA 319 at [21]. Another formulation of the test is that "leave will only be granted where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings": R v Tripodina, supra, at 195. Ground 1: The trial miscarried and the Appellant did not receive a fair trial as a result of errors in the conduct of the trial and directions given to the jury as more particularly set out in the individual grounds hereunder. 74This ground adds nothing to the applicant's case and nothing more needs to be said about it. Ground 2: The trial judge erred in her directions to the jury as to the evidence relevant only against the Appellant 75In relation to this ground it is appropriate to reiterate that the applicant was only charged with offences alleged to have been committed against MP, whereas her co-accused were charged as well with offences alleged to have been committed against MM. The latter offences were said to have occurred between 2001 and 2005 while the offences against MP were alleged to have taken place in the first half of 2008. The Crown led evidence of other sexual activity involving MM as context evidence. It also relied upon coincidence evidence, that is, that the offences committed against each complainant bore certain remarkable similarities. In relation to the individual complainants, the Crown also asserted that the evidence established that Golossian and AP had a tendency to have a sexual interest in them and that they acted upon it by having sexual intercourse with them. When speaking of the coincidence evidence, the trial judge directed the jury that "the evidence relating to the charges or counts in respect of one complainant may be relevant in relation to the other complainant. This is different from tendency where, as I say, you are restricted to the counts involving just the one complainant" (SU 137.3). 76In support of this ground, it was submitted that the trial judge failed to distinguish between the evidence admissible in the case concerning the applicant and the evidence that was only relevant to, and admissible against, the co-accused. It was acknowledged that the judge directed the jury that there were three separate trials and that it was necessary for separate consideration to be given to the case concerning each accused. She explained that the reason for this was that there was some evidence available to be considered in the case of one accused that was not available in relation to another accused. She cited the example of the appellant's police interview being only evidence in her case. Similarly, the police interview of Golossian was only evidence in the case concerning him. Another example cited was an exhibit that related to offences concerning the complainant MM, the appellant not facing any charges concerning her (SU 8-9). After citing these items of evidence as examples, her Honour then said: Generally most of the evidence is available for you to consider in the case of whichever accused you are considering at the time (SU 9.5). 77A little later in her summing up (SU 14-15) her Honour gave directions to the jury to separately consider of each of the multiple counts that each accused faced. These directions were in a conventional form. They included: You must look at the evidence that relates to each of the specific charges and also what evidence, if any, you find in support and then make separate and distinct decisions about whether the accused whose case you are then considering is guilty or not guilty of that count. 78A number of issues were raised by counsel for the co-accused at the next break in the summing up (SU 25 - 28), and subsequently, but there was no complaint in respect of these directions. 79Nine examples were cited in the applicant's written submissions which were said to constitute a failure of the judge to "distinguish or sufficiently distinguish" the evidence admissible against her with that which was only admissible against the co-accused, despite what her Honour had said earlier, as noted above (at [76]-[77]). 80It emerged in oral submissions that the primary concern was that, in considering the applicant's case, the jury may have taken into account evidence concerning the counts relating to MM. It was accepted that there had been no application by the applicant for a separate trial relating to this concern. Further, and as counsel for the respondent pointed out (1.2.12 at T1.38), it is somewhat ironic that the submission was made in this Court whereas in the court below, counsel for the applicant sought in his closing address to rely upon the case concerning MM in an endeavour to take forensic advantage of certain similarities and dissimilarities. For example, he submitted: It is necessary for you, members of the jury, to put the case that's alleged against [FP] in the context of what happened prior to 2008, and that of course very much turns on what events occurred between 2001 and 2005, involving her husband [AP] and Tony Golossian in relation to [MM], and to perhaps a lesser extent, [MM's partner at the time]. (T3138.30) 81It was submitted that the need for the judge to carefully direct the jury as to the evidence that was available for consideration in the case concerning the applicant was heightened by the manner in which the Crown Prosecutor had addressed the jury (bearing in mind the irony I have just mentioned). It was contended that "the Crown wound the cases together" (31.1.12 at T2.4). Counsel for the applicant subsequently provided a list of transcript references for the Crown's closing address which were said to support a submission that the prosecutor had "intermingled the inadmissible evidence regarding [MM] with admissible evidence involving [MP]". Counsel for the respondent, with leave, provided further written submissions concerning these references. 82I have carefully reviewed each of the references upon which the applicant relies. I am unable to accept that they support the applicant's submission. It is unnecessary to deal with this in detail as the submission is by way of background to the ground under consideration. 83The Crown Prosecutor's closing address was structured so as to deal with the case concerning the offences against MM first. This occupies about 50 pages of transcript (T3049 - 3102). She then turned to deal with the offences concerning MP (T3102 - 3135). She then concluded with some very brief arguments addressing the similarities in the evidence of the two complainants and countering any suggestion that there had been joint concoction between them (T3135 - 3136). 84As the prosecutor reviewed the evidence of one complainant, or the other, she occasionally reminded the jury of the similarities between their accounts, or the accounts of the complainants' partners. This was a legitimate thing to do because the Crown case concerning Golossian and AP relied upon coincidence evidence. Counsel for the respondent correctly pointed out in her further written submissions that the Crown Prosecutor had at no stage made any suggestion that the similarities in the evidence concerning each complainant had anything to do with the applicant. The arguments put to the jury were confined to the other accused. For example, in the course of reviewing the evidence of MP, the prosecutor submitted: Tony [Golossian] said "It's going to feel a hundred per cent real but it's not, it's just a dream". And you will compare that, I suggest, to what [MM] was told by Tony Golossian for her prayer session. Very similar thing, and that is no mere coincidence, members of the jury. (T3112.35) 85It was MP's evidence that before the first prayer session commenced she was commanded to go to the bathroom and take off all of her clothing and come back into the room with just a towel around her (T121). Golossian disputed this and asserted that the decision to remove all of her clothing was the complainant's (T2116). The prosecutor submitted to the jury: Do you really accept that [MP] would go in of her own volition, change from her clothing into a towel, not even leaving a bra or underpants on, nothing on for fear of some oil getting on her clothing and come out into the room and say "Don't worry, I'm like your daughter" or "I'm like your son". I submit you wouldn't accept that she would have done that. She changed out of her clothing and into a towel because she had to, just like [MM]. (T3113.6) 86Another example relates to the account MP gave of a telephone call that she received from "the red evil" on 4 June 2008, just as she was about to attend the home of AP for "the test". The caller instructed her how to encourage him to have sex with her. She was told what to say and what to do in considerable detail. AP conceded that he had made the call but claimed that he was simply "messing with her mind" (T2534.22). The conversation was legally recorded by police. The instructions included: ... He will not agree [to have sex] and he will try to stop you ... No matter what he says, keep sucking ... The only way to make him agree is to say, 'if you do not fuck me, I will run outside and scream' ... suck him and pinch his nipple ... (Exhibit C. AB 337-338) 87In referring to this aspect of MP's account, the Crown Prosecutor reminded the jury of a similar aspect in MM's account. MM had received instructions to have sex with AP. They included: He said that when I answered the door to [AP] I was to say to him, 'I want you to have sex with me'. He said to me that [AP] will say to me, 'No I don't want to.' He then said to me that I had to say to [AP] the exact words 'If you don't I will scream, the neighbours will hear me and I will cause trouble for you.' ... And he said that while I performed oral sex on [AP] I was to pinch his nipples as this is something that he liked. (T845.36 - 846.6) 88There was nothing wrong in each of these cases with the Crown Prosecutor pausing to remind the jury of similarities in the accounts given by the other complainant. As I have said, each of the passages to which the applicant referred related to evidence that concerned Golossian or AP. There was no invitation, or suggestion, that inadmissible evidence should be used in the jury's consideration of the case concerning the applicant. 89I turn to the passages in the trial judge's summing up that were said to support the proposition that she did not "distinguish or sufficiently distinguish the evidence properly admissible against the [applicant] and that of her co-accused". The first example was her Honour's statement in the context of directing the jury as to the elements of the conspiracy offence. She briefly reminded the jury of the evidence upon which the Crown relied in order to prove the existence of the relevant agreement. She concluded this by saying: "And the Crown also relies on the phone records and text messages, SMS messages, between the accused, all three accused on 4 June and earlier" (SU 64). 90It was submitted that this invited the jury to consider all of the telephone call/text evidence, regardless whether it was relevant and admissible in relation to the alleged conspiracy. 91The vast majority of the telephone call/text evidence was not inculpatory of the applicant. The Crown did not suggest that she had on any occasion pretended to be "the evil" or "the angel"; that was only asserted in respect of Golossian and AP. There were call charge records for various phones which showed contact between the applicant and her co-accused. Such contact between the persons alleged to be co-conspirators was relevant but, aside from text messages sent on the day the alleged conspiracy was to be played out, the content of any communications could not possibly have been regarded by the jury as indicating anything as to whether she was a party to it. 92The argument in this Court, but not the subject of complaint below, was that the above statement by the trial judge invited the jury to consider evidence that did not relate to the conspiracy, but related to the preceding "prayer sessions" and ancillary events concerning MP and also evidence that related to events concerning MM. Having reviewed the summing up as a whole I am not left with any doubt that the jury would have well understood that material concerning MM had nothing to do with the applicant. It was not explained how the jury could possibly have regarded telephone communications relating to the earlier prayer sessions as having any bearing upon the question of whether the applicant was a party to the conspiracy. Trial counsel obviously did not have any of the concerns now raised on behalf of the applicant. 93Other examples cited in the applicant's written submissions may be dealt with more briefly. Reference was made to her Honour's summing up concerning the counts alleging offences against MM. It was submitted that "[a]t no stage did she direct the jury that none of that evidence ... was admissible on any basis against the [applicant]" (AWS 1.1.4 (ii)). I fail to see how the jury could have regarded such evidence as bearing upon the case concerning the applicant. She was not charged with any of those offences and there was no suggestion that she was in any way involved in any of those incidents. The fact that counsel for the applicant was not moved by any concern about the possible misuse of the evidence to ask the judge to give any further direction about it confirms my view. 94The next example misconceives the structure of the summing up. After her Honour had dealt with the elements of each of the offences and briefly summarised the parties' cases in respect of each, she announced that she had completed that subject and was moving "to some general matters" (SU 121). She introduced the first of those matters by saying: You would also recall that there was evidence of other acts led by the Crown, other acts of alleged misconduct by each of the accused, that is Mr Golossian and [AP], towards [MM]. This does not apply, obviously, to [MP], what I am about to say. (SU 121.7) 95Her Honour proceeded to identify the evidence of other sexual activity and gave directions about its relevance and warned against misuse in conventional terms (SU 121 - 125). She then moved to the next of the "general matters": The next direction that I must give you and this applies to both [MM] and [MP] is that in respect of the allegations in respect of either of the complainants you would be aware that the Crown case relies substantially on the evidence of each individual complainant alone. (SU 125.6) 96Her Honour proceeded to give a standard Murray direction: R v Murray (1987) 11 NSWLR 12 at 19 per Lee J. It included that in considering each complainant's evidence the jury should look to see if it was supported by other evidence. She referred to the Crown case that MM's account was supported by certain evidence which she identified. This was followed by: Similarly the Crown says the evidence of [MP] is supported by the complaints that she made first to her husband and to [HD] and the Crown says that both complainants' evidence is supported by tendency evidence that I will take you to in a moment and coincidence evidence. (SU 127.1) 97On behalf of the applicant it was submitted that this "conflated the case" (AWS 1.1.4 (iii)). The subject of complaint evidence is dealt with next. The subject of tendency evidence is dealt with shortly. Dealing with the present point, I do not accept that there was any inappropriate conflation. 98Next it was submitted that when referring to the evidence of complaint by MP, in the context of which her Honour said "this applies obviously particularly to the accused Mr Golossian", a direction should have been given that the evidence of complaint was not admissible against the applicant (AWS 1.1.4(iv)). That is not correct. Given the necessity of the Crown proving in the case concerning her that the complainant had been sexually assaulted, complaint evidence was clearly admissible. 99The next example cited in the applicant's written submissions is that her Honour said, "Here I will remind you that both complainants told you that they were instructed not to tell anyone and if they did that the curse would get worse or words to that effect" (SU 128). This was said in the context of the directions on complaint. It immediately followed the conventional component of such directions: If on the other hand the complainant has not acted in a way you would have expected someone to act after being sexually assaulted as described then that may indicate that the allegations are false. But remember there may be good reasons why a complainant does not raise the allegation immediately and that a failure to do so does not mean the allegation is false or the allegations are false. (SU 128.6) 100Seen in its correct context, there was nothing wrong with her Honour referring to both complainants' evidence that they were threatened with reprisals if they complained. 101The next example is another case of taking a statement by the trial judge out of context. Reference was made to her Honour saying that the Crown case was that each accused had a tendency to have a sexual interest in each of the complainants and to act on that sexual interest. The context in which this was said was: Dealing now with the counts in the indictment, you are obviously well aware that you have a number of counts or charges in respect of each complainant. The Crown says that each accused has a tendency to have a sexual interest in each of the complainants, that is [MM] or [MP] and to act on that sexual interest by having sexual intercourse with her. By proving the accused whose case you are considering had this sexual interest in that particular complainant, this only applies to the particular complainant whose case you are considering and that he was willing to act on it, the Crown argues you will find it more likely that he committed the other count or counts in the indictment. This obviously applies only to Mr Golossian and [AP], it does not involve [FP]. (SU 132) (Emphasis added) 102Her Honour's removal of the applicant from consideration in relation to this topic could not have been clearer. 103Although it was not referred to in the applicant's written submissions, it is worth mentioning at this point that the next topic dealt with by the trial judge was coincidence evidence. The Crown relied upon the similarities in the way each complainant said that the offences were committed. Her Honour prefaced her directions on this topic by directing: Again this only involves Mr Golossian and [AP] because you are well aware that [FP] is only charged with the final counts in the indictment in respect of [MP]. (SU 137.1) 104This further served to remind the jury (if it was not already patently obvious) that the evidence concerning MM had nothing to do with the case concerning the applicant. The point was reinforced when her Honour concluded her directions on coincidence evidence by reminding the jury of the competing arguments of the Crown Prosecutor, and counsel for the accused Golossian and the accused AP (SU 139 - 141). Obviously, nothing was said about any submissions made by counsel on this subject that concerned the applicant. 105The penultimate example in the written submissions (AWS 1.1.4 (viii)) is a repetition of some of the previous examples and needs no further discussion. 106The final example involved reference to her Honour's summary of the closing arguments of counsel. It was submitted that this was done "in terms which conflated the cases of the [applicant] and her co-accused". The submission does not fairly acknowledge that the closing arguments commenced on a Thursday morning and concluded the following Wednesday afternoon and her Honour's summary was so brief that it occupied only about five pages of transcript (SU 142 - 147). Many of the points that were made had already been referred to, appropriately, in the course of giving the various legal directions. A review of what her Honour said does not reveal to me any possibility that the jury were invited, or left to think, that evidence that did not properly relate to the applicant was nonetheless available for consideration in the case concerning her. 107Ground 2 is an example of an "armchair appeal"; counsel picking over the transcript and creating arguments that did not occur to those who had the benefit of the complete atmosphere of the trial. This ground lacks merit and leave to rely upon it pursuant to Rule 4 should be refused. Ground 3: The trial judge erred in her directions on tendency, coincidence and context evidence 108As noted earlier, the Crown relied upon tendency evidence within the cases concerning each complainant but not between those two cases. It also relied upon coincidence evidence between the two cases. In the case concerning MM it also relied upon context evidence. None of this evidence was relied upon in the case of the applicant. It was not asserted that she had any relevant tendency. The evidence concerning MM was not available for coincidence reasoning in the jury's assessment of the alleged offences concerning MP. Unlike MM, MP did not give evidence of there having been any uncharged sexual conduct. 109The written submissions for the applicant included a contention that "it is impossible to see how, on the question of whether one complainant consented, the other complainant's evidence that [she] did not has any probative value" (AWS 1.2.4). Reliance was placed upon Phillips v R [2006] HCA 4; (2006) 225 CLR 303 and Stubley v Western Australia [2011] HCA 7; (2011) 242 CLR 374. However, on the hearing of the application, Mr Ramage indicated an acceptance of the Crown's written submissions. I take this to be a reference to paragraph 81 of those submissions where the limitation on the use of tendency evidence, which I have set out in the previous paragraph herein, was pointed out. 110Whilst the applicant's written submissions acknowledged that the trial judge had said at the beginning of her directions on tendency evidence, and said again at the beginning of her directions on coincidence evidence, that they did not apply to the case concerning the applicant (SU 132.9 and 137.1), it was nevertheless contended that "the finding by use of such materials against the co-accused lead almost inevitably to the [applicant's] conviction" (AWS 1.2.3). The basis of this is the contention that the jury should have been directed that they could not use the evidence of MM to provide support for the evidence of MP when they came to consider the reliability of the latter in respect of the case concerning the applicant (AWS 1.2.5). 111It was also submitted that the trial judge was in error in not complying with a request made by counsel for the accused Golossian to direct the jury as to "dissimilarities", after having informed the jury of 15 similarities that the Crown relied upon. This is a point that would only have relevance to the applicant if the coincidence evidence was available for the jury's consideration of her case. It was not, and the trial judge directed the jury to that effect in the clearest of terms. 112I am not persuaded that there was anything erroneous in the manner in which the trial judge directed the jury on tendency and coincidence evidence; particularly given that she had removed it from consideration in the case concerning the applicant. As counsel for the respondent pointed out (CWS [79]), it is a fundamental assumption that juries will act in accordance with directions: Gilbert v R [2000] HCA 15; (2000) 201 CLR 414 at [13] per Gleeson CJ and Gummow J and at [31] - [32] per McHugh J; HML v R [2008] HCA 16; (2008) 235 CLR 334 at [52] per Kirby J and at [353] per Heydon J; John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; (2004) 61 NSWLR 344 at [103] - [110] per Spigelman CJ. There is nothing in the present case that would justify this Court not acting upon that assumption. 113Whilst the statement of this ground includes reference to context evidence, no submission was made on the subject. 114There is no merit in this ground and it is unsurprising that no point was taken at trial. I would refuse leave to rely upon it. Ground 4: The trial judge erred in her directions on the meaning of "in company" 115This ground relates to counts 36, 38 and 41 which charged the offences of aggravated sexual assault (s 61J(1) of the Crimes Act). The applicant's conviction in respect of these counts entailed that the jury were satisfied beyond reasonable doubt, inter alia, that sexual assaults committed by Golossian in the first and second prayer sessions, and by AP in the third prayer session, were committed "in company". A strong attack was made as to the adequacy and correctness of the directions given concerning this element, notwithstanding that the directions were the subject of discussion between counsel and the trial judge prior to the summing up, and that the written directions were settled in the light of those discussions. 116It is necessary to review some authorities before setting out what were the essential matters that should have been incorporated in the directions. The judgment of Kirby J in R v Button; R v Griffen [2002] NSWCCA 159; (2002) 54 NSWLR 455 contains a useful review but it must be borne in mind that the focus of the analysis there was on whether a sexual assault that was perpetrated some 50 metres away from others could be said to have been committed in their company. (It was held that in the circumstances of the case it could). 117R v Brougham (1986) 43 SASR 187 was concerned with an offence of robbery in company. Two men were passengers in a taxi and one of them attacked the driver and demanded money. The other man assisted but did not physically strike the driver. It was contended on appeal that the conviction could not be sustained because it was necessary that both men must have physically participated before the robbery could be one committed "in company". This contention was rejected. King CJ, with whom Mohr and von Doussa JJ agreed, said (at 191): A person commits a robbery ... in company where that person participates in the robbery ... together with another or others in the sense that the victim is confronted by the combined force or strength of two or more persons or that the forces of two or more persons are deployed against the victim. It is not necessary that more than one participant actually strike or rob the victim; it is sufficient that the accused and one or more other participants be physically present for the common purpose of robbing ... and of physically participating if required. 118R v Crozier (New South Wales Court of Criminal Appeal, 8 March 1996, unreported) involved an appeal against conviction for an offence of sexual assault in company. The appellant had sexually assaulted the complainant in the back seat of a car while another man sat in the front. The trial judge simply directed the jury, in effect, that the presence of the two men was sufficient for the Crown to have established the "in company" element. After quoting the above passage from Brougham, Grove J (Cole JA and Ireland J agreeing) said: I would apply a similar approach to the allegation of the circumstance of aggravation in this case in assessing the requirements for proof that the alleged offence occurred "in company". The evidence does not show that Fitzgerald was other than entirely passive during the action of the Appellant when he returned from his stated intention of urinating and got into the back seat of the car with the complainant. There is no evidence that Fitzgerald was encouraging the Appellant by word or action, indeed the complainant said that she recalled that he may have had a can of drink. It is true that the direction above recited was given without objection by counsel at trial (who did not appear for the Appellant in the appeal) and it may fairly be concluded that the capacity of the evidence to sustain a finding that the alleged offence by the Appellant was committed in company was not explored. Nevertheless in my opinion the evidence could not sustain the circumstance of aggravation specified in the indictment. Even if that conclusion were incorrect the summing up was deficient to the extent that the jury were given no relevant instruction and left to accept that mere presence of another sufficed. 119In R v Leoni [1999] NSWCCA 14 the offence was one of robbery in company and the appellant had been unsuccessful in applying to withdraw his plea of guilty. There had been a number of versions of the events before the primary judge. Adams J (Abadee and Barr JJ agreeing), inter alia, considered whether the appellant's own version supported the charge. He claimed that he stood in the vicinity of the front door of the victim's premises while she was accosted inside and robbed by two co-offenders. It was at least implicit that the victim was aware of his presence and Adams J observed that he was in a position to assist the other two offenders if necessary. After quoting the above passage from Brougham, his Honour said: [17] It seems to me that the essence of this offence is not that the accused intended that the victim should be overborne by the presence of more than one robber or that he should intend to come to the assistance of the other if necessary. In my opinion, the only relevant intent is that the offender placed himself in the position in which he knew or expected that the victim would know of his presence and ability to assist in the robbery if called on to do so. ... [20] In my opinion, presence at the scene with the intention of physically participating, if required, is sufficient to satisfy the section, even if that presence is unknown to the victim. However, if the offender makes his presence known to the victim so that, to use the words of the Chief Justice in Brougham "the victim is confronted by the combined force or strength of two or more persons" that will be sufficient to satisfy the section even if the offender did not, as it happened, intend to physically participate if required. 120In R v Jacobs and Mehajer [2004] NSWCCA 462; (2004) 151 A Crim R 452 at [153], Wood CJ at CL observed that R v Leoni had developed the concept of "in company" further than Brougham, having regard to what appears in the second of the paragraphs I have quoted. 121That brings me back to R v Button; R v Griffen. The offence involved a complainant being sexual assaulted by five men in a quarry and then in remote bushland. The last man to attack her took her into the bush about 50 metres away from the others. It was contended on appeal that the physical presence of a co-offender during the commission of the offence was necessary. The proposition was rejected. Kirby J, with the concurrence of Heydon JA and Greg James J, reviewed the foregoing and other authorities and then set out (at [120]) the propositions that emerged from them. Relevantly, those propositions were: * the offenders must share a common purpose to commit the offence in question; * physical presence of one or more other persons is required; * participation in the common purpose, without physical presence, is insufficient; and, * "The perspective of the victim (being confronted by the combined force or strength [of] two or more persons) is relevant, although not determinative. If two or more persons are present, and share the same purpose, they will be 'in company' if the victim is unaware of the other person". 122Kirby J then turned to consider what "physical presence" meant. He described this as "an elastic concept" and proceeded to give two hypothetical examples. One was of a sexual assault in a large house involving a number of individuals. He said that it would not necessarily mean there was not the required physical presence if the victim was taken into a bedroom by one offender and the door closed; even if the bedroom was upstairs so that there was some distance separating the offender and the other members of the group. There were limits, however, and these were to be determined according to the following test stated by his Honour (at [125]): The test is the coercive effect of the group. There must be such proximity as would enable the inference that the coercive effect of the group operated, either to embolden or reassure the offender in committing the crime, or to intimidate the victim into submission. 123The summing up by a trial judge was found by Ipp JA (Buddin and Shaw JJ agreeing) to be in accordance with this test, and thus correct, in R v ITA, supra, at [121]: [119] Finally, his Honour stated that the next element was that the appellant was in company with AK. His Honour went on to explain what that meant. He said: "The expression that he was in company with the other person does not mean that the companion needs to physically co-operate in the actions of the sexual assault such as by holding the victim down for example. The two men must have the common intention that the perpetrator will illegally sexually assault the victim in some way by way of sexual intercourse. It is not necessary to show that the intention was for the very type of sexual intercourse that occurs but in general for some form of sexual intercourse. The companion must be somewhere in the physical vicinity of the perpetrator, to the knowledge of the perpetrator. This does not mean that the companion needs to be in this case in the same room in the house. Presence in the same house may be enough if that presence is enough to satisfy the following elements. There must be such proximity as would give the inference that the companion's presence either (a) encouraged the perpetrator in committing the crime or (b) intimidated the victim into submission". [120] The trial judge proceeded to say: "Now the Crown has put to you yesterday the way in which the Crown says that the presence of AK, at the time that the Crown says the first crime was committed, both encouraged [the appellant] in the commission of the crime and also intimidated [the complainant] into submission to the crime". [121] Thus, his Honour directed the jury that, for the offence to have been committed "in company", the appellant must have had the common intention with AK that the appellant would illegally sexually assault the complainant by sexual intercourse. He went on to give directions as to the need for physical proximity such as to encourage the perpetrator or intimidate the victim. Accordingly, his Honour's instructions were in accordance with the propositions stated by Kirby J in R v Button (2002) 54 NSWLR 455 to which I refer below. 124Later (at [136] - [140]), after referring to R v Button; R v Griffen, Ipp JA concluded that there was no miscarriage of justice upon the asserted basis that the direction was inadequate or incorrect. However, it was later concluded (at [170]) that the evidence that the two men had a common purpose to sexually assault the complainant was equivocal. A verdict for the non-aggravated form of the offence was substituted. 125It has recently been confirmed that physical presence and the perspective of a victim being confronted by the combined force of more than one person is insufficient; involvement in the common purpose is essential: Markou v R [2012] NSWCCA 64 at [24] - [34] per Macfarlan JA, R S Hulme J and myself agreeing. 126Having regard to these authorities, the direction that the trial judge was required to give to the jury in the present case in relation to counts 36, 38 and 41 involved the following components: 1. that the alleged co-offender (Golossian for counts 36 and 38 and AP in count 41) had sexual intercourse with the complainant without her consent, knowing that she was not consenting; 2. that the applicant shared a common purpose that this would occur; and 3. that the applicant was physically present when it occurred, such presence being sufficiently proximate if (a) it afforded encouragement to the alleged co-offender or (b) it operated to intimidate or coerce the complainant. The directions 127The trial judge gave the jury both oral and written directions. The written directions for count 36 (omitting presently irrelevant material including question trail elements) stated: Are you satisfied beyond reasonable doubt: 1. that Tony Golossian had sexual intercourse with [MP]? 2. that the sexual intercourse was without the consent of [MP]? 3. that Tony Golossian knew [MP] was not consenting? 4. that Tony Golossian was in company with another person, namely [FP]? In company means that both Tony Golossian and [FP] intended Tony Golossian to have sexual intercourse with [MP] and [FP] was present and participating in the offence, at least by encouraging or assisting Tony Golossian. (Emphasis in original) 128Individual written directions were given in relation to each of the three sexual assault counts but they were in identical terms, although in relation to count 41 there was the substitution of AP for Tony Golossian. 129The oral directions in relation to the "in company" element in relation to count 36 were: The final element or question you need to answer in respect to this first count of sexual intercourse or allegation of sexual intercourse is whether "Are you satisfied beyond reasonable doubt that the accused was in company with someone else, namely [FP]?" And again I have set out for you there what in company means and I will elaborate on it to a small extent in a minute. It means that both the accused Golossian and [FP] intended Mr Golossian to have sexual intercourse with [MP] and that [FP] was present and participating in the offence, at least by encouraging or assisting Mr Golossian as I set out there. Now these directions that I will give you about someone being in company apply equally where it is someone other than [FP] who is alleged to be in company and I think we have one of those counts which I will come to shortly. Whether the accused Mr Golossian was in company with [FP] depends on your findings of fact as to the circumstances in which [FP] was present in the motel room. To find that Mr Golossian was in company with her as I have set out in the document you have to be satisfied beyond reasonable doubt that she shared his intentions that he would have sexual intercourse with [MP] and that she was there participating in the offence at least by encouraging and assisting Mr Golossian. If [FP] was there with knowledge of what was to take place and she was prepared to assist Mr Golossian in the sense that by her words or conduct she was doing something to bring about or rendering more likely through encouragement or assistance his commission of the offence then she is in company with Mr Golossian. I emphasise mere presence in the room is not sufficient. You must be satisfied beyond reasonable doubt that she intended Tony Golossian to have sexual intercourse with [MP] and was there participating in the offence. As I have just said simply being there without that intention and without being part of this agreement is not being in company. Mere presence is not enough. I am sure you are well aware essentially the Crown relies on what has been outlined earlier in respect of the administering Zolpidem counts that [FP] was there, that she was the person that purchased the orange juice. She was there in the motel room. If she chose to absent herself by going to the bathroom but was aware of what was to take place she would still be in company. If she went to the bathroom having no knowledge of what Mr Golossian was to do then of course she is not in company. (SU 45-46) 130Her Honour continued by explaining that in respect of the accused Golossian the jury could return a verdict of guilty for an offence of sexual assault pursuant to s 61I of the Crimes Act if there was a reasonable doubt about the circumstance of aggravation that brought the offence within s 61J. In relation to the accused FP, the jury were directed that if there was a reasonable doubt about the "in company" element then they should simply find her not guilty. 131The jury retired for the luncheon adjournment a short time after the directions above were given. The judge invited any applications for clarification or redirection. The Crown Prosecutor invited her Honour to clarify that "participating in the offence" did not mean physical participation. The judge said she would give consideration to that over lunch. Mr Evans, counsel for the applicant at trial and junior counsel in this Court, opposed anything further being said in relation to the prosecutor's point but asked that the jury be directed to consider how his client could have assisted or encouraged Golossian if she had been called upon (SU 52). In the end the judge did not say anything further in relation to both of these points. 132The oral directions given in relation to counts 38 and 41 were in briefer terms; the judge declined to repeat the directions of law and confined herself to identifying the evidence upon which the Crown relied (SU 48-50; 58 - 61). 133At the end of the day (the first day of a two day summing up), the trial judge received a variety of submissions from counsel for each of the accused on a variety of issues. They included Mr Evans referring her Honour to R v Button; R v Griffen, supra, on the "in company" issue. He submitted, or at least he appears to have submitted because it is not entirely clear from the transcript, that there should be a direction that the Crown was required to prove that the appellant was both present and "able to influence the events" (SU 82). The trial judge said nothing further on the subject. Submissions 134The written submissions for the Crown drew attention to the fact that the written directions the judge proposed to provide to the jury had been the subject of a number of discussions with counsel prior to the summing up. Ultimately there was no dissent in relation to their final form (T3110; 3221-3223). It seems that the only point the applicant's counsel was concerned to make at the time the document was in its final draft was that participation by way of encouragement or assistance by the applicant to the principal offender had to be at the time the sexual assault occurred, as opposed to at some earlier time (T3223.40). 135For the applicant, it was submitted that there were eight errors in the directions concerning "in company". I will refer to them by the order in which they were listed in the applicant's written submissions, but I will not deal with them in that order as there was a degree of overlap and they were dealt with in a different order in counsel's oral submissions. 136The first asserted error was that there was a failure to explain that the intention shared by the applicant with Golossian had to be more than that sexual intercourse would take place but that it had to be sexual intercourse without consent. 137In response, the Crown submitted that there was no reasonable possibility that the jury were misled or confused as to the requirement that the intention on the part of the appellant was that her co-accused have sexual intercourse, without the complainant's consent and knowing that she was not consenting. This was because the written and oral directions both clearly set out that these matters concerning consent were part of the essential matters requiring proof beyond reasonable doubt. 138The Crown submission should be accepted. Moreover, it should be borne in mind that the real issue in the case was whether sexual intercourse occurred and whether the applicant was aware that it occurred, not whether it was consensual. Senior counsel for the applicant conceded this in the course of oral submissions (31.1.12 at T11.40). 139Secondly, it was submitted that there was a failure to explain what participating in the offence meant and in this regard, reliance was placed upon R v Brougham, supra. This contention must be rejected. The trial judge told the jury what she meant by "participating in the offence", once in the written directions and three times in the extract from the summing up in relation to count 36 quoted above: "at least by encouraging or assisting Tony Golossian". 140Allied to this contention was the sixth point listed in the written submissions; that is, the judge "failed to mention" that it was necessary to find that not only was the applicant prepared to assist, but prepared to participate by giving physical assistance if required or necessary. This must also be rejected. The authorities I have reviewed earlier make it apparent that this is not a necessary element to establish that an offence was committed "in company". 141The third and fifth asserted errors listed in the applicant's written submissions seemed to merge in the course of oral submissions. It was contended that the direction failed to reflect the difference between this charge (that is, "in company") and accessory before the fact, and that it introduced a false notion of "rendering more likely". It was submitted that the direction given was one appropriate for accessorial liability. I do not accept this submission. A key element, as the above authorities make plain, is that the applicant shared a common purpose that the offence in question be committed. What the trial judge said in that respect cannot be impugned, but she did not limit the direction to just that aspect. 142I suspect the applicant's complaint in this Court derives from the obvious and laudable attempt by the trial judge to avoid legal jargon, such as the term "common purpose". She said on a number of occasions during the course of discussions with counsel about the summing up that she would avoid using jargon wherever possible. As I have indicated earlier, it was necessary for the jury to be satisfied that the applicant shared a common purpose with her co-accused and that she was present at the commission of the offence, with such presence operating either to encourage the co-accused or coerce the complainant. So much was conveyed by her Honour's reference to "present and participating in the offence, at least by encouraging or assisting [the co-accused]". 143If anything, the direction pitched the burden that lay on the Crown at a level higher than needed. In the oral directions, her Honour spoke of the applicant, "by her words or conduct she was doing something to bring about or rendering more likely". This may be thought to suggest that the applicant's presence having one or the other of the effects I have mentioned was not enough and that more was required. More is not required. The Criminal Trials Bench Book, Judicial Commission of New South Wales, suggests a most succinct direction (in the context of an offence of aggravated indecent assault) which is in accordance with the authorities (at [5-680]): The Crown must prove beyond reasonable doubt that the offence was committed in the company of another person. If two or more persons are present, and share the same purpose to indecently assault the alleged victim they will be "in company", even if the alleged victim is unaware of the other person[s]. [If it is in dispute as to whether [the accused] was in company, add: The Crown must prove that the coercive effect of the group operated, either to embolden or reassure [the accused] in committing the crime alleged, or to intimidate [the alleged victim] into submission. The perspective of [the alleged victim] (being confronted by the combined force or strength of two or more persons) is relevant, but does not solely decide the issue. Participation in the common purpose without being physically present (for example, as being a look-out or previously encouraging [the accused] to commit the offence) is not enough. (Emphasis in original) 144The eighth asserted error was that the trial judge should have acceded to a request by counsel for the applicant (the only point he raised after the directions in relation to counts 36 and 38 were given) that the jury be invited to consider how the applicant could have encouraged or assisted the principal offender if she had been called upon. For the reasons just discussed, this was unnecessary. 145The fourth asserted error was stated to be that the direction "failed to bring home to the jury that her words or conduct had to be knowingly in the sense of directed towards that purpose". Nothing further was said about this in either the written or oral submissions. I do not understand it and it was not something that was raised by counsel at the trial. Accordingly, I do not propose to try and divine what the complaint is. 146The seventh asserted error concerned the applicant's evidence that while Golossian was praying over the complainant, she absented herself from the room by going to the adjoining bathroom and saying prayers. The complainant did not positively assert that the applicant was actually present during the precise times that the sexual assaults occurred. She was, effectively, blindfolded. Complaint was made about the trial judge having included in the oral directions: If she chose to absent herself by going to the bathroom but was aware of what was to take place she would still be in company. (SU 46.8) 147The statement should be understood in context. It was immediately followed by: If she went to the bathroom having no knowledge of what Mr Golossian was to do then of course she is not in company. 148The point her Honour was conveying was the requirement that the applicant shared a common purpose; part of which involved her being aware of what Golossian intended. 149It was submitted that the direction "ignored the rationale of a charge of this nature ... the impact on the victim of being confronted by more than one offender. There has to be such physical proximity that the coercive effect [of] the group operated to embolden the offender or to intimidate the victim" (AWS p.10). 150It is true that the direction made no mention of intimidation of the complainant. There was no evidence of that. The focus of the direction was on the other way in which the applicant's physical presence could be sufficient to make out the "in company" element, that is, encouragement of the principal offender. It was open to the jury to find that just because the applicant was in the adjoining bathroom during the time that sexual penetration occurred, but present in the actual room immediately before and immediately after, the quality of her presence was still sufficient for her to be "in company". The principal offender knew that she was present, either immediately or a very short distance away in the bathroom. It was open to the jury to find that she encouraged him by way of assisting with preparatory acts and by the reassuring element that her presence provided for the complainant. Indeed, so long as the applicant had the necessary knowledge of what was to occur, and shared that purpose with the principal offender, any finding to the contrary would be perverse. 151It must also be borne in mind that the offence involved a series of acts; of particular importance was the administration of the drug which was relevant to the issues of consent and knowledge of the lack of it. There was no issue about the applicant being in the direct presence of the complainant (in the room) at the time that this must have occurred. 152A similar issue arose in R v Button; R v Griffen, supra, where the appellant Griffen submitted that physical presence was required at the moment of penetration. Kirby J said this on the subject: [100] Hence the Crown must, according to the appellant, prove that sexual intercourse took place in company, that is the physical presence of another person or persons. Sexual intercourse is defined, relevantly, as penetration. According to the appellant, penetration must therefore take place in the physical presence of another person. [101] There is force in these arguments, although they choose to concentrate upon one aspect of the offence, namely the act of sexual intercourse, that is, penetration. That aspect is obviously fundamental. However, the offence involves other elements, namely, an absence of consent, and knowledge, on the part of the offender, that the victim is not consenting. How should the offence be defined for the purposes of determining whether it occurs "in company"? [102] It is not difficult to think of situations where defining the offence by reference to the act of penetration may seem unreasonable. Assume that a group of men bound and gagged a female at one location. Assume, somewhat incongruously, that out of concern for each other's privacy, they made an arrangement whereby each member of the group would, in rotation, have sexual intercourse with the victim, whilst other members waited their turn one hundred metres away in the bush. The victim, in that example, would be powerless because of the actions of the group. Yet penetration would, in each case, occur in the absence of other members of the group. Is it not aggravated sexual assault in company? If it is, is there a difference where, as here, instead of binding and gagging the victim, her will is broken by the group at one location, and penetration, for reasons of privacy, takes place at another? 153In the end (at [121] - [122]), Kirby J found it unnecessary to decide this issue because of his conclusion that there was physical presence, notwithstanding the distance of some 50 metres, at the time of penetration. 154It is similarly unnecessary in the present case to decide this issue as I am not persuaded that there was anything erroneous in the direction that was given. It is possible, however, that the trial judge could have gone further by referring to the applicant's admitted immediate presence in the room at the time key elements of the events occurred. That, however, would not have assisted the applicant. 155There is no merit in any of the complaints now raised on behalf of the applicant. The only complaint that was raised at trial was that concerning a factual matter that counsel invited the judge to ask the jury to consider. Leave is required where a ground of appeal involves other than a question of law alone: s 5(1)(b) Criminal Appeal Act. This complaint involves, in part, a question of fact. All of the other complaints are caught by rule 4. 156I propose that leave to rely upon ground 4 be refused. Ground 5 The trial judge erred in her directions on conspiracy 157Count 42 of the indictment alleged that Golossian, AP and the applicant, between 26 January and 5 June 2008 at Enfield and elsewhere did conspire with each other to enable AP to have sexual intercourse with MP without her consent and knowing she was not consenting. 158The first submission made in relation to this ground was that the trial judge directed the jury that they needed to be satisfied that there was an agreement by two or more of the accused, but did not say in respect of the applicant that they needed to be satisfied that she was a party to such an agreement. However, it is then immediately noted (AWS 1.4.1) that the trial judge subsequently told the jury that in considering the applicant's case they needed to be satisfied that she was a party to an agreement with at least one of the other accused (SU 70). This was in response to a request by trial counsel (SU 68.2) at the next break after the judge had directed the jury as to the conspiracy. At the same time, counsel said, "In relation to count 42, the conspiracy count, there's no cavil with the way it's set out". 159Despite that, counsel for the applicant submitted in this Court (AWS p 11) that the directions were deficient in that: 1.there was no reference to the complainant not consenting; 2.there was no reference to what words and conduct were relied upon by the Crown; 3.there was no reference to the need for the jury to be satisfied that there was an agreement before the acts, statements and conduct of a co-conspirator became admissible; 4.there was an invitation to use evidence of phone calls and text messages involving the co-accused of which there was no evidence of the applicant having any awareness; and 5.there was error in declining a request to remind the jury of a factual matter that was "an important plank in the defence case". 160The first complaint has no merit. The written directions required the jury to consider whether they were satisfied beyond reasonable doubt of three matters, the first two of which were: 1. [T]hat there was an agreement between at least two of Tony Golossian, [AP] and [FP] to commit an unlawful act, namely for [AP] to have sexual intercourse with [MP] without her consent knowing she was not consenting. 2. [T]hat [FP] agreed with either Tony Golossian and/or [AP] that [AP] would have sexual intercourse with [MP] without her consent knowing she was not consenting. 161If that was not enough, it was repeated three times in the oral directions (SU 62.3, 64.1 and 64.7). 162The second complaint is also without foundation. During the course of her directions as to the elements of the conspiracy count, the trial judge told the jury that the Crown case was circumstantial and proceeded to provide a "by no means ... exhaustive list" of some of the circumstances that the Crown relied upon (SU 63.4). 163The third and fourth complaints confuse a question of admissibility of evidence, a matter for the trial judge, with evidence that had been admitted and was available for the jury's consideration of the conspiracy count. The acts of the co-accused were relevant to the jury's determination of whether there was any conspiratorial agreement as the Crown alleged. Whether the applicant was a participant in such an agreement was a matter to be determined by her own words and conduct. This was not a case in which the acts of others bore upon that question. Moreover, there was no issue taken by trial counsel, nor could there have been, about her Honour's statement, when speaking of the need for the Crown to prove that there was an agreement: Again I remind you, you must consider the case against each accused separately, the evidence against each of the accused may include evidence relating to what an accused said and did but it may also include what was said or done by other people alleged to be involved in the agreement. (SU 62.2) 164The final matter refers to a request by trial counsel that the judge remind the jury of a submission that he had made in his closing address. This is a matter that will be discussed later under Ground 12 where the applicant's submission is, in essence, repeated. 165Oral submissions on the applicant's behalf in relation to this ground were in large part devoted to the relevance and sufficiency of evidence available to support the jury's verdict for the conspiracy count. I propose to say something more about that in connection with unreasonable verdict ground. 166As with the previous ground, rule 4 applies except in relation to the last of the asserted errors but it also requires leave as it does not involve a question of law alone. None of the applicant's contentions under this ground have any merit and I propose that leave be refused. Ground 6: The trial judge erred in her directions on the criminal standard 167At a very early stage of the summing up the trial judge gave directions as to the onus and standard of proof in unremarkable and unembellished terms which are not the subject of any challenge. However, on the second day of the summing up a written question in these terms was received from the jury: The Crown must prove the guilt of the accused beyond reasonable doubt. I am confused and do not understand adequately the concept of the phrase beyond reasonable doubt. I would appreciate if you could give us a guidance or legal meaning of this phrase when used in the assessment of the defendants' guilt. 168In the course of discussing this note with counsel the judge indicated that she proposed saying that the phrase comprised ordinary English words (SU 111.4). Trial counsel for the applicant submitted that, in the context of circumstantial evidence, her Honour should direct the jury that if there was an alternative explanation available "that would appear to you to be open as reasonable people, well then if you can't eliminate that, that's reasonable doubt" (SU 111.6). The Crown Prosecutor opposed this submission on the basis that the case was not entirely circumstantial. The judge indicated that she would think about it during the forthcoming morning adjournment. Upon resumption, the following direction as given: Those three words, beyond reasonable doubt, are ordinary English words and they carry their ordinary meaning. Whether a doubt is reasonable is, for you as the jury, to say by setting your own standards. You may feel that is not of great assistance to you but I am constrained by the law by what I can say to you about those words, but I will just repeat, they are ordinary English words and carry their ordinary meaning. (SU 118) (Emphasis added) 169Her Honour then immediately proceeded to refer to circumstantial evidence and said that the Crown case concerning the applicant was entirely circumstantial. She directed the jury that if there was another reasonable explanation for the facts proved by the evidence which was inconsistent with the guilt of the accused then the verdict should be not guilty because that would mean the jury were not satisfied beyond reasonable doubt (SU 118 - 119). Trial counsel took no issue with what the judge said in either respect. 170The complaint in this ground relates to the emphasised portion of the direction set out above. It was submitted that this "was no part of the direction approved in Green and was potentially misleading" (AWS 1.5.3). This was a reference to Green v The Queen (1971) 126 CLR 28 at 32. There was no elaboration of the submission in writing and little orally; Mr Ramage simply contended that "an invitation to set their own standards, whatever they may be, is a slightly dangerous course and it would have been better for her to have said exactly where she was under the law in Green [sic] because this was particularly the case where one would find it very difficult to apply ordinary standards" (31.1.12 at T27.25). 171In Green v The Queen, in the course of criticising as erroneous a trial judge's attempt to explain the term "beyond reasonable doubt", the High Court (Barwick CJ, McTiernan and Owen JJ) explained (at 32-33): A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable. 172In R v Reeves (1992) 29 NSWLR 109 at 117, Hunt CJ at CL said that it was not necessary, nor desirable, to tell a jury that whether a doubt is reasonable is for the jury to say by setting their own standards, "unless something is said by counsel during the course of the trial, or unless the jury asks a question, which warrants elaboration or explanation beyond the conventional direction". 173In R v Southammavong; R v Sihavong [2003] NSWCCA 312, the trial judge had told the jury that "the words 'beyond reasonable doubt' are ordinary everyday words and that is how you should understand them". Later in response to a jury question seeking elaboration of the term, the judge confined himself to repeating what he had already said. The Court (Spigelman CJ, O'Keefe and Greg James JJ agreeing) held that there was no error in what was said. Spigelman CJ referred with approval (at [35]) to the judgment of King CJ in The Queen v Wilson (1986) 42 SASR 203 in which it was said (at 206): No attempt should be made to explain or define reasonable doubt. If amplification is desired it should go no further than to tell the jury that a reasonable doubt is one that they as reasonable persons are prepared to entertain. 174In R v Southammavong; R v Sihavong the jury's question was: "[C]an you provide some more clarification around what a reasonable doubt means, i.e. is it our own individual view, or is there a more independent definition?" 175It was contended that the trial judge had erred by not directly responding to the question. It was submitted that it was "obligatory" for the judge to have directed the jury that a reasonable doubt was to be determined in accordance with the jury's opinion, rather than in terms of an "independent definition". Spigelman CJ referred to what I have extracted above (at [173]) from Green v The Queen, and other authorities, in support of the proposition that "the relevant test is a subjective one and it applies to each individual juror". He continued: [33] ... [I]t would have been desirable for the trial judge to answer the jury question in terms, i.e. by saying words to the effect that it was the respective individual opinions as to what level of 'doubt' was 'reasonable' that applied. The issue before this Court is whether his Honour erred in failing to do so. [34] In my opinion Mr Game's submission that it was at least permissible for his Honour to answer the question that the meaning of reasonable doubt was a matter for the jury rather than for some "definition" of a character identified in the question as "independent" is correct. The issue is whether or not there was legal error in his Honour's failure to do so. 176Reference was then made to other aspects of the summing up. Ultimately, Spigelman CJ considered: [44] ... whether or not, as a matter of substance, the trial judge's response to the jury question was sufficient to make it clear to the jury that there was no definition of a "independent", or objective character of the formulation "beyond reasonable doubt" and that the jury members themselves, individually, set the standard of what was reasonable in terms of a doubt in the particular circumstances of the trial. His Honour did not do so in the specific terms of the jury question. It would have been preferable if he had. However, I have come to the conclusion that, as a matter of substance, his Honour did answer the question. (Emphasis added) 177The impugned portion of the trial judge's response to the jury question in the present case is in very similar terms to that which Spigelman CJ regarded as a desirable response to the question posed in that case. The difference between the two cases is, of course, that the jury question in the present case was only concerned with the meaning of the phrase "beyond reasonable doubt". The first sentence of the judge's response adequately dealt with that question. The question did not require the additional clarification as to whether it is an "independent" or "objective" standard as opposed to jury members setting their own standard. 178A usefully thorough review of the many cases concerned with this issue appears in the judgment of Simpson J in RWB v R; R v RWB [2010] NSWCCA 147; (2010) 202 A Crim R 209. In that case, the trial judge embellished the direction as to the standard of proof of his own volition. Whilst it was held that it was wrong for the judge to have done so, what was said was found not to constitute a miscarriage of justice. It did not diminish the standard of proof and was not misleading or confusing as other attempts at elaboration by trial judges had been found to be. The unnecessary addition to the response given by the judge in the present case can be similarly characterised. 179Once again, rule 4 applies. I am unpersuaded that there was any miscarriage of justice or such a departure from the essential requirements of the law that goes to the root of the proceedings. I would refuse leave to rely upon this ground. Ground 7: The trial judge erred in her directions on assistance 180The written submissions for the applicant on this ground were short and sought to explain it as follows: 1.6.1 At SU 57 the trial judge directed that assisting in the commission of a crime "may be effected by helping to set the stage". She gave a similar direction at SU 96 in connection with the unrelated matters of [MM] ... 1.6.2 Assuming the jury followed the direction, they were likely to have convicted on the simple basis that the Appellant [sic] had either booked the motel rooms or with respect to the conspiracy charge, been absent from her home. 181In oral submissions, reference was made to the summing up (at SU 57) but there was no elaboration of the basis for this ground. 182The submissions, and the ground for that matter, were entirely misconceived. The passage identified in the summing up was concerned with directions given in relation to the co-accused AP in relation to count 39 where he was charged with being an accessory before the fact to the administration by either Golossian or the applicant of Zolpidem to MP with the intention of enabling him (AP) to have sexual intercourse without her consent. The directions were relevant to AP's alleged accessorial liability. They had nothing to do with the culpability of the applicant for this, or any other, count. 183For these reasons it is clear why no complaint was raised at the trial. Leave to rely upon this ground should be refused. Ground 8: The trial judge erred in her directions on lack of consent through terror 184The written submissions in relation to this ground were also brief and may be quoted in full: 1.7.1 At SU 49 the judge directed the jury regarding lack of consent through terror that the law was that "whether those threats against, or the terror is instilled in that person, or any other person". 1.7.2 It is submitted that this direction was not only wrong but inevitably must have lead to confusion on the part of the jury. 185The submissions did not condescend to inform the Court, or the Crown, why the direction was wrong, nor why it led to confusion. In oral submissions it was put that the words "or any other person" were irrelevant (T28.13 31.1.12). There was no explanation as to why this was so. 186In contrast to the unsatisfactory nature of the applicant's submissions, the written submissions for the Crown identify the counts for which there was an issue of consent; set out the applicable law (s 61HA Crimes Act), as well as the written and oral directions; identify the evidence that was relevant to the issue; and then present argument as to why the directions were not erroneous. This contrast in the diligence and care with which the parties' submissions were presented is not confined to this ground. 187The short answer to this ground is that the Crown case was that terror had been instilled in both MP and her husband over a period of many weeks leading up to the second prayer session, which was what the judge was talking about at SU 49. MP had been put in fear of dire consequences if she did not co-operate and undergo the prayer sessions and she was aware that her husband was similarly fearful. The reference to "any other person" was not erroneous. 188There is no merit in this ground and once again it is unsurprising that the point was not taken by the applicant's counsel at trial. Leave to rely upon it should be refused. Ground 9: The trial judge erred in giving a series of directions on how the culpability of the Appellant arose 189A series of complaints about the summing up are made under this ground. 190The first complaint is that the trial judge told the jury (at SU 32) that the Crown relied on "what Golossian had said to [MP] before she drank the orange juice" (AWS 1.8.1). No attempt was made in the written submissions to identify the context in which this was said. Nevertheless, it was submitted that this should have been accompanied by a direction that there was no evidence the applicant heard what Golossian had said, or adopted it, and that it could not be used against the applicant unless the jury had already determined that she was in agreement that the drug be administered. Of course, the judge was not asked by the applicant's counsel to say anything of the sort. 191As the Crown's written submissions point out, the complaint is once again misconceived. The judge commenced giving directions about the first count in the indictment (count 35) in which MP was the complainant at page 30 of the summing up transcript. Count 35 alleged that Golossian and the applicant administered to MP an intoxicating substance with the intention of enabling Golossian to sexually assault her. The impugned passage appears two pages later when her Honour was still dealing with the first element, that an intoxicating substance was administered to the complainant. Her Honour referred to various aspects of the evidence and reminded the jury that the question of whether a drug had been administered was a live issue, counsel for the applicant's two co-accused having each submitted that there was a reasonable possibility that despite her denials, MP had in fact taken sleeping medication herself. It was in this context that the judge said: The Crown also relies on what [MP] told you was said to her by the accused Golossian before she drank the orange juice at page 120 [of the transcript of which the jury had a copy]. He said, "It will feel like an angel [will] be entering my body, if I feel dizzy or unwell, basically was there if angels had entered and it is a good thing not to be afraid. He was telling me a lot of things, it is going to feel 100 per cent like it is 100 per cent real but it is not, it is just a dream". (SU 32) 192This was clearly a relevant matter for the Crown to rely upon in relation to the first question the trial judge posed for the jury in relation to the s 38 offence alleged to have been committed at the first "prayer session", i.e. whether an intoxicating substance had been administered to the complainant. What the judge said above was said in the context of her giving the jury directions concerning the charge facing the co-accused Golossian. However, it is not correct to say, as the Crown submitted, that it did not apply to the applicant (CWS [191]). After the judge had dealt with all of the elements of this offence concerning Golossian, she then said that with one exception (presently irrelevant), the elements of the offence concerning the applicant were identical to those concerning Golossian and so the conclusions the jury arrived at concerning him would be the same for her (SU 41.5). 193The Crown was correct, however, in submitting that the evidence was relevant and admissible against the applicant on the contention that she was a participant with Golossian in a joint criminal enterprise. Moreover, there was no objection taken by the applicant to the admissibility of the evidence or the use that the Crown sought to make of it, and no complaint was raised about what the trial judge said about it. 194The second complaint (AWS 1.8.2) was that the judge gave misleading directions to the jury on intent (at SU 36 - 37). This was a reference to the judge explaining to the jury how a person's intention may be inferred by reference to the person's actions. She gave the example of a person hitting another on the head with a hammer, giving rise to the inference that the person intended to inflict serious bodily injury. Appropriately, she immediately reminded the jury that they were concerned with the intention of the accused and not of some theoretical person. 195The submission that this example invited the jury to conclude that a person intends the natural and probable consequences of his or her actions is unfounded (AWS 1.8.2 and 31.1.12 at T29). This direction was given in the context of the judge directing the jury as to the requirement for the Crown to prove that the administration of the drug (if the jury were first satisfied that occurred) was intended by Golossian to enable him to sexually assault the complainant. Her Honour then reminded the jury of various aspects of the evidence upon which the Crown invited the jury to draw that inference. I can see nothing wrong with the terms of the direction in this respect. 196In conjunction with this complaint, it was submitted that the jury should have been directed that they needed to be satisfied that the applicant was aware that Golossian was administering the drug for the purpose of having sexual intercourse without consent. The short answer to that is that they were. The final element in the written directions concerning the applicant and count 35 was: [T]hat at the time Zolpidem was administered, both [FP] and Tony Golossian intended it to enable Tony Golossian to have sexual intercourse with [MP] without her consent, knowing she was not consenting. 197The next complaint was that the judge gave "insufficient and misleading directions with respect to Count 3A [sic] ... that the accused Golossian and [FP] had agreed to administer Zolpidem" (AWS 1.8.3). Submissions that were made in relation to the sufficiency of evidence in relation to this point may be left in abeyance. It was also submitted that "the jury had to be made aware that the agreement had to be that ... the purpose of that administration [of the drug] was so Golossian would have sexual intercourse without consent". Again, the answer to that submission lies in the written directions to which I have just referred. 198The final complaint under this ground is a contention of error in directing the jury that the Crown could not prove who out of the applicant and Golossian administered the drug, but that the circumstances were such that one or the other must have. It was submitted that the direction "confused the roles of principal and accessory". 199To put this in context, the trial judge said: The Crown says that you can conclude from what took place in the prayer [sic - motel] room that there was an agreement between the accused Golossian and [FP] to administer Zolpidem to [MP]. The Crown, as I say, cannot prove who it was who administered the Zolpidem, but says in the circumstances that one or other of them must have done it and that they were both there participating in the crime, at least to the extent of being ready to assist if required. (SU 39 - 40) 200This appears in the context of the judge directing the jury that the Crown case was that Golossian and the applicant were participants in a joint criminal enterprise. The Crown relied upon a variety of circumstances in support of the inference that this was so and the judge briefly reminded the jury: The Crown relies on the circumstances that [FP] bought the juice [which was laced with the drug], that she was in the room [when it was ingested], that she reassured [MP] in advance that it would feel real but it was only a dream, and that she helped [MP] into the shower afterwards [because of her drugged state]. (SU 40) 201The manner in which the Crown case was put, and the way in which the judge reminded the jury, was the only logical and sensible way in which the case could be put. According to the order in which the judge set out the essential elements of the offence, before the jury could consider this issue they had to be satisfied that the drug was administered to the complainant. If they were satisfied that it was, they were then required to consider whether Golossian acted alone in doing this (in which case the jury were directed to acquit the applicant) or whether there was a joint criminal enterprise between Golossian and the applicant that the drug would be administered. If the jury were satisfied that the applicant was a participant in such an enterprise, it did not matter which of the two administered the drug: Mohan v The Queen [1967] 2 AC 187 at 195; R v Stokes and Difford (1990) 51 A Crim R 25 at 35; Clough v R (1992) 28 NSWLR 396 at 399; R v Phan [2001] NSWCCA 29; (2001) 53 NSWLR 480 at [65], [90]. 202None of these complaints have any merit. They did not move the applicant's counsel to raise any complaint at trial. Leave to rely upon this ground should be refused. Ground 10: The trial judge erred in failing to properly or adequately direct the jury with respect to the law that the jury should apply to their consideration of the sexual assault counts (Counts 36, 38 and 41). In particular the trial judge failed to direct the jury that they could only find these offences proven against the Appellant if they were satisfied beyond reasonable doubt that:- * Golossian had committed the offences of sexual intercourse with [MP] without her consent and knowing that she was not consenting; * the Appellant was present at the time the offence was committed; * the Appellant at the time knew all the circumstances necessary to show the crime was committed by Golossian; and * with that knowledge the Appellant intentionally assisted or encouraged Golossian to commit the crime in the company of Golossian. 203This was a new ground added by leave granted during the course of the hearing. 204The directions that were given to the jury in relation to the sexual assault counts have been referred to earlier in relation to ground 4 (at [126]-[127]). They served to make plain to the jury that each of the matters identified in the current ground were subject to the requirement that they be satisfied of them beyond reasonable doubt, either explicitly or in substance. 205The written submissions for the Crown included a concession that the judge had not directed the jury to be satisfied "that the [applicant] knew all the essential facts or circumstances necessary to show that the crime was committed by her co-accused" (CWS [23]). It was contended nonetheless that there was no miscarriage of justice (CWS [24]). Mr Ramage stated (31.1.12 at T33.49) that he did not disagree with the proposition in the Crown's submissions that: [336] Failure to direct on an element will not necessarily result in a miscarriage of justice: Holland v R (1993) 117 ALR 193 at 200; Handlen v R [2011] HCA 51 at [80] and the cases cited therein. 206The directions that the judge gave on the "in company" element subsumed this element of liability. If there was any misdirection it was technical but not material and it did not amount to miscarriage. 207No complaint was raised by trial counsel for the applicant in relation to these matters. Counsel had the advantage of the discussions which took place before the summing up and the further advantage of having seen the directions in written form in the document proposed to be distributed to the jury. In these circumstances it seems safe to assume that it was a considered decision by counsel not to suggest that the directions were in any way erroneous. Leave to rely upon this ground should be refused. Ground 11: The trial judge gave insufficient directions on consent 208The written submissions for the applicant in relation to this ground were brief: 1.9.1 At SU 44 the trial judge failed to direct the jury that it was not sufficient that they found that, if [MP] had sexual intercourse while substantially intoxicated or because of intimidating or coercive conduct or other threat, that, even if ... that was so, the jury had to find, on the evidence admissible against the Appellant, that the Appellant was aware that that was the situation with [MP] at the time. 209As elusive as that submission is, Mr Ramage informed the Court during oral submissions that he did not wish to add to it (31.1.12 at T29.50). 210There was no issue as to consent in respect of any of the sexual assault counts. Golossian denied that sexual intercourse occurred in relation to counts 36, 38 and 41. AP denied being present during the third "prayer session" and thus denied the allegation that he had sexual intercourse with the complainant on that occasion. The applicant's case was that she was unaware of any sexual activity occurring on each of the three occasions; if it occurred, she did not know about it because it must have happened when she was in the bathroom. Nobody suggested that sexual activity occurred but that it might possibly have been consensual. 211Despite there being no issue about it, the applicant's knowledge of the complainant's lack of consent remained an essential matter for the jury to be satisfied of beyond reasonable doubt. There was no clear and explicit instruction to this effect in relation to any of counts 36, 38 and 41. However, by their verdicts of guilty in respect of the s 38 offences the jury indicated satisfaction beyond reasonable doubt that the applicant was involved in the administration of an intoxicating substance with the intention of enabling Golossian (counts 35 and 37) and AP (count 39) to have sexual intercourse with MP without her consent, knowing she was not consenting. By their verdicts of guilty in respect of the s 61J offences, the jury indicated satisfaction beyond reasonable doubt that Golossian (counts 36 and 38) and AP (count 41) in fact had the sexual intercourse without consent as the applicant had intended. 212Moreover, the directions the trial judge gave on the "in company" element carried with it, although not in express terms, the requirement that the applicant knew that MP was not consenting. They required the jury to be satisfied that the applicant was "present and participating in the offence, at least by encouraging or assisting [the co-accused]" (written directions (MFI 80 at pp. 4, 6 and 19); SU 45.7). "The offence" was obviously a reference to the co-accused having sexual intercourse without the complainant's consent. 213In these circumstances I am not persuaded that there was any miscarriage of justice occasioned by the lack of a precise instruction as to the applicant's knowledge that the complainant was not consenting. The substance of such an instruction was effectively conveyed to the jury and there is no reason to doubt that the jury was satisfied of this element in relation to each of counts 36, 38 and 41. Leave to rely upon this ground should be refused. Ground 12: The trial judge summed up the Appellant's case insufficiently 214At an early stage of the summing up the trial judge gave "a very brief summary" of the applicant's evidence. This was useful at that point because it immediately followed directions given to the jury about evidence of the applicant's good character. Those directions included: The fact that she is a person of good character supports her credibility, it is a factor which she is entitled to have you take into account when you decide whether you accept her explanation to the police in the interview, and whether you accept her evidence which she gave you in the witness box. (SU 22.2) 215The judge then reminded the jury of the overall effect of the "evidence which she gave you in the witness box": A very brief summary of [FP's] evidence was that her presence at the hotel, motels, and the prayer sessions, was not part of any agreement with Mr Golossian and/or [AP], that she was there as the sister-in-law of [MP], and at [MP's] request, and [GK's] request, that if any offences were committed she was no part of it. (SU 22.5) 216The written submissions for the applicant assert: 1.10.1 At SU 22 [the trial judge] summed up the Appellant's case in a way which put the Appellant in a situation that the jury should almost inevitably, find against her. The Appellant's case was not that she was not part of any agreement. Her case was that she was not part of any agreement whereby Golossian or [AP] was to achieve sexual intercourse with [MP] without the latter's consent. 217Two things may be immediately observed. First, the impugned passage, a single sentence, did not amount to a summing up of the applicant's case and it was clearly not intended to be. It was "a very brief summary" to remind the jury of the broad effect of the applicant's evidence, rather than her case. Secondly, the reference by her Honour to the applicant's evidence being that she was "not part of any agreement" must most obviously have been understood by the jury as being that she was "not part of any agreement whereby Golossian or [AP] was to achieve sexual intercourse with [MP] without the latter's consent". 218In an endeavour to explain the submission that the jury "should almost inevitably find against [the applicant]" it was submitted at the hearing of the application that "clearly the jury were going to find that she was party to some sort of agreement, she was to be present when the prayer sessions took place" (31.1.12 at T30.10). There is no merit in that contention whatsoever. It fails to give any credit to the intelligence of the 12 members of the jury. It ignores the fact that throughout the summing up there were references to the applicant's case being that she was unaware of any intention by anyone to sexually assault the complainant. For example, after responding to the jury's question about the meaning of "beyond reasonable doubt" and explaining that in a circumstantial evidence case a conclusion of guilt must be the only conclusion open on the facts found, the trial judge said: And, as I suggested to you yesterday, the Crown case is that there is only one reasonable conclusion that you would come to on the whole of the evidence in respect of [FP] and that is that she is guilty of the charges which she faces because she was part of this overall agreement. The accused [FP's] case is, as you are well aware, she was not part of any agreement and that she was merely present in the room and had no knowledge of any criminal offence being committed and so that is an example that the accused [FP] says there is another reasonable explanation available on the evidence and that is, "yes, I was there, but, no, I had no knowledge of", for example, "[AP] intending to have sexual intercourse with [MP] or any knowledge of the accused Golossian intending to have sexual intercourse with [MP]". (SU 119) 219A further complaint under this ground is that the trial judge did not remind the jury of certain evidence. Three matters are the subject of complaint but before turning to them it is well to recall what was said in Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 at 560 - 561 in the joint judgment of Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ: In a criminal trial, the distinction between directions on matters of law and directions on matters of fact or argument is fundamental. A trial judge is bound to direct the jury as to any principle of law or rule of practice applicable to the case, and a misdirection or non-direction on such a matter will usually mean that the trial has miscarried. But matters of fact and the arguments in relation to them are in a different category. A trial judge is not bound to discuss all the evidence or to analyse all the conflicts in the evidence, and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice. Section 405AA of the Crimes Act 1900 (NSW), which came into force after the trial of the appellant, provides that a judge of the Supreme or District Court need not summarise "the evidence given in the trial" if he or she is of the opinion that in all the circumstances a summary is not necessary. Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. This court has said that it "is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities". Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way. (Citation of authority omitted) 220It is also well to observe that the summing up, which spanned almost two whole days, was preceded by four full days of addresses by counsel and the general theme of the summing up was to intersperse the legal directions with references to how the respective parties put their cases. It was only at the very end that the trial judge gave a brief overview of some of the arguments presented in the closing addresses. To have reminded the jury of every point sought to be made by counsel would have added several hours at least. It should also be borne in mind that the jury had a transcript of all of the evidence (T3046). 221The jury were not misled by the judge's summary into thinking that it comprised the totality of the arguments that had been put to them. Her Honour prefaced this final stage of the summing up by saying: I am now, members of the jury, going to very briefly summarise counsels' addresses. You have had the benefit of competent and careful addresses. I would not do justice to their addresses were I now to try to repeat everything that each of them said and I think some of them went more than a day, so this is a very, very brief summary. (SU 141) 222The first matter that it is said the judge should have reminded the jury of was the evidence of an expert, Ajoy Ghosh, who was called in the applicant's case concerning communications between Golossian's phone and the applicant's phone. Mr Ghosh's evidence warranted only a brief mention in the closing address of the applicant's counsel; 11 lines of transcript in an address recorded over 26 pages (T3162.43). The point could not have been regarded by counsel as sufficiently important to warrant a request that the judge remind the jury of it. 223The applicant contends that the judge should have reminded the jury of evidence concerning the $50,000 that she received from GK. The Crown case was that part of the applicant's motivation related to this money. There was a dispute as to whether $24,000 of it was used to pay the deposit on a house on 2 June 2008; the applicant claimed that she used money from another source for that purpose. Resolution of this dispute by the jury was relatively unimportant and so it is unsurprising that trial counsel did not ask the judge to remind the jury of it. Even if the jury determined the issue in favour of the applicant, the fact remained that the applicant did receive the $50,000 from GK and she gave evidence that she had spent about half of it (T2883.20). 224The final complaint under this ground is that the judge should have reminded the jury of "objective evidence suggesting that the [applicant] was totally unaware of the plan for [AP] to play out a sexual assault on [MP] at the [applicant's] home on 4 June". A somewhat generous interpretation of something trial counsel said at the conclusion of the summing up is that the judge was asked to remind the jury of something he had said in his closing address on this issue (SU 152). The judge did allude to the subject (SU 147) and that, in my view, was sufficient to bring back to the jury's mind the argument that had been put to them by counsel. 225Having regard to the circumstances of the trial which I set out earlier, I am not persuaded that there was any failure by the trial judge "to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence": Domican v The Queen, supra, at 561. 226I would refuse leave to rely upon this ground under rule 4 and, in relation to the final point, s 5(1)(b). Ground 13: The trial judge erred in failing to direct the jury that they should put out of their minds the evidence about the $50,000, the subject of the charge that was a not guilty verdict by direction 227Count 34 alleged that the three accused obtained $50,000 by a false pretence, namely "by stating to [MP] and/or [GK] that the payment of $50,000 would obviate the need for [GK] to leave his family and become a monk". The trial judge directed a verdict of acquittal in relation to this count on the basis that the alleged false statement was not as to a material existing fact but rather to a future event (judgment of 11 November 2010; AB 24 - 25). 228The written submissions for the appellant were brief: 1.11.1 Once the false pretences charge was the subject of an acquittal by direction, that evidence could only be used if it was relevant to the surviving counts. Her Honour was in error in treating the evidence as being also relevant to all of the remaining charges. 1.11.2 Alternatively, the trial judge failed to explain to the jury that, even assuming the [applicant] knew the real reason for being given the $50,000, that did not establish that she was involved in the sexual assault offences. 229The first observation to make about this ground is that there was no request made by trial counsel for the judge to do anything along the lines of what is now suggested. 230The second matter is that it was trial counsel who agitated for the evidence relevant to the payment of the $50,000 to remain before the jury after judgment was given on 11 November 2010. Immediately after giving that judgment, her Honour invited the Crown Prosecutor to consider whether the exhibits relevant to count 34 should be withdrawn (T2071.33). After discussion of some other issues, Mr Evans returned to the subject: EVANS: Your Honour It's a matter that you mentioned earlier as to the effect of the evidence that's been given in relation to count 34. HER HONOUR: Yes. EVANS: As a joint criminal purpose it is being put against my client and it maybe argued that the payment of $50,000 was in furtherance of that or as part of that to put it colloquially and that my client was in it for the money. HER HONOUR: In what for the money? EVANS: In the joint criminal purpose. HER HONOUR: In respect of what? EVANS: The sexual assaults and the other counts that are still on foot. In other words she was under some obligation having been paid $50,000 through her means, but I won't go into all the evidence, that she would be implicated. I would strongly oppose the removal of any exhibits or in anyway the evidence that has been given be reviewed and I'd want to call evidence as if that count was still there. Of course the difference is that the accused is no longer subject to conviction. But-- HER HONOUR: Well if there are exhibits that you don't - if you want all the exhibits to remain in then obviously they probably should be if you say that they go to issues that you rely on. EVANS: Yes. I thought I should say that before your Honour directs the jury because you may wish to say something about the evidence that relates to that count and how they should view that. HER HONOUR: Well what is it that you want me to say about it? I wasn't going to say anything at this stage. Perhaps we could defer that. At this stage all I was going to say was that in essence it was a matter of law that that was for me. There was in effect no evidence as to essential element and therefore that is why I was going to direct an acquittal on those counts. If you wish me to I could say at a later point I'll be telling me about the exhibits or the use that they can make of the exhibits in relation to other counts. EVANS: Well perhaps as your Honour remarks the simplest thing is to leave the status quo. HER HONOUR: Yes. EVANS: If I seek to lead evidence my learned friend and Madam Crown can object and then it's an issue whether it's a-- HER HONOUR: Well the exhibits are strictly speaking evidence in the trial generally. They haven't been identified as relating to any particular account in any event. EVANS: It's just that your Honour raised the possibility of returning some exhibits. HER HONOUR: Yes. Well I just wanted counsel to think about that. Well then I'll just say nothing at this stage. Ms Crown you don't have a view about that one way or the other I assume? CROWN PROSECUTOR: No, your Honour, no. (T2078 - 2079) 231Evidence was led from the applicant in chief about her receipt of the two sums of $25,000 from GK. The general tenor of her evidence was that she was a reluctant recipient. She said that she used the money to pay off a credit card, buy a computer and pay some bills. When she subsequently tried to reconcile what had happened to all of the money she could not account for $24,000 or $25,000 of it. She also gave evidence that the $24,000 paid on 2 June 2008 as the deposit on a house she and AP were purchasing came from a completely different source (T2809 - 2811; 2824 - 2833; 2883 - 2885). Bank statements were tendered to support the latter proposition (Exhibit 7). In cross-examination by the Crown Prosecutor it was put, but denied, that the applicant was "motivated to be involved in these offences because of $50,000 that [she] was going to get out of [her] involvement" (T2985.42). 232In her closing address the Crown Prosecutor submitted that "[FP] was involved in these things for the purpose of obtaining money, $50,000, to give her and [AP] the chance to get their own home". In developing this point (T3131.19 - 3133.30) she suggested that the evidence supported the proposition that the applicant and her husband were in "financial trouble" with $10,000 owing on a credit card, various bills to pay, and wanting to buy their own home. Whether the $24,000 deposit for the home purchase came from money the applicant received from GK or from other funds was really a red herring. 233Counsel for the applicant countered the Crown's submissions on this topic by suggesting it was unlikely that she would want her husband to have sex with her sister-in-law for the sake of $50,000 (T3141.45). He was critical of the argument that the money was used to pay the deposit on a house and argued that the documentary evidence supported the applicant's assertion that she already had money set aside which was used for that purpose. He reminded the jury of the evidence that the applicant expressed reluctance in accepting the money from GK (T3155 - 3158). 234Counsel for AP sought to make use of the evidence concerning the $50,000 for the advantage of his client in that he contended that MP was motivated to falsely claim that she had been raped in order to get the money back (T3205.15). 235Counsel for Golossian also sought to use this evidence to his client's advantage. He drew the jury's attention to a number of inconsistencies between the evidence of MP and GK. One of these was that the former had said that her husband did not explain why he had to pay the $50,000 or who he had to pay it to, whereas the latter said that he made up an explanation that it was an old gambling debt (T3264.35). 236There is no merit in this ground. No-one asked the trial judge to withdraw the evidence concerning the payment of the $50,000 after she had directed the acquittal on the false pretences count. To the contrary, counsel for the applicant positively wanted the evidence to remain. Counsel for each of the accused then sought to make use of it to the advantage of their respective clients. The argument now that the evidence was not relevant ignores the reality of the trial. 237The criticism of the trial judge for "treating the evidence as being also relevant to all of the remaining charges" was not explained and should be rejected. Similarly, the alternative criticism that her Honour failed to explain that even if the applicant knew the real reason for being given the $50,000 it did not follow that she was involved in the sexual assault offences should be rejected. Her Honour was not asked to. If there was a risk that the jury might leap from one conclusion to the other it may well be that something should have been said to warn against such reasoning. Clearly, however, none of the experienced counsel at trial had any such concern. 238Leave pursuant to r 4 should not be granted in respect of this ground. Ground 14: The trial judge erred in permitting irrelevant and prejudicial cross-examination of the Appellant 239Various examples were cited in the applicant's written submissions but, having read the entirety of the cross-examination, I am unpersuaded that there is any merit in the contention that it was "irrelevant and prejudicial" (AWS 1.12). It is significant as well that counsel for the applicant at trial did not object to any of it on this basis. The trial judge, therefore, did not "err by permitting" it. 240It is now asserted that the cross-examination was "long, irrelevant and prejudicial" and that the prosecutor "put as matters of fact a number of matters on which she could not have had positive instructions". There was also criticism that the Crown Prosecutor had been "aggressive". 241The criticism as to the length of the cross-examination can readily be dismissed. It was only marginally longer in terms of the number of transcript pages than the evidence in chief. In terms of time, the evidence in chief commenced at approximately 12.30pm on 25 November 2010 and concluded just after lunch the following day (including an hour taken for a witness to be interposed). The cross-examination concluded before lunch the sitting day after that. 242It is unnecessary to deal with every example cited in the written submissions in the attempt to make good the submission of irrelevance and prejudice; the following selection will suffice. 243The first matter was that the cross-examination, in part, was on the subject of the $50,000 the applicant received from GK. It was submitted that this was not only irrelevant, but also that it was "an endeavour to in some way trick her up and/or besmirch her honesty before the jury" (AWS 1.12.3). Trial counsel obviously did not regard the subject as irrelevant. Not only did he actively seek to have the evidence relevant to the false pretences charge remain before the jury after the verdict by direction, he took considerable time in leading evidence in chief on the subject (T2790 - 2791; 2810 - 2811; 2824 - 2833; 2882 - 2885) and tendered some bank statements (Exhibit 7). Those circumstances alone justified the cross-examination which, in my view, was relevant, fair and not prejudicial. There is little wonder that the applicant's counsel did not object to it. 244A related complaint is that the Crown Prosecutor put to the applicant that she was "motivated to be involved in the offences because of the $50,000 that [she] was going to get" (T2985.42)(AWS 1.12.5). The submission now is that the Crown "had no material to positively suggest that [the applicant] had any motive in taking part in the alleged offences to obtain money". There was no attempt to explain that submission; in particular, why the Crown had to have "material" in order to put this suggestion to the applicant, or make the submission in closing address to the jury. It was a valid theory in my view and it is little wonder that trial counsel raised no objection. 245A similar complaint was that the Crown Prosecutor put to the applicant that she "knew that Zolpidem was going to be used" at the first prayer session (T2952.28) and that "she knew a drug was being added to a substance that was being taken by [MP] with the intention of disabling [her]" at each prayer session (T2985.30). The submission notes that these matters had been previously denied by the applicant (AWS 1.12.11-12). Whether the applicant had denied these matters in her evidence in chief, the fact remained that it was the Crown case that she did have such knowledge and there was circumstantial evidence supporting the propositions. It was incumbent upon the prosecutor to put to the applicant, in effect, that her earlier denials were contested given that the subject concerned a crucial element for the Crown to prove: Browne v Dunn (1893) 6 R 67. 246I reject completely the submission that the Crown Prosecutor had been "aggressive". One would expect that if this was remotely true, complaint would have been raised at trial. Aggression certainly cannot be detected in the pages of the transcript. Indeed, the best that one can discern is that the cross-examination was conducted in a firm but restrained and professional manner. 247The lack of objection by trial counsel to any of the matters referred to in the applicant's written submissions serves to confirm my own impression of the Crown Prosecutor's cross-examination upon reading the transcript. There is no merit in any of the complaints now made. Leave to rely upon this ground should be refused. Ground 15: The verdict of guilty was not reasonably open to the jury 248It was accepted on behalf of the applicant that some circumstantial evidence cases can be strong, but it was then submitted that this was not one of them in that "there was always an explanation allowing a conclusion that the [applicant] was not involved" (AWS 2.1.1). The written submissions then proceed to identify an individual circumstance by way of example and offer an innocent explanation for it. Examining individual circumstances and determining whether there is an alternative explanation available is not the correct approach: Gilham v R [2012] NSWCCA 131 at [466]. 249Next it was submitted that there was a lack of evidence of the applicant knowing that MP had ingested Zolpidem. The Crown accepted that it could not definitively prove whether it was Golossian or the applicant who put the drug in the orange juice but the overwhelming inference was that the drug was in it and it must have been put there by either one of them. They each had the opportunity to do so. 250On each of the three occasions, there was insistence by Golossian, in the applicant's presence, that MP drink all of the orange juice. A short time after she did, MP became "dizzy", "lightheaded", "heavy" and "tired". Her memory of events which followed was fragmented. On the journey home in the applicant's car after the first prayer session, when the effect of the drug was more than on the other occasions, she slept most of the way. Contrary to the applicant's submission (AWS 2.2.5) (which is an assertion without explanation) this account was consistent with the expert evidence of Dr Allender as to the effects of this particular drug. Further, the complainant gave evidence that she had difficulty walking and needed assistance. If that evidence were accepted, this symptom of ingesting a drug would have been obvious to the applicant. Indeed, it was necessary for her to assist MP into and out of the bathroom before and after the "prayer sessions". 251The next submission was that "there was no satisfactory evidence to link the [applicant] with the co-accused" (AWS 2.3). A number of points were raised but they were all matters available for the jury's consideration. I have taken them all into account in my assessment of the evidence but do not believe it is necessary to state a conclusion in relation to each and every point. 252In relation to the conspiracy charge (count 42) it was submitted that there was no evidence that the applicant had entered into any agreement, let alone participated in one, that her husband sexually assault MP at "the test". Moreover, it was submitted that there was evidence that she was in fact unaware of any such plan (AWS 2.4). I will say more about the conspiracy charge shortly. 253The written submissions for the applicant conclude with arguments about the closing address of the Crown Prosecutor, said to have "included inaccurate and potentially misleading assertions". These arguments are not relevant to the present ground. Were the verdicts unreasonable or unsupported by the evidence? 254This ground requires the Court to make an independent assessment as to the sufficiency and quality of the evidence in accordance with the principles recently and succinctly set out in the joint judgment of McClellan CJ at CL, Fullerton and Garling JJ in Gilham v R, supra: [465] Section 6(1) of the Criminal Appeal Act 1912 provides that a verdict may be set aside if it is unreasonable or cannot be supported having regard to the evidence. As the High Court recently confirmed in SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 at [14], when considering whether or not the verdict of a jury was unreasonable the appellate court is to make its own independent assessment of the evidence both as to sufficiency and quality. The question that an appeal court is required to determine is whether, notwithstanding that there is evidence upon which a jury might convict, "nonetheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand": M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492-493. Only in circumstances where a doubt experienced by a court of criminal appeal can be resolved by the jury's advantage in seeing and hearing the evidence can the court conclude that no miscarriage of justice has occurred: M at 494 quoted with approval in SKA at [13]. [466] The case against the applicant is a circumstantial one. As McClellan CJ at CL discussed in Wood v R [2012] NSWCCA 21 at [50]-[53], where a case is circumstantial "the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused": quoting Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 at 104 (Gibbs, Stephen and Mason JJ), citing Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 634; see also Plomp v The Queen[1963] HCA 44; (1963) 110 CLR 234 at 252. However, a circumstantial case must be considered holistically. The court must weigh and consider the totality of the admissible evidence before reaching a conclusion, on the whole of the evidence, that it was open to the jury to be persuaded beyond reasonable doubt of guilt or, in the alternative, that a doubt persists such that it would be dangerous to allow the verdict of guilty to stand: R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [48]-[49] (Gummow, Hayne and Crennan JJ). Tortuous reasoning in order to explain away every individual circumstance as being consistent with innocence should not be engaged in: R v Micallef [2002] NSWCCA 480; (2002) 136 A Crim R 127 at [42] (Dunford J); Burrell v R [2009] NSWCCA 193 at [55] (Giles JA). 255To that summary it is appropriate to add further reference to what was said in the majority judgment of French CJ, Gummow and Kiefel JJ in SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 at [24]. Their Honours identified error in the approach taken by this Court when considering whether it had been satisfied "that it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the applicant". They held that, "it appears that this consideration was undertaken without any weighing of the competing evidence; an exercise which the Court of Criminal Appeal was required to undertake to determine whether the verdicts of guilty were unreasonable or could not be supported". 256Upon my review of all of the evidence I have arrived at the conclusion that it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt in respect of the s 38 and s 61J offences. 257A starting point is to acknowledge that whilst the circumstances of the case are quite extraordinary, this is a feature that attended not only the prosecution case. The defence cases involved acceptance by each accused of unusual practices and beliefs. 258Golossian said that he was deeply religious. He had a prayer room at his home and, although he was not a priest, he prayed upon people who sought his help. He described putting holy oil on a person's forehead and hands and praying from the Psalms. The problems these people came to him with included that they were "jinxed" or had "the evil eye". He believed that some people were able to place "the evil eye", a "curse", or "black magic" on other people. He would bless these people and give them a "filacto" which he said was a prayer written on a piece of paper which he would bless. He also spoke of being able to communicate with an angel. He could not see the angel; just a very strong light. If he wanted the angel to tell him where a curse was he would receive directions (T2087-2093). 259AP gave evidence that he had a deep belief in the "evil eye" and he believed in "mayia or curses". He believed that people can cause such things through envy or jealousy resulting in people suffering bad luck (T2326). He first encountered Golossian some 20 years earlier when he was experiencing a run of bad luck. Golossian told him that a curse had been put on him and he prayed and put oil on his hands and forehead. He was given a filacto which he has worn ever since (T2331 - 2332). 260The applicant also believed in black magic, the "evil eye" and objects called "mayia". Through her husband she received a filacto from Golossian which she has worn ever since (T2792 - 2799). 261Evidence by MP and GK of receiving calls and texts from "the angel" and "the evil", on its own might have been difficult to believe. However, it was amply supported by recordings which were before the jury (Exhibits B and C) and printouts of text messages. Moreover, AP gave evidence of being a source of some of these, although he endeavoured to provide an alternative explanation for them. 262For these reasons, the evidence of the complainant and her husband cannot be dismissed for reason of their beliefs in such unusual concepts and their accounts of bizarre events. 263I propose now to identify some of the primary circumstances which, in combination, satisfy me that it was open to the jury to be satisfied beyond reasonable doubt in respect of counts 35 to 39 and 41. 264The evidence of the complainant included that she saw the applicant putting something in her bag after being in the vicinity of the complainant's clothes basket. She identified her pink underpants (confirmed in the evidence of Golossian (T2099)) in one of the mayias recovered by GK and AP and opened by Golossian. Such evidence supports the proposition that the applicant was a party at an early stage to a plan to deceive MP into thinking that she was afflicted by a curse. 265That AP was also party to such a plan has support from the evidence of GK that AP, unannounced and unusually, was out the front of the complainant's home and acting suspiciously shortly before the first mayia was found. The high likelihood that he was the one who sent the text message that so upset MP and GK at the family barbecue on 2 February 2008 further supports that proposition. Two mobile phone SIM cards were shown to be associated with relevant calls and text messages (for example, from "the angel" and "the evil"). There was a connection between AP and these SIM cards; when he was arrested he was found to have a phone in his pocket which contained one of these SIM cards and there was evidence that this phone had at an earlier time had the other SIM card in it. The text message on 2 February 2008 was sent from a phone with one of these SIM cards. Evidence that he was absent from the table when the text message was sent and reappeared a short time later adds weight to him being the sender, and thus to the proposition that he was an early participant in this elaborate scheme to frighten MP and GK. 266It was a virtually immediate response of the applicant when this text message was received to suggest that Tony Golossian be consulted by MP and GK. She counselled MP against going back to the priest who they had spoken to after finding of first mayia. 267On the way to the first prayer session, the applicant repeatedly told MP that it would be a dream, even though it would seem real. This was the same reassurance that Golossian offered to MP. The applicant's evidence was that she was merely repeating instructions that she had been given by GK. It was certainly the case that GK passed on instructions to the applicant as to what she was required to do in relation to prayer sessions. He said that he was simply relaying what he had been told by someone purporting to be an angel. However, he denied that this reassurance was something that he suggested to the applicant before the first prayer session (T722; 728). 268The applicant herself had only ever had one prayer session, in Golossian's prayer room, and nothing had happened (ERISP 353 - 356). So, if she had not experienced a prayer session in which things felt real but were a dream, and if it is accepted that this form of reassurance did not come from GK, the applicant must have been acting in this respect at the behest of Golossian or, perhaps, her husband. This feature strongly supports the proposition that the applicant was aware of the plan to administer Zolpidem to MP for the purpose of enabling Golossian to perpetrate a sexual assault upon her. 269There was a powerful circumstantial case presented that Zolpidem was in fact administered to MP at each of the three prayer sessions. I have earlier summarised the factual elements of that case. Once the proposition is accepted, there are two conclusions available as to who was responsible; Golossian alone and without the applicant's knowledge, or either one of Golossian and the applicant but with the knowledge and concurrence of both. 270MP's evidence was that in the first two prayer sessions, the applicant left the motel room to go and buy the juices but in relation to the third prayer session they were purchased on the way to the motel. The applicant's evidence was that the juices were purchased on the way to the motel on each occasion. If MP's evidence on this topic was accepted, the fact that the applicant purchased the orange juice and was absent from the room for a sufficient period for the drug to be dissolved in it to the point where it would be undetectable, supports the proposition that it was the applicant who laced the juice in the first two instances. The purchase on the way to the third prayer session suggests a greater possibility that it was Golossian who put the drug in the juice. In any event, it was unnecessary for the jury to determine beyond reasonable doubt whether it was Golossian or the applicant on any of the three occasions, simply that they were acting in combination. A finding beyond reasonable doubt that they were was well open, particularly having regard to them both reassuring MP that she would experience "a dream". 271The next highly relevant matter is that the applicant was present in the motel room during the course of each of the prayer sessions. The jury could well accept that she must have witnessed events including the drinking of the orange juice; the almost immediate effect of making MP unsteady on her feet (with the applicant helping her to and from the bathroom); and MP emerging from the bathroom naked, apart from a towel wrapped around her, and then laying on a bed in the presence of a man who proceeded to lay his hands on her. The applicant's claim that the decision to completely disrobe was MP's alone because she said she was concerned about getting oil on her clothes (T2817) defies belief. 272The applicant's claim to have gone to the bathroom was highly likely regarded by the jury as an attempt to find a convenient innocent, but false, explanation for her actions in the event that the jury accepted MP was sexually assaulted. For example, she said that GK had told her to go to the bathroom and recite the Lord's Prayer 15 times if she felt anything different (T2809). GK agreed that he had in fact told her that; he did so because of an instruction from the "angels" (T723). The applicant said she experienced the following during the first prayer session: I felt a sharp pain on my left wrist, and I didn't think anything of it. And then I felt someone tugging at my hair from behind. When that happened I looked behind me, I had goosebumps because that was happening to me, and I remember [GK] said to me "Whatever happens, if you feel anything, or you're not feeling right, go into the bathroom and pray 15 times" (T2818). 273It was well open to the jury to accept that even if the applicant did go to the bathroom, she must have heard things of a sexual nature. For example, at the first prayer session, even if she was in the bathroom with the door closed, how could she not have heard MP crying and saying, "Can you stop it hurts" when she was being penetrated, or an "evil" voice saying, "Pray you don't get pregnant"? In relation to the third prayer session, how could she not have been aware of a second man entering the room, having sex with the drugged complainant and then leaving? And, how did the second man know the right time to come to the room, that is, when the unwitting applicant would be in the bathroom? Why did the applicant not hear MP's sobbing when the second man was defiling her? In short, the applicant's denials of hearing such things were highly damaging to her credibility. 274I am satisfied that it was well open to the jury to be satisfied beyond reasonable doubt that MP was sexually assaulted in the manner in which she claims on each of the three occasions of the prayer sessions. Insofar as one can glean from reading a transcript, her evidence was cogent and consistent. It was supported by the fact of her prompt complaints to her husband of having been sexually assaulted on each occasion. It was further supported by the detail of her complaint to HD. In relation to the latter, I do not think the fact that HD's account did not include MP saying that a penis was forced into her mouth at the second prayer session detracts from the cogency of this evidence, as there is so much in her account that is consistent with MP's evidence. The transposition of apple juice and orange juice in her account is too trivial to be of any concern. 275The applicant's evidence supported the proposition that MP had complained. Her evidence included that on the morning after the first prayer session, GK had called her and told her that MP was speaking of having been raped. It is hard to think of a sensible explanation for MP to have complained to her husband of being sexually assaulted when, according to the applicant, immediately after the prayer session the night before, MP had been "saying how good she felt, the pains in her back weren't there, she felt fine" and that compared to the way she was before the prayer session "she was a lot happier, and she was smiling a lot" (T2820). The applicant gave similar, and equally unacceptable, evidence about the other prayer sessions. She said that after the third prayer session, MP "said the same thing as the other occasions about how good she felt after the prayer and you could see on her face a difference of happiness and smiling" (T2870). 276Once it is accepted that MP was sexually assaulted, then the fact that the applicant was present on each occasion strongly supports the proposition that she was a party too it. The contrary is a most unlikely proposition because it is against logic and human experience that a man would perpetrate such assaults in the immediate presence of someone who is completely innocent and ignorant of what was in store. 277I do not regard the evidence that MP and GK had to beg Golossian to participate in prayer sessions and that the applicant expressed reluctance about being involved as detracting at all from the Crown case. The begging was undertaken on the instructions of the "angel" (T497). Golossian always insisted that the applicant be present during the prayer sessions and, moreover, she could have refused but the fact is she did not. The conspiracy charge (Count 42) 278I am unable to conclude that it was open to the jury to find beyond reasonable doubt that the applicant was a party to an agreement with Golossian and her husband, or at least one of them, that her husband would sexually assault MP on the occasion of "the test". There was no reasonable doubt that there was a plan to trick MP into having sexual intercourse with AP; the phone call from him that the police recorded in which she was given instructions about what she was to do with him (Exhibit C) amply established that proposition. Recordings that MP made herself lend further support (Exhibit B). But, whether this was a plan to which the applicant was a party was the subject of very little evidence. 279The most persuasive of what the Crown had was the evidence of something MP claimed that the applicant said at a gathering at the time a fourth prayer session was proposed. In her evidence in chief, MP said: She [the applicant] turned around and said she had a dream that my father had died and that it was all my fault because I didn't do this prayer, this fourth prayer, and that I should get out of the church, you know, he stood up from the coffin and said 'get out, get out, it's all her fault' and Tony's response was that it was because I didn't do, if I am not going to do the prayer that is what will happen. (T172 - 173) (Emphasis added) 280When cross-examined about this, MP said: [FP] said 'I had a dream'. My father had passed away and he was in his coffin at church, he got up out of the coffin and blamed me that he was dead because I didn't do the test. ... Tony responded, was saying it was a message from the angels saying that I must do the test. (T435 - 436) (Emphasis added) 281If the latter was to be accepted, it could support a finding that the applicant was both aware of the proposed "test" and wanted to encourage MP to participate in it. However, I have added emphasis in those passages to highlight the doubt that is created as to whether this statement by the applicant was a reference to one proposed event as opposed to another. 282It was common ground that the applicant was away from the home at the time the "test" was to occur, the plan being that AP and the complainant would be alone. The Crown relied upon a text message sent by the applicant which was said to indicate that she was aware she could not come home until after the complainant had left. In my view that evidence was somewhat equivocal, having regard to there also being a text message telling her husband that he should be available to pick up the children from school at a time when the "test" might still be occurring. 283Evidence that when the applicant ultimately went home, having not been told by her husband that it was safe to do so (because he had been arrested), she drove past the house and around the block, was said by the Crown to indicate she was aware of the police presence at the home. However, the fact is that after driving around the block she did go home. 284Other evidence relied upon by the Crown to prove this conspiracy was capable of inculpating AP and, perhaps to a lesser extent, Golossian. This evidence is listed in the written submissions of the Crown Prosecutor on the no case issue, a copy of which is annexed to the Crown written submissions. However, it is unnecessary to express a concluded view about that. The point is, such evidence dis not inculpate the applicant. 285The preceding events establishing that the applicant was a party to what went on at the prayer sessions may have obscured the need to isolate and identify the evidence concerning the applicant in respect of this conspiracy. When that task is undertaken, it becomes clear in my view that there was insufficient evidence for the jury to be satisfied of her guilt beyond reasonable doubt. Orders 286I propose the following orders in respect of the application for leave to appeal against conviction: 1. Leave to appeal in respect of grounds 1 to 14 refused. 2. Leave to appeal in respect of ground 15 granted. 3. The appellant's conviction for the offence of conspiracy (count 42) quashed and a verdict of acquittal entered. 4. The appeal otherwise dismissed. Application for leave to appeal against sentence 287As indicated at the outset, an aggregate sentence of 9 years with a non-parole period of 5 years was imposed which was specified to commence on 29 April 2011. Accordingly, the applicant will become eligible for release on parole 28 April 2016. 288A requirement of imposing an aggregate sentence is that a judge is to specify the individual sentences that would have been imposed and, where a standard non-parole period is prescribed, the non-parole period as well: ss 53A and 54B Crimes (Sentencing Procedure) Act. The following were specified: * Counts 35, 37 and 39 (the s 38 offences): imprisonment for 4 years. * Count 36 and 41 (s 61J): 6 years with a non-parole period of 4 years 6 months. * Count 38 (s 61J): 5 years 4 months with a non-parole period of 4 years. * Count 42 (Conspiracy): 2 years. 289The sentence was imposed on 6 May 2011. The commencement date of 29 April 2011 was to give credit for 7 days presentence custody. Remarks on sentence 290After reciting the facts of the various offences the judge described the offences concerning MP as involving "a deliberate and calculated plan to take advantage of her vulnerable state at that time of her life". Advantage was taken of her cultural beliefs and her trust in members of her own family by marriage. The fact that MP's father was gravely ill at the time was well known to the applicant and her husband. 291Her Honour found that Golossian and AP devised and instigated the plan in relation to MP, just as they had done relation to MM. The applicant was found to have played a lesser role; her Honour also finding that she was drawn into the scheme by virtue of her marriage to AP. 292There was a victim impact statement before the court. It was described as revealing "emotional devastation" caused by the conduct of the three offenders. Her Honour found that substantial harm was caused: Crimes (Sentencing Procedure) Act, s 21A(2)(g). 293Matters personal to the applicant that were taken into account included that she was 38 years of age and had no previous convictions. Reference was made to a psychological report in which it was indicated that the applicant had been transferred to the psychiatric section of the prison due to "mental decompensation" and placed on a strong regime of psychotropic medication. I interpolate that the applicant was only in prison for 7 days before she was admitted to bail. 294The judge referred to the applicant having suffered an extreme psychological reaction and symptoms of post-traumatic stress following the revelation to the police by her brother of his conduct towards her as a child. She had previously managed to block these episodes out. The applicant was also experiencing an anxiety disorder. 295The applicant had concerns for the future welfare of her children who, at the time of sentencing, were aged 8, 13 and 15. The children had been assessed and a psychological report in respect of them indicated that they would each be severely affected by their mother's incarceration; particularly given their father would be in the same situation. The judge noted that the children were living with their grandmother who had been affected by the legal proceedings as well. She was not in good physical health and there had been an exacerbation of pre-existing mental health problems. Her Honour stated that she had taken these factors into account to the extent she was able. 296Her Honour found that the applicant was unlikely to re-offend. Special circumstances were found on the basis that she would benefit from a longer period of supervision than that provided by the statutory ratio (see however Crimes (Administration of Sentences) Regulation 2008, cl 228(1) which limits supervision in such a case to a period of up to 3 years). 297The judge made findings as to where in the range of objective seriousness the sexual assault offences committed by Golossian and AP lay. When she came to the applicant, however, she did not make any such findings. She did, however, enunciate her reasons for not imposing the standard non-parole period: prior good character; lesser role; first time in custody; and having committed the offences under the influence of her husband and Golossian. 298After referring to the number of offences for which each offender stood for sentence, her Honour said that they all were "very serious". Grounds of appeal 299Three grounds of appeal were originally notified and a fourth was added by leave (it was numbered "2A" for some reason but I will refer to it as "4"): 1. The sentence was unduly harsh and severe. 2. The objective circumstances did not warrant the sentence. 3. The sentencing judge erred in failing to take into account or sufficiently take into account the subjective features of the Appellant. 4. The sentencing judge erred in her approach to the application of the legislation setting standard non-parole periods. Submissions 300In relation to ground 2 it was submitted that the sentence was not warranted when regard was had to six matters: i. No motive was established against the applicant. ii. The applicant was not involved in any planning but simply joined in, either because of pressure and bullying by GK or some misguided belief in Golossian. iii. The applicant was not in a position of trust. iv. The applicant did not injure, abuse or degrade the complainant. v. The applicant played no part in the frightening or intimidating telephone calls. vi. The applicant received no reward for what she did. 301It was not contended that there was error on the part of the judge in respect of any of these matters. As to the first matter, the judge specifically stated that she could not be satisfied beyond reasonable doubt about what motivated the applicant. 302As to the second matter, the submission ignores evidence such as the applicant taking the complainant's underpants in order that they could be used to make her think she was the subject of a curse. 303The third matter is not entirely correct in that the judge found, appropriately, that advantage was taken of, inter alia, the complainant's trust in members of her own family by marriage. It was also said in the victim impact statement that she placed "unconditional trust" in the applicant and the applicant's husband. The applicant's role in tricking the complainant into believing that she was cursed and would have to go to extreme lengths to break it was not insignificant. 304There can be no argument about the final three matters but, if they had been present, they would amount to aggravating features. An absence of aggravating features does not mean an offence is less serious. The submission simply points out that the offences could have been worse. 305Ultimately, there is no point in determining this ground as the submissions in support of it simply refer to a limited selection of what were, or were not, present amongst the multitude of issues that were relevant to the assessment of sentence. Whether the sentence was unduly excessive remains to be considered under ground 1. 306In support of the third ground it was submitted that the sentencing judge failed to (sufficiently) take into account certain subjective features that should have pointed to leniency and the following matters were identified: i. Prior good character. ii. The applicant was a good and loving mother. iii. There was insufficient recognition or allowance for destruction of the family structure. Further, the applicant's sentence would be harsher because of her ongoing cares and concerns about her children. A finding of exceptional circumstances was "justified". iv. The applicant had already suffered significant imposition of restricted freedom in that she had "onerous bail conditions" for over two and a half years. 307The judge specifically stated that she took into account the applicant's prior good character and so there is no merit in the first contention. 308The second point is more relevant to the next as on its own it is either irrelevant, or of very marginal significance given the finding of good character. 309The limitation on the extent to which hardship to third parties may be taken into account is the subject of well settled principles: see, for example, R v Edwards (1996) 90 A Crim R 510 at 515. There is no suggestion that the very experienced sentencing judge was unaware or overlooked such principles. Indeed there is an indication that she had them well in mind when, after she referred to the evidence relevant to this topic, she said, "I have taken all these factors into account to the extent that I am able" (R/S 25). 310In her reference to the reports that were before her in relation to this issue her Honour also specifically adverted to the applicant's "concerns for the future welfare of her children". I am satisfied that she was sufficiently cognisant of the hardship to the applicant's children and their carer as well as the anguish the applicant would experience as a result. Clearly, her Honour gave careful consideration to this issue. In the end, it was a matter for her discretion to determine the extent to which the sentence should be ameliorated on account of these matters. Error would need to be demonstrated on House v The King principles before this Court could intervene: House v The King [1936] HCA 40; (1936) 55 CLR 499. It was submitted that a finding of exceptional circumstances was "justified". That is not the same as saying that the finding should have been made if the discretion was correctly exercised. In my view, no error has been shown. 311The final matter concerns the applicant being on "onerous bail conditions", it being submitted that the judge failed to take into account "the lengthy period, over 2½ years that the Appellant had been reporting between 3 and 5 times per week to police". The true position according to the Crown's submissions was that she was reporting five times per week for six weeks and then three times per week for the ensuing 2 years 2 months until the commencement of the trial. Resolution of this contention does not require determination of that dispute. 312In R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166, the Court (Tobias JA, James and Howie JJ) considered the issue of whether onerous bail conditions should be taken into account and said: [242] We accept that in an appropriate case the length and terms of an offender's period on bail awaiting trial or sentence is a matter relevant to the determination of the proper sentence to be imposed. What weight is to be given to such a matter will vary from case to case, depending upon what other factors need to be considered and what sentence is required in the particular case to address the purpose of punishment. Where that purpose is the protection of the community and the conditions of bail are particularly onerous, such as where the offender has been required to reside at a rehabilitation establishment, very significant weight might be placed upon such a factor where it is appropriate having regard to the nature of the offence. However, in other cases, less weight may be given to such a consideration, particularly where the imposition of a sentence of imprisonment is required for the purposes of denouncing the crime and reflecting general deterrence. 313A submission was made to her Honour that she should take this matter into account (1.4.11 at T6.35) but there was no mention of it in the sentencing remarks. I do not believe that there was any error. The applicant lived at Enfield and was required to report to a police station that was not a significant distance from her home at Burwood, probably less than three kilometres. I take the same approach as that taken by Grove J in R v Webb [2004] NSWCCA 330; (2004) 149 A Crim R 167: [18] ... It is undoubtedly open to a sentencing judge to take into account onerous conditions of bail in assessing sentence but he [or she] is not obliged so to do. The circumstances in which the applicant was on bail in this case do not mandate any such mitigation of sentence ... . 314The new ground of appeal against sentence, which I have numbered four, involves a contention that the sentencing judge's approach to the standard non-parole period for the sexual assault offences was contrary to the principles in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. The sentencing exercise in the present case occurred before the courts of this State had the benefit of Muldrock, when judges and practitioners understood that the longstanding authority of R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, in respect of which the High Court had refused to grant special leave to appeal, prescribed the correct approach. 315The written submissions for the applicant included that her Honour erred in: i. apparently incorrectly construing that the application of the non-parole period legislation mandated a particular non-parole period for a particular offence; ii. apparently treating the non-parole period as if it were the necessary starting point or the only important end-point in framing a sentence; iii. apparently giving determinative or even primary significance to the prescribed period when it was only one of a large number of matters to be taken into account; and iv. commencing with a non-parole period as prescribed under the legislation which she would have imposed as the non-parole period, but for the existence/application of the matters set out therein. 316The use of the word "apparently" in respect of the first three contentions may be taken as a concession that it is not at all clear that the contention is correct. In any event, none of these submissions are borne out by what her Honour actually said. I have summarised the sentencing remarks above. They have all the hallmarks of her Honour taking all relevant matters into account, including the maximum penalty and the standard non-parole period as guideposts, in the manner required by Muldrock. 317The fact that the judge gave reasons for not imposing the standard non-parole period was consistent with what was required by R v Way and is not inconsistent with what was said in Muldrock. The joint judgment in the latter includes: [29] A central purpose of Div 1A is to require sentencing judges to state fully the reasons for arriving at the sentence imposed. The reference in s 54B(4) to "mak[ing] a record of its reasons for increasing or reducing the standard non-parole period" is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed. The obligation applies in sentencing for all Div 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low, middle or high range of objective seriousness for such offences. 318I do not accept that there was anything erroneous in her Honour's approach in relation to the standard non-parole period for the aggravated sexual assault offences. She did not purport to "attribute mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period". She did not, in the case of the applicant, "classify the objective seriousness of the offending", although indicating how serious a judge regards an offence is basic sentencing practice: Zreika v R [2012] NSWCCA 44 at [46] per Johnson J. She did identify fully the facts, matters and circumstances which bore upon her judgment as to the appropriate sentence to impose. She did not commence with the question of whether there were reasons for not imposing the standard non-parole period (Muldrock at [25]) or adopt a "two-stage approach" (Muldrock at [27]). 319Her Honour's approach in this case may be contrasted with that which was found recently to be erroneous in Mendes v R [2012] NSWCCA 103. In that case her Honour first stated the question whether she should impose the standard non-parole period; said that she found that the offence in question fell in the middle of the range of objective seriousness; and then gave reasons for not imposing the standard. In the present case, her Honour did not commence with the question of whether the standard should be imposed and then make a finding as to where in the range of objective seriousness the offence fell. 320There is nothing in what her Honour said that justifies the submission that she "impermissibly limited the full exercise of her discretion" (Further AWS at (d)). 321I would reject this ground. 322That leaves the first ground to be considered. Nothing was put in the written submissions for the applicant that was specifically devoted to it. There was no attempt to engage with the basic propositions set out in the respondent's submissions. 323To make good this ground it is necessary for the applicant to establish that the sentence was unreasonable or plainly unjust: Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at 370-371 [25]. This Court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised her discretion: Lowndes v R [1999] HCA 29; 195 CLR 665 at 671-672 [15]. Intervention by this Court on a ground that the sentence is manifestly excessive is not warranted simply because the sentence is markedly different from other sentences that have been imposed in other cases: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 605 [58]; Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 538 [59]. 324Mr Ramage said in the course of his oral submissions: I concede at first blush the sentences were not dramatically high. On the other hand, this was a case where she was sentencing a mother of three children who had no prior convictions whatsoever and led a blameless life until then. (31.1.12 at T36.27) 325Is an aggregate sentence of 9 years "plainly unjust" for a person who played a significant role in facilitating the unlawful drugging and sexual penetration of a woman on three separate occasions? The circumstances attending the offences were certainly unusual but that did not diminish their seriousness. Of the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act, general deterrence, punishment, denunciation and making the applicant accountable for her actions were significant in the applicant's case. There is, on the other hand, every reason to be sympathetic to the plight of the applicant's children and her anxiety in being separated from them. There are, however, limitations on the significance of those features. Leniency was warranted on account of the applicant's prior good character, lack of previous convictions and unlikelihood of reoffending. 326Giving full force to all matters favourable to the applicant, I am left in the position of being unpersuaded that the sentence was manifestly excessive. 327A question remains whether there should be some downward adjustment of the aggregate sentence to give effect to my conclusion that the conviction for the conspiracy offence was not supported by the evidence and should be quashed. One of the difficulties with aggregate sentencing is that this Court does not know what the sentencing judge would have regarded as appropriate to reflect the totality of criminality if the convictions were confined to the s 38 and s 61J offences. The only indication of her view of the seriousness of that offence is that she said she would have imposed an individual sentence of 2 years. When that is compared to the indicative sentences of 4 years, 5 years 4 months and 6 years for the other offences, it would seem that the conspiracy was regarded as significantly less serious. 328There was a suggestion during the course of oral submissions that, if a question arose as to resentence following this Court quashing any conviction, the matter should be remitted to the District Court (1.2.12 at T5). Given that what I propose is the quashing of only the conspiracy count, and not one or more of the more serious counts, it is my view that this Court should make its own assessment on resentence. 329The conspiracy made some contribution to the totality of criminality. There should be a reduction of the aggregate sentence to reflect this but it should not be great. I propose a period of 6 months with a proportional reduction of the non-parole period. Orders 330I reiterate that I propose the following orders in respect of the application for leave to appeal against conviction: 1. Leave to appeal in respect of grounds 1 to 14 refused. 2. Leave to appeal in respect of ground 15 granted. 3. The appellant's conviction for the offence of conspiracy (count 42) quashed and a verdict of acquittal entered. 4. The appeal otherwise dismissed. 331I propose the following orders in respect of the application for leave to appeal against sentence: 1. Leave to appeal against sentence allowed. 2. Aggregate sentence of imprisonment for 9 years with non-parole period of 5 years quashed. 3. In lieu, sentenced to an aggregate term of imprisonment of 8 years 6 months with a non-parole period of 4 years 8 months to date from 29 April 2011. The offender will be eligible for release on parole upon the expiration of the non-parole period on 28 December 2015. 4. Pursuant to s 53A(2)(b) Crimes (Sentencing Procedure) Act 1999, the sentences that would have been imposed for each of the offences against ss 38 and 61J Crimes Act 1900 had separate sentences been imposed are the same as indicated by the District Court. 332SCHMIDT J: I agree with R A Hulme J. ********** Amendments 24 August 2012 - removed "PAGE \# "'Page: '#'' reference Amended paragraphs: 175 18 October 2012 - McClellan CJ at CL replaced with Johnson J Amended paragraphs: 318 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: 18 October 2012